P. v. Rodriguez



Filed 3/9/11 P. v. Rodriguez CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

F059002 (Super. Ct. No. VCF212931) OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
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Alfredo Rodriguez (appellant) was charged with an 11-count amended information. He pled no contest to possession of a firearm by a felon in counts 7 and 8 (Pen. Code, § 12021, subd. (a)(1)),^[1] to resisting a police officer in count 9 (§ 148, subd. (a)(1)), to hit and run in count 10 (Veh. Code, § 20002, subd. (a)), and to disobeying a court order in count 11 (§ 166, subd. (a)(4)). Following trial on the remaining counts, a jury acquitted appellant of attempted murder in count 2 (§§ 664, 187, subd. (a)), and of shooting at an inhabited dwelling in count 5 (§ 246), but convicted him of discharging a firearm with gross negligence in count 1 (§ 246.3, subd. (a)), of assault with a firearm in counts 3 and 4 (§ 245, subd. (a)(2)), and of shooting from a motor vehicle in count 6 (§ 12034, subd. (c)). Personal use of a firearm allegations attached to counts 3 and 4 were found true (§ 12022.5). In a bifurcated proceeding, the trial court found true the allegations that appellant had a prior strike (§ 1170.12, subds. (a)-(d)), that the prior strike was a serious felony (§ 667, subd. (a)(1)), and that he had suffered a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced appellant to a total determinate term of 22 years 4 months in prison as follows: On count 3, the midterm of three years, doubled by the strike allegation, plus the midterm of four years for the personal use of a firearm allegation, five years for the prior serious felony allegation, and one year, stayed, for the prior prison term allegation; on count 4, one-third the midterm of one year, doubled, plus 16 months for the firearm allegation; on count 1, eight months, doubled; on count 6, the midterm of five years, doubled, plus five years for the prior serious felony and one year for the prior prison term, all stayed; on count 7, eight months, doubled; on count 8, eight months, doubled; and on counts 9 through 11, 150 days with credit for time served.
Appellant contends there was insufficient evidence produced at trial to sustain a true finding that he had suffered a conviction of a strike prior; that the trial court erred when it failed to give a unanimity instruction in count 1; that the trial court should have stayed sentence on either count 7 or 8 pursuant to section 654; and that the trial court erred when it sentenced him twice on counts 9 through 11. We agree only with appellant's last contention and make a change to the abstract of judgment, but in all other respects, affirm.
FACTS
In November of 2008, Pedro Espinoza and his wife Veridiana Campos moved into a new house in Ivanhoe. Appellant, who had been previously married to Campos, lived nearby.
Early on November 1, Espinoza was driving in the neighborhood when he saw appellant standing in his yard. Appellant yelled something, and Espinoza called appellant a â€