People v. Rodriguez CA2/6

Filed 7/16/15 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B259657 (Super. Ct. No. 2013008125) Plaintiff and Respondent, (Ventura County)

v.

ERIC JAMES RODRIGUEZ,

Defendant and Appellant.

Eric James Rodriguez appeals from the judgment entered after a jury found him guilty of active participation in a criminal street gang (count 1 - Pen. Code, § 186.22, subd. (a)),1 assault with a deadly weapon (count 2 - § 245, subd. (a)(1)), and making a criminal threat (count 3 - § 422.) As to count 1, the jury found true an allegation that appellant had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) As to counts 1 and 2, the jury found true allegations that appellant had personally inflicted great bodily injury. (§ 12022.7, subd. (a).) As to counts 2 and 3, the jury found true allegations that the offenses had been committed for the benefit of a criminal street gang, Colonia Chiques. (§ 186.22, subd. (b)(1).) Appellant admitted three prior separate prison terms (§ 667.5, subd. (b)), two prior serious felonies (§ 667, subd. (a)(1)), and two prior "strikes" within the meaning of the "Three Strikes" law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) The trial court sentenced him to an aggregate term of 86 years to life.

1 All statutory references are to the Penal Code.

Appellant contends that the trial court erroneously failed to give, sua sponte, a unanimity instruction on the criminal threat charge. (§ 422.) Appellant asserts that such an instruction was required because he had made two discrete threats and the People had not elected which one would be the basis for the charge. Appellant also contends that the trial court omitted to instruct the jury on an element of the criminal threat charge. Appellant argues that the evidence is insufficient to support the gang participation conviction (§ 186.22, subd. (a)) because there is no substantial evidence that at least two members of Colonia Chiques participated in committing a felony offense. We direct the trial court to correct clerical errors in the Abstract of Judgment and otherwise affirm. Facts Angel Virgen sold methamphetamine and heroin in territory claimed by the Colonia Chiques criminal street gang. The gang collected "taxes" on her sales. Appellant, a Colonia Chiques gang member, came to Virgen's house to collect the taxes. Virgen spoke to him outside on the porch. She refused to pay and told him to leave. Appellant replied, "I'm going to shoot you, bitch." Virgen was afraid "[b]ecause [she] knew he's capable of doing it." She went inside the house. Appellant remained outside. About 10 minutes later, Virgen's Uncle Joe arrived at the house. He had been a Colonia Chiques gang member for a long time and was well respected within the gang. Virgen was still afraid of appellant. She asked Uncle Joe to tell him to leave. Uncle Joe went outside, punched appellant in the face, and told him to leave. Appellant left. Uncle Joe took a shower and left. About five or ten minutes later, some friends of Virgen came to Virgen's house. One of the friends was Jose Pineda, a Colonia Chiques gang member. About a minute or two after the friends had arrived, appellant returned to the house accompanied by a Colonia Chiques gang member with the moniker of "Flash." Virgen heard appellant saying, "Fuck that bitch, fuck that bitch." Virgen told appellant to leave. She was still afraid of him. Appellant said that he was going to kill her.