People v. Rodriguez CA2/7

Filed 11/13/20 P. v. Rodriguez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B298710

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113129)
v.

WILFREDO RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Juan C. Dominguez, Judge. Affirmed with
directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and David A. Wildman, Deputy
Attorney General, for Plaintiff and Respondent.
_____________________________
 INTRODUCTION

Wilfredo Rodriguez appeals from the judgment entered
after a jury convicted him on one count of first degree murder,
three counts of attempted willful, deliberate, and premeditated
murder, and one count of unlawful possession of a firearm. He
contends that the trial court erroneously omitted instructions
relating to self-defense, that his counsel rendered ineffective
assistance by not requesting those instructions, that substantial
evidence did not support findings the murder and attempted
murders were deliberate and premeditated, that his counsel
rendered ineffective assistance in the proceeding held under
People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and that the
abstract of judgment must be corrected. We agree the trial court
must correct the abstract of judgment, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Rodriguez and a Companion Confront Miguel
Hernandez and Fernando Basurto in a Garage
Frank and Miguel Hernandez were brothers and often
spent time listening to music and drinking beer with their friends
in a garage at an apartment complex in Rowland Heights where
Frank and Miguel lived with their parents. The garage opened
onto an alley, and from there a walkway led to the Hernandez
family’s apartment, 25 to 30 feet away. Frank and his friends
had spray painted one interior wall of the garage with graffiti,

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which included the name of a local tagging crew, “Young Fellas,”
and its initials, “Y.F.”1
Late one night in May 2016, Miguel and his friend
Fernando Basurto were standing in the garage, with their backs
to the entrance, when Miguel heard an unfamiliar voice ask, “Do
you bang?” Miguel turned to find that Rodriguez and Cardenas
Estrellas had walked into the garage and were standing several
feet inside the entrance. Miguel did not know either man. And
according to his testimony at trial, he was immediately “a little
scared,” because Rodriguez had reached inside his zip-up hoodie
and pulled out a pistol.
According to Miguel’s trial testimony, Estrellas then
repeated the question, “Do you bang?” Miguel understood
Estrellas to be asking him and Basurto whether they were
members of a gang, and both Miguel and Basurto said no.
Estrellas then asked Miguel and Basurto “where they were from,”
which again Miguel understood to mean whether they were from
a gang, and again he and Basurto said they were not in a gang.
Estrellas then said to Miguel, “Don’t rank it,” which Miguel
understood to mean “don’t be scared.” Miguel answered that he
was “not ranking it” and that he “wasn’t from anywhere.” Miguel
testified at trial, however, that he was in fact scared because
throughout this conversation Rodriguez continued to hold the
pistol outside his hoodie, near his stomach, angled downward,

1 A tagging crew, according to a gang expert who testified at
trial, is a group whose “main purpose is to graffiti, to basically get
their name out there.” (See In re Angel R. (2008) 163 Cal.App.4th
905, 912, fn. 6 [“Tagging is the term for marking walls and
surfaces with graffiti. A tagging crew is a group of taggers
formed for the specific purpose of marking surfaces with
identifying letters, names or logos.”].)

3
while he looked at Miguel and Basurto. Miguel testified he could
tell from the sound of Basurto’s voice that he, too, was scared.
Estrellas said he was from “Dub-I.D.,” a Rowland Heights
gang with which Miguel was familiar, sometimes also referred to
as “W.I.D.,” an initialism for “Wicked Insane Diablos.”2 Both
Estrellas and Rodriguez gave their “nicknames.” Estrellas
continued to talk to Miguel and Basurto, at one point asking
whether they were in “Y.F.” Though Miguel was familiar with
the group, neither he nor Basurto was a member, and they said
so. Estrellas pulled out a spray paint can and asked Miguel if he
could spray paint on the wall of the garage. His manner in
asking was “aggressive,” which Miguel understood “as a
statement that he was going to do it.” Miguel did not want him
to do it, but because he was afraid to say no, he told him to “go
ahead if [he] wanted to.” During this seven- or eight-minute
conversation, Estrellas and Rodriguez remained standing just
inside the garage’s entrance. Miguel could not leave the garage
without bumping into them, and he was afraid that if he tried to
leave, Rodriguez might shoot him.

B. Frank Hernandez and Carlos Cardenas Arrive
At this point Miguel’s brother Frank came down the
walkway from their family’s apartment, drinking a beer. On
reaching the garage, he saw Rodriguez and Estrellas, neither of
whom he knew, standing in the entrance. As the two men turned
to face him, Frank knew something was “wrong,” as he testified

2 “An initialism is a set of initials pronounced separately,
and an acronym is a set of initials pronounced as a word.”
(Condlin, Online Dispute Resolution: Stinky, Repugnant, or Drab
(2017) 18 Cardozo J. Conflict Resol. 717, 717, fn. 1.)

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at trial, because Rodriguez was holding a semi-automatic, nine-
millimeter Glock pistol at his waist, pointed downward.
Rodriguez and Estrellas stepped toward Frank, and Estrellas
asked him whether he was in a gang. Frank said he was not.
Estrellas asked him whether he was in “Y.F.” Frank said he was
not. Estrellas tried to grab Frank’s arm and told him to “get
inside the garage” because he “needed to talk to” Frank. Frank
did not want to enter the garage because he felt Rodriguez and
Estrellas “were trying to trap us inside,” but he complied out of
fear that, if he did not do as he was told, Rodriguez might shoot
him, Miguel, and Basurto.
After Frank joined Miguel and Basurto inside the garage,
Estrellas continued to ask the three of them whether they were
in Y.F., a question Frank understood was not “friendly.” Frank,
Miguel, and Basurto continued to tell Estrellas they were not in
Y.F. When Rodriguez and Estrellas again said they were from
“W.I.D.,” Frank tried to “calm the situation” by telling them he
knew some people in the gang. Estrellas said he “didn’t care.”
Frank was now “scared” Rodriguez was going to shoot him,
Miguel, and Basurto.
At this point Carlos Cardenas, a friend of the Hernandez
family, came down the walkway from the apartment. As he
neared the entrance to the garage, he saw Rodriguez and
Estrellas standing inside. He assumed they were friends of
Frank and Miguel whom he had not met. Rodriguez and
Estrellas noticed Cardenas and “rushed up to” him. Cardenas
testified at trial that Rodriguez, keeping one hand behind his
back, shook hands with him, said he and Estrellas were “looking
for people from Y.F.,” and asked if Cardenas was “from Y.F.”
Rodriguez also said he was from W.I.D., gave his “gang name,”

5
and asked Cardenas where he was “from.” Cardenas said he was
“not from nowhere,” meaning he was not in “a gang or a crew or
anything like that.”

C. The Shooting Starts
As Rodriguez was talking to Cardenas, Miguel bumped into
Frank, causing him to spill his beer on Estrellas’s shoes.
Estrellas said, “You spilled beer on my fucking shoes.” This
“scared” Frank, who “felt the situation was escalating.” At that
point he also saw and heard Rodriguez, who was still talking to
Cardenas, work the slide of the pistol to “rack[ ] a round” into the
chamber. Noticing a wooden baseball bat leaned against a
nearby pillar, Frank quietly gestured Miguel aside, picked up the
bat, and swung it at Rodriguez’s head. Frank testified he did this
because he was afraid Rodriguez was about to shoot “all of us”
and he wanted “to disarm him.”
After Frank struck him in the head, Rodriguez stumbled
several steps away from the garage, but held onto the gun.
Frank followed him and, seeing “he wasn’t disarmed,” swung
again, this time hitting Rodriguez in the back. Still Rodriguez
held onto the gun, and as Frank advanced to hit him again with
the bat, Rodriguez pointed the gun at Frank’s face and fired.
Frank, who was about five feet from Rodriguez when he fired,
dropped to the ground, avoiding the shot, and ran halfway up the
walkway toward the apartment.
Rodriguez entered the garage, firing at least four or five
more shots. Miguel, who had begun to fight with Estrellas,
believed Rodriguez was shooting at him, and he pulled Estrellas
close to use him as a shield, and then ducked behind a parked
car. Miguel testified at trial that “there was a pause with each

6
gunshot,” that the gunfire “wasn’t rapid,” and that at one point
he saw Basurto, who was standing two or three feet from him,
“drop,” though he did not know whether Basurto had been shot or
was trying to avoid getting shot. After these initial shots, Miguel
left the garage and ran down the alley. As he ran away, Miguel
saw Rodriguez point the gun at him, and Miguel covered his head
with his hands and “just ran,” hearing at least two more shots as
he fled. Frank also saw Rodriguez firing at Miguel as Miguel
ran.
None of the shots hit Miguel, and a short distance away he
hid behind a dumpster. He heard someone run along the alley
toward him and continue running past him, toward the street at
the end of the alley. Miguel ran back to an area near his
apartment, where he met Frank and said he thought Basurto had
been shot. Miguel and Frank entered the garage and found
Basurto, lying on the ground, bleeding from a wound in the back
of his head. His eyes were “opening and closing,” but he was not
responsive. Miguel and Frank hugged him and told him they
loved him.
At trial Cardenas testified he saw Rodriguez aim and fire
the first shot at Frank, and then saw Rodriguez continue firing
the gun while “sort of moving it around, going to all of us.” At
one point he saw Rodriguez aim the gun at him as he fired, and
stucco from the garage wall hit Cardenas in the face, but none of
the bullets hit him. As Rodriguez was pointing the gun at
Miguel, Cardenas turned and ran along the walkway to the
apartment. Once inside, he told Vanessa Hernandez, Frank and
Miguel’s adult sister, to call 911, and then returned to the garage
to look for Frank and Miguel.

7
 Vanessa had been lying awake in bed, less than 30 feet
from the garage, when she heard gunshots from the alley. She
estimated there were initially four shots, followed by “a little bit
of space, a few seconds, and then a few more” shots. Between
those two sets of shots, she heard Basurto yell in a “scared” voice,
“I ain’t got nothing to do with this, man!” After Cardenas came
in, Vanessa called 911, and while she was talking to the 911
emergency operator, Miguel came into the apartment and
provided further details of the shooting, including that Basurto
was shot.
Cardenas, meanwhile, had returned to the garage, where
he found Basurto lying dead. An autopsy revealed Basurto was
shot in the back of the neck, with the bullet passing through the
base of his skull and exiting his face. The medical examiner
concluded to a certainty that he was shot from behind. He also
concluded that death was almost instantaneous and that Basurto
could not have spoken after the bullet struck him.

D. A Jury Convicts Rodriguez of Murder, Attempted
Murder, and Unlawful Possession of a Firearm
The People charged Rodriguez with one count of murder
(Pen. Code, § 187, subd. (a); count 1),3 three counts of attempted
willful, deliberate, and premeditated murder (§§ 664, subd. (a),
187, subd. (a); counts 2, 3, 4), and one count of unlawful
possession of a firearm (§ 29820, subd. (b); count 5).4 On counts 1
through 4, the People alleged that, within the meaning of section

3 Statutory references are to the Penal Code.

4 Estrellas was tried with Rodriguez, but is not a party to
this appeal.

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12022.53, subdivisions (b), (c), and (d), Rodriguez personally and
intentionally used and discharged a firearm causing death and,
within the meaning of section 12022.53, subdivisions (b), (c), (d),
and (e)(1), a principal personally and intentionally used and
discharged a firearm causing death. On all counts, the People
alleged Rodriguez committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang, with
the intent to promote, further, or assist in criminal conduct by
gang members. (§ 186.22, subds. (b)(1)(C), (b)(1)(A), (b)(5).)
Miguel, Frank, Cardenas, Vanessa, and the People’s gang
expert, among others, testified at trial. The gang expert testified
about the history, structure, rivals, and criminal activity of
W.I.D. He explained that in May 2016 W.I.D. claimed territory
that included Rowland Heights and that, although a tagging crew
operating in that territory did not pose a threat to the gang,
W.I.D. “would probably hit them up to tax them,” i.e., “get money
from them,” and would not “allow them freely to go and just tag
in the area.” He also testified “there is basically no right
answer,” i.e., no answer that would not “lead to violence,” when a
gang member asks, “Where are you from?” The gang expert
further testified to the importance of “respect,” or being “feared”
as a “violent person,” among gang members and the need for a
gang member to “retaliate” against someone who engages him in
a fight if the gang member does not want to lose his “standing” in
the gang. Given a hypothetical mirroring the circumstances of
the shooting here, the expert opined the shooter and his
accomplice acted for the benefit of or in association with W.I.D.
Rodriguez’s defense, as presented in his counsel’s opening
statement and closing argument, was that he was justified in
producing and firing the pistol to defend himself against a lethal

9
and entirely unprovoked attack by Frank. Citing inconsistent
accounts the Hernandez brothers and Cardenas gave police
during the investigation of the incident, which included initially
failing to mention Frank had attacked Rodriguez with a baseball
bat and giving conflicting statements about when they first saw
the gun in Rodriguez’s hand, counsel for Rodriguez sought to
impeach the trial testimony of Frank, Miguel, and Cardenas
about, in particular, the “tone,” “environment,” and “mood” in the
garage prior to Frank’s arrival and subsequent attack with the
bat. Specifically, counsel for Rodriguez sought to persuade the
jury that Rodriguez was not holding the gun outside his hoodie
from the beginning of the encounter, but instead pulled it out
only after Frank attacked him with the bat; that “things were
calm,” “[n]obody was threatened,” and “[t]hey were talking about
the graffiti on the garage until Frankie comes down”; and that
“all of a sudden” Frank, “a hothead” who was “already angry” for
unrelated reasons “before the defendants even come up,” “out of
anger and out of bravado and maybe feeling, hey, who are these
guys in my garage asking to tag on my wall? F-them. Bam. And
he hits them. And my client returns, and one of their friends
dies.”
The jury convicted Rodriguez on all counts, found the
murder of Basurto was in the first degree, and found true all
firearm and gang allegations. The court sentenced Rodriguez to
a prison term of 95 years to life as follows: on count 1, 25 years to
life, plus 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d); on each of counts 2, 3, and 4, 15
years to life; and on count 5, the middle term of two years, plus
the middle term of three years for the gang enhancement under

10
section 186.22, subdivision (b)(1)(A), to run concurrently with the
other terms.5 Rodriguez timely appealed.

DISCUSSION

A. The Trial Court Did Not Err in Omitting Escalation
Instructions on Self-Defense, and Counsel for
Rodriguez Did Not Provide Ineffective Assistance by
Not Requesting Them
Instructing on Rodriguez’s right to self-defense, the trial
court gave CALCRIM No. 3471, “Right to Self-Defense: Initial
Aggressor”: “A person who starts a fight has a right to self-
defense only if: [¶] 1) He actually and in good faith tried to stop
fighting; AND [¶] 2) He indicated, by word or by conduct, to his
opponent, in a way that a reasonable person would understand,
that he wanted to stop fighting and that he had stopped fighting.
[¶] If the defendant meets these requirements, he then had a
right to self-defense if the opponent continued to fight.” The
court also instructed the jury with CALCRIM No. 3472, “Right to

5 The court did not impose a gang enhancement on the other
counts, stating “the 186.22(b)(1)(C) allegation also found to be
true, the court does not impose this term pursuant to People v.
Lopez [(2005)] 34 Cal.4th 1002. This was error. In Lopez the
Supreme Court held that first degree murder committed for the
benefit of a gang is subject to the 15-year minimum parole
eligibility term in section 186.22, subdivision (b)(5), rather than
the 10-year enhancement in section 186.22, subdivision (b)(1)(C).
(Lopez, at pp. 1006-1007; see People v. Elizalde (2015) 61 Cal.4th
523, 539, fn. 10; People v. Cerda (2020) 45 Cal.App.5th 1, 14,
fn. 9, review granted May 13, 2020, S260915; People v. Francis
(2017) 16 Cal.App.5th 876, 886.) The court should have imposed
the 15-year minimum parole eligibility term.

11
Self-Defense: May Not Be Contrived”: “A person does not have
the right to self-defense if he provokes a fight or quarrel with the
intent to create an excuse to use force.”6 Rodriguez concedes he
did not object or request modifications to these instructions.
Nevertheless, Rodriguez contends the trial court erred in
omitting “the sudden escalation portion” of CALCRIM No. 3471,
which states: “[However, if the defendant used only non-deadly
force, and the opponent responded with such sudden and deadly
force that the defendant could not withdraw from the fight, then
the defendant had the right to defend (himself/herself) with
deadly force and was not required to try to stop fighting(,/ or)
communicate the desire to stop to the opponent[, or give the
opponent a chance to stop fighting].]” He also contends the trial
court erred in not modifying CALCRIM No. 3472 to include a
statement that “a person who provokes a fight or quarrel with an
intent to use nondeadly force regains the right to self-defense if
his opponent counters with deadly force.” Rodriguez further
contends that, “to the extent an objection or affirmative request
to modify any of the challenged instructions was required,” we
should resolve the issue “on its merits because under those
circumstances appellant received the ineffective assistance of
counsel.” The trial court did not err, however, and counsel for
Rodriguez did not render ineffective assistance.

6 The trial court also instructed on the lesser included
offenses of voluntary manslaughter and attempted voluntary
manslaughter based on a heat of passion theory and voluntary
manslaughter and attempted voluntary manslaughter based on
imperfect self-defense.

12
 1. The Trial Court Had No Duty To Instruct on an
Escalation Theory
“‘“It is settled that in criminal cases, even in the absence of
a request, a trial court must instruct on general principles of law
relevant to the issues raised by the evidence”’ and ‘“necessary for
the jury’s understanding of the case.’” [Citations.] It is also well
settled that this duty to instruct extends to defenses ‘if it appears
. . . the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the defense
is not inconsistent with the defendant’s theory of the case.’”
(People v. Brooks (2017) 3 Cal.5th 1, 73; see People v. Jennings
(2019) 42 Cal.App.5th 664, 676-677 [“‘a trial court’s duty to
instruct, sua sponte, . . . on particular defenses is more limited
[than its duty to instruct on lesser included offenses], arising
“only if it appears that the defendant is relying on such a defense,
or if there is substantial evidence supportive of such a defense and
the defense is not inconsistent with the defendant’s theory of the
case”’”].) “We review de novo a claim that the trial court failed to
properly instruct the jury on the applicable principles of law.”
(People v. Canizalez (2011) 197 Cal.App.4th 832, 850; accord,
People v. Dearborne (2019) 34 Cal.App.5th 250, 260.)
Rodriguez suggests the version of CALCRIM No. 3471 the
trial court gave was incomplete because it did not include the
principle that, when an initial aggressor uses “non-deadly force
and his opponent suddenly escalates the conflict with the use of
deadly force such that the defendant has no time to withdraw,
the defendant may defend himself or herself using deadly force
without first satisfying the withdrawal requirements set forth in
CALCRIM No. 3471.” (See People v. Salazar (2016) 63 Cal.4th
214, 249 (Salazar) [“‘“where [a] counter assault is so sudden and

13
perilous that no opportunity be given to decline further to fight
and [the defendant] cannot retreat with safety he is justified in
slaying in self-defense”’”]; People v. Quach (2004) 116 Cal.App.4th
294, 301 [“‘Where the original aggressor is not guilty of a deadly
attack, but of a simple assault or trespass, the victim has no right
to use deadly or other excessive force. . . . If the victim uses such
force, the aggressor’s right of self-defense arises. . . .’”].)
Rodriguez maintains the trial court had a duty to include a
statement of this principle in CALCRIM No. 3471 because the
“evidence did not clearly establish [he] had his gun out on
display” before Frank attacked him with a bat and, thus, there
was substantial evidence that, although Rodriguez was the
“initial aggressor,” it was Frank who first used the sudden,
deadly force of the baseball bat.
Similarly, Rodriguez argues CALCRIM No. 3472, in the
unmodified form given by the trial court, failed to include the
principle that “a person who provokes a fight or quarrel with an
intent to use nondeadly force regains the right to perfect or
imperfect self-defense when his or her opponent counters with
deadly force.” (See People v. Ramirez (2015) 233 Cal.App.4th 940,
950 [trial court erred in giving CALCRIM No. 3472 without
modification because the instruction “entirely precluded
defendants’ self-defense claim,” regardless whether “the original
victim escalated a nondeadly conflict to deadly proportions”].) He
maintains the court had a sua sponte duty to modify the
instruction to include this principle because, again, there was
substantial evidence Rodriguez “provoked only a non-deadly
confrontation,” to which Frank responded with deadly force.
The trial court did not have the sua sponte duty to instruct
as Rodriguez suggests. Substantial evidence did not support

14
modifying either instruction as proposed because there was no
evidence that, at any time, Rodriguez used or had an intent to
use “nondeadly force.” Certainly there was evidence he used and
intended to use the deadly force of the pistol (see Salazar, supra,
63 Cal.4th at p. 249 [sudden escalation instruction does not apply
where original assailant “‘makes a felonious assault upon
another[ ] or has created appearances justifying the other to
launch a deadly counterattack in self-defense’” (italics omitted)];
People v. Gleghorn (1987) 193 Cal.App.3d 196, 201 [same]), and
arguably there was evidence he used and intended to use no force
at all until Frank hit him with the bat. But there was no
evidence that, before Frank hit him with the bat, Rodriguez
committed or intended to provoke, for example, a nondeadly
“simple assault.” (Salazar, at p. 249; see id. at pp. 249-250
[defendant was not entitled to sudden escalation instruction on
self-defense because “the evidence did not support a finding that
defendant was guilty only of simple assault when he initiated the
confrontation by approaching the victim with a cocked gun”].)
Moreover, not only did Rodriguez not rely on a defense that
he initiated a fight using or intending to use mere nondeadly
force, such a defense was inconsistent with his theory of the case,
which was that Frank started a deadly fight out of the blue.
Counsel for Rodriguez argued strenuously that Rodriguez and
Estrellas did not threaten anyone, that they approached Miguel
and Basurto merely to express an interest in the graffiti on the
garage wall—“they even shook their hands, introduced
themselves”—and that Frank came down to the garage and
“started this,” “saying F these guys and, bam, starts going
against [Rodriguez] and beating him, beating him until he is

15
pulling out a gun, and he randomly shoots.”7 To apply the
instructions Rodriguez argues the trial court erroneously failed to
give, the jury would have had to find true a fact Rodriguez
vehemently denied, namely, that he started the fight. (See
People v. Jo (2017) 15 Cal.App.5th 1128, 1168-1169 [instruction
was inconsistent with the defendant’s theory of the case because
it “required [her] to acknowledge, if only inferentially, the
existence of facts which she otherwise denied”]; People v. Meneses
(2008) 165 Cal.App.4th 1648, 1665 [mistake of fact instruction
was inconsistent with the defendant’s theory of the case where he
“claimed he did not know the source of [allegedly stolen police
reports], not that he thought his source was legal”].)

2. Rodriguez Has Not Demonstrated His Trial
Counsel Provided Ineffective Assistance
“To make out a claim that counsel rendered constitutionally
ineffective assistance, ‘the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms.

7 As counsel for Rodriguez summarized the evidence in his
closing argument: “Frank wasn’t terrorized. He’s a little
hothead. That’s why he’s got the little hornet [tattoo]. These
guys [i.e., Rodriguez and Estrellas] came into the hornet’s nest.
That’s what happened that day. . . . They’re walking down and
see graffiti and walked up. People walk up on strangers’ garages
all the time. Hey, I mean, that wall is kind of unique. . . . We
have a spray can. You mind if we spray? And here comes Frank,
already mad . . . . He came down here, and he’s drinking. . . .
And he sees these two strangers in his garage. Who the heck are
you? . . . And he’s getting riled that these guys are here. And
they paint the picture that it was so tense in there. Wasn’t tense.
They’re still drinking beer.”

16
Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.’” (People v. Hoyt (2020) 8 Cal.5th 892, 958.) “When
examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable
professional assistance.” (People v. Mai (2013) 57 Cal.4th 986,
1009.) On direct appeal, “a conviction will be reversed for
ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (Id. at p. 1009.)
Rodriguez does not contend that the record affirmatively
discloses his trial counsel had no rational tactical purpose for not
requesting the instructional modifications or that his counsel
failed to provide a reason when asked. He contends there can be
no satisfactory explanation for it. But there are. First, counsel
may have recognized that, as discussed, the proposed instructions
did not apply because there was no evidence Rodriguez, at any
point, used or intended to use nondeadly force. (See People v.
Nguyen (2015) 61 Cal.4th 1015, 1052 [counsel did not provide
ineffective assistance by not requesting an instruction that was
not supported by substantial evidence].) Second, counsel may not
have wanted instructions that, as also discussed, conflicted with
Rodriguez’s theory of the case. (See People v. Carrasco (2014)
59 Cal.4th 924, 990 [“counsel may not have wanted an . . .
instruction out of concern that it would distract the jury’s

17
attention from the totality of the evidence that could create a
reasonable doubt”].) In particular, to rebut charges the murder
and attempted murders were premediated and deliberate, trial
counsel (like appellate counsel for Rodriguez, as we will discuss)
may have considered it important to insist that Frank’s deadly
force attack with the bat was entirely spontaneous and therefore
an utter surprise to Rodriguez, a factual scenario that conflicted
with the omitted instructions.
Finally, because substantial evidence did not support the
instructions counsel did not request, Rodriguez has not shown
the requisite prejudice because “it is not reasonably probable that
any such request would have resulted in the giving of such
instructions by the superior court and in the returning of verdicts
in accordance therewith by the jury.” (People v. Waidla (2000)
22 Cal.4th 690, 736.) Rodriguez has failed to demonstrate his
counsel rendered ineffective assistance.

B. Substantial Evidence Supported the Jury’s Findings
That the Murder and Attempted Murders Were
Deliberate and Premeditated
Rodriguez argues substantial evidence did not support the
jury’s findings that the murder and attempted murders were
deliberate and premeditated. Instead, he argues, “the evidence in
this case showed [Rodriguez] fired his gun only in response to the
sudden and spontaneous act of violence committed by Frank.”
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable

18
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘“‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’”’” (People v. Morales (2020) 10 Cal.5th 76, 88; see
People v. Penunuri (2018) 5 Cal.5th 126, 142 [“‘A reversal for
insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.’”].)
“‘In this context, “premeditated” means “considered
beforehand,” and “deliberate” means “formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.”’”
(People v. Jurado (2006) 38 Cal.4th 72, 118; see People v. Herrera
(1999) 70 Cal.App.4th 1456, 1463, fn. 8 [“[w]e do not distinguish
between attempted murder and completed first degree murder for
purposes of determining whether there is sufficient evidence of
premeditation and deliberation”], disapproved on another ground
in People v. Mesa (2012) 54 Cal.4th 191, 199.) “‘“Premeditation
and deliberation can occur in a brief interval. ‘The test is not
time, but reflection. “Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly.”’”’” (People v. Solomon (2010) 49 Cal.4th 792, 812;
accord, People v. Morales, supra, 10 Cal.5th at p. 88.)
The Supreme Court in People v. Anderson (1968) 70 Cal.2d
15, 26-27 (Anderson) “identified three categories of evidence
relevant to determining premeditation and deliberation:

19
(1) events before the murder that indicate planning; (2) a motive
to kill; and (3) a manner of killing that reflects a preconceived
design to kill. As we have repeatedly pointed out, and now
reaffirm, ‘[t]he Anderson guidelines are descriptive, not
normative. [Citation.]’ [Citation.] They are not all required
[citation], nor are they exclusive in describing the evidence that
will support a finding of premeditation and deliberation.” (People
v. Gonzalez (2012) 54 Cal.4th 643, 663.)
Ample evidence supported the jury’s findings the murder
and attempted murders Rodriguez committed were deliberate
and premeditated. After Frank hit him with the bat and had run
away, Rodriguez shot at—individually, from close range, and
pausing between each shot—Miguel, Cardenas, and Basurto,
none of whom was armed or attacking him. Indeed, he continued
to shoot at Miguel as Miguel ran away from him, and he shot
Basurto in the back of the head. (See People v. Halvorsen (2007)
42 Cal.4th 379, 421-422 [that victims in no “way provoked the
shooting or struggled with defendant, whose demeanor at the
time was described as ‘cold,’” and that victims were “shot in the
head or neck from within a few feet, a method of killing
sufficiently ‘“particular and exacting,”’ supported a finding of
premeditation and deliberation]; People v. Marks (2003)
31 Cal.4th 197, 232 [“‘focused’” manner of shooting supported
finding of premeditation and deliberation]; People v. Thomas
(1992) 2 Cal.4th 489, 519 [“‘A senseless, random, but
premeditated, killing supports a verdict of first degree
murder.’”].) The gang expert’s testimony suggested Rodriguez’s
motive was to preserve his standing among fellow gang members
by retaliating for Frank’s attack. (See People v. Cole (2004)
33 Cal.4th 1158, 1224 [“‘some evidence of motive in conjunction

20
with . . . a deliberate manner of killing’” suffices to sustain a
finding of premeditated and deliberate murder].)
But even before Frank attacked Rodriguez with the bat,
there was substantial evidence of deliberation and premeditation
for all the murder and attempted murder counts. Bringing a
loaded pistol to the garage was strong evidence of planning, “the
most important of the Anderson factors.” (People v. Edwards
(1991) 54 Cal.3d 787, 814; see Salazar, supra, 63 Cal.4th at
p. 245 [“defendant brought a loaded gun with him to the [location
of the crime], demonstrating preparation”]; People v. Adcox (1988)
47 Cal.3d 207, 240 [the “fact that defendant brought his loaded
gun” to the scene of the shooting “and shortly thereafter used it to
kill an unarmed victim reasonably suggests that defendant
considered the possibility of murder in advance”]; People v.
Villegas (2001) 92 Cal.App.4th 1217, 1224 [“As to prior planning
activity, defendant was carrying a loaded gun with him at the
time of the incident.”]; People v. Williams (1995) 40 Cal.App.4th
446, 455 [“[p]lanning was evidenced by ‘the fact that defendant
brought his loaded gun [with him] and . . . thereafter used it to
kill”].) Rodriguez also displayed the pistol in a threatening
manner while he and Estrellas asked menacing questions about
the victims’ gang affiliations—questions for which, according to
the gang expert, virtually any answer would lead to violence.
Rodriguez even chambered a round in preparation for firing. (See
Salazar, at p. 245 [defendant and his companion “both cocked
their guns as they approached [the victim], strongly suggesting
they were contemplating a shooting”].) And finally, the jury
could reasonably credit Frank’s testimony that he attacked with
the bat only because he feared Rodriguez intended to shoot him
and the other victims.

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 C. Rodriguez May Present His Ineffective Assistance of
Counsel Claim Concerning the Franklin Proceeding
in a Petition for Writ of Habeas Corpus

1. Relevant Proceedings
At a posttrial hearing in September 2018, attorney Ryan
Kinderman stood in for Rodriguez’s trial counsel, Alex Kessel.
During that hearing the court and parties discussed, in the
court’s words, “Franklin-type information,” which the court
stated “we need to deal with at the time of sentencing or some
time either shortly thereafter or shortly before that event.”
Kinderman stated that, to the best of his knowledge, Kessel was
“aware of it and working on it” and “in the process of getting
things together.”
In October 2018 Kessel filed a two-page memorandum
titled “Defendant’s Sentencing Factors in Mitigation,” which
began: “Defendant Wilfredo Rodriguez submits the following
Franklin factors for the court’s consideration . . . .” The
memorandum represented Rodriguez was 20 years old at the
time of the crime and listed a number of circumstances
supposedly indicating “[t]here was no real evidence of
premeditation and deliberation.”8 The memorandum stated that
Rodriguez had “no prior adult criminal record” and “was sent to
Juvenile Camp as a minor”; that he had “a supportive family,
mother, father and brother”; that he “was employed at the time of
his arrest”; that he “never intended to kill anyone”; and that a

8 In the list was an incorrect assertion that Rodriguez’s “only
real possible liability for murder was based on the natural and
probable consequence theory (assault as target crime).”

22
“60 to life sentence for defendant is the equivalent to a life
without parole sentence.”
At the sentencing hearing in June 2019, the trial court and
Kessel had the following exchange:
“Mr. Kessel: I just want to make sure that the record—I
had also filed a Defendant’s Sentencing Factors in Mitigation. I
would just ask Your Honor, regardless of what the court does,
that that be attached to the probation report as part of the record
that goes to the prison because I believe the defendant may and
will at some point be eligible for the California youth act[9] that
has certain prerequisites and ask that the factors—whether the
court finds them to be true or not—at least it be attached to the
probation report, Your Honor.
“The Court: So we’re kind of talking a bit about the
Franklin issues. Are there any other—is there any other
documentation that you are going to be presenting at this time?
“Mr. Kessel: No, Your Honor. I am not so much talking
about Franklin for the court to make different decisions.
Obviously, we wanted the court to consider reducing, and the
court has that power under the new trial statute, but it’s more for
sentencing now obviously. And also in the future, as you know,
there’s many laws, including the California youth act, whether
he’s applicable [sic] or not, and whether at some point he can
avail himself of the benefits of that, he is eligible for it. I just
wanted the mitigation factors to be part of the record, Your
Honor.

9 It is not clear what Kessel was referring to by “the
California youth act.”

23
 “The Court: Right. And I don’t see any issue with that.
But my question is, he is eligible under [section] 3051? He was
under 25 years of age at the commission.
“Mr. Kessel: Correct.
“The Court: At some point he will be entitled to a hearing,
and the Franklin issues are that the defendant presents to the
court—not for the court’s ruling, but for inclusion in his prison
file things that would assist a parole board at a future date to
understand what Mr. Rodriguez’s situation is today or at the time
of the commission. And that’s what I am referring to.
“Mr. Kessel: That’s some of the things that I referenced in
my factors in mitigation, which I labeled also as Franklin factors,
Your Honor.
“The Court: Very well. That is what you are submitting to
the Franklin factors as well?
“Mr. Kessel: That’s what I have submitted, yes, sir.
“The Court: Very well.”

2. Applicable Law
“To bring juvenile sentencing in California into conformity
with [then-recent decisions by the United States Supreme Court
construing the Eighth Amendment’s prohibition on cruel and
unusual punishment], the Legislature enacted Senate Bill
No. 260 (2013-2014 Reg. Sess.), effective January 1, 2014, adding
sections 3051 and 4801, subdivision (c), to the Penal Code. These
provisions require the Board of Parole Hearings (Board), with
certain limited exceptions, to conduct a youth offender parole
hearing no later than a juvenile offender’s 25th year of
incarceration . . . (Pen. Code, § 3051, subd. (b)) and, when
considering parole eligibility for these youth offenders, to ‘give

24
great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity’ (Pen. Code, § 4801,
subd. (c)).” (People v. Sepulveda (2020) 47 Cal.App.5th 291, 298.)
“The Legislature’s intent in enacting sections 3051 and 4801 was
‘“to establish a parole eligibility mechanism that provides a
person serving a sentence for crimes that he or she committed as
a juvenile the opportunity to obtain release”’ upon a showing of
maturation and rehabilitation.” (In re Cook (2019) 7 Cal.5th 439,
449.)
In Franklin, supra, 63 Cal.4th 261 the Supreme Court
“authorized postjudgment proceedings to effectuate that intent,”
which are commonly referred to as a “Franklin hearing.” (In re
Cook, supra, 7 Cal.5th at p. 449; see id. at p 459.) “A Franklin
proceeding gives ‘an opportunity for the parties to make an
accurate record of the juvenile offender’s characteristics and
circumstances at the time of the offense so that the Board, years
later, may properly discharge its obligation to “give great weight
to” youth-related factors [citation] in determining whether the
offender is “fit to rejoin society” . . . .’ [Citation.] At the
proceeding, ‘the court may receive submissions and, if
appropriate, testimony pursuant to procedures set forth in
section 1204 and rule 4.437 of the California Rules of Court, and
subject to the rules of evidence. [The defendant] may place on
the record any documents, evaluations, or testimony (subject to
cross-examination) that may be relevant at his eventual youth
offender parole hearing, and the prosecution likewise may put on
the record any evidence that demonstrates the juvenile offender’s
culpability or cognitive maturity, or otherwise bears on the
influence of youth-related factors.’” (In re Cook, at pp. 449-450;

25
see Franklin, at pp. 283-284 [“[a]ssembling such statements . . . is
typically a task more easily done at or near the time of the
juvenile’s offense rather than decades later”].)

3. Analysis
The People do not dispute that, under Franklin, supra,
63 Cal.4th 261, Rodriguez was entitled to an “opportunity to put
on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing.”
(Franklin, at p. 284; see § 3051 [any prisoner who was 25 years of
age or younger at the time of the controlling offense receives a
youth offender parole hearing].) Rodriguez, for his part, concedes
he had an “adequate opportunity” to do so. He argues, however,
we should remand to give him another opportunity because his
trial counsel rendered ineffective assistance in connection with
the proceeding. Specifically, Rodriguez maintains the “cursory
document” Kessel presented at sentencing “fell woefully short of
presenting and preserving the type of evidence . . . that will be
relevant to the parole board’s evaluation of his future youth
offender parole hearing.”
We have concerns about Kessel’s performance in the
Franklin proceeding, including that he did not seem to
understand the point of it. (See People v. Sepulveda, supra,
47 Cal.App.5th at p. 300 [“The purpose of providing an
opportunity to present youth-related factors mitigating
culpability is not to influence the trial court’s discretionary
sentencing decisions but to preserve information relevant to the
defendant’s eventual youth offender parole hearing.”].) But on
this record we cannot say he rendered ineffective assistance. The
record does not affirmatively disclose he had no rational tactical

26
purpose for his challenged conduct, nor does it reflect he was
asked for a reason and failed to provide one. And there are
conceivable satisfactory explanations. For example, it may be
that, after exercising reasonable diligence, Kessel found no more
favorable (or found more damaging) information than he
submitted. Or he may have had concerns about possible rebuttal
evidence from the prosecution. As the Supreme Court has
recognized, “some offenders may choose not to present certain
forms of evidence, such as live testimony, or to forgo a Franklin
proceeding altogether. Delving into the past is not always
beneficial to a defendant. The opportunity for a Franklin hearing
is just that: an opportunity.” (In re Cook, supra, 7 Cal.5th at
p. 459]; see Sepulveda, at p. 302 [court on direct appeal could not
resolve an ineffective assistance claim relating to Franklin
proceeding where the record did “not explain why counsel chose
to proceed in this fashion”].) Notably, Rodriguez does not specify
what more Kessel should have done or submitted. And for that
reason, Rodriguez has also failed to demonstrate any prejudice
from the manner in which Kessel proceeded.
The Supreme Court in In re Cook, supra, 7 Cal.5th 439
stated that section 1203.01 provides “a plain, speedy, and
adequate remedy at law that makes resort to habeas corpus
unnecessary, at least in the first instance.” (In re Cook, at
p. 452.) This, however, is not the first instance for Rodriguez; he
is seeking a second Franklin hearing because he claims his trial
counsel provided ineffective assistance at the first one. In this
situation, a petition for writ of habeas corpus is the appropriate
vehicle for Rodriguez’s claim. (See People v. Sepulveda, supra,
47 Cal.App.5th at p. 301.)

27
 D. The Abstract of Judgment Must Be Corrected
Rodriguez contends, the People concede, and we agree the
abstract of judgment incorrectly reflects he was “sentenced
pursuant to . . . PC 667(b)-(i) or PC 1170.12,” i.e., the three
strikes law (§§ 667, subds. (b)-(i), 1170.12). We direct the trial
court to correct that mistake on the abstract of judgment.

DISPOSITION

The judgment is affirmed. The trial court is directed to
impose the minimum parole eligibility term of 15 years under
section 186.22, subdivision (b)(5), and to correct the abstract of
judgment so that it does not reflect Rodriguez was sentenced
under the three strikes law. The trial court is also directed to
prepare a corrected abstract of judgment and forward a certified
copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.

SEGAL, J.

We concur:

PERLUSS, P. J. FEUER, J.

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