The People v. Rodriguez CA6

CourtCalifornia Court of Appeal
DecidedAugust 29, 2013
DocketH038055
StatusUnpublished

This text of The People v. Rodriguez CA6 (The People v. Rodriguez CA6) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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The People v. Rodriguez CA6, (Cal. Ct. App. 2013).

Opinion

Filed 8/29/13 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038055 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1077096)

v.

FRANCISCO JAVIER RODRIGUEZ,

Defendant and Appellant.

Defendant Francisco Javier Rodriguez appeals from the denial of a petition for a finding of factual innocence. Defendant contends that his trial testimony shows that he killed in self-defense, and that the trial court therefore erred in failing to declare him factually innocent of the charges of murder and attempted murder. We conclude that the trial court properly denied defendant’s factual innocence petition, and we accordingly will affirm. FACTUAL AND PROCEDURAL HISTORY On the night of May 15, 2010, defendant went to Club Bahia, a Milpitas nightclub, with a few friends, including Eric Flores and Israel Quintero. That same night, Jorge Soto went to Club Bahia with a group of friends, including Edwin Reyes, Marobert Flores,1 and Gabriel Diaz. When Club Bahia closed at 1:30 a.m. on May 16, 2010, Soto and members of his group fought with members of defendant’s group. Eric suffered a punch to the face during the fight. Security guards used pepper spray to break up the fight. After the fight ended, Diaz heard defendant tell Soto, “I’m gonna catch you slipping.”2 That phrase is slang for sneaking up on someone or retaliating against someone. Soto’s group and defendant’s group left Club Bahia. Soto’s group went to Tacos al Carbon, a San Jose restaurant. One of defendant’s friends drove defendant, Eric, and Quintero to defendant’s house. Defendant, Eric, and Quintero got into defendant’s SUV, and defendant drove toward Tacos al Carbon. During the drive, Eric complained about being punched and said that he “wanted to get them back.” Defendant’s SUV pulled into the Tacos al Carbon parking lot 15 to 20 minutes after Soto’s group had arrived at Tacos al Carbon. Soto, Reyes, and several of their friends were standing in the parking lot. Quintero heard Eric say, “There’s the guy over there.” Quintero heard defendant respond, “Nah, it’s too much of a coincidence that he would be here too.”

1 Because Eric Flores and Marobert Flores share the name Flores, this opinion will refer to the men as Eric and Marobert. 2 A police officer spoke with Diaz shortly after the charged offenses occurred. The police officer testified that Diaz stated that the “suspect” yelled and cursed at Soto at Club Bahia, and that the “suspect” said, “[W]e’re gonna catch you slipping.” Defendant contends that the suspect referred to by the officer was Eric. Defendant’s contention is unpersuasive. Given Diaz’s testimony that defendant argued with Soto at Club Bahia and Diaz’s testimony that he told the officer that defendant was in an altercation with Soto at Club Bahia, we cannot conclude that the suspect referred to by the officer was necessarily Eric. Moreover, Diaz’s trial testimony regarding defendant’s “slipping” comment was consistent with his preliminary hearing testimony. At the preliminary hearing, Diaz also testified that defendant told Soto, “I’m gonna catch you slipping.” 2 Reyes saw defendant’s SUV stop “in the middle of the parking lot, lights off, for a cool minute.” Soto said, “It’s the guys we were fighting at the club.” Reyes said, “Fuck it. Let’s do them one on one.” Defendant’s SUV began driving through the parking lot, and Soto, Reyes, and five to 10 of their friends ran toward the SUV. When Soto’s group was approximately eight feet away from the SUV, Reyes saw defendant reach under his seat. Reyes believed that defendant was reaching for a gun. Defendant smiled, and Soto said that defendant was “bluffing.” Defendant then pulled out a gun, continued driving, and fired at Soto’s group. Reyes felt a bullet go by his head. Two bullets hit Soto, fatally wounding him. Defendant accelerated and drove the SUV out of the parking lot. After the SUV left the parking lot, Reyes saw that Marobert’s arm was injured. Marobert testified that he was intoxicated at the time of the shooting, and that he did not remember whether he was present in the parking lot when the shooting occurred. At trial, defense counsel asked Reyes whether Marobert was running behind Reyes toward defendant’s SUV. Reyes responded, “I guess. I don’t know. I guess he was.” At the preliminary hearing, Reyes testified that Marobert ran with Soto and Reyes toward defendant’s SUV. Defendant fled the San Jose area after the shooting, and he was arrested at the Mexican border on May 17, 2010. Defendant spoke with the police. Defendant never told the police that he fired the gun in self-defense, and he never told the police that he believed his life was in danger in the parking lot. Police found two 25-caliber shell casings in defendant’s SUV. Immediately after the shooting, police found two 25-caliber shell casings near Soto’s body. Two bullets were removed from Soto’s body. The defense theory of the case was self-defense. Defendant testified that he drove to Tacos al Carbon, the only restaurant open late at night, in order to get burritos. He

3 explained that the gun was in the SUV because Eric had left it there several hours before the shooting. Defendant never checked to see if the gun was loaded. Defendant testified that when he pulled his SUV into the Tacos al Carbon parking lot, “a lot of people” ran toward the SUV. The people were screaming and cursing at defendant. They said, “Stop the fucking truck. We’re gonna fucking fuck you up.” They also said, “Where’s your little faggot ass scrap homey?” The use of the word “scrap” made defendant believe the people were members of the Norteño gang. Defendant noticed that some of the people in the advancing group had been involved in the fight at Club Bahia. Defendant was afraid that the people were going to punch him. When the person at the front of the advancing group was approximately eight feet away from defendant’s SUV, defendant fired a warning shot to scare the group away. Reyes said, “You think you’re gonna scare me with that shit?” Defendant saw Reyes lift up his shirt and reach toward his waist. Defendant feared that Reyes was going to “take out a weapon and start shooting,” so defendant leaned forward and fired the gun. Defendant quickly drove out of the parking lot because he feared he was going to be shot. Defendant explained that he fled to Mexico because he feared Norteño gang members would retaliate against him. Defendant admitted that his fear of “going to jail for the rest of [his] life” also caused him to flee. Defendant denied making a comment regarding “slipping” at Club Bahia, and he explained that he merely pulled Eric away from the fight. Defendant denied stopping his SUV in the Tacos al Carbon parking lot. He explained that he was driving while the group ran toward his SUV, and that he was driving while he fired the shots. Defendant also denied that Eric pointed out Soto’s group when defendant drove into the Tacos al Carbon parking lot. Defendant admitted that he fired at least four bullets at Soto’s group.

4 An information charged defendant with murder of Soto (Pen. Code, § 187),3 attempted murder of Reyes (§§ 664/187), and attempted murder of Marobert (§§ 664/187). The information alleged that defendant personally and intentionally discharged a firearm in the commission of the charged offenses (§ 12022.53, subds. (c) & (d)), and that defendant intentionally killed by discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)). Defendant’s case proceeded to a jury trial.

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Bluebook (online)
The People v. Rodriguez CA6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-people-v-rodriguez-ca6-calctapp-2013.