Filed 7/25/13 P. v. Rodriguez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B240769

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA079000)
         v.

FABIAN JAVON RODRIGUEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lauren Weis Birnstein and Victor L. Wright, Judges. Affirmed.


         Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Chung L. Mar and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
                                   INTRODUCTION
       Before trial, defendant and appellant Fabian Javon Rodriguez moved to suppress
evidence of a gun and ammunition. The trial court denied the motion, and a jury found
defendant guilty of corporal injury on a cohabitant and of possession of a firearm by a
felon. On appeal, he contends that the trial court erred by denying the suppression
motion and, also, by denying his Romero1 motion. We reject both contentions and affirm
the judgment.
                 FACTUAL AND PROCEDURAL BACKBROUND
I.     Factual background.2
       In August 2010, Valerie Nunez was living with defendant, and she was pregnant
with their child. Sometime that month, Nunez’s mother, Renee Baca, saw bruising under
Nunez’s eyes. Baca later noticed that Nunez had bloodshot eyes and finger marks on her
neck. At first, Nunez wouldn’t tell her mother what happened, but she finally told Baca
that defendant was responsible for her injuries.3
       About two weeks later, on August 28, 2010, defendant drove to Baca’s house.
Nunez went outside to talk to him. Nunez testified that she got into the car and they went
for a drive. Although she told a police officer that defendant locked the door and pulled
out a gun when she got into the car and said she wasn’t going anywhere, she was lying.4
When she tried to unlock the door, defendant pulled her arm, leaving a red mark.




1
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2
        Because a lengthy review of the facts is unnecessary to the issues on appeal, we
state them in brief.
3
       City of Inglewood Police Officer Benjamin Sanza testified that Nunez said she
didn’t report this abuse because defendant threatened to harm her and her family if she
told.
4
       Gail Pincus, executive director of the Domestic Abuse Center, testified about
battered women’s syndrome.

                                             2
       Defendant returned Nunez home on September 1, 2010. Baca called 911 and
reported that defendant had kidnapped her daughter and brought her back. He was
violent and had abused Nunez, and he had a loaded gun under the hood of his car.
       Officer Sanza responded to the 911 call. Nunez told Sanza that defendant had
come to the house on August 28, 2010 and convinced her to get into the car. When she
did, he pointed a gun at her and grabbed her arm when she tried to open the door. She
asked him to let her out, but he told her he was “ ‘kidnapping’ ” her. Continuing to point
the gun at her stomach, defendant drove away. The next day, August 29, 2010, defendant
took Nunez to a fast food restaurant and told her that if she tried to escape he would kill
her and anyone in the area. While Nunez was with defendant, he accused her of cheating
on him and held a gun to her forehead. When she tried to move, defendant put a pillow
over her face and pressed the gun against the pillow. Defendant took Nunez to her
mother’s house on September 1 to get some of her belongings.
II.    Procedural background.
       An amended information filed on December 15, 2011 alleged: count 1, corporal
injury to cohabitant (Pen. Code, § 273.5, subd. (a));5 count 2, kidnapping (§ 207,
subd. (a)); counts 3 and 5, assault with a semiautomatic firearm (§ 245, subd. (b));
count 4, criminal threats (§ 422); and count 6, possession of a firearm by a felon (former
§ 12021, subd. (a)(1)).
       On January 19, 2012, a jury found defendant guilty of count 1, corporal injury to a
cohabitant (§ 273.5, subd. (a)) and of count 6, possession of a firearm by a felon (former
§ 12021, subd. (a)(1)). The jury acquitted defendant of all other counts, including lesser
included offenses.
       After denying defendant’s Romero motion, the trial court, on April 12, 2012,
sentenced defendant, on count 1, to the high term of four years, doubled to eight years,
plus a consecutive one-year term under section 667.5, subdivision (b). The court




5
       All further undesignated statutory references are to the Penal Code.

                                              3
sentenced him to a consecutive 16 months6 on count 6. His total sentence therefore was
10 years 4 months.
                                      DISCUSSION
I.     The search and seizure did not violate the Fourth Amendment.
       A warrantless search of defendant’s car revealed a gun and ammunition.
Defendant contends that this evidence should have been suppressed, having resulted from
an illegal search, and therefore the judgment on count 6, felon in possession of a firearm
should be reversed. We disagree.
       A.     Additional facts relevant to the search and seizure.
       Before trial, Rodriguez moved to suppress the gun and ammunition found after the
warrantless search of his car.7 At the hearing on the motion, the 911 dispatcher, Lavonia
Lampkin, and Officer Daniel Ragazzo testified.
       Lampkin received a 911 call on September 1, 2010.8 The 911 caller, Baca, said
that her daughter’s boyfriend had “kidnapped her [daughter] the other day and he brought
her back today.” The boyfriend was violent and had abused Baca’s daughter. The
boyfriend was in his car, a baby blue Acura, and he had a gun underneath the car’s hood.
Based on that call, Lampkin “generated [a call] for service,” namely, she dispatched the
information verbally and in writing to police officers.9 The information relayed included
that the gun was loaded. All officers on patrol received the information verbally and in
writing on their MDTs. Officers were also notified that the call was a high priority and
immediate response was needed.




6
     The reporter’s transcript incorrectly states that defendant was sentenced to
15 months on count 6.
7
       The parties stipulated that the search was warrantless.
8
       The call was played for the jury.
9
       Officers read dispatches on their Mobile Data Terminals (MDTs).

                                             4
       Officer Ragazzo testified that he and his partner, Officer Sanza, responded to the
call of a “male with a gun.” The call history said the male Hispanic, identified as
defendant, was the resident’s boyfriend and he’d kidnapped her a few days before.
Defendant was in an Acura, and he had a loaded gun under the hood.
       When Ragazzo arrived at the scene, he saw defendant in an Acura, which was
parked in front of the residence.10 The officers detained him. While Ragazzo stayed with
defendant, Sanza went inside the house to talk to the reporting party. After the scene was
secure, Ragazzo also went inside the house. He was told there was a gun under the hood
of the car and defendant used the gun in narcotic transactions. Having decided to arrest
defendant, Ragazzo went back outside. The hood of the car was open, although Ragazzo
did not know who opened it. Raggazo looked into the engine compartment and saw a
gun in plain view. Removing the gun, Ragazzo checked it to determine if it was loaded:
it was, with 13 rounds. He removed the rounds so that the gun wouldn’t discharge, and
put it in his patrol vehicle.
       After hearing this evidence, the trial court denied the suppression motion on the
ground that the automobile exception to the general warrant requirement applied. The
court said: “[W]e have a citizen informant, not somebody that calls the police and
refuses to give their identity or name, some very specific details upon which to base the
detention of a vehicle and the person in it, the name of the person . . . [,] the description
of the vehicle, the Acura, the color of the car, the fact that he is sitting inside the vehicle
at a particular location, and the fact that there is a specific gun and it is loaded and it is in
the engine compartment––or under the hood anyway is what was said. So those are very,
very specific facts. [¶] So when the officers, I believe, see all of that . . . corroborated––
well, all the facts that they see seem to be in line with all the information that they had
from the dispatch. [¶] . . . [¶] . . . And we have to assume that they all got the call and
it went out both verbally and on the MDT. [¶] . . . [¶] And I believe based on [the
People v.] Green [(1971) 15 Cal.App.3d 766] case, based on the automobile exception, I


10
       There were approximately six officers at the scene.

                                                5
believe there was probable cause and that the search was reasonable under these
circumstances to put any officer to open the hood of that car.”
       B.     Probable cause supported the warrantless search of defendant’s car.
       The Fourth Amendment guarantees the right to be free from unreasonable searches
and seizures by law enforcement and other government officials. (U.S. Const., 4th
Amend.) Subject to “ ‘well-delineated exceptions,’ ” warrantless searches are presumed
to be unreasonable. (People v. Diaz (2011) 51 Cal.4th 84, 90; see also People v. Rogers
(2009) 46 Cal.4th 1136, 1156.) The government bears the burden of demonstrating a
legal justification for a warrantless search. (People v. Evans (2011) 200 Cal.App.4th 735,
742; Rogers, at p. 1156.) “When reviewing the denial of a suppression motion, we defer
to the trial court’s express or implied factual findings if supported by substantial
evidence, but exercise our independent judgment to determine whether, on the facts
found, the search or seizure was reasonable under the Fourth Amendment. [Citations.]
We will affirm the trial court’s ruling if it is correct on any theory of law applicable to the
case, even if for reasons different than those given by the trial court.” (Evans, at p. 742;
see also People v. Glaser (1995) 11 Cal.4th 354, 362.)11
       Although the parties here focus on whether exigent circumstances justified the
warrantless search of defendant’s car,12 we find that the search clearly falls under the
automobile exception to the warrant requirement. (See generally, Carroll v. United
States (1925) 267 U.S. 132.) Under that exception, “police who have probable cause to

11
     We review issues relating to the suppression of evidence under the Fourth
Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1141.)
12
       “[T]he exigent circumstances doctrine constitutes an exception to the warrant
requirement when an emergency situation requires swift action to prevent imminent
danger to life.” (People v. Rogers, supra, 46 Cal.4th at p. 1156.) “ ‘ “ ‘[T]here is no
ready litmus test for determining whether such circumstances exist, and in each case the
claim of an extraordinary situation must be measured by the facts known to the
officers.’ ” ’ [Citation.]” (Id. at p. 1157; see also People v. Green (1971) 15 Cal.App.3d
766 [exigent circumstances justified warrantless search of defendant’s car, based on
reports that defendant had placed a bag containing a gun under the hood of his car].)


                                              6
believe a lawfully stopped vehicle contains evidence of criminal activity or contraband
may conduct a warrantless search of any area of the vehicle in which the evidence might
be found. [Citations.] Such a search ‘is not unreasonable if based on facts that would
justify the issuance of a warrant, even though a warrant has not actually been obtained.’
[Citation.] . . . ‘If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.’ [Citations.]” (People v. Evans, supra, 200 Cal.App.4th at p. 753;
see also United States v. Ross (1982) 456 U.S. 798, 825.) The scope of the search is
defined by the object of the search and the places in which there is probable cause to
believe contraband may be found. (Ross, at p. 824.)
       “Probable cause is defined as ‘ “ ‘a fair probability that contraband or evidence of
a crime will be found.’ ” ’ [Citations.] Probable cause to search thus exists when the
‘known facts and circumstances are sufficient to warrant a [person] of reasonable
prudence in the belief that contraband or evidence of a crime will be found . . . .’
[Citations.] The standard is a ‘ “ ‘fluid concept—turning on the assessment of
probabilities in particular factual contexts,’ ” ’ and is incapable of precise definition.
[Citations.] A probable cause determination must be based on objective facts.” (People
v. Evans, supra, 200 Cal.App.4th at p. 753.)
       There was probable cause to search defendant’s parked car without a warrant.13
Specific facts showing that the car contained evidence of criminal activity were known to
the officers before they opened the hood of defendant’s car. Those facts and
circumstances, relayed by the 911 caller, included: defendant had kidnapped Nunez and
just brought her back home; defendant was violent and abusive; and defendant had a gun

13
       When the police arrived, defendant was in his car, which was parked outside of
Baca’s house. Although defendant does not argue that the automobile exception is
inapplicable to parked cars, as opposed to cars that have been lawfully stopped, parked
vehicles may also be searched without a warrant if there is probable cause to justify the
search. (See California v. Carney (1985) 471 U.S. 386, 394 [the automobile exception
has historically turned on the ready mobility of the vehicle, and on the presence of the
vehicle in a setting that objectively indicates that the vehicle is being used for
transportation].)

                                               7
under the car’s hood. The 911 caller’s report was corroborated. When officers arrived,
they saw a Hispanic man (defendant) sitting in a blue Acura, just as the caller described.
Given that the 911 caller accurately described the suspect and his car, it was reasonable
for officers to believe that the caller was similarly accurate about there being a gun under
the car’s hood. Thus, the facts and circumstances known to the officers when they
arrived at the scene, which were corroborated by the scene itself, were sufficient to justify
searching defendant’s car without a warrant.
       Defendant fails to squarely address the automobile exception and instead cites
Arizona v. Gant (2009) 556 U.S. 332, to support his argument that the search here
violated the Fourth Amendment. Gant held that police may search a vehicle incident to
an occupant’s arrest if the arrestee could access the car or if evidence of the offense for
which he or she was arrested might be found in the car. (Id. at pp. 344, 351.) Gant,
however, applies to searches incident to arrest. The search here was conducted before
defendant was arrested, a point no party disputes, and therefore it was not a search
incident to arrest. Gant is not on point.
II.    The trial court did not abuse its discretion by denying defendant’s Romero
motion.
       Defendant contends that the trial court considered impermissible factors in
denying his Romero motion to strike his prior, a 14-year old robbery committed in New
York.14 We reject this contention.
       In the furtherance of justice, a trial court may strike or dismiss a prior conviction
allegation. (§ 1385; Romero, supra, 13 Cal.4th at p. 504.) A trial court’s refusal to strike
a prior conviction allegation is reviewed under the deferential abuse of discretion
standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) The party seeking reversal
must therefore “ ‘clearly show that the sentencing decision was irrational or arbitrary.
[Citation.]’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not
enough to show that reasonable people might disagree about whether to strike a prior


14
       Defendant waived a jury trial on his prior and admitted it.

                                              8
conviction. (Carmony, at p. 378.) Rather, only extraordinary circumstances justify a
finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the
circumstances where no reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
       When considering whether to strike prior convictions, the relevant factors a court
must consider are “whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes a sentencing
norm, it carefully circumscribes the trial court’s power to depart from this norm. . . .
[T]he law creates a strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at
p. 378.)
       Defendant argues that the trial court here first abused its discretion by
“exaggerat[ing]” the “ ‘nature and circumstances’ ” of his violation of section 273.5,
corporal injury to his cohabitant, Nunez, by referring to it as a “ ‘violent felony.’ ” The
court said:
            “[J]ust a bare three years, seven months later [after committing the robbery
              in New York], he––there he is with a firearm again committing a violent
              felony.”
            “So this court is very concerned with a defendant who has two prior violent
              crimes, violent robberies, with use and then a new violent crime within four
              years of getting out of prison where, you know, he already––it shows to me
              that he hasn’t learned his lesson and that he is a danger to society.”
            “This case certainly involves a violent felony. I regard domestic violence
              as a violent felony. It’s not listed in the class of so-called violent felonies
              in the Penal Code of serious felonies. If they had found the use, it certainly

                                              9
              would have been. [¶] But it is a case of violence. And in this case, he did
              cause injuries that lasted some days or a week later when the mother saw
              [her] injuries.”
Section 667.5 lists “violent felonies,” including, for example, murder, mayhem, and rape.
A violation of section 273.5 is not a “violent felony” as defined by that section. The trial
court here, however, was not referring to section 667.5 when it repeatedly described
defendant’s crime as a “violent” one. In fact, the trial court acknowledged it was not a
violent crime under section 667.5. Rather, the court considered it a “case of violence”
because defendant injured Nunez, not because of a mistaken belief defendant’s crime fell
under section 667.5. The trial court was clearly considering the nature and circumstances
of defendant’s present felony (People v. Williams, supra, 17 Cal.4th at p. 161), and
finding that its violent nature militated against striking the prior. The court therefore did
not willfully ignore the Legislature’s determination that corporal injury to a cohabitant is
not a violent felony under section 667.5 and substitute its own judgment that the offense
should be so classified.
       Second, defendant contends that the trial court substituted its factual conclusions
for the jury’s. Defendant bases his contention on these comments: “And I do want to
make a statement about something that you put in your motion about that the jury had to
believe that she was lying, that the mother was lying. I’m not so sure about that. [¶] I
just believe that in a give and take in the deliberations, they just believed that they could
not live with themselves. It is not proof beyond a reasonable doubt. [¶] I heard this
testimony. I saw the victim. It was very tough to say what she was lying about or what
she . . . wasn’t lying about because of the recantation and the fact that she still loves the
defendant . . . . [¶] I do believe based on what I heard on the testimony, even though the
jury didn’t come back with a use or a kidnapping, she never denied that there was a gun
in the car in the pocket part of the driver’s door, which gun had been shown to her. [¶]
All she kept saying was that[] he never pointed it at me. They could have easily come
back with a use on that because of the way the weapon was displayed. They just chose
not to. So I do believe that there was something to that charge. And I don’t believe

                                              10
that––I do think it was a proof beyond a reasonable doubt situation and a give and take in
deliberations. [¶] But she never recanted about the fact that the gun was present at the
time the alleged kidnapping occurred.” (Italics added.) Then, after defense counsel
objected to “the considerations of any of the unproven priors” and to any consideration
that defendant was found to be in possession of a firearm as basis for denying the Romero
motion, the trial court said it could look at defendant’s entire rap sheet, “[a]nd I do
believe that I can look at the facts of this case certainly as I heard them. And he was
convicted of possession of a weapon. There was a weapon involved, obviously.” (Italics
added.)
       Focusing on the emphasized comments out of context, defendant argues that the
trial court relied “on its own beliefs about the weight of the evidence,” ignoring the jury’s
acquittal of defendant of the kidnapping, assault with a deadly weapon, and criminal
threats charges. The comments, however, do not support defendant’s argument when
placed in context. Rather, defendant asserted that the acquittals showed that the jury
believed that Nunez was lying. The trial court responded by pointing out, correctly, that
the acquittals merely established that the People had not met its burden of proving those
offenses beyond a reasonable doubt. (See, e.g., In re Coley (2012) 55 Cal.4th 524, 554
[“a jury verdict acquitting a defendant of a charged offense does not constitute a finding
that the defendant is factually innocent of the offense or establish that any or all of the
specific elements of the offense are not true”]; People v. Towne (2008) 44 Cal.4th 63, 85-
86 [trial courts have broad discretion to consider relevant evidence during sentencing,
and “[n]othing in the applicable statute or rules suggests that a trial court must ignore
evidence related to the offense of which the defendant was convicted, merely because
that evidence did not convince a jury that the defendant was guilty beyond a reasonable
doubt of related offenses”].) The acquittals thus were not the equivalent of a finding that
Nunez lied, and the trial court was entitled to consider any relevant evidence in its
sentencing determination.




                                              11
       The final reason defendant asserts for reversing the trial court’s ruling on the
Romero motion is based on a misstatement the court made about the charges against him.
The court said that had the jury, as to count 1 for a violation of section 273.5, found “the
use” true, defendant’s conviction of corporal injury to a cohabitant would have been a
violent felony under section 667.5. Defendant was not, however, charged with use of a
firearm in connection with that count, and therefore in no event could the section 273.5
offense in count 1 have been a violent felony.
       The trial court also said that the jury easily could have found the weapons-use
allegation true in connection with count 2 for kidnapping. Defendant takes issue with
this comment because Nunez, at trial, recanted prior statements she made about defendant
kidnapping her. The trial court thus “illogically” and “impermissibly” assumed that
defendant used a gun to kidnap Nunez although the jury acquitted defendant of
kidnapping. The illogic in the trial court’s statement, according to defendant, is the
assumption that defendant could have found the gun-use enhancement true but acquitted
him of kidnapping.
       Defendant reads too much into these comments. By commenting that there was
evidence to support gun-use allegations, the trial court was simply underscoring its basic
point that defendant’s behavior was violent. True, he was not found guilty of any gun-
use enhancement. But there was evidence he displayed a gun during the underlying
events, and the jury found him guilty of being a felon in possession of a gun. This could,
in the trial court’s discretion, speak to defendant’s possible penchant for violence. And
even if the trial court mistakenly believed a gun-use enhancement was alleged in
connection with count 1, that mistaken belief would be insufficient to render the court’s
ruling on the Romero motion an abuse of discretion.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          ALDRICH, J.


We concur:


             CROSKEY, Acting P. J.




             KITCHING, J.




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