Filed 9/19/24 P. v. Rodriguez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BENITO MANUEL RODRIGUEZ,

Defendant and Appellant.

D082688

(Super. Ct. No. SCS320608)

APPEAL from a judgment of the Superior Court of San Diego County,

Maryann D’Addezio, Judge. Affirmed as modified.

Melanie L. Skehar, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, and Robin 

Urbanski and Namita Patel, Deputy Attorneys General, for Plaintiff and 

Respondent.
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INTRODUCTION

After trial, a jury convicted Benito Manuel Rodriguez of burglary (Pen. 

Code, § 459).1 On appeal, Rodriguez contends (1) the trial court erred by 

sentencing him to three years of probation, and (2) the prosecution’s questions 

to defense witness about charges pending in an unrelated matter constituted 

misconduct. The People concede error as to the sentencing issue, and therefore 

we modify the probation term. As to the prosecutor’s questions to the 

character witness, we agree that the questioning was misconduct, but we 

conclude that it was not sufficiently prejudicial to justify reversal. 

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2021, after discovering money had gone missing from the 

dresser in his bedroom, K.L. set up a camera to film his room in his absence. 

From the video, he learned that while he was at work, his friend Rodriguez 

had entered his bedroom through a patio door and had looked through his 

dresser. Thereafter K.L. discovered money was missing from the dresser. 

Upon being confronted with the video, Rodriguez texted: “I ain’t take no

money besides today.”

Rodriguez was charged with burglary, in violation of section 459 (count 

1); grand theft, in violation of section 487 subdivision (a) (count 2); and 

attempting to dissuade a witness from reporting a crime, in violation of section 

136.1 subdivision (b)(1) (count 3). 

During motions in limine, the prosecutor noted that Rodriguez had “an 

open domestic violence, slash, vandalism case” based on conduct and an arrest 

that occurred after the burglary. The prosecutor stated that if Rodriguez 

testified, he would ask the court to permit him to impeach Rodriguez with the 

1 Statutory references are to the Penal Code unless otherwise indicated.
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facts of that case, which involved breaking his girlfriend’s cellphone by 

slamming it on the floor. The court ruled that there was to be no mention of 

the pending charges and that the open vandalism case could not be discussed. 

The court confirmed the ruling later in the same hearing: “I’ve already ruled 

that his open arrests for vandalism cannot be discussed.” When the issue was 

raised in connection with the cross-examination of a defense character witness, 

the court ruled that the prosecution could impeach testimony about 

Rodriguez’s character for trustworthiness regarding the property of others

with the damage to property, but not as to violence. 

Specifically, the court ruled:

“What the law says is that if you introduce evidence of his 

character as to a certain trait, and in this case, it’s honesty 

and trustworthiness regarding property – regarding the 

property of others, then the Code permits the prosecution to 

question regarding other instances where he has not been 

respectful, honest about someone else’s – and trustworthy 

with someone else’s property. Which is why I’m saying, 

anything about violence, no, I don’t think it’s relevant. It 

doesn’t counter the testimony of honesty, trustworthiness 

regarding the property of others. But certainly damaging 

the property of someone else does.” 

“You could certainly ask him, ‘Isn’t it – would it change your 

mind if you knew that he had broken the telephone, 

damaged a telephone of a girlfriend or ex-girlfriend?” 

During cross-examination of N.S., a defense character witness, the 

prosecutor asked, “Would it change your mind if I told you the defendant had 

another open case for smashing his girlfriend’s phone and breaking it?” The 

prosecutor asked the same witness, “And again, just to be clear, if the 

defendant had an open case for smashing a phone and also was before the 

Court here for stealing, that would not change your opinion of him at all?” 

Outside the presence of the jury, defense counsel requested a mistrial. The 
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court declined to grant a mistrial. Defense counsel proposed a curative 

instruction: 

“You are to disregard any mention of an open case that was 

improperly elicited by the prosecution during the 

examination of [N.S.]. You are not to form your own 

conclusions or assumptions as to what the prosecution is 

referring to or use this in your determination of guilt or 

innocence in this case. Any facts elicited or inferenced by the 

prosecution during the questioning of Defense’s character 

witnesses are not to be deemed as true and accurate, nor are 

they to be used in the determination of guilt or innocence in 

this case.”

The court declined to give the proposed instruction, noting that its points were 

covered in other jury instructions. 

The jury convicted Rodriguez of burglary and found true that it was a 

burglary of an inhabited dwelling house. It found him not guilty of grand theft 

and petty theft, and not guilty of dissuading a witness. The trial court 

sentenced Rodriguez to three years of probation. Rodriguez timely appeals. 

DISCUSSION

A. We accept the People’s concession as to the term of probation

As noted above, the trial court sentenced Rodriguez to three years of 

probation. However, because there was no evidence that anyone else was 

present in the residence during the burglary, pursuant to section 1203.1, 

subdivision (a), the probation term is limited to two years. We accept the 

concession and remand for resentencing.

B. Prosecutor’s Questions to Defense Character Witness

“It is misconduct for a prosecutor to violate a court ruling by eliciting or 

attempting to elicit inadmissible evidence in violation of a court order.” (People 

v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) Here, notwithstanding the court’s 

in limine ruling that there was to be no mention of the pending charges and 
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that “his open arrests for vandalism cannot be discussed,” the prosecutor twice 

asked a defense witness whether he was aware of a pending case against 

Rodriquez. Further, the court had ruled that the prosecutor could not include 

a reference to violence when impeaching a character witness’s testimony about 

trustworthiness with the property of others, but the prosecutor included a 

violent reference (“smashing [a girlfriend’s] phone”) in his questions to a

character witness.

Thus, by violating the court’s order, the prosecutor committed 

misconduct. (Crew, supra, 31 Cal.4th at p. 839.) However, “[a] defendant’s 

conviction will not be reversed for prosecutorial misconduct, however, unless it 

is reasonably probable that a result more favorable to the defendant would 

have been reached without the misconduct.” (Ibid.)

On appeal, Rodriguez does not challenge the court’s denial of his request 

for mistrial, but instead argues that he was denied a fair trial because of the 

prosecutor’s cross-examination questions to N.S. about his knowledge of “an 

open case for smashing his girlfriend’s phone and breaking it.” 

“ ‘Statements of supposed facts not in evidence . . . are a highly 

prejudicial form of misconduct, and a frequent basis for reversal.’ ” (People 

v. Rodriguez (2020) 9 Cal.5th 474, 480, quoting People v. Hill (1998) 17 Cal.4th 

800, 828.) After a court has ruled on the limitations of cross-examination of 

defense witnesses, a prosecutor must use great care to frame questions in a 

way that complies with the ruling. Here, whether the prosecutor 

misunderstood the rulings, or forgot them, or ignored them, the questions were 

misconduct, and therefore we turn to the effect of the misconduct on the trial. 

We conclude that it is not reasonably probable that the jury would have 

decided not to convict Rodriguez in the absence of the misconduct. First, the 

difference between an appropriate question under the court’s in limine ruling 
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(e.g., “Would it change your mind if I told you the defendant had broken a 

friend’s phone?”) and the improper questions (“Would it change your mind if I 

told you the defendant had another open case for smashing his girlfriend’s 

phone and breaking it?”) is fairly small.

Second, the case against Rodriguez was strong. K.L. testified that after 

he realized that money was missing from his dresser, before he left for the day, 

he left money in his dresser drawer and set up a motion-activated recording 

device in his room. When K.L returned to his room later that day, the money 

that had been in K.L.’s drawer was no longer there, and when K.L. reviewed 

the recording, he saw Rodriguez had entered his bedroom in his absence and 

had gone through his belongings, including his dresser drawer.2 In his 

testimony, Rodriguez did not dispute that he went into K.L.’s bedroom through 

the sliding glass door and that he opened and looked through K.L.’s belongings, 

including the dresser drawer. He testified that he was looking for some of his 

own personal property. Rodriguez denied that he took the money, and he 

explained that the text he sent to K.L. later in the day (“I didn’t take no money 

besides today, LOL”) was the result of typing quickly, out of anger. The only 

relevant factual difference between the two accounts was whether Rodriguez 

had taken money that K.L. testified that he had left in his dresser.

The jury viewed the video recording of Rodriguez in K.L.’s room and was 

able to observe the testimony of both Rodriguez and K.L. and assess their 

respective credibility. There were no questions posed to either of these two key 

witnesses that related to the subject of the pending case against Rodriguez. 

Further, because the jury acquitted Rodriguez of three of the four charges 

2 The witnesses disagreed as to whether the video showed Rodriguez 

holding the money. K.L. testified that the recording showed the rectangular 

shape of money in Rodriguez’s left hand, but Rodriguez testified that it did not. 
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against him, it is clear that the jury had not been swayed by passion or 

prejudice in its consideration of the evidence. In light of the strength of the 

case against Rodriguez, the relative insignificance of the two questions posed 

to a character witness, and the jury’s discernment in considering the counts 

alleged against Rodriguez, we conclude that there is not a reasonable 

probability of a different outcome had the prosecutor not questioned the 

witness about a pending case. (Crew, supra, 31 Cal.4th at p. 839; see also 

People v. Watson (1956) 46 Cal.2d 818, 836. 

Rodriguez argues that the misconduct here tainted his case such that his 

federal due process rights were violated. He urges us to conclude that the 

error was not harmless beyond a reasonable doubt, the standard articulated in 

Chapman v. California (1967) 386 U.S. 18, 24. We review such a claim as a 

legal question, subject to de novo review. (People v. Uribe (2011) 199 

Cal.App.4th 836, 858.) The misconduct here did not result in a trial that was 

so unfair that it violated Rodriguez’s constitutional rights; but for the reasons 

articulated above, even if we were to conclude otherwise, under the Chapman

standard, the prosecutor’s misconduct was harmless beyond a reasonable 

doubt. 

Finally, Rodriguez contends that the court compounded the prosecutor’s 

misconduct by refusing to give the curative instruction he proposed. We agree 

with the People’s position that the curative instruction would have been 

duplicative of other instructions given by the court, including that the 

attorneys’ questions are not evidence and that questions to character witnesses 

are not evidence that the defendant engaged in such conduct. “We presume 

the jury understood and followed the court’s instructions.” (People v. Lima 

(2022) 80 Cal.App.5th 468, 481.)
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DISPOSITION

The judgment is modified to reduce the length of probation to two years 

and the trial court is directed to amend the probation order accordingly. As 

modified, the judgment is affirmed.

KELETY, J.

WE CONCUR:

DO, Acting P. J.

BUCHANAN, J.