Filed 3/18/13 P. v. Rodriguez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTONIO POBLANO RODRIGUEZ,

Defendant and Appellant.

 B238002

 (Los Angeles County

 Super. Ct. No. BA380466)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. 

Rubin, Judge. Affirmed.

Christopher Love, 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, James William Bilderback II and 

Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant Antonio Poblano Rodriguez appeals from the judgment entered 

following his conviction by jury of making criminal threats with the use of a firearm and 

exhibiting a firearm. (Pen. Code, §§ 422, 12022.5, subd. (a), 417, subd. (a)(2).)1 He 

contends the trial court erred by allowing a witness to testify despite the prosecutor’s 

failure to comply with the discovery statute and denying his requested instruction. 

Defendant alleges the trial court’s errors denied him a fair trial in violation of the federal 

and state Constitutions. We discern no error and affirm.

STATEMENT OF FACTS

I. The Prosecution Case

At approximately 11:00 a.m. on January 22, 2011, Desiderio Aguilar, a tow truck 

driver, was dropping off a car at a body shop. He parked in an alley near the shop 

entrance and entered the shop to transact his business. He gave an invoice to one of the 

shop employees, Lizeth Estrada. According to Estrada, Aguilar appeared happy. Aguilar 

left the office and while returning to the tow truck, he saw defendant speaking to another 

shop employee. Defendant was asking where the “fucking driver” of the tow truck was. 

Aguilar told defendant it was his truck, apologized, and said he was leaving. 

Aguilar continued toward the truck. Defendant was complaining that tow truck 

drivers were always blocking his driveway. Aguilar apologized and told defendant he 

needed to be more polite, as he was not treating Aguilar with respect. Defendant, who 

was yelling at Aguilar, cursed and said he was not the one who needed to be polite 

because it was Aguilar’s fault for parking his tow truck in front of defendant’s garage. 

Aguilar continued to apologize, stating he did not know what else to say. Defendant 

threatened to shoot Aguilar. When Aguilar asked whether he was really going to shoot, 

defendant repeated his threat. 

 

1 All further statutory references are to the Penal Code.
3

Defendant walked into his garage. Through the open door, Aguilar saw defendant 

retrieve a black semiautomatic handgun and pull the slide back to load a round in the 

chamber. Aguilar noticed there was a person in the window of the apartment adjacent to 

the alley, who appeared to be watching. Aguilar had not seen the person before and was 

not sure if he would recognize him. Defendant came out of the garage with the gun and 

again threatened to shoot Aguilar. Aguilar told defendant to shoot if he was going to 

because Aguilar was calling the police. Defendant told him to do so because the police 

were not going to believe the word of a wetback. 

Aguilar tried to call 911 on his cell phone, but was unsuccessful. Defendant told 

him to move the truck. Aguilar responded that he was not going to do anything until the 

police arrived. Defendant said he was going to hit Aguilar and approached. He no longer 

had the gun. Aguilar went into the body shop.

Aguilar asked Estrada for the number to the sheriff’s department. Aguilar 

appeared scared and was shaking. He told Estrada that the neighbor in front of the body 

shop had pulled a gun on him and he called the sheriff’s department. Estrada knew 

Aguilar was speaking about defendant. 

When Aguilar and a shop employee went back into the alley, defendant and the 

car Aguilar had seen in defendant’s garage were gone. When deputies arrived, Aguilar 

told them what had happened during his encounter with defendant. 

About an hour later, as deputies were wrapping up their investigation in the alley, 

defendant and another person arrived in defendant’s car. Aguilar identified defendant as 

the person who threatened him with the gun and told police he wanted to press charges. 

Aguilar denied having any weapons or threatening defendant while they were in the alley. 

Los Angeles County Sheriff’s Deputy Vincent Cisneros and his partner responded 

to Aguilar’s call. When Cisneros arrived, defendant was being detained by other 

deputies. Cisneros spoke with Aguilar, who was trembling and appeared as if he wanted 

to cry. After Aguilar told the deputy he had seen the gun in defendant’s garage, Cisneros 

asked defendant whether he could search the garage for the weapon. Defendant signed a 

consent form and told Cisneros where the gun was located. The deputy went into the 
4

garage and recovered the firearm, which had rounds in the magazine and one in the 

chamber. According to Cisneros, when the slide of the gun is pulled back, a bullet moves 

from the magazine into the chamber. Aguilar told Cisneros that when defendant retrieved 

the gun from the garage, he put a round in the chamber. Cisneros searched Aguilar’s tow 

truck and found no weapons. 

The jury heard a recording of Aguilar’s call to the sheriff’s department.

II. The Defense Case

On January 22, 2011, as defendant was preparing to go to work, he noticed a tow 

truck and a pickup were blocking the entrance to his garage. He went to the doorway of 

the body shop and asked one of the employees who owned the “damn tow truck.” The 

employee pointed inside the shop and defendant said he needed the truck moved. A few 

seconds later, Aguilar emerged from the shop and defendant told him he needed the truck 

moved because he had to go to work. Aguilar responded, “Relax, old man, relax.” It 

appeared that Aguilar was going to move the truck, but he turned and walked back into 

the shop. Defendant told him to move the “fucking truck.” 

Five minutes passed and Aguilar came out of the shop. Defendant again told him 

to move his “fucking truck.” Aguilar responded that defendant could not speak to him 

that way. After defendant replied he could speak to him any way he wanted, Aguilar got 

in defendant’s face and said he would move the truck when he was finished with his 

business. Aguilar then stated he was going to call the police. Defendant called him a 

stupid, ignorant wetback for believing the police would allow Aguilar to park his tow

truck in front of defendant’s garage. 

Aguilar became angry. He went into the cab of the tow truck and jumped out with 

a tire iron in his hand. Defendant backed up into his garage. Aguilar advanced, telling 

defendant he was not so tough. Defendant got a gun he kept in the drawer of a work 

bench and cocked it. With the barrel of the gun pointed toward the ground, he told 

Aguilar to back off. Aguilar asked defendant whether he was going to shoot him and 

defendant said, “No, dumb ass, back off.” As Aguilar backed away, he called defendant 
5

a “fucking coward.” Defendant put the gun in the drawer. Someone from the shop 

moved the pickup away from the garage door. Defendant got into his car and drove 

away. 

Defendant did not call the police because on prior occasions they took too long to 

respond. When he returned home with a friend, deputies took him out of the car at 

gunpoint. He was handcuffed and placed in a patrol car. Defendant told the deputies 

about the dispute he had with Aguilar, explaining that he got the gun after Aguilar 

approached him with a tire iron. Defendant directed the deputies to the gun in the garage. 

III. The Prosecution Case on Rebuttal

Leonel Cervantez lives in an apartment near the alley where the body shop is 

located. On January 22, 2011, he heard arguing and looked out his window. Defendant 

was telling a man to move a car. The man told defendant to give him a minute and he 

would move the car. Cervantez then heard the man say, “Don’t point that gun at me or 

I’m going to call the police.” Cervantez could see the man was standing by a tow truck 

and did not move during the argument. Defendant was in the garage. Cervantez saw that 

the tow truck driver had a cell phone in his hand. 

The first time anyone from the police or the district attorney’s office spoke to him 

about the incident was at 6:30 a.m. on the previous Friday. (Cervantes testified on a 

Tuesday.) The prosecutor, a district attorney investigator, and the tow truck driver 

appeared at his door. On the day of the incident, Cervantes gave the tow truck driver his 

name and contact information. 

DISCUSSION

Defendant claims the court erred by allowing Cervantez to testify. He argues the 

prosecution violated the discovery statute by failing to provide his counsel with 

Cervantez’s name and a report containing his statement. At this juncture, it is essential to 

set forth the sequence of events that led to Cervantez’s testimony at trial.
6

Aguilar began testifying on the morning of August 10, 2011. During his

testimony on direct examination, Aguilar referred to a witness who saw the argument and 

tried to signal to Aguilar. The attorneys asked to approach the bench. Defendant’s 

counsel informed the court that she had no discovery pertaining to this witness, to which 

the prosecutor replied, “Me[,] either.” The prosecutor explained that she did not know 

whether Aguilar had talked to this person or if the person yelled something from the 

window. The court invited counsel to interview Aguilar with respect to the witness and 

took a recess. 

After the recess, the court conducted a hearing out of the presence of the jury, 

during which Aguilar testified to what the man in the window said. Aguilar stated that 

after defendant started yelling and went into his garage, the man signaled to Aguilar that 

he was going to call the police. Later, when defendant emerged from the garage with the 

gun, the man shouted that he was going to call the police. 

The court then stated, “Let me just ask, it’s obvious that we don’t have the 

neighbor[,] right?” The prosecutor answered, “Correct. I don’t even know who he is.” 

The attorneys argued whether the neighbor’s statements were admissible. Defendant’s 

counsel, in discussing the call Aguilar made to the sheriff’s department, acknowledged 

that Aguilar referred to a neighbor. The court deferred ruling on the admissibility of the 

neighbor’s statements and declared a recess.

When the attorneys returned to court, the prosecutor said that she and defendant’s 

counsel interviewed Aguilar, who informed them that he had given the “name and 

information” of the witness to one of the responding deputies. That information did not 

get recorded in the police report. The court denied the prosecutor’s request to admit the 

witness’s statements to Aguilar during the incident. 

Two days later, on August 12, the prosecutor informed the court and defense 

counsel that at 6:30 that morning, she and a district attorney investigator located the 

neighbor witness, Cervantez. The prosecutor stated: “I did speak with him. He indicated 

that he heard yelling. He could see the victim standing in the alley. He told the victim to 

call the police. He saw that the victim had a cellphone in his hand and the victim was 
7

yelling, don’t shoot me. He could not see the defendant at the time because the defendant 

was in the garage. And, from his perspective, I did take a picture from his apartment and 

the view that he showed me that he had, that you could not see inside the garage but you 

can see directly across the alleyway to where the victim was standing.” 

The court asked whether Cervantez could offer testimony as to whether Aguilar 

ever had a tire iron or a crowbar. The prosecutor replied, “I asked him that, if the victim 

had — when I asked him, I said, did the victim have anything in his hand, and he said 

only a cellphone.” 

Defendant’s attorney objected to Cervantez’s proposed testimony, alleging she had 

been provided no discovery. She conceded that his name was mentioned during 

Aguilar’s call to the sheriff’s department, but the transcript of the call was “very, very 

confusing.” She argued that she had prepared the defense based on the witnesses who 

had been disclosed and defendant would be prejudiced if Cervantez was allowed to 

testify. 

The court stated that it was inclined to allow Cervantez to testify in rebuttal, 

noting that the prosecutor had complied with discovery rules with respect to rebuttal 

witnesses. It indicated that if defendant testified Aguilar brandished a tire iron during 

their confrontation, Cervantez’s testimony would be relevant. Despite the prosecutor’s 

claim that she had no way of knowing prior to trial that Cervantez was a witness, the 

court ruled it would not allow him to be called during the prosecutor’s case-in-chief. 

On August 16, just prior to his being called as a witness, defense counsel objected 

to Cervantez’s testimony on the grounds that she had not been provided with his rap sheet 

or a written witness statement. The prosecutor said she had prepared a statement the 

night before and presented counsel with a written statement and Cervantez’s rap sheet. 

Although the prosecutor wanted to elicit Cervantez’s testimony with respect to prior 

contacts he had had with defendant, the court determined that it would allow Cervantez to 

testify only about the incident in the alley.

Defendant urges the “prosecutor violated her statutory duty of disclosure in two 

ways. First, she failed to disclose the name and address of a witness, 30 days prior to 
8

trial. . . . [¶] . . . [¶] Second, the prosecutor violated her ongoing duty of disclosure 

because she had obtained Cervantez’s oral statement as of 6:30 a.m. on Friday, 

August 12, 2011. [Record citation.] However, the prosecutor did not disclose the content 

of the oral statement to defense counsel until four days later.” He is incorrect on both 

counts.

Defendant argues the “prosecutor’s office had known of the witness in the upstairs 

window for six months prior to trial,” as Aguilar had referred to the witness during his 

preliminary hearing testimony. Section 1054.1 sets forth a prosecutor’s obligation to 

disclose certain materials and information to the defense. He or she is required to 

disclose “[t]he names and addresses of persons the prosecutor intends to call as witnesses 

at trial.” (§ 1054.1, subd. (a), italics added.) It is clear from the record that the trial 

prosecutor discovered Cervantez was a potential witness during Aguilar’s testimony 

before the jury and defendant does not contend otherwise. At the earliest, the prosecutor 

formed the intent to call Cervantez after she and defense counsel interviewed Aguilar 

during a recess. After the interview, both counsel knew Cervantez was a witness to the 

argument in the alley and possessed information regarding how to contact him. The 

prosecutor took the initiative to locate and interview Cervantez. Defendant’s attorney 

had the same opportunity to do so and chose not to. The prosecutor fulfilled her 

obligation to notify the defense that Cervantez was a possible witness at the earliest 

opportunity. Put simply, this is not a case where the prosecutor withheld information 

regarding a witness she knew she would call at trial. 

Defendant suggests the prosecutor was derelict by failing to produce a written 

report of her interview with Cervantez until four days after it had taken place. His 

complaint that he was blindsided by Cervantez’s testimony is belied by the record. He 

ignores the fact that on the morning the prosecutor interviewed Cervantez, on the record, 

she informed the trial judge and defense counsel of his statements. At this point, there 

was no written report to produce. The prosecutor delivered a written report on the 

morning Cervantez testified. Any delay in providing that report was harmless because 

Cervantez was allowed to testify only to those observations that had been disclosed to the 
9

defense in open court. Nothing prevented defense counsel from speaking to Cervantez in 

the four-day interval between his initial interview with the prosecutor and his trial 

testimony. 

Defendant also faults the trial court for failing to advise the jury of the 

prosecutor’s untimely disclosure of a witness. As we have concluded that the prosecutor 

complied with the discovery statute, the court’s refusal to give the requested instruction 

was proper.

2

There was no impropriety in the proceedings. Defendant’s constitutional right to a 

fair trial was not infringed.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

 

2 Defendant asserts the court concluded that the prosecutor could have found the 

witness sooner. Assuming the court’s assumption was correct, a prosecutor is obligated 

to provide information regarding a witness of whom he or she is aware only when a 

determination has been made to call that witness at trial. That obligation was fulfilled 

here.