People v. Rodriguez CA1/4

Filed 3/24/15 P. v. Rodriguez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137490, A138562 v. ANTHONY LORENZO RODRIGUEZ, (Contra Costa County Super. Ct. No. 05-101106-3) Defendant and Appellant.

Anthony Lorenzo Rodriguez appeals from a judgment upon a jury verdict finding him guilty of possessing cocaine salt and methamphetamine for sale (Health & Saf. Code, §§ 11351, 11378 [counts one and two]) and active participation and promotion of a criminal street gang (Pen. Code,1 § 186.22, subd. (a) (section 186.22(a)) [count three]). The jury also found true the allegations as to counts one and two that the offenses were committed for the benefit and at the direction of, and in association with the Norteños, a criminal street gang, in violation of section 186.22, subdivision (b)(1). The trial court found that defendant suffered a prior serious felony conviction (§ 667, subd. (a)(1)); a prior “strike” conviction (§§ 667, subds. (b)–(i), 1170.12); and that he served a prior prison term (§ 667.5, subd. (b)). Defendant contends that the evidence is insufficient to support the gang participation offense, and that the corresponding serious felony enhancement must be stricken. He also contends that he is entitled to additional custody credits. We reverse the gang participation conviction and strike the section 667,

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

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subdivision (a)(1) enhancement and modify the judgment accordingly. We remand the matter to the trial court for a calculation of custody credits. I. FACTS On the afternoon of April 15, 2012, Officer Miguel Aguiar was on patrol in Brentwood when he observed defendant standing outside of a Ford Thunderbird in the carport of the apartment complex at 100 Village Drive. Aguiar knew defendant from previous contacts. Defendant was on parole and subject to a search clause. Aguiar searched defendant and found keys in his right front pants pocket. Aguiar used defendant’s keys to open the Ford Thunderbird which defendant said he had recently purchased. Officer Peter Folena, who also responded to the scene with other officers, found nothing relevant in the car. They proceeded to Apartment 221 at 100 Village Drive. Dennis Resendez responded to the door and consented to a search of his apartment. The police found a black briefcase inside Resendez’s apartment. Sergeant Misquez contacted Aguiar and obtained the keys that had been seized from defendant. Among the keys were four small padlock keys, all of which fit the two padlocks that were on the briefcase. Inside the briefcase, the police found two large plastic bags that contained smaller baggies with a crystal-like substance. The briefcase also contained a black replica firearm with a clip of BBs, a pay-owe sheet, $30, and a box of blank checks. There were no latent prints found on the baggies containing the controlled substances. Resendez had met defendant a month or two before the search. He knew defendant’s mother who lived in an apartment in the same complex. Defendant was living in his mother’s apartment. About two or three weeks before the search, defendant’s mother asked Resendez to do her a favor and to keep a black briefcase in his apartment. Defendant would come by the apartment once or twice a day every other day or so and use the briefcase. Resendez stepped out of the room when defendant was there. He suspected something illegal but did not want to know what was in the briefcase.