People v. Rodriguez CA2/6

Filed 1/28/16 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B256431 (Super. Ct. No. 2012014196) Plaintiff and Respondent, (Ventura County)

v.

JESUS LEYVA RODRIGUEZ,

Defendant and Appellant.

Jesus Leyva Rodriguez appeals his conviction, by jury, of the April 2012 attempted murder of Benny Huerta (Pen. Code, §§ 664, 187, subd. (a))1, assault with a semi-automatic firearm (§ 245, subd. (b)), and resisting arrest. (§ 148, subd. (a)(1).) The jury found that appellant personally used and personally discharged a firearm in committing the attempted murder and assault, that he personally inflicted great bodily injury on Huerta, and that he committed the offenses for the benefit of a criminal street gang, Colonia Chiques. (§§ 12022.5, subd. (a)(1); 12022.53, subd. (d); 12022.7; 186.22, subd. (b)(1).) It was unable to reach a verdict on additional charges that appellant engaged in street terrorism (§ 186.22, subd. (a)), and that he committed assault with a deadly weapon, a knife. (§ 245, subd. (a)(1).) The trial court sentenced appellant to an aggregate term of 44 years to life as follows: a determinate term of 9 years on the

1 All statutory references are to the Penal Code unless otherwise stated. 1

attempted murder conviction, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, plus a consecutive term of 10 years for the section 186.22, subdivision (b) gang enhancement. Appellant contends there is no substantial evidence he had the mental state required to commit attempted murder or that he acted for the benefit of a criminal street gang. He further contends the trial court abused its discretion when it imposed the upper term of 9 years on his attempted murder conviction. We affirm. Facts Benny Huerta grew up in the Ventura Avenue neighborhood of Ventura, California. Although he had been a member of Ventura Avenue Gangsters in his youth, Huerta testified he left the gang in 1995. On the evening of April 17, 2012, Huerta was walking on McFarlane Avenue toward his parked car, after visiting his friend, Christopher Hannegan. Two men approached Huerta before he reached his car. They exchanged words and a fist fight broke out. Within moments, Hannegan heard two gun shots. The two men ran away as Huerta stumbled down the street, looking for help. Blood was gushing from what turned out to be a stab wound to Huerta's right arm. He had also been shot twice in the torso. One bullet went through his stomach and exited the left side of his back. The other entered Huerta's right flank area and lodged in his pelvis. Onlookers came to Huerta's aid while Hannegan called 911. Hannegan told the responding police officers that one of the men was wearing a Rams football jersey and black pants. The other man was wearing a Dodgers baseball cap. Huerta told the responding police officer that he was walking down McFarlane when two men approached him and asked him where he was from. Huerta responded that he was from Ventura and was not a gang member. The two men shot and stabbed Huerta and then ran away. The shooting occurred at about 6:50 p.m., while it was still light outside. Sara Morales had picked up her children from her mother-in-law's house on McFarlane and was sitting in her car with them when she saw two men and a woman walk past. She heard yelling and the sound of people fighting. Morales looked in the side mirror of her