P. v. Rodriguez CA2/4

Filed 3/18/13 P. v. Rodriguez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B238002

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA380466) v.

ANTONIO POBLANO RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Antonio Poblano Rodriguez appeals from the judgment entered following his conviction by jury of making criminal threats with the use of a firearm and exhibiting a firearm. (Pen. Code, §§ 422, 12022.5, subd. (a), 417, subd. (a)(2).)1 He contends the trial court erred by allowing a witness to testify despite the prosecutor’s failure to comply with the discovery statute and denying his requested instruction. Defendant alleges the trial court’s errors denied him a fair trial in violation of the federal and state Constitutions. We discern no error and affirm.

STATEMENT OF FACTS

I. The Prosecution Case At approximately 11:00 a.m. on January 22, 2011, Desiderio Aguilar, a tow truck driver, was dropping off a car at a body shop. He parked in an alley near the shop entrance and entered the shop to transact his business. He gave an invoice to one of the shop employees, Lizeth Estrada. According to Estrada, Aguilar appeared happy. Aguilar left the office and while returning to the tow truck, he saw defendant speaking to another shop employee. Defendant was asking where the “fucking driver” of the tow truck was. Aguilar told defendant it was his truck, apologized, and said he was leaving. Aguilar continued toward the truck. Defendant was complaining that tow truck drivers were always blocking his driveway. Aguilar apologized and told defendant he needed to be more polite, as he was not treating Aguilar with respect. Defendant, who was yelling at Aguilar, cursed and said he was not the one who needed to be polite because it was Aguilar’s fault for parking his tow truck in front of defendant’s garage. Aguilar continued to apologize, stating he did not know what else to say. Defendant threatened to shoot Aguilar. When Aguilar asked whether he was really going to shoot, defendant repeated his threat.