P. v. Rodriguez

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Filed 5/21/07 P. v. Rodriguez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ALEX GABRIEL RODRIGUEZ,
Defendant and Appellant.
C051048
(Super. Ct. No.
SF093292A)
Defendant was convicted by a jury of six counts of second
degree robbery (Pen. Code, § 211), two counts of attempted
second degree robbery (Pen. Code, § 664/211), possession of a
controlled substance (Health & Saf. Code, § 11377),
transportation of a controlled substance (Health & Saf. Code,
§ 11379), and possession of a controlled substance while armed
with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). He
was sentenced to state prison for an aggregate term of 53 years.
Defendant appeals claiming prosecutorial misconduct, ineffective

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assistance of counsel, and sentencing error. We find no error
and affirm the judgment.
F ACTS AND P ROCEEDINGS
The facts regarding the underlying offenses are generally
undisputed. Between August 29 and September 9, 2004, defendant
attempted eight robberies of small businesses in San Joaquin
County, including several small food stores, a gas station, a
fast food restaurant and a bar. In each instance, defendant was
armed with a firearm. In six of the attempts, defendant was
successful and fled with cash in amounts ranging from $30 to
several thousand dollars. In one of the robberies, defendant
discharged his firearm several times but did not hit anyone.
On September 14, 2004, police stopped defendant in a car
and found in his possession nearly two ounces of methamphetamine
and a glass smoking pipe. They also found two firearms,
including the one used in the aforementioned robberies.
Defendant’s photograph was selected by two of the robbery
victims from a photographic lineup. Defendant was also
interviewed by police and admitted the robberies.
The defense in this matter centered on negating defendant’s
intent to commit the robberies because of his excessive use of
methamphetamine. Defendant’s parents testified that defendant’s
personality changed significantly in the summer of 2004 because
of drug use. He had become aggressive, lost weight, began
talking to himself and would not listen to them.

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Defendant also introduced the testimony of Dr. Douglas
Tucker. Dr. Tucker provided expert testimony about the effects
of methamphetamine use and opined that, at the time of the
robberies, defendant was suffering from methamphetamine
dependence and methamphetamine-induced psychotic disorder.
According to Dr. Tucker, a person suffering from such disorder
loses touch with reality and has delusions.
On rebuttal, the People presented evidence that, at the
time of his arrest, defendant told an examining nurse he had no
history of drug use and the nurse noted no symptoms of
methamphetamine withdrawal. The arresting officer and the
officer who interviewed defendant after his arrest both
testified that defendant showed no signs of being under the
influence of methamphetamine and no symptoms of methamphetamine
withdrawal. Although defendant said at the interview that he
was under the influence of methamphetamine, he described his
condition as a “coffee-type high.”
D ISCUSSION
I
Prosecutorial Misconduct
Defendant contends the prosecutor engaged in misconduct
during argument by misrepresenting the evidence presented at
trial. He argues the prosecutor informed the jury he had asked
the defense expert various questions and received certain
responses, when the actual responses received were significantly

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different. Defendant argues this misconduct severely undermined
his sole defense of lack of intent.
“Improper remarks by a prosecutor can ‘“so infect[] the
trial with unfairness as to make the resulting conviction a
denial of due process.”’ [Citations.] Under state law, a
prosecutor who uses deceptive or reprehensible methods to
persuade either the court or the jury has committed misconduct,
even if such action does not render the trial fundamentally
unfair. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894,
969.)
During cross-examination of Dr. Tucker, the prosecutor
asked a number of questions intended to discredit his opinion
that defendant had been suffering from methamphetamine-induced
psychotic disorder during the crime spree. Those questions
described a particular aspect of defendant’s conduct during the
robberies and asked if that conduct demonstrated defendant was
suffering from psychosis. In most instances, Dr. Tucker
responded that the conduct did not necessarily indicate
psychosis. The following is an example:
“Q. So if someone wanted to rob somebody for money to pay
off a dealer, that wouldn’t be psychotic?
“A. Not necessarily.
“Q. He says there in the middle of the page, ‘robbed Three
Palms because he quote “needed money.”’
“Again, the quote is your notes. Again that wouldn’t be--
that type of motive wouldn’t be somebody who is psychotic, that
alone?

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“A. Correct. That doesn’t appear to be a psychotic
motive.
“Q. Okay. When he says two sentences down from that, ‘I
never thought I would get caught.’ And the fact that it’s
consideration of some type of consequences, that is not someone
who is necessarily exemplifying signs or symptoms of psychosis?
“A. Um, not necessarily, no.”
During his opening argument, the prosecutor repeatedly
informed the jury Dr. Tucker had responded that the conduct in
question did not indicate psychosis, leaving out the qualifier
“necessarily.” For example, the prosecutor described his
questioning of Dr. Tucker as follows:
“When Mr. Rodriguez told you that the gun gave him the idea
of the robberies, was that someone who is psychotic?
“His answer was ‘No.’ And I asked him based on his notes
did he tell you that ‘I just wanted the money to buy the dope.
I owe the dealer a lot.’
“I said, ‘Motivation to sell--to buy more narcotics and
that you own [sic] money for, to a dealer, is that someone who
is psychotic?’
“And his answer was ‘No.’
“When you say, ‘I never thought I would get caught, is that
someone who was psychotic?’
“The doctor said, ‘No.’ . . . ”
Assuming the foregoing argument amounts to misconduct,
defendant failed to object to it on the ground now asserted.
After several minutes of such argument, defense counsel asked to

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approach the bench, where a discussion among the court and
counsel ensued. Thereafter, the prosecutor proceeded with his
argument as before.
Following the conclusion of the prosecutor’s argument,
outside the presence of the jury, defense counsel put on the
record the nature of the conference at the bench:
“MR. ORTIZ [defense counsel]: I want the record to reflect
that I had requested to approach the bench during closing
argument of Mr. Ott [the prosecutor]. And I expressed a concern
that he represented to the jury that certain questions were
posed to our expert Dr. Tucker, and that there were certain
responses by Dr. Tucker to those questions.
“THE COURT: About what the defendant said to him during
the interviews?
“MR. ORTIZ: That’s correct. My recollection of Dr.
Tucker’s testimony was that some questions were asked but the
extent to which Mr. Ott said there were questions, I think--I
still believe were not asked of Dr. Tucker.
“THE COURT: All right.
“MR. OTT: Your honor, I specifically underlined the items
that I asked Dr. Tucker about so that I would not ask him, or I
would not argue at a later date those questions which he had not
directly brought out in cross-examination.
“Now, if I paraphrased that in order to speed through the
statements, I was reading it as best I recollect and what I was
reading down there. But those were all the questions I asked
Dr. Tucker.

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“THE COURT: All right. Well, one thing I can say is that
I know when the questions were being asked of Dr. Tucker, what
the defendant said was assumed in the question. In other words,
he wasn’t asked about the specifics of what the defendant said
and then asked ‘Does that indicate psychotic mode or psychotic
behavior?’ It was what was assumed in the question was what the
defendant said. And then he was asked ‘Does that indicate
psychotic behavior or psychotic mode,’ questions to that effect.
“So I don’t think that’s fatal, though. I think that’s a
fair inference that those things were said to Dr. Tucker by the
defendant. Although it could have been clearer in the cross-
examination. But all those areas that were commented on in
closing argument were addressed to Dr. Tucker in that fashion.
And so that’s why I overruled the objection at the bench.
“Certainly there is a fair inference that can be drawn from
the questions and answers that the defendant said those things.
And that was the bases of the questions about whether or not
that indicated a motive that was psychotic or behavior that was
psychotic. So whether or not Dr. Tucker’s answers were exactly
as articulated during the closing argument, I mentioned at the
bench that might be another story. But that’s the reason for
the Court’s ruling on that.
“Is there anything else that we need to talk about at this
time?
“MR. ORTIZ: No.
“MR. OTT: No.”

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It is clear from the foregoing that defendant’s objection
to the prosecutor’s argument concerned whether the prosecutor
was misrepresenting what questions had been asked of Dr. Tucker,
not what answers had been given by Dr. Tucker. Even after the
court’s prompting about “whether or not Dr. Tucker’s answers
were exactly as articulated during closing argument,” defendant
did not object on that basis.
“As a general rule a defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion--and on
the same ground--the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
However, “[a] defendant will be excused from the necessity of
either a timely objection and/or a request for admonition if
either would be futile. [Citations.] In addition, failure to
request the jury be admonished does not forfeit the issue for
appeal if ‘“an admonition would not have cured the harm caused
by the misconduct.”’ [Citations.] Finally, the absence of a
request for a curative admonition does not forfeit the issue for
appeal if ‘the court immediately overrules an objection to
alleged prosecutorial misconduct [and as a consequence] the
defendant has no opportunity to make such a request.’
[Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
Defendant does not contend the alleged misconduct could not
have been cured by a timely objection and request for
admonition. Instead, defendant contends his counsel’s failure
to assert an objection on the proper ground amounted to

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ineffective assistance of counsel. We consider this claim in
the next section. By failing to raise a timely objection on the
ground now asserted, when the prosecutor could have altered his
argument and the court could have provided an appropriate
admonition, defendant has forfeited the issue for purposes of
appeal.
II
Ineffective Assistance
Under both the Sixth Amendment to the United States
Constitution and article I, section 15 of the California
Constitution, a criminal defendant has a right to the assistance
of counsel. (See Strickland v. Washington (1984) 466 U.S. 668,
684-685 [80 L.Ed.2d 674, 691-692]; People v. Pope (1979) 23
Cal.3d 412, 422.) This right “entitles the defendant not to
some bare assistance but rather to effective assistance.”
(People v. Ledesma (1987) 43 Cal.3d 171, 215.) “To establish
entitlement to relief for ineffective assistance of counsel the
burden is on the defendant to show (1) trial counsel failed to
act in the manner to be expected of reasonably competent
attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted
in the absence of counsel’s failings.” (People v. Lewis (1990)
50 Cal.3d 262, 288.)
Defendant cannot satisfy either prong of the foregoing
test. In order to satisfy the first prong, the defendant must
show counsel’s performance “‘“fell below an objective standard

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of reasonableness . . . under prevailing professional norms.”’”
(In re Avena (1996) 12 Cal.4th 694, 721.) In evaluating a claim
of deficient performance, “there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citations], and we accord great
deference to counsel’s tactical decisions. [Citations.] Were
it otherwise, appellate courts would be required to engage in
the ‘“perilous process”’ of second-guessing counsel’s trial
strategy. [Citation.] Accordingly, a reviewing court will
reverse a conviction on the ground of inadequate counsel ‘only
if the record on appeal affirmatively discloses that counsel had
no rational tactical purpose for his act or omission.’” (People
v. Frye, supra, 18 Cal.4th at pp. 979-980.)
In the present matter, defendant did not object that the
prosecutor was misrepresenting Dr. Tucker’s answers even when
prompted by the trial court. On the present record, we cannot
say defendant had no tactical reason for this course of action.
In his argument to the jury, defense counsel responded to the
prosecutor’s misrepresentation of the evidence. Defense counsel
stated: “Mr. Ott characterizes certain questions posed as some
sort of acknowledgement by Dr. Tucker that, in fact, the
evidence shows to the contrary. You recall that testimony that
was just a couple of days ago--and if there is any question
about what he said, what the questions were, ask for a read
back. We talked about 26 ‘no’s’ as far as whether that was
indicia of psychosis. But there weren’t 26 questions posed to
him.

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“What was asked of Dr. Tucker was taken in isolation,
ignoring everything else that we know about this case. One
fact, does this one fact indicate psychosis? The doctor said
[sic] didn’t say ‘No absolutely.’ He said, ‘Based on that alone
I can’t say he was or he wasn’t.’
“And then Mr. Ott went through various other questions.
And the question was always the same: ‘Based on this one fact
alone, does that negate psychosis?’
“Doctors opinion was based on that one fact alone, ‘I can’t
say one way or the other. I can’t say whether he was psychotic
or he wasn’t.’ And we went through the litany of questions.”
When the prosecutor misstated Dr. Tucker’s answers, defense
counsel knew he had the facts on his side. He also knew he had
a very difficult case, with a defendant who confessed to the
robberies and whose only defense was inability to form the
requisite intent for robbery. However, given that defendant
brought a pillow case to each robbery to collect his loot,
brought a handgun to use to intimidate the victims, cased one or
more of the targets to determine the best time to commit the
robberies, chose isolated targets, used a mask in some
instances, used the beam from his firearm to blind the victims
so they could not identify him, and lured one of his victims to
a back room, this was going to be a hard sell to the jury.
Therefore, a logical strategy would be to try and focus the jury
on whether Dr. Tucker did or did not admit that certain factors
were inconsistent with psychosis. With the facts on this issue
in his favor, a reasonable attorney could conclude that if the

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jury is focused on this issue, it might ignore the rest of the
evidence and conclude defendant did suffer from a
methamphetamine-induced psychotic disorder and therefore could
not form the requisite intent for robbery.
Furthermore, defendant was not prejudiced by the
prosecutor’s argument. “‘Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”’” (In re Avena, supra, 12
Cal.4th at p. 721.)
As indicated above, defense counsel cleared up any
misrepresentation of the evidence in his argument. Defense
counsel also directed the jury to have the testimony re-read if
it cannot remember what Dr. Tucker said. Furthermore, the jury
was instructed that it must determine the facts from the
evidence presented at trial and the statements of the attorneys
during trial are not evidence. Absent a contrary indication in
the record, we assume the jury followed the instructions given
by the court. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
There is no reason to believe the jury would have been mislead
by the prosecutor’s argument.
III
Sentencing
The trial court imposed consecutive terms for each of the
robberies and attempted robberies as well as the offense of

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possessing a controlled substance while armed. The court gave
as reasons that the crimes involved separate acts of violence,
there were separate victims, the crimes were committed at
different times and places, there was more than enough time
between offenses for defendant to reflect on his conduct, two of
the crimes involved particularly vulnerable victims, and the
manner of carrying out the crimes indicated planning,
sophistication and professionalism.
Defendant contends the imposition of consecutive terms
based on the foregoing factual findings violated his Sixth
Amendment right to trial by jury as recognized in Apprendi v.
New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi),
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]
(Blakely), and Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856] (Cunningham).
In Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435], the
United States Supreme Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490
[147 L.Ed.2d at p. 455].)
In Blakely, the Supreme Court applied the rule of Apprendi
to invalidate a state court sentence imposed on a defendant who
pleaded guilty to kidnapping his estranged wife. The high court
explained that “the ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the

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defendant.” (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at
p. 413].)
In Cunningham, the Supreme Court applied Apprendi and
Blakely to California’s determinate sentencing law and held that
by “assign[ing] to the trial judge, not to the jury, authority
to find the facts that expose a defendant to an elevated ‘upper
term’ sentence,” California’s determinate sentencing law
“violates a defendant’s right to trial by jury safeguarded
by the Sixth and Fourteenth Amendments.” (Cunningham, supra,
549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling on this
point People v. Black (2005) 35 Cal.4th 1238, vacated in Black
v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
The issue here is not aggravated terms but consecutive
terms. By imposing the terms for the individual offenses
consecutively rather than concurrently, defendant’s aggregate
sentence has been extended significantly.
Cunningham did not address whether the decision to run
separate terms concurrently or consecutively must be made by the
jury. Penal Code section 669 imposes that duty on the trial
court. In most cases, this is a matter of the court’s
discretion. (People v. Morris (1971) 20 Cal.App.3d 659, 666,
disapproved on other grounds in People v. Duran (1976) 16 Cal.3d
282, 292.) “While there is a statutory presumption in favor of
the middle term as the sentence for an offense [citation], there
is no comparable statutory presumption in favor of concurrent
rather than consecutive sentences for multiple offenses except
where consecutive sentencing is statutorily required. The trial

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court is required to determine whether a sentence shall be
consecutive or concurrent but is not required to presume in
favor of concurrent sentencing.” (People v. Reeder (1984) 152
Cal.App.3d 900, 923.) In other words, consecutive sentencing is
within the “prescribed statutory maximum” (Apprendi, supra, 530
U.S. at p. 490 [147 L.Ed.2d at p. 455]) that may be imposed for
the series of offenses committed by defendant.
Section 669 provides that when a trial court fails to
determine whether multiple terms are to run concurrently or
consecutively, they shall run concurrently. However, this does
not create a presumption or other entitlement to concurrent
sentencing. It merely provides for a default in the event the
court neglects to perform its duty in this regard.
The trial court is required to state reasons for its
sentencing choices, including a decision to impose consecutive
sentences. (Cal. Rules of Court, rule 4.406(b)(5); People v.
Walker (1978) 83 Cal.App.3d 619, 622.) This requirement serves
a number of interests: “it is frequently essential to
meaningful review; it acts as an inherent guard against careless
decisions, insuring that the judge himself analyzes the problem
and recognizes the grounds for his decision; and it aids in
preserving public confidence in the decision-making process by
helping to persuade the parties and the public that the
decision-making is careful, reasoned, and equitable.” (People
v. Martin (1986) 42 Cal.3d 437, 449-450.) However, the
requirement that reasons for a sentence choice be stated does

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not create a presumption or entitlement to a particular result.
(See In re Podesto (1976) 15 Cal.3d 921, 937.)
Therefore, entrusting to the trial court the decision
whether to impose concurrent or consecutive sentences is not
precluded by Apprendi, Blakely, or Cunningham. In this state,
every person who commits multiple offenses knows that, if
convicted, he or she runs the risk of receiving consecutive
sentences without any further factual findings. While such a
person has the right to the exercise of the court’s discretion,
the person does not have a legal right to concurrent sentencing.
As the Supreme Court said in Blakely, “that makes all the
difference insofar as judicial impingement upon the traditional
role of the jury is concerned.” (Blakely, supra, 542 U.S. at p.
309 [159 L.Ed.2d at p. 417].)
Defendant’s Sixth Amendment rights were not violated when
the trial court imposed consecutive terms on the various
offenses.
D ISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
SCOTLAND , P.J.
ROBIE , J.

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