People v. Rodriguez CA2/6

Filed 5/27/14 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B248552 (Super. Ct. No. VA124544) Plaintiff and Respondent, (Los Angeles County)

v.

EDUARDO ALFREDO RODRIGUEZ,

Defendant and Appellant.

Eduardo Alfredo Rodriguez appeals the judgment entered after a jury convicted him of second degree murder (Pen. Code,1 §§ 187, 189). The trial court sentenced appellant to 15 years to life in state prison. He contends the trial court gave an erroneous instruction on aiding and abetting liability. We affirm. STATEMENT OF FACTS At about midnight on May 10, 2011, appellant and Eduardo "Dingo" Gonzalez were driving in an Isuzu Trooper in South Gate when they saw Guillermo Elisea. Gonzalez fatally shot Elisea twice in the back and the Trooper sped away.

1 All further undesignated statutory references are to the Penal Code.

Several weeks later, the police went to Gonzalez's residence and recovered a .40-caliber pistol. Tests confirmed that expended casings and a bullet found at the scene of the shooting were fired from the pistol. Following his arrest, appellant was placed in a cell along with two sheriff's deputies posing as inmates. In a recorded conversation that was played for the jury, appellant told the deputies he was riding with his "brother" Dingo when Dingo spotted Elisea standing in front of an apartment building. Dingo had been "hunting" Elisea due to a dispute over a woman. Dingo switched seats with appellant and shot Elisea multiple times in the back before appellant drove away. Appellant took the expended casings and flushed them down a toilet. He then parked the Trooper in Riverside on property owned by his girlfriend's brother. Appellant also said the police found the murder weapon when they searched Dingo's house. The police subsequently found the Trooper where appellant said he had parked it. DISCUSSION Appellant was prosecuted on the theory that he aided and abetted Elisea's murder by helping Gonzalez find Elisea and driving during and after the shooting. The jury was instructed on aiding and abetting liability in accordance with CALJIC No. 3.01 as follows: "A person aids and abets the commission or attempted commission of a crime when he: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, or, by failing to act in a situation where a person has a legal duty to act, aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission or attempted commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and in the absence of a legal duty to take every step reasonably possible to prevent the crime, the failure to prevent it does not amount to aiding and abetting." (Italics added.)