People v. Rodriguez CA6

Filed 8/2/16 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041644 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C-13-70383)

v.

RUBEN PUENTE RODRIGUEZ,

Defendant and Appellant.

Defendant Ruben Puente Rodriguez assaulted his father and also threatened to kill him and harm his family. Based on that conduct, defendant pleaded no contest to three felonies: elder abuse (Pen. Code, § 368, subd. (b)(1)),1 assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and making criminal threats (§ 422, subd. (a)). On appeal, defendant argues that his sentence for making criminal threats should have been stayed under section 654 because it was part of a course of conduct that was indivisible from the conduct on which the other convictions was based. For the reasons stated here, we will affirm the judgment. I. TRIAL COURT PROCEEDINGS According to the probation report, in November 2013 San Jose Police Department officers were dispatched to the home of defendant’s father, Ruben Rodriguez, Sr. (father), based on a report of a family disturbance. An officer found father “in a great deal of pain”; father was holding his back and could not stand or walk. Father told the officer

1 Unspecified statutory references are to the Penal Code.

that he had begun arguing with defendant after defendant threatened to harm father’s wife, who was ill and in another room. Defendant was no longer at the house when the officers arrived. Defendant’s sister stated that she had woken up at the house to the sound of father and defendant yelling at each other in the front room. She entered the room and saw defendant push father to the ground. Defendant “stomped on [father] several times with his feet.” Another of defendant’s sisters also witnessed the attack, stating that defendant punched father with closed fists several times, knocked him to the ground, and then kicked him several times. Father’s wife did not witness the assault because she was in another room but heard defendant threaten to kill father. Defendant does not contest the statement in the probation report that “defendant also threatened to harm all of the family members ... .” Defendant was charged with: elder abuse (§ 368, subd. (b)(1)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and making criminal threats (§ 422, subd. (a)). The complaint also alleged that defendant had suffered a prior serious or violent felony conviction (§ 667, subds. (b)–(i)). In return for an indicated sentence of no more than five years four months in prison, defendant pleaded no contest to all three charged counts and admitted the prior conviction. Defendant filed a sentencing memorandum containing: a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) regarding the prior strike; a motion to reduce the criminal threats conviction to a misdemeanor (§ 17, subd. (b)); and a legal argument that section 654 required the court to stay the sentences on two of the three felony convictions. The court granted the Romero motion, denied the section 17, subdivision (b) motion, and found that section 654 did not preclude consecutive sentencing for elder abuse and making criminal threats. The court sentenced defendant to three years eight months in prison, consisting of the middle term of three years for elder abuse (§ 368,