People v. Rodriguez CA4/3

Filed 12/8/20 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G057841

v. (Super. Ct. No. 09CF3083)

FRANCISCO ALBERTO RODRIGUEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with instructions. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent. * * * A jury convicted Francisco Alberto Rodriguez of attempted premeditated murder, burglary, robbery, street terrorism, and firearm possession. The jury also returned true findings on associated weapon and street gang allegations. The court sentenced him to an aggregate term of 14 years, eight months plus 15 years to life. On appeal, Rodriguez maintains the court abused its discretion when it denied his motion for new trial based on ineffective assistance of counsel. He also raises a sentencing issue, which the Attorney General concedes. We conclude the first contention lacks merit but agree with the parties the abstract of judgment must be corrected to reflect the correct sentence on the attempted murder conviction. In all other respects, we affirm the judgment. FACTS Rodriguez’s primary argument concerns issues raised in his new trial motion. Accordingly, we limit our factual summary to focus on those claims. The underlying convictions were based on evidence that on December 6, 2009, Rodriguez and his uncle, Jesus Mejia, broke into a garage and were attempting to steal stereo equipment from a car when the owners (Husband and Wife) confronted them. Rodriguez was inside the car and told Husband not to move. He then pointed a gun at Husband. The gun was described as a black rifle or shotgun, not a handgun, 14 to 15 inches long. Mejia pointed a handgun at Wife while she was speaking with a 911 emergency operator. Rodriguez pointed his rifle at Husband and pulled the trigger three times, but the gun appeared to jam. Both Husband and Wife testified as to having observed Rodriguez’s finger on the trigger of the rifle or shotgun attempting to pull the trigger and the gun jamming. Each time the weapon did not fire, it made Rodriguez