Opinion
G054511
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO RODRIGUEZ, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF1954) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed as modified. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mario Alberto Rodriguez of second degree murder in the stabbing death of 26-year-old Paul Anthony Garcia (Pen. Code, § 187, subd. (a); all further statutory references are to the Penal Code). The jury found true an allegation Rodriguez used a deadly weapon to commit murder, i.e., a knife (§ 12022, subd. (b)(1)).
The court found true allegations Rodriguez had a prior serious felony conviction for purposes of the "Three Strikes" law, and under sections 667, subdivision (a)(1) and 667.5, subdivision (b).
After denying Rodriguez's request to strike his prior serious felony conviction for sentencing purposes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 503 (Romero); § 1385, subd. (a)), the court imposed an indeterminate term of 30 years to life, plus a five-year determinate term for the prior serious felony (§ 667, subd. (a)(1)), and one year for the prior prison term (§ 667.5, subd. (b)).
Rodriguez asserts the court's denial of his Romero request constitutes an abuse of discretion, and the court improperly imposed sentence on the prior serious felony in addition to doubling his base term under the Three Strikes law.
We conclude Rodriguez's has not demonstrated the court abused its discretion by denying his Romero request. The Attorney General concedes the court erroneously imposed sentence for the prior serious felony conviction, and we accept the concession. Accordingly, we modify the abstract of judgment. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
1. Trial Evidence
Around lunchtime, on March 9, 2013, Rodriguez, then 23 years old, and his father, Rigoberto Rodriguez (Rigoberto), and Rodriguez's friend, Pablo Sanchez, stepped out of Rodriguez's house on the way to get something to eat. Once outside, they saw Garcia. Garcia owed Rodriguez money. When Garcia saw Rodriguez, he turned and ran.
Rodriguez and Sanchez chased Garcia through a bank parking lot and back onto a street. Rigoberto went home to get the car. Garcia ran into a restaurant, and sat down at one of the tables. Minutes later, Rodriguez and Sanchez entered the restaurant. Rodriguez grabbed Garcia by the shirt and he tried to pull Garcia outside. One of the restaurant cooks told Rodriguez they had a surveillance system, and he needed to take the fight outside.
Rodriguez and Sanchez left the restaurant, but they paced by the front door, which prompted Garcia to go to the back of the restaurant. When Sanchez also moved to the rear door of the restaurant, Garcia came out of the front door and ran across a major street with Rodriguez in pursuit.
Rodriguez caught Garcia in a businesses' parking lot. Witnesses inside the business heard Rodriguez demand Garcia to pay him, and Garcia promising Rodriguez that he would. Nevertheless, Rodriguez repeatedly punched Garcia as Garcia ran around the parking lot in an attempt to flee.
Eventually, Garcia managed to get away from Rodriguez and run to the street. However, Sanchez and Rigoberto were parked across the street, and they came after Garcia. Garcia brushed up against Sanchez. Garcia, now bleeding from the chest, recrossed the major street and collapsed in front of a Zumba studio. Zumba employees called the police.
Rodriguez told Sanchez, "I got him. Let's go." Rodriguez, Rigoberto, and Sanchez drove home in Rigoberto's car. Rodriguez had a couple of drops of blood on the thigh portion of his pants.
A responding police officer found Garcia lying on his back on the sidewalk. Paramedics treated Garcia for a laceration in the lower part of his left chest. Garcia had been killed by a stab wound to the right ventricle of his heart. The wound caused rapid exsanguination, which rendered futile all efforts to save his life.
The same day, Rodriguez, his family, and Sanchez were at a party. Sanchez heard Rodriguez and his mother discussing whether Rodriguez should flee to Mexico. Sanchez asked Rodriguez why he needed to leave, and Rodriguez said he stabbed Garcia. When asked why he did it, Rodriguez said, "I had the shank in my hand and I did it a couple of times and then I didn't get him and then I put it away. And I then I just I was just hitting him. And then I don't know what made me take the knife out and do it again and I got him."
A week later, the police sought public assistance to identify suspects by publishing surveillance videos and stills from the restaurant's surveillance system. An anonymous tip identified one suspect, and a few days later, Sanchez went to the police with an attorney.
Police also received a tip that Rodriguez and his family were living in a small town in the state of Michoacán, Mexico. A warrant for Rodriguez's arrest was issued, and he was extradited back to the United States for trial.
At trial, Rodriguez testified he, his father, and Sanchez were headed to lunch when they saw Garcia. Rodriguez wanted to confront Garcia about a debt Garcia owed. Garcia had offered to sell Rodriguez his $200 EBT (Electronic Benefit Transaction) food stamp card for $100. Rodriguez gave Garcia $50 upfront and promised Garcia another $50 after he bought $200 of groceries with the card. Unfortunately, the card was not funded.
Rodriguez admitted chasing Garcia through a bank parking lot and into a restaurant. Rodriguez saw Garcia sitting in a booth and he asked for his money. Rodriguez wanted to go outside and talk, but Garcia refused. Rodriguez grabbed Garcia's collar and tried to drag him outside. However, someone told Rodriguez to leave the restaurant, and he went outside to wait for Garcia.
When Garcia left the restaurant, Rodriguez followed him across the street, up a driveway, and into a parking lot. Rodriguez grabbed Garcia and demanded his money. Garcia promised to pay, but Rodriguez did not feel Garcia was "being real with [him]." Rodriguez slapped and punched Garcia while he repeatedly demanded his money.
Garcia broke free and went to the side of a truck. Rodriguez said he grabbed Garcia and demanded his money, but he did not hit Garcia. Garcia broke free a second time, and Rodriguez caught him, again. This time Rodriguez punched Garcia a couple of times.
At this point, according to Rodriguez, Garcia put his hand in a pocket and retrieved a knife. Garcia pointed the knife at Rodriguez and moved toward him. Afraid for his life, Rodriguez struggled with Garcia for the knife, and they both fell into some bushes. Rodriguez ended up with the knife, and Garcia ran off. Rodriguez said he followed Garcia, and left the knife at the scene. He got into his father's car, and they drove home. He did not know Garcia had been stabbed until he heard about it at the party.
2. Sentencing Evidence
The Orange County Probation Department prepared a sentencing report following the verdict. In addition to a summary of the facts of the crime, the report detailed Rodriguez's prior criminal history, and it provided information about Rodriguez's background, family, education, adjustment in custody, and his performance on prior grants of probation and parole.
Rodriguez's first brush with the law occurred in 2004. That year, the juvenile court assumed jurisdiction over Rodriguez, then 15 years old, after the court found he hurled rotten eggs from the back of a truck with reckless disregard for the safety of nearby trick-or-treaters.
In 2005, the juvenile court twice sustained allegations Rodriguez vandalized Saddleback High School, and in a separate proceeding, that he possessed methamphetamine and drug paraphernalia.
In 2006, Rodriguez, now a recognized affiliate of the Walnut Street criminal street gang, was found in possession of a pipe used to smoke methamphetamine, which was a violation of his probation.
In 2007, a police officer stopped a car for a traffic infraction, and Rodriguez was a passenger in the car. A probation search of Rodriguez's pants pockets yielded a screwdriver, and a shaved key of the type used to steal cars. In addition, there were glass pipes used for smoking methamphetamine on the passenger floorboard of the car. The juvenile court sustained allegations Rodriguez possessed burglary tools and drug paraphernalia.
Later in the year, police officers serving an arrest warrant for Rodriguez also found a methamphetamine pipe in his bedroom. Rodriguez admitted the pipe belonged to him.
In 2008, Rodriguez, now 19 years old, and one of his friends, were sitting in a parked car when they came to the attention of a police officer. While the officer watched, Rodriguez and his friend inflated balloons with nitrous oxide and then inhaled from the balloons. Rodriguez pleaded guilty to illegal possession of nitrous oxide as a result.
In 2009, a police officer conducted a welfare check on the occupants of a parked car. Rodriguez and three other people were in the car. Although none of the car's occupants were over 21 years of age, they had beer, glass pipes, and methamphetamine in the car. Rodriguez pleaded guilty to one felony count of possession of methamphetamine, and three misdemeanor counts, in addition to admitting he violated his probation. Later that year, Rodriguez was a passenger in a stolen car.
In 2010, a police officer stopped a car Rodriguez was driving for a partially illuminated brake light. During the stop, the officer discovered Rodriguez was driving without a valid California driver's license, and he had a small amount of marijuana in his car.
About two months later, a police officer found stolen credit cards and personal checks in a bedroom Rodriguez used at his parents' home. In another room Rodriguez used, the officers found a glass pipe, and a shaved key of a type used to steal cars, on a keyring. Rodriguez pleaded guilty to receiving stolen property, possession of burglary tools, and possession of drug paraphernalia.
In 2011, Rodriguez, now 21 years old, pleaded guilty to possession of drug paraphernalia after a traffic officer found a tank of nitrous oxide and a glass pipe in his car.
Two months later, Rodriguez was again stopped for a traffic violation. This time, the police officer found a handgun in his car. A later search of his residence uncovered methamphetamine and narcotics paraphernalia. At the time, Rodriguez admitted "kicking back" with the Walnut Street gang, and he had the moniker, "Bandit." Rodriguez pleaded guilty to misdemeanor possession of drug paraphernalia.
Rodriguez committed his strike prior in 2012 when he was 22 years old. Police officers responded to a Walnut Street gang member's house on reports of a man with a gun. Rodriguez was found sitting in the driveway of the home, holding a 40-ounce bottle of beer in one hand, and a joint in the other. Rodriguez told the officers he was carrying a "shank," and they removed a folding knife from his waistband. A zippered bag found on Rodriguez's person contained 12 grams of methamphetamine, and there was a digital scale in his car. Rodriguez attempted to escape when they found the methamphetamine. Rodriguez pleaded guilty to possession of methamphetamine for sale with a gang enhancement, active participation in a criminal street gang, and resisting arrest.
The probation report included sentencing factors for the court to consider. The report listed two factors in aggravation with respect to the crime: (1) the crime involved great violence and cruelty (Cal. Rules of Court, rule 4.421(a)(1); all further rules references are to the California Rules of Court); and, (2) Rodriguez was armed with a deadly weapon (rule 4.421(a)(2)). There were no mitigating circumstances listed.
With respect to Rodriguez, the probation report listed five circumstances in aggravation: (1) Rodriguez engaged in violent conduct (rule 4.421(b)(1)); (2) Rodriguez's prior convictions are numerous and of increasing seriousness (rule 4.421(b)(2)); Rodriguez served a prior prison term (rule 4.421(b)(3)); Rodriguez was on parole when he committed the current crime (rule 4.421(b)(4)); and his performance on probation and parole has been unsatisfactory (rule 4.421(b)(5)). Again, there were no circumstances in mitigation listed.
In his Romero request, Rodriguez pointed to the following factors, which he argued justified the court's striking his prior serious felony conviction in the interest of justice: (1) his relative youth; (2) the fact he had previously served no more than 16 months in prison; (3) his positive adjustment to custody and maintenance of employment when on parole; and (4) his good relationship with his ailing mother, and family support.
Rodriguez also argued the instant crime only lasted about five minutes and did not involve sophistication or planning, the majority of his criminal history consisted of minor juvenile offenses, which were not serious or violent crimes, and his most serious conviction was the 2012 strike prior. Rodriguez emphasized the fact he pleaded guilty, and contended this showed he could take responsibility for his actions. Rodriguez told the court he wanted to become a productive member of society and take college courses while in custody.
The prosecutor argued against Rodriguez's Romero request, pointing to the seriousness of the instant offense, Rodriguez's lack of remorse, his lengthy criminal record, history of noncompliance with parole and probation, drug problem, and the increasing seriousness of his crimes.
Defense counsel strongly urged the court to strike the prior conviction and impose an indeterminate term of 15 years to life.
The court acknowledged the trial evidence, the probation report, the parties' sentencing briefs, and Rodriguez's Romero request. The court agreed that some of Rodriguez's prior crimes were relatively minor, but the court also noted Rodriguez's other crimes had been serious offenses.
The court stated, "I'm looking at the reasons the court could strike his strike. And I see none of these reasons that apply to this case. So I'm having a hard time with that." The court said, "I've read the cases. I've looked at the reasons that the court can justify striking the strike prior, and I'm not seeing it." The court found it could not "justify striking the strike," but it did strike the deadly weapon sentence enhancement.
DISCUSSION
1. Romero Request
Rodriguez argues the court abused its discretion by denying his request to strike his serious prior felony conviction in the interest of justice. Specifically, he asserts the court did not give enough weight to the fact his prior convictions occurred before he was 23 years old. Pointing to section 3051 and People v. Franklin (2016) 63 Cal.4th 261, Rodriguez asserts there is now universal recognition the under 23-year-old brain is less culpable than the adult brain, and there is no evidence the court considered this aspect of his background in denying his request.
In the alternative, Rodriguez also contends defense counsel's failure to emphasize his youth and reduced culpability at the sentencing hearing constitutes prejudicial ineffective assistance of counsel. We reject both contentions.
The Three Strikes law was "intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528.) A sentence prescribed by the Three Strikes law should be imposed unless "'"[the] defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) We review the court's denial of a Romero request for an abuse of discretion. (Id. at pp. 376-377.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, "'[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" [Citations.]" (Carmony, supra, 33 Cal.4th at pp. 376-377.)
"Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'" [Citations.]" (Carmony, supra, 33 Cal.4th at pp. 376-377.) There is a strong presumption the court's imposition of the Three Strikes sentence is both rational and proper unless the court was not "aware of its discretion" to dismiss (People v. Langevin (1984) 155 Cal.App.3d 520, 524) or the court considered impermissible factors in declining to strike the prior. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) These exceptions do not apply in this case, and as we will explain, nothing suggests the court's ruling was irrational or arbitrary.
Rodriguez places undue emphasis on his age. He cites a number of United States Supreme Court cases concerning juvenile sentencing, including Miller v. Alabama (2012) 567 U.S. 460, which held "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" (Id. at p. 465; Roper v. Simmons (2005) 543 U.S. 551 [invalidating death penalty for juvenile offenders]; Graham v. Florida (2010) 560 U.S. 48 [life without parole sentences for nonhomicide juvenile offenders violates the Eighth Amendment].)
However, we are not considering the punishment imposed for Rodriguez's juvenile offenses. Rodriguez was 23 when he committed the instant crime, and his cited authorities have no application to adult sentencing.
Generally, when deciding whether to apply the Three Strikes law to the defendant's current offense, the relevant factors are the nature and circumstances of the offense, the nature and circumstances of the defendant's prior serious and/or violent felony convictions, and the particulars of the defendant's background, character, and prospects. (Carmony, supra, 33 Cal.4th at p. 377.)
In this case, the record reflects the court's careful consideration of all the relevant factors. The court was aware of his juvenile record. As the court noted, Rodriguez's prior offenses were a mixture of gang-related vandalism, theft, and drugs, and they were becoming increasingly violent and serious. The court correctly concluded Rodriguez has not "add[ed] maturity to age." (See People v. Williams (1998) 17 Cal.4th 148, 163.) In short, Rodriguez has failed to show the court's denial of his Romero request was unreasonable, irrational, or capricious. There was no abuse of discretion.
2. Modification
Rodriguez asserts, and the Attorney General concedes, the court improperly imposed a one-year term for the prior serious felony conviction under section 667.5, subdivision (b). We agree.
The same prior conviction may not be used as the basis for both a prison prior under section 667.5, subdivision (b) and a serious felony prior under section 667, subdivision (a)(1). (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150.) The court imposed a five-year sentence for the prior serious felony conviction under section 667, subdivision (a)(1), and stayed a one-year term for the same conviction as a prison prior under section 667.5, subdivision (b). Thus, the judgment must be modified to strike the one-year sentence imposed pursuant to section 667.5, subdivision (b). (See Jones, supra, 5 Cal.4th 1153.)
DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment to strike the sentence imposed for the prison prior (§ 667.5, subd. (b)), and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.