People v. Rodriguez

• Decision Date: 18 May 2011
• Docket Number: Super. Ct. No. RIF090811,G041444
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOE MARTIN RODRIGUEZ and DANIEL ANGEL LOPEZ, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.JOE MARTIN RODRIGUEZ and DANIEL ANGEL LOPEZ, Defendants and Appellants.

G041444

Super. Ct. No. RIF090811

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Dated: May 18, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Riverside County, Terrence R. Boren, Judge. Affirmed in part and reversed in part, with directions.

Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant Joe Martin Rodriguez.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Angel Lopez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and

Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

***

In a joint trial with Daniel Angel Lopez and Julian Mendez, a jury convicted Joe Martin Rodriguez of premeditated first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code unless noted) for aiding and abetting the shooting death of 14-year-old Jessica Salazar and found true the special circumstance Rodriguez killed Salazar to prevent her testimony because she witnessed the slaying of her 16-year-old friend, Michael Faria (§ 190.2, subd. (a)(10)). The jury also found to be true the allegations Rodriguez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)) and he was vicariously armed as a principal in the slaying (§ 12022, subd. (a)(1)), but found he did not personally discharge the weapon (§ 12022.53, subd. (d)). The jury could not reach a verdict concerning Rodriguez's participation in Faria's killing, acquitted Lopez of Faria's murder, and could not reach a verdict concerning Lopez's role in Salazar's death.¹

In a second joint trial with Lopez, the jury convicted Rodriguez of premeditated first degree murder for aiding and abetting Faria's shooting death, and found true the gang allegation (§ 186.22, subd. (b)) and multiple firearm allegations (§§ 12022, subd. (a)(1), 12022.53, subds. (d) & (e)(1)). Rodriguez waived a jury trial on a special circumstance for multiple murder convictions (§ 190.2, subd. (a)(3)) and, after the jury's verdict, Rodriguez admitted the truth of the special circumstance.

The jury convicted Lopez of premeditated first degree murder (§ 187, subd. (a)) for aiding and abetting Salazar's death, found true the special circumstance of slaying a witness to prevent her testimony (§ 190.2, subd. (a)(10)), and also found gang and firearm enhancement allegations to be true (§§ 186.22, subd. (b), 12022, subd. (a)(1), 12022.53, subds. (d) & (e)(1)).

Rodriguez and Lopez raise 12 issues on appeal, and join in each other's arguments where relevant. They raise two constitutional issues concerning jury selection and the failure to swear an alternate juror who became a regular juror. Specifically, they assert the prosecutor discriminated against Hispanic women in exercising her peremptory strikes (see Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 278-282 (Wheeler)), and they argue the failure to swear the alternate as a regular juror violated their right to an impartial jury and rendered the second trial a nullity.

Defendants raise six issues pertinent to the evidence presented at the respective trials, including: (1) the sufficiency of the evidence to support the conclusion Rodriguez intended to kill Salazar; (2) the sufficiency of the evidence Rodriguez should have known the natural and probable consequences of assaulting Faria included his shooting death; (3) the validity of Rodriguez's plea to the multiple murder special circumstance; (4) the sufficiency of the evidence Lopez intended to kill Salazar; (5) whether the trial court permitted overbroad gang expert testimony (see People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew)); and (6) whether sufficient evidence supported the jury's findings on the gang allegations.

Defendants raise four issues concerning verdict and postverdict matters, including: (1) whether the trial court in the first trial properly allowed the jury to addressan inconsistency in its verdict concerning the allegation Rodriguez was armed;

(2) whether the trial court properly imposed a firearm enhancement under section 12022.53 on Rodriguez despite the jury's finding he did not personally discharge the weapon; (3) whether imposition of the firearm enhancement under section 12022.53 based on a murder conviction violates double jeopardy principles; and (4) whether Rodriguez was entitled to custody credits for four years of jail time between the first and second trials.

As we explain, based on the prosecutor's decision to identify and present only a narrow class of crimes (murder) as evidence of a pattern of criminal gang activity, the gang enhancements on Rodriguez's conviction in the second trial for murdering Faria must be stricken, but his sentence of life in prison without the possibility of parole remains undisturbed. Thus, we direct the trial court to strike the gang allegations on count 1, and we affirm the judgment in all other respects

IFACTUAL AND PROCEDURAL BACKGROUND

As Salazar, Faria, 13-year-old David Flores, 17-year-old Sergio Lizarraga and a few others walked along a street in Colton around 10:00 p.m. on February 4, 2000, a black SUV pulled up nearby. The driver, Samuel Redmond, left the vehicle but did not engage Lizarraga's group. Salazar spoke briefly with two men in the SUV until Lizarraga prompted her, "Let's go," but she turned back to the SUV when one of the occupants, Rodriguez, said, "I think I know you." No one in Lizarraga's group belonged to a gang, but Faria asked Rodriguez "where he was from."²

Rodriguez turned the challenge back on Faria and, when Faria answered that he "backed up" Westside Verdugo Rodriguez jeered, "Fuck the West" and announced his allegiance to a rival gang, Northside Colton. Aware that gang members carry guns, Lizarraga believed it was "common knowledge" "someone could get shot" as a result of the brewing confrontation. He tried to defuse matters even when Rodriguez punched him in the jaw, responding, "It's cool," "chill," "We don't want no trouble."

But a red car had pulled up earlier, and several men exited it and joined Rodriguez and Mendez in chasing Lizarraga's group down the street. The pursuers "jumped" Faria, knocked him to the ground, and began punching, kicking, and stomping on him. Faria could not defend himself. Within 35 seconds, Lizarraga heard two or three gunshots. He had tried to run to Faria's aid, but someone grabbed his shirt and started to punch him until Salazar interjected that Lizarraga was "cool" and "not from nowhere." Lizarraga found Faria unconscious, but breathing loudly. He had a spot of blood in the center of his shirt. He died at a hospital 14 hours later from gunshot wounds to the head and abdomen. Lizarraga could not find Salazar after the paramedics left.

Redmond testified as a prosecution witness at both trials, having entered a plea agreement to testify truthfully in exchange for two life sentences without the possibility of parole. He explained he and Lopez had stepped out of the SUV and crossed the street to speak with some friends, but when the fight erupted, someone retrieved a gun from a nearby house and, accompanied by Lopez, headed towards the fracas. But Lopez ran back towards Redmond, telling him to hurry to pick up Mendez. Redmond and Lopez jumped into the SUV, soon joined by Rodriguez and Mendez, who held a gun in his hand.

Salazar stood alone on the sidewalk, hysterical and crying. Mendez ordered Rodriguez to get her into the car. Rodriguez opened the door, Salazar climbed in, and Redmond sped away to some nearby apartments, where he told everyone to leave the vehicle, but Mendez overruled him, ordering him onto the freeway. While Salazar cried hysterically and repeatedly asked, "Why did you do that," Redmond drove for about 25 minutes until he stopped for gas. Lopez pumped the gas while Mendez met with Rodriguez and Redmond in the restroom, where Mendez voiced, "She's gotta die."

Back in the SUV, Redmond drove another 20 to 30 minutes into a hilly area, turning onto a dirt byway, Pigeon Pass Road. He pulled over when someone claimed a need to relieve himself, and all four men met at the back of the car. Again pronouncing that Salazar had to die, Mendez wanted Rodriguez to shoot her. When Rodriguez refused, Mendez told him to force Salazar out of the car. Rodriguez returned to one side of the car, and Lopez the other, and after Rodriguez dragged Salazar out of the vehicle — as she cried, resisted, and screamed, "Don't" — he reentered the back seat. Shaking, Salazar tripped, fell to the ground, held her hands up, crying and pleading, "[N]o," "Don't" and "Why are you doing this," but Mendez shot her. He tried to shoot her again, but the gun jammed. Mendez and his cohorts departed, but Redmond's later arrest led to apprehension of the others.

In a police interview, Rodriguez admitted he threw the first punch at each of two males in the initial confrontation at the SUV. He chased and caught the second male, beating him down to the ground. When the victim lost consciousness, Rodriguez turned to walk back to the car. He knew Mendez had a gun. He spotted Mendez standing over the victim, and then he heard four gunshots. According to Rodriguez, he told Mendez in the restroom on the way to Pigeon Pass Road, "I will not be involved in thekilling of a girl." When Mendez ordered him to get Salazar out...