Filed 9/28/22 P. v. Rodriguez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048117
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1652286)
v.
MIGUEL ANGEL CEJA RODRIGUEZ,
Defendant and Appellant.
A jury convicted defendant Miguel Angel Ceja Rodriguez of second degree
murder and assault with a firearm after he shot and killed a man at a park and wounded a
bystander. He contends the trial court improperly excluded evidence of the murder
victim’s prior convictions, and should have instructed the jury that a person can act more
quickly in self-defense based on knowledge the aggressor previously threatened others.
He also contends the trial court abused its discretion by declining to strike a firearm
sentencing enhancement, and he points out the abstract of judgment does not reflect that
the court struck the punishment for another sentencing enhancement. Finding no error
aside from the clerical mistake defendant notes, we will order the abstract amended to
accurately reflect the sentence imposed and affirm the judgment.
I. BACKGROUND
Armed with a semi-automatic handgun borrowed from a friend earlier that day,
defendant approached Miguel Rojas-Lozano at a park. Witnesses recounted that Rojas-
Lozano was sitting at a table playing cards and dice when defendant tapped him on the
shoulder, hit him in the face, and shot him multiple times. Rojas-Lozano was struck by
nine bullets and died at the scene. A man standing nearby was shot in both feet.
Defendant was charged with first degree murder. The prosecution presented
evidence he went to the park to shoot Rojas-Lozano for revenge. Defendant was angry
because Rojas-Lozano had groped defendant’s girlfriend at a bar the night before and
when she protested, he broke a bottle over her head.
Defendant offered a self-defense theory. Testifying on his own behalf, he said he
went to the park to ask Rojas-Lozano to reimburse money his girlfriend lost when she
was unable to work after the assault. He brought the gun because he knew Rojas-Lozano
to be a dangerous person who had served time in jail and carried a gun himself,
sometimes brandishing it at people. When he confronted Rojas-Lozano, defendant saw
him reach into his waistband. Thinking Rojas-Lozano was pulling a gun, he feared for
his life and he fired to defend himself.
The jury acquitted defendant on the first degree murder charge but rejected his
self-defense argument and convicted him of second degree murder (Pen. Code, § 187). It
also convicted him of assault with a firearm (Pen. Code, § 245, subd. (b)) and found true
the allegations that he discharged a firearm causing death (Pen. Code, § 12022.53,
subd. (d)); personally used a handgun (Pen. Code, § 12022.5, subd. (a)); and inflicted
great bodily injury (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced defendant
to forty years to life in prison, consecutive to three years.
II. DISCUSSION
A. Defendant Did Not Object to the Evidentiary Ruling He Now Challenges
The trial court ruled in limine that to bolster his self defense argument—
specifically, to show his fear of Rojas-Lozano was reasonable—defendant could
introduce evidence of prior dangerous conduct committed by Rojas-Lozano. But it
excluded evidence that the murder victim, Rojas-Lozano, had been convicted of several
criminal offenses. During the defense case, several police officers testified about
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previous contacts. One officer testified he stopped Rojos-Lozano for swerving into a
bike lane while driving; Rojas-Lozano then failed field sobriety tests, had a blood alcohol
level above .08, and urinated on himself. Another officer testified he stopped Rojas-
Lozano for driving erratically; Rojas-Lozano was unable to complete field sobriety tests
and had a blood alcohol level above the legal limit. A third officer testified he found
Rojas-Lozano in a park under the influence of a stimulant, with a loaded gun and cocaine
his car; additional ammunition was found at Rojas-Lozano’s house. Several years before
that, Rojas-Lozano had been detained in a car in which a loaded gun was found, and he
gave a false name to police. Another witness testified to Rojas-Lozano’s reputation for
carrying a gun and generally having a “short fuse.”
In addition to the testimony about prior bad acts committed by Rojas-Lozano, the
defense sought to introduce court records of convictions stemming from those incidents.
The prosecution objected on the ground that, given the already admitted evidence about
the underlying conduct, the convictions themselves would add little and were
inadmissible under Evidence Code section 352 with their minimal probative value
substantially outweighed by prejudicial effect or undue consumption of time. The
defense countered that the convictions were relevant to prove identity. To avoid any
ambiguity on that point, the prosecution offered to stipulate that the person involved in
the incidents police officers testified about was Rojas-Lozano. The trial court
commented, “Let me tell you my thinking. I look at [Evidence Code sections] 1103 and
1108, and the fact that I ruled that this conduct is admissible, based on Mr. Ceja-
Rodriguez's testimony, the convictions would not add anything other than to solidify that
this conduct resulted in him being convicted. Based on the evidence presented, it doesn't
seem like this conduct is in dispute, other than demonstrating that Mr. Lozano was, at
least, cooperating with law enforcement. [¶] In light of [the prosecutor’s] willingness to
stipulate, I'm leaning towards not allowing the prior convictions pursuant to 352.”
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After the trial court’s explanation, defense counsel agreed to the proposed
stipulation regarding identity. The court inquired whether the stipulation addressed
“every single issue you’re concerned with,” and defense counsel answered, “Yes. My
concern was that based on the testimony […] the jury could think maybe it’s a different
person.” The prosecutor offered: “That’s not an issue, Your Honor. I will agree it’s the
same person in all of those cases.” Based on the representations by counsel, the court
announced, “Okay. That will be the Court's ruling pursuant to 352, and I think it
addresses all of the issues [that] concern [defense counsel] and the information he wants
before the jury. And fortunately, here we have the testimony of the officers to testify
about the conduct.”
To challenge an evidentiary ruling on appeal, a defendant must object to the ruling
in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 435.) That requirement
serves important purposes, beginning with preventing error by allowing full consideration
of the evidentiary issue. (Ibid.) If we were to allow the appeal of an evidentiary ruling
that was not objected to, a defendant could gamble at trial on an acquittal, knowing he
could still challenge a resulting conviction on the very error he let pass. (Id. at p. 434.)
Defendant forfeited his appellate challenge to the exclusion of the victim’s
convictions because defense counsel not only failed to object to the trial court’s ruling,
but indeed acquiesced to it. After the trial court stated it was inclined to exclude the prior
convictions, the prosecutor and defense counsel agreed on a stipulation that defense
counsel said would resolve “every single issue” he was concerned with. Only then did
the trial court exclude the convictions—a ruling both parties accepted. Having initially
sought to admit the convictions to prove identity and bolster the evidence of the victim’s
dangerousness, the defense ultimately agreed to their exclusion upon the prosecution’s
stipulation to identity. Defendant cannot now challenge it on appeal.
Defendant alternatively contends his counsel was constitutionally ineffective for
failing to object. But to succeed on a claim of ineffective assistance of counsel,
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defendant must show his attorney’s performance fell below what is reasonably expected
under prevailing professional standards. (People v. Riel (2000) 22 Cal.4th 1153, 1175.)
Strategic decisions during trial are afforded substantial deference and are not second-
guessed on appeal. (Id. at p. 1185.) The decision here—agreeing to a stipulation on
identity—was entirely reasonable. Given that the jury had heard about the victim’s
underlying conduct, evidence of the resulting convictions was of limited probative value
to prove his dangerousness. The more important issue was identity, which the stipulation
established. And the trial court had already indicated it was inclined to exclude the
convictions, making the decision to agree to the stipulation all the more reasonable.
Counsel’s performance did not fall below prevailing professional norms.
Even if we were to reach the evidentiary issue on its merits, we would find no
error. Decisions to exclude evidence are reviewed for abuse of discretion. (People v.
Clark (2016) 63 Cal.4th 522, 597.) We defer to the trial court’s judgment about what
evidence is admitted at trial and reverse such a decision only when it is arbitrary or
unreasonable, or outside what the applicable legal standard allows. (Id. at p. 572.) The
applicable standard is Evidence Code section 352, which allows a court to exclude
relevant evidence when its probative value is substantially outweighed by the potential
for prejudice or undue consumption of time. Under that standard, it was within the trial
court’s discretion to exclude evidence of the victim’s prior convictions (which had little
probative value, as we have explained).
Defendant also asserts that excluding the prior conviction evidence violated his
constitutional right to due process. As we have found no error in excluding the evidence,
we likewise find no constitutional violation. (See People v. Partida, supra,
37 Cal.4th 428, 437.) Defendant’s self-defense theory was based on the victim’s
reputation for dangerousness. The trial court allowed defendant to present ample
evidence in support of that theory. He received a fair trial.
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B. Defendant Did Not Request the Jury Instruction He Raises on Appeal
Defendant argues the trial court should have instructed the jury with certain
additional language in CALCRIM No. 505 (“Justifiable Homicide: Self-Defense or
Defense of Another”) which provides that one is not guilty of homicide if the killing was
in lawful self-defense. Defendant contends the trial court should have included the
optional language in the pattern instruction that reads: “[If you find that threatened or harmed the defendant [or others] in the past, you may
consider that information in deciding whether the defendant's conduct and beliefs were
reasonable.]” (CALCRIM No. 505.)
A defendant is entitled to a jury instruction on all valid defense theories supported
by the evidence. Whether the trial court has a sua sponte duty to give an instruction
depends on whether it relates to a general principle of law, or is a so-called pinpoint
instruction highlighting a specific defense theory. (See People v. Nelson (2016)
1 Cal.5th 513, 542.) Justifiable homicide committed in self defense is a general principle
of law the trial court has a sua sponte duty to instruct on when the evidence supports the
theory and it appears the defendant is relying on it. (People v. Breverman (1998)
19 Cal.4th 142, 157.) But the related point of law that threats to others can be considered
in assessing the reasonableness of a self defense claim is a pinpoint instruction that need
be given only if requested. (People v. Grassini (2003) 113 Cal.App.4th 765, 777.)
We find no error in failing to give the pinpoint instruction regarding threats to
others because defendant did not request it. Defendant notes he did request an instruction
on the principle that threats the victim made toward him could be considered (an
instruction the trial court refused), and he argues that request was broad enough to
encompass the instruction regarding threats to others. But those are two distinct
instructions, and each would be supported by different evidence. The trial court refused
to give the requested instruction about threats toward defendant because there was no
evidence to support it. A request for the instruction on threats to others would have
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prompted a different inquiry to decide if there was evidence to support that instruction.
The trial court never determined whether the threats to others instruction was appropriate
because it was never asked to do so. For the same reason, we reject defendant’s
argument that the trial court’s refusal to instruct on threats the victim made toward him
rendered futile any request for the instruction on threats made toward others.
Defendant alternatively contends he received ineffective assistance of counsel
because his attorney did not request the threats to others instruction. But here again, we
will not second-guess strategic choices. Whether to request a particular instruction is a
tactical decision, and in “the usual case, where counsel’s trial tactics or strategic reasons
for challenged decisions do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no conceivable reason for counsel’s
acts or omissions.” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) We can readily
identify a reason defendant’s attorney would not request the threats to others instruction:
the evidence supporting that instruction was the attack on defendant’s girlfriend at the
bar, which was the basis for the prosecution’s revenge theory to prove first degree
murder. Opting not to pursue a threats to others line of argument would avoid
emphasizing the evidence that was at the core of the prosecution’s premeditation case.
We note also that far from being ineffective, counsel achieved success on that question:
defendant was acquitted of first degree murder and convicted of a lesser offense.
C. No Error in Not Striking the Firearm Enhancement
Defendant challenges the trial court’s refusal to strike a Penal Code
section 12022.53, subdivision (d) sentencing enhancement for discharging a firearm
causing death. A trial court has discretion to strike that enhancement at the time of
sentencing in the interest of justice. (Pen. Code, § 12022.53, subdivision (h).) Relevant
considerations are the general sentencing objectives set out in the California Rules of
Court, as well as circumstances in aggravation or mitigation. (See People v. Pearson
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(2019) 38 Cal.App.5th 112, 117 [citing California Rules of Court, rules 4.410; 4.421; and
4.423].)
A trial court’s discretion in making sentencing choices is very broad. (People v.
Dryden (2021) 60 Cal.App.5th 1007, 1031.) Under the deferential abuse of discretion
standard of review, we do not substitute our judgment for that of the trial court—it makes
no difference whether we would have made a different choice or whether the choice
defendant argues for also would have been reasonable. Our task is limited to ensuring the
trial court’s decision conforms with the law and was not arbitrary or irrational.
Applying that standard, the trial court did not abuse its discretion in imposing the
sentencing enhancement. The record shows the decision was the product of careful
consideration of the relevant factors and was not arbitrary or irrational. At the sentencing
hearing, the court explained its reasoning: “As to the 12022.53(d) enhancement, based on
all of the evidence presented at trial and the additional information provided by counsel,
the Court is not inclined to exercise its discretion and strike Penal Code
Section 12022.53(d) allegation or punishment. [] [¶] I will note my reasons for the
record for not exercising the Court's discretion. The defendant obtained a firearm and
took it with him to a park where the victim was playing cards. At the time, there were
other people in the immediate area and apparently over a hundred people in the park area.
As the defendant approached the victim and confronted him without warning, the
defendant immediately shot the victim multiple times. There was evidence presented the
defendant continued shooting the victim after he fell to the ground. The defendant then
immediately fled the area and left the state. He was arrested a little over a month later in
Provo, Utah, as well as all of the other facts and circumstances presented at the trial. [¶]
If Mr. Ceja-Rodriguez has remorse for his conduct, he has not expressed it. [¶] Finally,
the victim was particularly vulnerable. [¶] Those are the reasons the Court has decided
not to exercise its discretion as to the Penal Code Section 12022.53(d) enhancement.”
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The trial court’s comments reflect an informed and considered exercise of discretion, not
an abuse of it.
Here again, defendant asserts ineffective assistance of counsel, faulting trial
counsel for not objecting to the court’s finding that the victim was particularly
vulnerable, an aggravating circumstance. Defendant argues counsel should have objected
because there was no evidence to support that finding, but as the prosecutor argued, the
victim was in a vulnerable position—playing cards at a table with his back turned—when
defendant took him by surprise. Even if we were to agree that the evidence is insufficient
to support the finding, we would still reject defendant’s ineffective assistance of counsel
claim because victim vulnerability was but one factor among many the court considered
in imposing sentence. (See People v. Sandoval (2007) 41 Cal.4th 825, 839 [broad
discretion in sentencing means one aggravating circumstance might be less significant
than the court’s overall assessment of the defendant’s conduct].) We are not convinced
that removing that aggravating factor from the court’s calculus would have led to a
different decision. Defendant has therefore not shown a probability of a more favorable
result, as required to succeed on a claim of ineffective assistance of counsel. (See
People v. Ledesma (1987) 43 Cal.3d 171, 217.)
D. The Abstract of Judgment Must Be Corrected to Strike Punishment for the
Great Bodily Injury Enhancement Imposed on Count 2
Defendant correctly notes that the abstract of judgment contains a clerical error. It
does not reflect that the trial court imposed a great bodily injury sentencing enhancement
under Penal Code section 12022.7, subdivision (a) as to count 2 (assault with a firearm)
but then struck the punishment for that enhancement. We will order the abstract of
judgment amended to correctly reflect the sentence imposed.
III. DISPOSITION
The clerk of the superior court is ordered to amend the abstract of judgment to
reflect the imposition of an enhancement under Penal Code section 12022.7,
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subdivision (a) as to count 2, and also to reflect that the sentence for that enhancement
was stricken.
With that correction, the judgment is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H048117 - The People v. Ceja Rodriguez