Filed 5/10/22 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE IGNACIO RODRIGUEZ,

Defendant and Appellant.

F079599

(Super. Ct. No. VCF377336)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Walter L. 

Gorelick, Judge.

Matthew J. Watts, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and 

Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and Meehan, J.
2.

INTRODUCTION 

On May 22, 2019, appellant Jose Ignacio Rodriguez was convicted by jury of first 

degree burglary (Pen. Code,1 § 459) and resisting or delaying a peace officer (§ 148, 

subd. (a)(1)). The jury also found true an allegation that a person was present during the 

commission of the burglary. In addition, the trial court found true enhancements alleging 

Rodriguez had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), he had 

served three prior prison terms (§ 667.5, subd. (b)), and that he had suffered a prior strike 

conviction within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, 

subds. (b)-(i)). Rodriguez was sentenced to an aggregate prison term of 14 years. 

Rodriguez raises the following claims on appeal: (1) Following the enactment of 

Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), the prior prison term 

enhancement (§ 667.5, subd. (b)) applied to his sentence must be stricken, and (2) the 

trial court prejudicially erred by instructing the jury to assume that Rodriguez understood 

English. 

The Attorney General concedes the prior prison term enhancement (§ 667.5, subd. 

(b)) must be stricken, and we agree. We will therefore remand the matter back to the trial 

court for a full resentencing. The judgment of conviction is otherwise affirmed. 

PROCEDURAL HISTORY

On March 28, 2019, the Tulare County District Attorney filed an information 

charging Rodriguez with first degree burglary (§ 459, count 1) and resisting or delaying a 

peace officer (§ 148, subd. (a)(1), count 2). The information further alleged a strike prior 

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, 

subd. (a)(1)), and three prison priors (§ 667.5, subd. (b)). 

1 All further undefined statutory citations are to the Penal Code unless otherwise 

indicated. 
3.

On May 22, 2019, following a jury trial, Rodriguez was convicted on both counts. 

After a bifurcated hearing, the court found true all enhancement allegations.

On July 8, 2019, the court sentenced Rodriguez to an aggregate prison term of 14 

years. He received the middle term of four years for his conviction for first degree 

burglary (§ 459), doubled to eight years for his prior strike conviction (§§ 1170.12, subds. 

(a)-(d), 667, subds. (b)-(i)), a term of five years for his prior serious felony conviction 

(§ 667, subd. (a)(1)), and one year for his prior prison term (§ 667.5, subd. (b)). 

On July 10, 2019, Rodriguez filed a timely notice of appeal. 

STATEMENT OF FACTS

On March 6, 2019, at approximately 11:00 p.m., before going to bed for the night, 

A.J. locked the doors to her home, but she did not close the dining room window. She 

later awoke to find a man inside of her home. The intruder, Rodriguez, told her to be 

quiet and not to say anything. A.J. told Rodriguez to “go away.” He began searching 

through her kitchen and asked where the drugs were. A.J. told Rodriguez that he was in 

the wrong house. 

He told her not to call the police or she would “see a dead person.” Rodriguez was 

speaking in Spanish. A.J. used her husband’s cell phone to call 911. Rodriguez began 

searching through backpacks belonging to A.J.’s children, who were home during the 

incident. 

Police officers arrived shortly after 2:00 a.m. When they arrived, police saw 

Rodriguez inside of A.J.’s living room. Officer Rubalcaba with the Visalia Police 

Department instructed Rodriguez to exit the residence. Rodriguez was looking back at 

the officers through the window. 

Rubalcaba was wearing his police uniform. Rodriguez turned, walked down the 

hallway of A.J.’s home, and out of sight. 
4.

Officers announced themselves a few times before forcing open the front door to 

get inside the home. When they observed Rodriguez, they told him to come toward them. 

Rodriguez, who was looking directly at them, walked away and proceeded down the 

hallway. 

Officer Schiebelhut with the Visalia Police Department told Rodriguez to “ ‘Come 

out or you’re going to get bit.’ ” After several warnings, Schielbelhut released his K-9 

partner. Rodriguez went into the bathroom and tried to shut the door, but the officers and 

the police K-9 managed to access the bathroom. After the police K-9 bit Rodriguez’s 

ankle, he stopped resisting and police managed to detain him. 

Following his arrest, police found a pipe on Rodriguez, consistent with the type of 

pipe used to smoke narcotics. Rodriguez displayed signs of being under the influence of 

a stimulant. 

DISCUSSION

I. Senate Bill No. 136

Rodriguez contends the prior prison term (§ 667.5, subd. (b)) enhancement applied 

to his sentence must be stricken following the enactment of Senate Bill No. 136. The 

People concede Rodriguez is entitled to relief. We agree as well and will therefore strike 

the section 667.5, subdivision (b) enhancement. 

Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision 

(b) to limit the application of prior prison term enhancements to only prior prison terms 

that were served for sexually violent offenses as defined by Welfare and Institutions 

Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 

590, § 1.) That amendment applies retroactively to all cases not yet final by Senate Bill 

No. 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In 

re Estrada (1965) 63 Cal.2d 740, 746.)
5.

Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison 

term enhancement on count 1. However, none of Rodriguez’s prior convictions qualify 

as sexually violent offenses within the meaning of Welfare and Institutions Code section 

6600, subdivision (b). Rodriguez’s prior prison term enhancement must therefore be 

stricken.

Although we have the authority to correct Rodriguez’s sentence on appeal, the 

Attorney General contends that remand for a full resentencing is generally appropriate 

(see People v. Buycks (2018) 5 Cal.5th 857, 893 [where an appellate court strikes a 

portion of a sentence, remand for a full resentencing as to all counts is generally 

appropriate].) We agree that remand for resentencing is prudent, particularly in light of 

the enactment of new legislation that may impact the trial court’s sentencing decisions. 

(See, e.g., Assembly Bill No. 518 (Stats., ch. 441, § 1), effective Jan. 1, 2022.) We will 

therefore remand the instant case back to the trial court for resentencing. 

II. The Trial Court’s Comments Were Harmless Beyond a Reasonable Doubt

Next, Rodriguez contends the court improperly commented upon the evidence and 

directed a verdict as to count 2, his conviction for delaying or resisting arrest. According 

to Rodriguez, the trial court prejudicially erred by instructing the jury to presume that he 

spoke English. The Attorney General argues that Rodriguez’s failure to object resulted in 

forfeiture of his claim on appeal, and that any presumed error is harmless beyond a 

reasonable doubt. 

Preliminarily, we reject Rodriguez’s assertion that the trial court instructed the 

jury to presume Rodriguez spoke English. To the extent that such an inference could 

potentially be drawn from the trial court’s comments, we further conclude that any 

presumed error is harmless beyond a reasonable doubt. 
6.

A. Background 

At a pretrial hearing, defense counsel represented that Rodriguez did not need an 

interpreter. After the prosecutor rested her case, the court received a note from the jury 

asking whether Rodriguez spoke English. The court requested a bench conference. 

Following an off the record discussion between the court and the parties, the court made 

the following statements:

“THE COURT: Now, somebody asked a question

about whether the defendant speaks English. Okay.

Now, nobody has testified on that subject during the

trial. So that was a question that might be

understandable in that situation.

“But I will tell you that if somebody doesn’t

understand English – for example, let me just give you

another example. You heard the tape recording. The

person – well, give you a couple examples. On the

recording the person obviously was having difficulty

understanding English, so the police obtained an

interpreter for the person, you know, on the recording.

So you know that.

“In addition, when the witness testified in court,

there was an interpreter for the witness who testified

here in court. And so obviously we’re going to draw the

conclusion from that, that, yes, if the defendant needed

an interpreter, we would be required to furnish one for

him. Okay. Does that – I think that pretty well answers

the question. Okay.” 

Thereafter, the court declined to instruct the jury pursuant to CALCRIM No. 3530 

[Judge’s Comment on the Evidence], explaining he was “not intending to comment on 

the evidence.” The court did however instruct the jury with portions of CALCRIM No. 

3530, stating: “It’s not my role to tell you what your verdict should be. Do not take 
7.

anything I said or did during the trial as an indication of what I think about the facts, the 

witnesses, or what your verdict should be.”2 

In closing, defense counsel argued Rodriguez may have resisted and delayed the 

officers, but that he did not intend to commit theft when he entered A.J.’s residence. He 

specifically stated: 

“Mr. Rodriguez did not intend to steal anything. He did not intend to 

commit any theft. I don’t need to go through all that again. But the specific intent 

that the District Attorney’s office must prove beyond a reasonable doubt is not 

there. He may have resisted, he may have delayed the officers, but he did not 

commit the burglary. Mr. Rodriguez never intended to do so.” 

The jury deliberated for less than one hour before finding Rodriguez guilty on 

both counts. 

B. Forfeiture 

Rodriguez characterizes the nature of the alleged error as “uninvited instructional 

error.” Relying upon People v. Beltran (1989) 210 Cal.App.3d 1295 , he contends that 

the error may be raised on appeal notwithstanding his failure to object below. 

Alternatively, for the first time in his reply brief, Rodriguez contends if this court finds 

his claim has been forfeited, defense counsel rendered ineffective assistance of counsel 

for failing to preserve his claim. 

Rodriguez provides no explanation for why he raised this argument for the first 

time in his reply brief. In the absence of a justifiable reason for the delay, we decline to 

consider an argument raised for the first time in a reply brief. (Nordstrom Com. Cases

2 CALCRIM No. 3530 provides: “Do not take anything I said or did during the trial 

as an indication of what I think about the evidence, the witnesses, or what your verdict 

should be. [¶ ] Now, I will comment on the evidence only to help you decide the issues 

in this case. [¶ ] However, it is not my role to tell you what your verdict should be. You 

are the sole judges of the evidence and believability of witnesses. It is up to you and you 

alone to decide the issues in this case. You may disregard any or all of my comments 

about the evidence or give them whatever weight you believe is appropriate.”
8.

(2010) 186 Cal.App.4th 576, 583 [“points raised for the first time in a reply brief on 

appeal will not be considered, absent good cause for failure to present them earlier”].)

Finding no merit to Rodriguez’s argument, we do not address the Attorney 

General’s assertion of forfeiture. 

C. Relevant Legal Principles

Rodriguez contends the trial court’s instruction was tantamount to a directed 

verdict. “[A] trial judge ‘may not direct a verdict of guilty no matter how conclusive the 

evidence.’ ” (People v. Figueroa (1986) 41 Cal.3d 714, 724 (Figueroa), quoting 

Brotherhood of Carpenters v. United States (1947) 330 U.S. 395, 408; In re Winship

(1970) 397 U.S. 358, 364 [due process “protects [a criminal defendant] against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged”].) 

“The prohibition against directed verdicts ‘includes perforce situations in which 

the judge’s instructions fall short of directing a guilty verdict but which nevertheless have 

the effect of so doing by eliminating other relevant considerations if the jury finds one 

fact to be true.’ ” (Figueroa, supra, Cal.3d at p. 724, quoting United States v. Hayward

(D.C. Cir.1969) 420 F.2d 142, 144.) “ ‘[N]o fact, not even an undisputed fact, may be 

determined by the judge.’ ” (Figueroa, at p. 724.)

Where instructional error of this nature has occurred, reversal is compelled unless 

the People can prove the error is “harmless beyond a reasonable doubt” under Chapman

v. California (1967) 386 U.S. 18, 21. Under Chapman, error is harmless beyond a 

reasonable doubt if it “did not contribute to the verdict obtained.” (Id. at p. 24.) “ ‘ “To 

say that an error did not contribute to the verdict is ... to find that error unimportant in 

relation to everything else the jury considered on the issue in question, as revealed in the 

record.” ’ ” (People v. Hudson (2006) 38 Cal.4th 1002, 1013.)

D. Analysis 

We do not agree with Rodriguez’s assertion that the trial court’s comments were 

tantamount to the modification of a jury instruction which directed a verdict. (See, e.g., 
9.

People v. Beltran, supra, 210 Cal.App.3d at pp. 1302, 1303 [finding the trial court erred 

by instructing the jury that “ ‘[a] bone fracture constitutes substantial and significant 

injury within the meaning of Penal Code section 12022.7’ ”].) Nonetheless, we will 

presume error from the trial court’s challenged comments. It was for the jury to decide 

whether Rodriguez willfully resisted or delayed Schiebelhut in the performance of his 

duty, and Rodriguez’s ability to speak and understand English could be relevant to the 

jury’s determination. (See CALCRIM No. 2656 [resisting a police officer].)

However, in light of the strong evidence presented against Rodriguez, we are 

convinced that the presumed error did not contribute to the jury’s verdict. “To establish a 

person has willfully resisted, delayed or obstructed a peace officer in the performance of 

the officer’s duties, the People must prove: (1) the person willfully resisted, delayed, or 

obstructed a peace officer; (2) when the officer was engaged in the performance of his or 

her duties; and (3) the person knew or reasonably should have known that the other 

person was a peace officer engaged in the performance of his or her duties.” (In re

Charles G. (2017) 14 Cal.App.5th 945, 956; § 148, subd. (a)(1).)

The evidence adduced at trial demonstrated that Rodriguez saw uniformed officers 

outside of A.J.’s residence, he was given a command, and in response, he turned away 

and proceeded down the hallway of the residence. Rodriguez subsequently attempted to 

shut the bathroom door on an advancing K-9 officer, and he was resisting the handling 

officer’s attempt to enter the bathroom. Thus, even assuming Rodriguez did not speak or 

understand English, there is strong evidence supporting the conclusion that he willfully 

obstructed or delayed the police in the performance of their duties. (§ 148, subd. (a).) 

Indeed, given the compelling nature of the evidence against Rodriguez, defense 

counsel conceded Rodriguez’s conduct met the elements of resisting or delaying a peace 

officer during closing argument. Defense counsel argued: “Mr. Rodriguez did not intend 

to steal anything. He did not intend to commit any theft.... He may have resisted, he 

may have delayed the officers, but he did not commit the burglary. Mr. Rodriguez never 

intended to do so.” Based upon defense counsel’s comments in closing statements, and 
10.

in light of the strong evidence presented at trial, we conclude any presumed error was 

unimportant in relation to the evidence the jury considered on the issue of Rodriguez’s 

guilt on count 2. 

DISPOSITION

The sentence is vacated and this matter is remanded for resentencing. The trial 

court shall strike the enhancement imposed under section 667.5, subdivision (b). 

Following resentencing, the trial court shall forward a new abstract of judgment to the 

appropriate authorities. In all other respects, the judgment is affirmed.