P. v. Rodriguez




Filed 3/10/11 P. v. Rodriguez CA2/7







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO RODRIGUEZ, Defendant and Appellant.

B216949 (Los Angeles County Super. Ct. No. TA103151)

APPEAL from a judgment of the Superior Court of Los Angeles County, Jerry E. Johnson, Judge. Reversed in part, affirmed in part.
William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Guillermo Rodriguez appeals from a judgment of conviction entered after a jury found him guilty of arson of property of another (Pen. Code,[1] § 451, subd. (d); count 1), possession of flammable material (§ 453, subd. (a); count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); counts 3 and 4). With respect to all counts, the jury found true the allegation that the offenses were gang-related (§ 186.22, subd. (b)(1)(A), (b)(1)(B)).
The trial court sentenced defendant to a total state prison term of nine years. On count 3, the base term, the court imposed the midterm of three years, plus five years for the gang enhancement. On counts 1 and 2, the court imposed concurrent terms of eight months each (one-third the midterm of 24 months). On count 4, the court imposed a consecutive term of one year (one-third the midterm of three years). The court gave defendant a total of 148 days of presentence credits, consisting of 130 days of actual custody credits and 18 days of conduct credits.
Defendant challenges the trial court's discharge of a juror, denial of a continuance for cellular telephone expert testimony, instruction to the jury with respect to count 4, and award of presentence credits. He also contends the evidence is insufficient to support his conviction for assault with a deadly weapon or, in the alternative, his conviction for arson. We reverse the judgment as to the sentence. In all other respects, we affirm the judgment.

FACTS

A. Prosecution
On May 26, 2008, E.E. and his brother, Ernesto, lived on West 151st Street in Compton with their family. E.E. was 14 years old. Ernesto was 20 years old. E.E. was standing on the front porch around 11:20 p.m. when he saw a black Nissan and a black Acura drive eastbound by his house with their headlights turned off. E.E. recognized the vehicles because he previously had seen them drive by his house. He also had seen them while driving around the neighborhood.
Although it was dark, E.E. could see the drivers. A lamp post directly across the street from his house enabled E.E. to have a clear view of defendant, who was driving the Nissan and had his window rolled down halfway. E.E. could not see the passenger. Miguel B. (Miguel) was driving the Acura and his brother, Eric, was the passenger.
E.E. recognized defendant because defendant had talked with Ernesto earlier that afternoon in front of their house. E.E. had also seen defendant three other times in the neighborhood. E.E. knew defendant as â€