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The People v. Jose Antonio Rodriguez

December 17, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE ANTONIO RODRIGUEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF081350)

The opinion of the court was delivered by: Murray , J.

P. v. Rodriguez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jose Antonio Rodriguez entered a negotiated plea of no contest to actively participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)) and possessing a concealed and loaded firearm in a vehicle (Pen. Code, former § 12025, subd. (a)(1), (b)(6)(A)-(B) [now § 25400, subd. (a)(1), (c)(6)(A)-(B)]) in exchange for dismissal of the remaining count, discharging a firearm at an inhabited dwelling (Pen. Code, § 246), with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, and no state prison at the outset.*fn1 The gang enhancement attached to the remaining count was stricken.

On December 8, 2008, the court granted defendant formal probation for a period of five years subject to certain terms and conditions, including that defendant serve a one-year term in the county jail term and that defendant "not . . . use or possess marijuana with or without a prescription, without prior written permission of the court."

On July 15, 2011, defendant sought modification of probation, requesting permission to possess and use marijuana in accordance with his medical recommendation. The People opposed modification of probation. After a hearing, the court denied defendant's request.

Defendant contends that the trial court abused its discretion in denying his request for modification of probation to allow him to use medical marijuana. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

About 12:45 a.m. on May 16, 2008, police officers responded to a report of shots fired at a residence in Yuba City. The resident showed the officers several bullet holes in her window. Two bullets had gone through the front door. Bullet slugs were found in the kitchen and bedroom. The apartment was inhabited by the resident and her three children at the time of the shooting. No one was wounded.

Witnesses described a white car, which the officers located and attempted to pull over. The car failed to stop and a high speed chase ensued for seven miles. When the car stopped, Dominick Aleman Aguilera jumped out and fled but was apprehended. Angelino Ray Rasul was the driver. Defendant was also found in the car.

When interviewed by the police, defendant claimed he had been sleeping, received a call that a friend had been injured, and was on his way to the hospital. He claimed he was asleep in the car and did not know there had been a shooting. He finally stated he knew a gun was involved but did not know where it was.

In support of defendant's request to modify probation to allow him to use medical marijuana, defendant submitted a written doctor's recommendation dated March 2011 for one year*fn2 that stated defendant qualified under Health and Safety Code section 11362.5 for the use of marijuana for medical purposes.*fn3 Defendant argued that there was no nexus between his crimes and the use of marijuana and that his use of marijuana ...


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