Opinion
F065807
09-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS MANUEL RODRIGUEZ, Defendant and Appellant.
Cara DeVitto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Peter W. Thompson, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1085319)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Cara DeVitto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Peter W. Thompson, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted Jesus Manuel Rodriguez and Edgar Octavio Barajas (collectively, defendants) of willful, deliberate, and premeditated murder, conspiracy to commit murder, and active participation in a criminal street gang, arising from the shooting death of a young girl in a park in Modesto. A firearm enhancement also was found true. This case has a lengthy and complicated procedural history. In our unpublished opinion in case No. F065807, we affirmed the judgments of both defendants. The defendants appealed to the California Supreme Court (Supreme Court), and in an opinion filed May 17, 2018, People v. Rodriguez (2018) 4 Cal.5th 1123, that court reversed defendant Barajas's convictions with directions to enter a judgment of acquittal. As to defendant Rodriguez, the Supreme Court remanded the matter to this court, with directions to remand to the trial court for the trial court to consider exercising its discretion under Penal Code section 12022.53, subdivision (h) with respect to the firearm enhancement; and to afford the parties an opportunity to submit additional information relevant to a youth offender parole hearing under section 3051. (People v. Rodriguez, at pp. 1132-1133.)
References to code sections are to the Penal Code unless otherwise specified.
In supplemental briefing after remittitur, Rodriguez argues, and the Attorney General agrees, that he also is entitled to remand for the purpose of conducting a juvenile fitness or transfer hearing pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299 and Welfare and Institutions Code section 707.
We remand the case.
FACTUAL AND PROCEDURAL SUMMARY
We provide an abbreviated recitation of the facts of the offenses in order to better understand the procedural history and posture of the case. In May 2004, Oregon Park in Modesto was a known Norteño gang hangout. Gina Lopez, a Police Activities League (PAL) employee, operated an after-school recreational program at Oregon Park for children between the ages of three and 18 years. Lopez usually set up her program under a gazebo. The Norteños had never caused a problem for Lopez or the PAL program.
Also in May 2004, Rodriguez, then 15 years old, and Barajas, then 16 years old, were Sureño gang members. On May 26, 2004, Barajas, Rodriguez and a third Sureño gang member, Mario, used Rodriguez's Chevrolet Blazer to drive to a location to pick up a firearm. Barajas got out of the vehicle and returned carrying a .22-caliber Savage rifle. On the ride home, the three young men discussed the Norteños. The three stopped and picked up fellow Sureños Pedro and Rigoberto, who joined them in the Blazer.
Around 5:30 p.m. on May 26, 2004, Lopez noticed a white Chevrolet Blazer with broken out windows pass by the gazebo area once and drive slowly around the park. As it passed by the gazebo area the second time, someone shouted "Puro Sur," which is Spanish for "Pure South." The occupants of the Blazer were throwing gang signs, specifically, a "13" hand sign. A black object was lifted up through a broken window of the Blazer and multiple gunshots were heard coming from the Blazer.
Lopez heard Ernestina Tizoc (hereafter Tina) scream. Lopez did not consider Tina to be a Norteño. Tina yelled, "it hit me, it hit me." After the shots were fired, the Chevrolet Blazer drove off. Lopez called 911. Tina died from her injuries.
Mario, who was in the Chevrolet Blazer, testified that he, Rodriguez, Barajas, Rigoberto, and Pedro passed through Oregon Park looking for Norteños. As the Blazer approached the gazebo, Barajas shouted "puro Sur" and fired multiple shots. When Barajas stopped shooting, the Blazer sped away. On May 27, 2004, Rodriguez led an officer to a location where the .22-caliber rifle was located. Discussions with Rodriguez also led the officer to .22-caliber casings and .22-caliber bullets at two residences.
Rodriguez and Barajas were charged with willful, deliberate, and premeditated murder, conspiracy to commit murder, and active participation in a criminal street gang. The information also alleged, as to the murder and conspiracy counts, that at least one principal intentionally and personally used a firearm, causing great bodily injury or death. It also was alleged that the offenses were committed for the benefit of a criminal street gang.
The jury convicted Rodriguez and Barajas of all counts and found all allegations true. On September 12, 2012, the trial court sentenced both Rodriguez and Barajas to terms of 50 years to life and credited them with 3,022 days for time served. Both Rodriguez and Barajas appealed. Defendants challenged their convictions on the grounds the People failed to preserve exculpatory evidence, juror misconduct, insufficient corroboration of accomplice testimony, and instructional error. They also contended their sentences of 50 years to life violated the Eighth Amendment to the United States Constitution.
The Attorney General defended the convictions and sentences in this court. We rejected all the defendants' contentions and affirmed the judgments in our unpublished opinion filed February 17, 2015, in case No. F065807.
Thereafter, Rodriguez and Barajas appealed from this court's February 17, 2015, decision and on August 17, 2016, in case No. S225231, the Supreme Court remanded the matter back to this court with directions to vacate its decision and reconsider the case in light of People v. Franklin (2016) 63 Cal.4th 261, 269 as to both defendants and People v. Romero and Self (2015) 62 Cal.4th 1 (Romero and Self) as to Barajas. Both Franklin, filed May 26, 2016, and Romero and Self, filed August 27, 2015, were published after our original opinion was filed in this case on February 17, 2015.
After remand, we again affirmed the convictions and sentences in our opinion filed December 20, 2016. Barajas filed a petition for rehearing in this court on January 4, 2017. We denied the petition on January 6, 2017.
Rodriguez and Barajas again petitioned for review to the Supreme Court and on April 12, 2017, review was granted in case No. S239713. The grant of review was limited to two issues: "(1) Was the accomplice testimony in this case sufficiently corroborated" pursuant to Romero and Self, supra, 62 Cal.4th 1, 36; and "(2) Is the defendant's constitutional challenge to his 50 years to life sentence moot when, unlike in People v. Franklin[, supra,] 63 Cal.4th 261, his case was not remanded to the trial court to determine if he was provided an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings as it fulfills its statutory obligations under Penal Code sections 3051 and 4801?"
The Supreme Court issued its opinion in S239713 on May 17, 2018. (People v. Rodriguez, supra, 4 Cal.5th 1123.) In the Supreme Court, the Attorney General conceded that the accomplice testimony was insufficiently corroborated as to Barajas. The Supreme Court reversed Barajas's convictions, remanded the matter, and ordered entry of a judgment of acquittal as to Barajas. (Id. at pp. 1126, 1128, 1132.) A judgment of acquittal as to Barajas only was entered on July 26, 2018.
As to Rodriguez, the Supreme Court upheld the convictions and sentence, but remanded to this court with instructions to remand the matter to the trial court. (People v. Rodriguez, supra, 4 Cal.5th at pp. 1132-1133.) In our December 20, 2016 opinion, this court had concluded that the plethora of information contained in the probation report, juvenile fitness report, pretrial statements, and information submitted at the sentencing hearing were all available for consideration at the youth offender parole hearing under section 3051, subdivision (f), and Rodriguez could submit additional information at that hearing, thus no remand was necessary. (People v. Rodriguez, at p. 1131.) The Supreme Court, however, disagreed and directed that on remand the trial court was to provide an opportunity for Rodriguez and the People to supplement the record with additional information relevant to a youth offender parole hearing. (Id. at pp. 1131-1133.)
Additionally, after our December 20, 2016 opinion was filed, Senate Bill 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2) was enacted and became effective January 1, 2018. (People v. Rodriguez, supra, 4 Cal.5th at p. 1132.) Senate Bill 620 amended section 12022.53, subdivision (h) to provide that a trial court has discretion to impose, strike, or dismiss a firearm enhancement imposed pursuant to section 12022.53. The Supreme Court directed that on remand, the trial court be directed to consider the applicability of section 12022.53, subdivision (h) to Rodriguez's sentence. (People v. Rodriguez, supra, 4 Cal.5th at p. 1132.)
After the Supreme Court remittitur issued, Barajas filed a motion with this court to sever his appeal from that of Rodriguez. We granted the motion on July 20, 2018.
After the Supreme Court remittitur issued, Rodriguez filed supplemental briefing on June 25, 2018, pursuant to California Rules of Court, rule 8.200(b)(1), (2), seeking to apply Proposition 57, approved by voters on November 8, 2016, and effective on November 9, 2016, to his case. (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 304.)
References to rules are to the California Rules of Court. --------
The Attorney General filed supplemental briefing on July 10, 2018, in response to the supplemental brief filed by Rodriguez. (Rule 8.200(b)(1).) In his supplemental brief, the Attorney General concedes that Proposition 57 applies to Rodriguez's case and the matter should be remanded for a new juvenile fitness hearing, even though a juvenile fitness hearing was conducted in Rodriguez's case and he was found unfit to be tried in juvenile court.
Proposition 57, implemented in current Welfare and Institutions Code section 707, provides that the People may not commence a criminal action against a juvenile directly in adult court; the matter first must be filed in juvenile court. If the People wish to try the juvenile as an adult, the juvenile court must conduct a transfer hearing to determine if the juvenile will be tried in adult or juvenile court. (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 303.) The Supreme Court held that Proposition 57 applies retroactively to all juveniles charged directly in adult court whose judgment was not final at the time Proposition 57 was enacted. (Id. at pp. 303-304.)
We remand the case for a Proposition 57 juvenile fitness hearing because the Attorney General and Rodriguez agree that under the facts of this case, the matter should be remanded.
DISPOSITION
The convictions and sentence of appellant Jesus Manuel Rodriguez are conditionally reversed, and the matter is remanded to the juvenile court with directions to conduct a new juvenile fitness, or transfer, hearing. (Welf. & Inst. Code, § 707, subd. (a); People v. Superior Court (Lara), supra, 4 Cal.5th at p. 309.) When conducting said hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a petition in the juvenile court and then moved to transfer Rodriguez's case to a court of criminal (adult) jurisdiction under the applicable laws as amended by Proposition 57.
If, after conducting the juvenile transfer hearing, the juvenile court finds it would not have transferred Rodriguez to a court of criminal (adult) jurisdiction, it shall treat Rodriguez's convictions as juvenile adjudications; exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) to impose or strike the firearm enhancement; and impose an appropriate disposition.
If, after conducting the juvenile transfer hearing, the juvenile court determines it would have transferred Rodriguez to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then Rodriguez's convictions and sentence shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall (1) afford both Rodriguez and the People an adequate opportunity in accordance with People v. Franklin, supra, 63 Cal.4th 261, 283-284, 286 to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801; (2) exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) to impose or strike the firearm enhancement; and (3) if appropriate following exercise of that discretion, resentence Rodriguez accordingly. If the trial court resentences Rodriguez, it shall cause to be prepared an amended abstract of judgment that reflects the new sentence, and shall cause a certified copy of same to be transmitted to the appropriate authorities.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.