Filed 11/10/20 P. v. Ortiz CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT THE PEOPLE, F078351 Plaintiff and Respondent, (Super. Ct. No. VCF318031D) v. ALEJANDRO RODRIGUEZ ORTIZ, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION During the course of a home invasion robbery, in concert with others, defendant Alejandro Rodriguez Ortiz participated in the assault and robbery of two victims, A.N. and A.T. Defendant was thereafter arrested and charged with multiple counts relating to both victims. As to A.N., defendant was charged with home invasion robbery performed in concert with at least two others (Pen. Code, §§ 211, 213, subd. (a)(1)(A); count 1);1 kidnapping to commit robbery (§ 209, subd. (b)(1); count 3); dissuading a witness by force or threat (§ 136.1, subd. (b)(1); count 4); rape (§ 261, subd. (a)(2); count 5); first degree burglary (§§ 459, 460, subd. (a); count 6); and assault with a deadly weapon (§ 245, subd. (a)(1); count 7). Multiple firearm and gang enhancements were alleged as to these counts. As to A.T., defendant was charged with home invasion robbery performed in concert with at least two others (§§ 211, 213 subd. (a)(1)(A); count 2); assault with a firearm (§ 245, subd. (a)(2); count 8); assault with a deadly weapon (knife) (§ 245, subd. (a)(1); count 9); assault with a deadly weapon (metal object) (§ 245, subd. (a)(1); count 10); and making criminal threats (§ 422; count 11). Multiple firearm and gang enhancements were also alleged as to these counts. The jury convicted defendant of robbery in concert under counts 1 and 2; the lesser included offense of false imprisonment under count 3 (§ 237, subd. (a)); dissuading a witness by force or threats under count 4; burglary under count 6; and the lesser included offense of misdemeanor simple assault under counts 7, 8, and 9 (§ 240). The jury was unable to reach a verdict on the rape charge under count 5, and found defendant not guilty of assault with a deadly weapon under count 10 and not guilty of making criminal threats under count 11. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2. The jury found true the following special enhancement allegations: defendant personally used a firearm during the commission of both robberies (counts 1 & 2) (§ 12022.53, ...
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