P. v. Rodriguez
Filed 6/14/06 P. v. Rodriguez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. JEFFREY RODRIGUEZ, Defendant and Appellant. | H027433 (Santa Clara County Super. Ct. No. CC131089) |
Statement of the Case
By information, defendant Jeffrey Rodriguez was charged with second degree robbery. (Pen. Code, §§ 211-212.5(c).)[1] The information also alleged that he personally used a firearm and had two prior convictions for robbery that qualified as strikes. (§§ 12022.53, subd. (b), 667, subd. (a), 667, subds. (b)-(i), 1170.12.) In defendant's first trial, the jury deadlocked, and the court declared a mistrial. After a second trial, the jury convicted defendant of robbery and found the firearm enhancement allegation true. After a court trial, the court found the prior conviction allegations true. At sentencing, the court dismissed one prior conviction and imposed a total prison term of 25 years.
On appeal from the judgment, defendant claims the court erred in denying his pretrial motion for a continuance and his post-verdict motion for a new trial. He further that claims defense counsel rendered ineffective assistance.
Defendant also filed a petition for a writ of habeas corpus, in which he alleges ineffective assistance on a ground not raised in his appeal. We ordered that the petition be considered with the appeal.
We conclude that counsel rendered ineffective assistance and reverse the judgment. Under the circumstances, and by separate order, we deny defendant's petition for a writ of habeas corpus.
Facts
On December 10, 2001, around 9:00 p.m., the Kragen Auto Parts store on Silver Creek Road near Capitol Expressway closed for the day. At that time, Carmelo Ramirez, the assistant manager, was working in the back near doors to the loading dock. There are some storage lockers containing used motor oil just outside the loading dock and also a dumpster, where people dispose of household garbage, including cooking oil. There are oil stains on the pavement.
At 9:20 p.m., Ramirez heard someone say, â€
