People v. Rodriguez CA6

Filed 5/23/14 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039341 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1120287)

v.

JESUS RODRIGUEZ III,

Defendant and Appellant.

A jury found defendant Jesus Rodriguez III guilty on: Count One—felony possession of a destructive device in and near a private habitation and in a public place (Pen. Code, § 18715) 1; Count Two—felony simple possession of a destructive device (§ 18710); and Count Four—misdemeanor possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). Defendant admitted a prior “strike” conviction and two prison priors. (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b).) The trial court imposed an aggregate term of nine years in prison. On appeal, defendant contends the conviction on Count Two must be reversed because it constitutes a lesser included offense of Count One. He also contends his trial counsel was ineffective for failing to object when the trial court struck the testimony of a defense witness who refused to answer a question during direct examination.

1 Subsequent undesignated statutory references are to the Penal Code.

We find both claims without merit, and we will affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offense On November 17, 2011, police conducted a search of defendant’s home in San José.2 Defendant’s mother led police to defendant’s bedroom, where they found mail addressed to defendant on a nightstand next to the bed. Police also found a scale, a hypodermic needle, and three military hand grenade simulators. A hand grenade simulator is a cardboard tube filled with explosive powder that is used by the military in training exercises. The simulators were stored inside a box in a drawer near the end of defendant’s bed. The box had compartments to hold five simulators, but it only contained three simulators. In a statement to police, defendant said he knew about the presence of the grenade simulators, but he thought they were fireworks. He claimed that he bought them on the street for $100, and had detonated two of them during a Fourth of July celebration. He stated that he used the hypodermic needle to inject methamphetamine, and he used the scale to ensure he did not get “shorted” when he bought narcotics. At trial, defendant testified that he told police he did not know about the grenade simulators. He admitted, however, that he told police he had purchased them on the street for $100 and that he had detonated two of them during a Fourth of July celebration. But he testified at trial that these statements were not true, and that he made these false statements to police because he was trying to take responsibility for the grenade simulators to protect his girlfriend’s teenage son, Elias T. Defendant admitted having a prior conviction for misdemeanor possession of illegal fireworks. He also admitted having a prior conviction for gang-related attempted murder, for which he spent 10 years in prison.