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Court of Appeal, Fifth District, California.

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


Decided: June 25, 2010

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.



It was alleged in an information filed August 10, 2009, as follows:  Appellant Alfonso Rodriguez committed a single count of attempted murder (Pen.Code, §§ 187, subd. (a), 664;  count 1) 1 and two counts of assault with a firearm (§ 245, subd. (a)(2);  counts 2, 3);  in committing the count 1 offense he acted willfully, deliberately and with premeditation (§ 664, subd. (a)), personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c));  and in committing the counts 2 and 3 offenses he personally used a firearm (§ 12022.5, subds.(a) & (d)).  Pursuant to a plea agreement, appellant, on September 25, 2009, pled guilty to count 2 and admitted the section 12022.5, subdivision (a) firearm use enhancement.

One of the terms of the plea agreement was that appellant could be sentenced to no more than 14 years in prison.   On December 14, 2009, the court imposed a 14-year prison term, consisting of the four-year upper term on the substantive offense and the 10-year upper term on the firearm use enhancement.   On December 17, 2009, appellant filed a notice of appeal.   He did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).

Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Appellant, in response to this court's invitation to submit additional briefing, has submitted a letter in which he challenges the sentence imposed.   We will affirm.

On February 7, 2009, Madera County Deputy Sheriff Genaro Villanueva, while investigating the report of shooting, was informed by another deputy that Guillermo Palacios (Guillermo) had sustained a gunshot wound to his chest and was being placed in an ambulance.   Thereafter, Deputy Villanueva spoke with Roberto Lozano (Roberto) who told him the following:  Roberto and his three brothers were drinking beer outside when a pickup pulled up near them and the driver began yelling profanities and challenging them to fight.   Roberto and his brothers began to approach the truck, and as they did so appellant “[sat] up from the bed of the truck and point[ed] a rifle” at Roberto.   Roberto and one of his brothers grabbed the rifle near the barrel, and appellant fired two shots.   The truck began to drive away, and Roberto let go of the rifle and fell down.

Shortly after speaking with Roberto, Deputy Villanueva went to appellant's residence and spoke with appellant.   Appellant told the deputy the following.   A few days previously, Ruben Lozano (Ruben) confronted appellant and stated that appellant “needed to respect” Ruben and his brothers.   Appellant replied that he did not know what Ruben was talking about.

On the day of the shooting, appellant telephoned Mateo Palacios (Mateo) and asked him to come to his residence.   Mateo arrived, in his pickup, accompanied by Guillermo, his brother.   Appellant told Mateo to drive, and they went to appellant's residence, where appellant got his rifle and loaded it.   Thereafter, Mateo drove Guillermo and appellant to a location in Madera where they saw a “group of men on the dirt driveway.”   Mateo pulled to a stop near the men, who then approached the truck.   Guillermo was in the passenger seat and appellant was in the bed of the truck.

Appellant intended to “fire some rounds [into] the ground or in the air to scare” the men.   When they approached the truck, appellant grabbed the rifle, “sat up in the bed of the truck” and pointed the weapon at one of the men, who then grabbed the rifle and punched appellant in the head.   Appellant fired three rounds, but he did not know if he “hit anything․”


With respect to the substantive offense, the court found, as a circumstance in mitigation, that appellant “voluntarily acknowledged his wrongdoing prior to [his] arrest,” and, as circumstances in aggravation, he “induced others to participate in the commission of the crime,” and “was on a grant of bench probation when the crime was committed.”

The court stated the following reasons for imposing the upper term on the firearm use enhancement:  “there was planning involved in this matter”;  “it was premeditated,” in that appellant “was lying in wait in the back of the truck”;  appellant inflicted “great bodily harm”;  and appellant “induc[ed] others to engage in this crime.”


Appellant argues, as best we can determine, that (1) the court abused its discretion in imposing the 14-year prison term, and (2) appellant was denied his right to the effective assistance of counsel.

The latter claim is not cognizable on appeal for two reasons.   First, it is apparently based on appellant's assertion that his trial counsel informed him he would not receive a prison term of more than eight years.   There is nothing in the record supporting appellant's claim that counsel made such a statement.  (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on direct appeal limited to appellate record].)   Second, this argument is, in essence, a challenge to the validity of the plea and the trial court did not issue a certificate of probable cause.  (People v. Panizzon (1996) 13 Cal.4th 68, 76, [challenge to validity of plea is foreclosed by absence of certificate of probable cause];  People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245, [claim of ineffective assistance of counsel occurring prior to plea went to validity of plea and is therefore not cognizable on appeal in absence of compliance with certificate of probable cause requirements].)

Appellant's claim that the imposition of the 14-year prison term constituted an abuse of the court's sentencing discretion is also without merit.   The reasons stated by the court for imposing the upper terms were supported by the record, and given those reasons, the court's choice of the upper terms was reasonable.   Therefore, there was no abuse of discretion.  (People v. Downey (2000) 82 Cal.App.4th 899, 909 [trial court's sentencing choices “ ‘will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ ”].)

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.


The judgment is affirmed.


FOOTNOTE.  FN*.  Before Dawson, Acting P.J., Kane, J., and Poochigian, J.

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. Our factual statement is taken from the report of the probation officer..  FN2. Our factual statement is taken from the report of the probation officer.