Filed 5/10/22 P. v. Rodriguez CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079599
Plaintiff and Respondent,
(Super. Ct. No. VCF377336)
v.
JOSE IGNACIO RODRIGUEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Walter L.
Gorelick, Judge.
Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Smith, J. and Meehan, J.
INTRODUCTION
On May 22, 2019, appellant Jose Ignacio Rodriguez was convicted by jury of first
degree burglary (Pen. Code,1 § 459) and resisting or delaying a peace officer (§ 148,
subd. (a)(1)). The jury also found true an allegation that a person was present during the
commission of the burglary. In addition, the trial court found true enhancements alleging
Rodriguez had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), he had
served three prior prison terms (§ 667.5, subd. (b)), and that he had suffered a prior strike
conviction within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)). Rodriguez was sentenced to an aggregate prison term of 14 years.
Rodriguez raises the following claims on appeal: (1) Following the enactment of
Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), the prior prison term
enhancement (§ 667.5, subd. (b)) applied to his sentence must be stricken, and (2) the
trial court prejudicially erred by instructing the jury to assume that Rodriguez understood
English.
The Attorney General concedes the prior prison term enhancement (§ 667.5, subd.
(b)) must be stricken, and we agree. We will therefore remand the matter back to the trial
court for a full resentencing. The judgment of conviction is otherwise affirmed.
PROCEDURAL HISTORY
On March 28, 2019, the Tulare County District Attorney filed an information
charging Rodriguez with first degree burglary (§ 459, count 1) and resisting or delaying a
peace officer (§ 148, subd. (a)(1), count 2). The information further alleged a strike prior
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony conviction (§ 667,
subd. (a)(1)), and three prison priors (§ 667.5, subd. (b)).
1 All further undefined statutory citations are to the Penal Code unless otherwise
indicated.
2.
On May 22, 2019, following a jury trial, Rodriguez was convicted on both counts.
After a bifurcated hearing, the court found true all enhancement allegations.
On July 8, 2019, the court sentenced Rodriguez to an aggregate prison term of 14
years. He received the middle term of four years for his conviction for first degree
burglary (§ 459), doubled to eight years for his prior strike conviction (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)), a term of five years for his prior serious felony conviction
(§ 667, subd. (a)(1)), and one year for his prior prison term (§ 667.5, subd. (b)).
On July 10, 2019, Rodriguez filed a timely notice of appeal.
STATEMENT OF FACTS
On March 6, 2019, at approximately 11:00 p.m., before going to bed for the night,
A.J. locked the doors to her home, but she did not close the dining room window. She
later awoke to find a man inside of her home. The intruder, Rodriguez, told her to be
quiet and not to say anything. A.J. told Rodriguez to “go away.” He began searching
through her kitchen and asked where the drugs were. A.J. told Rodriguez that he was in
the wrong house.
He told her not to call the police or she would “see a dead person.” Rodriguez was
speaking in Spanish. A.J. used her husband’s cell phone to call 911. Rodriguez began
searching through backpacks belonging to A.J.’s children, who were home during the
incident.
Police officers arrived shortly after 2:00 a.m. When they arrived, police saw
Rodriguez inside of A.J.’s living room. Officer Rubalcaba with the Visalia Police
Department instructed Rodriguez to exit the residence. Rodriguez was looking back at
the officers through the window.
Rubalcaba was wearing his police uniform. Rodriguez turned, walked down the
hallway of A.J.’s home, and out of sight.
3.
Officers announced themselves a few times before forcing open the front door to
get inside the home. When they observed Rodriguez, they told him to come toward them.
Rodriguez, who was looking directly at them, walked away and proceeded down the
hallway.
Officer Schiebelhut with the Visalia Police Department told Rodriguez to “ ‘Come
out or you’re going to get bit.’ ” After several warnings, Schielbelhut released his K-9
partner. Rodriguez went into the bathroom and tried to shut the door, but the officers and
the police K-9 managed to access the bathroom. After the police K-9 bit Rodriguez’s
ankle, he stopped resisting and police managed to detain him.
Following his arrest, police found a pipe on Rodriguez, consistent with the type of
pipe used to smoke narcotics. Rodriguez displayed signs of being under the influence of
a stimulant.
DISCUSSION
I. Senate Bill No. 136
Rodriguez contends the prior prison term (§ 667.5, subd. (b)) enhancement applied
to his sentence must be stricken following the enactment of Senate Bill No. 136. The
People concede Rodriguez is entitled to relief. We agree as well and will therefore strike
the section 667.5, subdivision (b) enhancement.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision
(b) to limit the application of prior prison term enhancements to only prior prison terms
that were served for sexually violent offenses as defined by Welfare and Institutions
Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch.
590, § 1.) That amendment applies retroactively to all cases not yet final by Senate Bill
No. 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In
re Estrada (1965) 63 Cal.2d 740, 746.)
4.
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement on count 1. However, none of Rodriguez’s prior convictions qualify
as sexually violent offenses within the meaning of Welfare and Institutions Code section
6600, subdivision (b). Rodriguez’s prior prison term enhancement must therefore be
stricken.
Although we have the authority to correct Rodriguez’s sentence on appeal, the
Attorney General contends that remand for a full resentencing is generally appropriate
(see People v. Buycks (2018) 5 Cal.5th 857, 893 [where an appellate court strikes a
portion of a sentence, remand for a full resentencing as to all counts is generally
appropriate].) We agree that remand for resentencing is prudent, particularly in light of
the enactment of new legislation that may impact the trial court’s sentencing decisions.
(See, e.g., Assembly Bill No. 518 (Stats., ch. 441, § 1), effective Jan. 1, 2022.) We will
therefore remand the instant case back to the trial court for resentencing.
II. The Trial Court’s Comments Were Harmless Beyond a Reasonable Doubt
Next, Rodriguez contends the court improperly commented upon the evidence and
directed a verdict as to count 2, his conviction for delaying or resisting arrest. According
to Rodriguez, the trial court prejudicially erred by instructing the jury to presume that he
spoke English. The Attorney General argues that Rodriguez’s failure to object resulted in
forfeiture of his claim on appeal, and that any presumed error is harmless beyond a
reasonable doubt.
Preliminarily, we reject Rodriguez’s assertion that the trial court instructed the
jury to presume Rodriguez spoke English. To the extent that such an inference could
potentially be drawn from the trial court’s comments, we further conclude that any
presumed error is harmless beyond a reasonable doubt.
5.
A. Background
At a pretrial hearing, defense counsel represented that Rodriguez did not need an
interpreter. After the prosecutor rested her case, the court received a note from the jury
asking whether Rodriguez spoke English. The court requested a bench conference.
Following an off the record discussion between the court and the parties, the court made
the following statements:
“THE COURT: Now, somebody asked a question
about whether the defendant speaks English. Okay.
Now, nobody has testified on that subject during the
trial. So that was a question that might be
understandable in that situation.
“But I will tell you that if somebody doesn’t
understand English – for example, let me just give you
another example. You heard the tape recording. The
person – well, give you a couple examples. On the
recording the person obviously was having difficulty
understanding English, so the police obtained an
interpreter for the person, you know, on the recording.
So you know that.
“In addition, when the witness testified in court,
there was an interpreter for the witness who testified
here in court. And so obviously we’re going to draw the
conclusion from that, that, yes, if the defendant needed
an interpreter, we would be required to furnish one for
him. Okay. Does that – I think that pretty well answers
the question. Okay.”
Thereafter, the court declined to instruct the jury pursuant to CALCRIM No. 3530
[Judge’s Comment on the Evidence], explaining he was “not intending to comment on
the evidence.” The court did however instruct the jury with portions of CALCRIM No.
3530, stating: “It’s not my role to tell you what your verdict should be. Do not take
6.
anything I said or did during the trial as an indication of what I think about the facts, the
witnesses, or what your verdict should be.”2
In closing, defense counsel argued Rodriguez may have resisted and delayed the
officers, but that he did not intend to commit theft when he entered A.J.’s residence. He
specifically stated:
“Mr. Rodriguez did not intend to steal anything. He did not intend to
commit any theft. I don’t need to go through all that again. But the specific intent
that the District Attorney’s office must prove beyond a reasonable doubt is not
there. He may have resisted, he may have delayed the officers, but he did not
commit the burglary. Mr. Rodriguez never intended to do so.”
The jury deliberated for less than one hour before finding Rodriguez guilty on
both counts.
B. Forfeiture
Rodriguez characterizes the nature of the alleged error as “uninvited instructional
error.” Relying upon People v. Beltran (1989) 210 Cal.App.3d 1295 , he contends that
the error may be raised on appeal notwithstanding his failure to object below.
Alternatively, for the first time in his reply brief, Rodriguez contends if this court finds
his claim has been forfeited, defense counsel rendered ineffective assistance of counsel
for failing to preserve his claim.
Rodriguez provides no explanation for why he raised this argument for the first
time in his reply brief. In the absence of a justifiable reason for the delay, we decline to
consider an argument raised for the first time in a reply brief. (Nordstrom Com. Cases
2 CALCRIM No. 3530 provides: “Do not take anything I said or did during the trial
as an indication of what I think about the evidence, the witnesses, or what your verdict
should be. [¶ ] Now, I will comment on the evidence only to help you decide the issues
in this case. [¶ ] However, it is not my role to tell you what your verdict should be. You
are the sole judges of the evidence and believability of witnesses. It is up to you and you
alone to decide the issues in this case. You may disregard any or all of my comments
about the evidence or give them whatever weight you believe is appropriate.”
7.
(2010) 186 Cal.App.4th 576, 583 [“points raised for the first time in a reply brief on
appeal will not be considered, absent good cause for failure to present them earlier”].)
Finding no merit to Rodriguez’s argument, we do not address the Attorney
General’s assertion of forfeiture.
C. Relevant Legal Principles
Rodriguez contends the trial court’s instruction was tantamount to a directed
verdict. “[A] trial judge ‘may not direct a verdict of guilty no matter how conclusive the
evidence.’ ” (People v. Figueroa (1986) 41 Cal.3d 714, 724 (Figueroa), quoting
Brotherhood of Carpenters v. United States (1947) 330 U.S. 395, 408; In re Winship
(1970) 397 U.S. 358, 364 [due process “protects [a criminal defendant] against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged”].)
“The prohibition against directed verdicts ‘includes perforce situations in which
the judge’s instructions fall short of directing a guilty verdict but which nevertheless have
the effect of so doing by eliminating other relevant considerations if the jury finds one
fact to be true.’ ” (Figueroa, supra, Cal.3d at p. 724, quoting United States v. Hayward
(D.C. Cir.1969) 420 F.2d 142, 144.) “ ‘[N]o fact, not even an undisputed fact, may be
determined by the judge.’ ” (Figueroa, at p. 724.)
Where instructional error of this nature has occurred, reversal is compelled unless
the People can prove the error is “harmless beyond a reasonable doubt” under Chapman
v. California (1967) 386 U.S. 18, 21. Under Chapman, error is harmless beyond a
reasonable doubt if it “did not contribute to the verdict obtained.” (Id. at p. 24.) “ ‘ “To
say that an error did not contribute to the verdict is ... to find that error unimportant in
relation to everything else the jury considered on the issue in question, as revealed in the
record.” ’ ” (People v. Hudson (2006) 38 Cal.4th 1002, 1013.)
D. Analysis
We do not agree with Rodriguez’s assertion that the trial court’s comments were
tantamount to the modification of a jury instruction which directed a verdict. (See, e.g.,
8.
People v. Beltran, supra, 210 Cal.App.3d at pp. 1302, 1303 [finding the trial court erred
by instructing the jury that “ ‘[a] bone fracture constitutes substantial and significant
injury within the meaning of Penal Code section 12022.7’ ”].) Nonetheless, we will
presume error from the trial court’s challenged comments. It was for the jury to decide
whether Rodriguez willfully resisted or delayed Schiebelhut in the performance of his
duty, and Rodriguez’s ability to speak and understand English could be relevant to the
jury’s determination. (See CALCRIM No. 2656 [resisting a police officer].)
However, in light of the strong evidence presented against Rodriguez, we are
convinced that the presumed error did not contribute to the jury’s verdict. “To establish a
person has willfully resisted, delayed or obstructed a peace officer in the performance of
the officer’s duties, the People must prove: (1) the person willfully resisted, delayed, or
obstructed a peace officer; (2) when the officer was engaged in the performance of his or
her duties; and (3) the person knew or reasonably should have known that the other
person was a peace officer engaged in the performance of his or her duties.” (In re
Charles G. (2017) 14 Cal.App.5th 945, 956; § 148, subd. (a)(1).)
The evidence adduced at trial demonstrated that Rodriguez saw uniformed officers
outside of A.J.’s residence, he was given a command, and in response, he turned away
and proceeded down the hallway of the residence. Rodriguez subsequently attempted to
shut the bathroom door on an advancing K-9 officer, and he was resisting the handling
officer’s attempt to enter the bathroom. Thus, even assuming Rodriguez did not speak or
understand English, there is strong evidence supporting the conclusion that he willfully
obstructed or delayed the police in the performance of their duties. (§ 148, subd. (a).)
Indeed, given the compelling nature of the evidence against Rodriguez, defense
counsel conceded Rodriguez’s conduct met the elements of resisting or delaying a peace
officer during closing argument. Defense counsel argued: “Mr. Rodriguez did not intend
to steal anything. He did not intend to commit any theft.… He may have resisted, he
may have delayed the officers, but he did not commit the burglary. Mr. Rodriguez never
intended to do so.” Based upon defense counsel’s comments in closing statements, and
9.
in light of the strong evidence presented at trial, we conclude any presumed error was
unimportant in relation to the evidence the jury considered on the issue of Rodriguez’s
guilt on count 2.
DISPOSITION
The sentence is vacated and this matter is remanded for resentencing. The trial
court shall strike the enhancement imposed under section 667.5, subdivision (b).
Following resentencing, the trial court shall forward a new abstract of judgment to the
appropriate authorities. In all other respects, the judgment is affirmed.
10.