People v. Rodriguez CA2/6

Filed 4/7/15 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B253098 (Super. Ct. No. YA085714) Plaintiff and Respondent, (Los Angeles County)

v.

FRANCISCO JAVIER RODRIGUEZ,

Defendant and Appellant.

An amended information charged appellant Francisco Javier Rodriguez with criminal threats (Pen. Code, § 422)1 (counts 1 and 2), corporal injury to a spouse (§ 273.5, subd. (a)) (count 3), shooting at an inhabited dwelling (§ 246) (count 4), assault with a firearm (§ 245, subd. (a)(2)) (count 5), and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 6). As to counts 1, 2 and 5, it was alleged appellant personally used a firearm (§§ 1192.7, subd. (c), 12022.5, subd. (a); 667.5, subd. (c).) It also was alleged he had suffered a prior serious or violent felony (§§ 667, subds. (a) & (b)-(i), 1170.12, subds. (a)-(d)), and five prior convictions for which he had served a prison term (§ 667.5, subd. (b)).

1 All statutory references are to the Penal Code.

Pursuant to a negotiated plea agreement, appellant pled no contest to counts 3 and 4, admitted the prior strike and serious felony conviction allegations and agreed to a protective order prohibiting contact with any of the victims for 10 years (§ 273.5, subd. (j) [formerly subd. (i)].) In exchange, appellant received a stipulated aggregate 17-year prison term and dismissal of the remaining counts and allegations. The trial court imposed the agreed upon sentence, ordered appellant to pay the requisite fees and fines and awarded 517 days of presentence custody credit. Appellant filed a notice of appeal, and the trial court granted a certificate of probable cause. Appellant contends the trial court erred by imposing the protective order under section 273.5, subdivision (j), and requests that it be stricken. The record reflects it was a negotiated, material term of the plea agreement. We affirm. FACTS2 On September 28, 2012, appellant became angry with his then-pregnant wife, Jessica Rodriguez (Jessica), and told her to have an abortion. He pulled a gun from his waistband, pointed it at her stomach and said, "I should fucking kill you, bitch." When Jessica took a step back, appellant got into his car and drove away. Two days later, appellant and Jessica got into another argument. They were at the front of her residence; Jessica's mother, two children and brother, Kodiak Hamff, were inside. Appellant again insisted that Jessica have an abortion, hitting her several times in the stomach, chest and head area. Jessica tried to defend herself with a pencil. When that failed, she grabbed a bat. While they struggled over the bat, Hamff managed to separate the two and pushed appellant out of the house. Appellant reiterated that Jessica should get an abortion. Hamff said, "It's her body. She can make her own decisions." After telling Hamff he was going to get him, appellant retrieved a handgun from his car. He pointed it at Hamff, who was on the porch, and fired a round that went into the house. One bullet went through a window and lodged into a bedroom wall.