Rodriguez
Filed 2/24/12 P. v. Rodriguez CA5
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID ARNOLD RODRIGUEZ, JR.,
Defendant and
Appellant.
F061269
(Super.
Ct. No. 1226072)
APPEAL
from a judgment of the Superior Court
of
County. John D.
Freeland, Judge.
John F.
Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
David Arnold Rodriguez, Jr., was convicted of two counts
of attempted murder, infliction of corporal injury on his spouse, and false
imprisonment.
title="">[1] The jury also found true various enhancements
as well as the allegation that the attempted murders were willful, deliberate,
and premeditated. Rodriguez admitted he
suffered two prior convictions that constituted strikes. He was sentenced to a determinate term of 29
years and an indeterminate term of 75 years to life.
Rodriguez
argues that one of the attempted murder convictions, along with the special
allegation associated with that conviction, was not supported by substantial
evidence. He argues the trial court
erred in excluding some evidence and admitting other evidence. Finally, he asserts the sentence for false
imprisonment must be stayed pursuant to Penal Code section 654.
and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The second
amended information charged Rodriguez with the attempted murder ofC.
189, and 664 (count 1), the attempted murder of Cody Jedediah Toale in
violation of the same statutes (count 2), infliction of corporal injury on a
spouse, C., in violation of section 273.5, subdivision (a) (count 3), and false
imprisonment of C. in violation of section 236 (count 4). The information alleged as a special
enhancement that Rodriguez acted willfully, deliberately, and with
premeditation in attempting to murder both C. and Toale. (§ 664, subdivision (a).) The information also alleged as enhancements
that Rodriguez personally used a deadly and dangerous weapon in violation of
section 12022, subdivision (b)(1) (counts 1, 2, and 3), personally inflicted
great bodily injury on C. within the meaning of section 12022.7, subdivision
(e) (counts 1 and 3), and personally inflicted great bodily injury on Toale
within the meaning of section 12022.7, subdivision (a) (count 2). Finally, the information alleged Rodriguez
had suffered two prior convictions within the meaning of section 667,
subdivision (a) (counts 1, 2, and 3) and had suffered two prior convictions
that qualified as strikes within the meaning of section 667, subdivision (d)
(all counts).
C.
C. was
married to Rodriguez on the date of the events.
When she arrived home on the evening in question, Rodriguez and their
son, David, were present. Rodriguez
began arguing with her when she walked in the door. C. did not want to get into an argument, so
she considered leaving the house. She
found her keys and returned to the living room and sat down. David exited the house, with Rodriguez
locking the door after he left.
C. tried to
calm Rodriguez so she could leave the house.
Rodriguez kept getting louder and accusing her of “stuff.” She was waiting for an opportunity to leave
the house. She did not want to try to
force her way out of the house because she was afraid the argument might
escalate into a violent encounter.
C. heard
someone pounding on the front door.
Rodriquez became irritated. He
ran to the front door, opened it, and said something to whoever was outside. Rodriguez slammed the door and locked it
again. When he returned, C. saw he had a
folding knife in his hand that he pulled from his pocket. This was the first time C. had seen the
knife.
Rodriguez
approached C. and continued arguing with her.
She became even more afraid and put a small table between herself and
Rodriguez. Rodriguez continued to
threaten her.
Someone was
still pounding on the front door, which continued to irritate Rodriguez. He returned to the front door and ran
outside. When C. saw him run out the
front door, she attempted to flee. She
ran into the garage and pushed the button to activate the automatic garage door
opener. She then ran around her
car. She could see Rodriguez behind her,
and saw him push the button to close the garage door, trapping her inside.
Rodriguez
began stabbing C. in the chest with the knife.
She was also cut on her head and her forearm. She eventually fell onto her back, but she
did not recall exactly how. She recalled
seeing David and Toale trying to pull Rodriguez off her. Then Rodriguez turned towards Toale and began
swinging the knife at him. C. also heard
another neighbor, Gary Raley, telling Rodriguez to let go of the knife.
C. heard
Raley say that he had the knife, and she felt relieved. Rodriguez then ran out of the garage. He was restrained by another neighbor in the
driveway, but he broke away. A police
officer who had arrived at the house finally stopped him.
C. went
into the house looking for Toale. While
inside, she saw the front door had been barricaded to prevent anyone from
entering. She was taken to the hospital
where four wounds were stitched. She
returned home the following day.
Ten months
before the attack, Rodriguez had called C. regarding an incident wherein he was
arrested in an unrelated manner. C.
recorded that phone call and the conversation was played for the jury.
David
David Derek
Rodriguez is the son of C. and Rodriguez.
He was living with C. and Rodriguez on the day of the attack. Rodriguez came home first and seemed to be
upset about something that occurred at work.
When C. arrived home later that evening, Rodriguez immediately began
arguing with her. C. attempted to ignore
him, but Rodriguez continued to argue with her.
Rodriguez appeared to be accusing C. of spending time with another man,
and they argued about finances. C.
threatened to call the police. In
response, Rodriguez pulled the phone cord out of the wall. David heard Rodriguez threaten C. David tried calling the police because
Rodriguez was getting violent, but David did not think the operator took him
seriously.
As the
argument continued to escalate, David exited the house and went to the
neighbor’s house for help. Rodriguez
locked the front door when David left.
David’s sister Cilicia and Toale drove up when
David exited the house. David asked them
for help because C. was locked in the house, and he did not know what Rodriguez
was going to do.
David and
Toale attempted to break into the house through the front door, but the door
had been blocked by several items.
Rodriguez opened the door and ran after David and Toale with a knife in
his hand. Then he ran back into the
house. David and Toale again attempted
to open the front door, but the items had been put in front of it so they were
unsuccessful. David looked inside the
house through a window and saw Rodriguez confronting C. with a knife in his
hand. David and Toale again started
banging on the door. Rodriguez turned
towards the door. At this point C. ran
for the garage, but Rodriguez followed her there. David heard the garage door opening and ran
towards it. David looked underneath the
door, which was open about 12 inches, and saw Rodriguez push the button to
close the door. David blocked the sensor
and the door stopped. It was open about
18 inches and he was able to crawl under it.
Rodriguez and C. were in the corner of the garage, and Rodriguez was
stabbing C. David grabbed a broom and
swung at Rodriguez. Toale was also in
the garage punching Rodriguez. Rodriguez
turned towards Toale and stabbed him.
Toale did not have a weapon in his hands.
Raley came
into the garage and joined Toale in attempting to restrain Rodriguez. Raley and Toale succeeded in taking the knife
away from Rodriguez. Another neighbor,
Robert Jorgensen, helped to restrain Rodriguez.
But Rodriguez escaped and ran out of the garage. Jorgensen pursued him and slowed him down
until the police arrived and restrained Rodriguez.
Cilicia
Cilicia
Rodriguez, Rodriguez’s daughter, confirmed that David was outside when she and
Toale arrived at the house on the night in question. David looked worried and told Cilicia
that Rodriguez was going to hurt C. Cilicia
heard C. screaming. The three tried to
enter the house through the front door but could not do so. Cilicia called 911 while David tried to break
in through the front door. Rodriguez
came out the front door with a knife and started chasing the three of them.
After
Rodriguez went back inside the house, Toale again attempted to enter through
the front door. The garage door started
to open, and the three ran toward it.
The garage door started closing, but David blocked the sensor. He and Toale ran inside the garage, and
Cilicia saw Rodriguez making stabbing motions at C. Cilicia ran towards the street, but
remembered seeing Toale and David attempting to intervene. She began shouting for someone to help.
Cilicia saw
Rodriguez being restrained by David and Jorgensen in the garage and then
breaking away. Rodriguez ran out the
garage door, down the driveway, and into the street. The police arrived while Rodriguez was in the
street.
Toale
Toale
testified that, on the evening in question, he drove up to the house with
Cilicia. David ran up to Toale’s vehicle
and said that Rodriguez was trying to kill C.
The three of them ran up to the house and tried to get inside. Rodriguez opened the door, asked Toale if he
wanted to fight, and then went back inside the house and locked the door. David was attempting to break the door down,
so Toale told him to move aside and he tried to kick the door open. Rodriguez then came running out the door with
a knife in his hand. David and Toale
began running away, but Rodriguez did not follow. Instead, Rodriguez went back inside the
house. The garage door began to open,
and Toale saw C. running around the vehicle that was inside the garage.
Toale saw
Rodriguez enter the garage and attempt to close the door. David stopped the garage door from closing by
blocking the sensor. Rodriguez then
trapped C. in a corner and proceeded to stab her. Toale ran into the garage to try and save C.
even though he did not have a weapon. He
struck Rodriguez in the back of the head with his fist. David was also in the garage and was using a
broom handle in an attempt to stop the attack.
Rodriguez stabbed Toale in the back of the head until Toale was able to
grab his wrist. Raley came into the
garage and helped Toale restrain Rodriguez.
Raley was able to take the knife away from Rodriguez. Neither Toale nor David possessed the knife
that night.
Toale
realized he was seriously injured and asked Raley to take him to the
hospital. On the way to the hospital,
several police cars passed them on the way to the scene of the stabbing. Raley was able to stop one of the cars and
gave them the knife (of which he had retained possession). The officer asked Toale who had stabbed him,
and Toale stated that Rodriguez had done so.
Raley then drove Toale to the hospital.
Toale suffered four knife wounds.
Raley
Raley lived
across the street from Rodriguez on the date of the incident. He was working on his computer about 10:30
p.m. when he heard noises coming from the Rodriguez house. He went outside and saw Toale, Cilicia, and
David on the front porch. The front door
opened and someone chased the three off the porch. The individual coming out of the house looked
like Rodriguez. Raley was calling the
emergency operator at the time, so he did not focus entirely on what was
happening. But he did see the garage
door open and heard Cilicia calling for help.
Raley gave his phone to his wife and ran into Rodriguez’s garage. He found Toale, Rodriguez, and C. in the
corner of the garage. C. and Toale were
holding Rodriguez. Raley saw a knife in
Rodriguez’s left hand and grabbed onto his forearm. Raley was still holding onto Rodriguez’s
forearm when Jorgensen came into the garage.
Jorgensen and Raley continued to hold onto Rodriguez until Raley was
able to take the knife away from Rodriguez.
Toale told Raley he needed to go to the hospital, so Raley walked him
across the street towards Raley’s house.
Raley retained possession of the knife.
Raley and
Toale got into Raley’s truck and headed towards the hospital. Raley saw several police cars headed towards
the Rodriguez residence. He was able to
stop the last police car and dropped the knife into the street.
Jorgensen
Jorgensen
lived next to Raley, across the street from the Rodriguez residence. He was arriving home when he heard screaming
coming from the direction of the Rodriguez residence and he saw Raley run
towards the residence. He dropped his
suitcase and followed Raley. When he
entered the Rodriguez garage, Jorgensen saw several individuals and a lot of
commotion. Raley said something about a
knife. Raley was holding Rodriguez’s
wrist. Rodriguez was trying to strike or
push Raley with his free arm, so Jorgensen grabbed that arm. Jorgensen put a wrist lock on Rodriguez and
grabbed his hair and pulled his head back.
Raley and the other man left the garage, and Jorgensen was left
restraining Rodriguez. Rodriguez
eventually was able to break away from Jorgensen and ran out the garage
door. Jorgensen caught Rodriguez in the
front yard. Rodriguez was swinging his
fist at Jorgensen. Rodriguez broke away
from Jorgensen again and ran into the street.
Jorgensen pursued Rodriguez, but the police arrived and apprehended
Rodriguez.
Rodriguez
Rodriguez
testified that he arrived home about 8:00 p.m. on the night of the
incident. David was home but C. and
Cilicia were not there. C. arrived home
about 10:00 p.m. Rodriguez was in the
kitchen drinking beer and preparing a meal.
C. immediately began complaining about Rodriguez drinking beer and
making a mess in the kitchen. Rodriguez
told C. to remain calm and he would clean up his mess. He also told her he wanted to discuss some
issues about which she was in denial.
A short
while later Toale knocked on the front door.
Rodriguez answered the front door, told Toale he was trespassing, and
asked him to leave the property.
Rodriguez then shut the door and locked it. Shortly thereafter he heard loud banging on
the front door, and it burst open. Toale
entered the house and chased after Rodriguez, who ran into the garage and
attempted to open the garage door. Toale
struck him in the back of the head numerous times. C. entered the garage and attempted to
separate Toale and Rodriguez. Toale
grabbed a knife that was sitting on top of a tool box and started swinging his
arms. Toale struck C. with the knife,
and she fell to the ground. Toale
attempted to stab Rodriguez, but missed and then tripped and fell to the
ground. Rodriguez grabbed the hand in
which Toale held the knife, disarmed Toale, and began stabbing Toale. When Toale was incapacitated, Rodriguez
handed the knife to David. Raley then
took Toale from the scene and took the knife from David.
Rodriguez
then began struggling with Jorgensen.
Rodriguez broke free from Jorgensen and ran inside the house and then
out the front door. Rodriguez saw five
neighbors observe him run out the front door.
Jorgensen caught up with Rodriguez on the front lawn and the two began
fighting again. The police arrived
shortly thereafter and Rodriguez was arrested.
On
cross-examination Rodriguez stated he voluntarily drank approximately four
24-ounce cans of beer that night, but his memory was intact. He was, however, “feeling the effect.”
Verdict and Sentencing
The jury
found Rodriguez guilty of two counts of attempted murder with premeditation and
deliberation, battery on a spouse, and false imprisonment. The jury also found true all great bodily
injury allegations and that Rodriguez personally used a deadly or dangerous
weapon in counts 1, 2 and 3. Rodriguez
admitted the allegations that he had suffered a prior crime were true.
The trial
court stayed the sentence on the spousal battery count and its enhancement and
imposed consecutive sentences on each remaining count and enhancement. As a result, Rodriguez was sentenced to a
determinate term of 29 years and a consecutive indeterminate term of 75 years
to life.
DISCUSSION
I. Sufficiency of the
Evidence
The jury
found Rodriguez guilty of the attempted murder with premeditation and
deliberation of Toale (count 2).
Rodriguez argues that, for two reasons, the evidence was insufficient to
support this conviction. First, he
argues, there was insufficient evidence that he acted with malice aforethought,
thus requiring the conviction be reduced to attempted voluntary
manslaughter. Second, even if there was
sufficient evidence that he acted with malice, Rodriguez argues, there was
insufficient evidence that he acted with premeditation.
To assess
the evidence’s sufficiency, we review the whole record to determine whether
found the essential elements of the crime true beyond a reasonable doubt. (People
v. Maury (2003) 30 Cal.4th 342, 403.)
The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
(Id. at p. 396.) In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from
the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.)
“Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence. [Citation.]”
(People v. Maury,
A reversal for insufficient evidence “is unwarranted unless
it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’” the jury’s verdict.
(People v.
The same
standard governs in cases where the prosecution relies primarily on
circumstantial evidence. (
jury might have drawn from the circumstantial evidence. [Citation.]”
(Ibid.) “Although it is the jury’s duty to acquit a
defendant if it finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence, it is the
jury, not the appellate court that must be convinced of the defendant’s guilt
beyond a reasonable doubt.
[Citation.]” (
1053-1054.) Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant reversal of the judgment.
(Ibid.)
A. Malice Aforethought
Murder is
defined as the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) The crime is voluntary manslaughter if a
defendant unlawfully kills another without malice aforethought. (People
v. Blacksher (2011) 52 Cal.4th 769, 832.)
Rodriguez argues there was insufficient evidence of malice because he
acted upon a sudden quarrel or in the heat of passion. (§ 192, subd. (a); People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
Malice in a
prosecution for murder “may be express or implied. It is express when there is manifested a
deliberate intention unlawfully to take away the life of a fellow
creature. It is implied, when no
considerable provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.”
(§ 188.) However, in a
prosecution for attempted murder the People must prove that the defendant acted
with express malice, i.e., he had the specific intent to kill, and committed a
direct but ineffectual act toward accomplishing the intended killing. (People
v. Smith (2005) 37 Cal.4th 733, 739.)
Accordingly, the intent to unlawfully kill another person and express malice
are identical in a prosecution for attempted murder. (Ibid.)
The jury
necessarily concluded Rodriguez had the specific intent to kill Toale, and he
committed a direct but ineffectual act toward accomplishing that goal. That Rodriguez committed a direct but
ineffectual act toward killing Toale is not in dispute. Rodriguez stabbed Toale numerous times,
including a serious wound in Toale’s neck that, if left untreated, might have
proven to be fatal. The issue is whether
Rodriguez intended to kill Toale, or whether he acted upon a sudden quarrel or
in the heat of passion.
“An
intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’
(§ 192(a)), and is thus voluntary manslaughter (ibid.), if the
killer’s reason was actually obscured as the result of a strong passion aroused
by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average
disposition … to act rashly or without due deliberation and reflection, and
from this passion rather than from judgment.”’
[Citations.] ‘“[N]o specific type
of provocation [is] required ….”’
[Citation.] Moreover, the passion
aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense,
high-wrought or enthusiastic emotion’”’ [citation] other than revenge
[citation]. ‘However, if sufficient time
has elapsed between the provocation and the fatal blow for passion to subside
and reason to return, the killing is not voluntary manslaughter ….’ [Citation.]”
(People v. Breverman (1998) 19
Cal.4th 142, 163.)
Rodriguez
argues that the evidence supported a finding that he acted upon a sudden
quarrel or a heat of passion when he stabbed Toale. He points out that as he was stabbing C.,
David was hitting him with a broom handle and Toale was hitting him in the back
of the head with his fists. Rodriguez
argues that he acted reflexively, and the emotion and confusion that was
occurring as he turned to stab Toale should have led the jury to conclude that
his actions lacked malice. Several
witnesses testified that Rodriguez locked the front door while he was in the
house with C. David and Toale pounded on
the door and attempted to break into the house.
Rodriguez first threatened them with the knife and then chased them into
the front yard. The jury could have
inferred from this threat that Rodriguez harbored malice towards Toale.
Moreover,
the jury could have concluded that it was unreasonable
for Rodriguez to attack Toale with a knife in response to Toale’s attempts to
stop Rodriguez’s attack on C. This
conclusion is further supported by Rodriguez’s admission that he attacked Toale
after Toale had tripped and fallen to the ground. Rodriguez testified that he was able to
disarm Toale. The jury could have inferred
from these admissions that any arguable danger ceased to exist, and the decision
to attack Toale was malicious.
Accordingly, we reject Rodriguez’s argument that there was insufficient
evidence to support the finding that he acted with malice.
B. Premeditation
The jury
also found that Rodriguez’s attack on Toale was willful, deliberate, and
premeditated, thus resulting in an increased sentence. (§ 664, subd. (a); People v. Bright (1996) 12 Cal.4th 652, 669, overruled on other
grounds in People v. Seel (2004) 34
Cal.4th 535, 550, fn. 6.) Rodriguez
argues that the finding on this special allegation was not supported by
substantial evidence.
Premeditated
and deliberate does not require proof that the “defendant maturely and
meaningfully reflected upon the gravity of his or her act.” (§ 189.)
Instead,
“‘[i]n this context, “premeditated” means “considered
beforehand,” and “deliberate” means “formed or arrived at or determined upon as
a result of careful thought and weighing of considerations for and against the
proposed course of action.”’ [Citation.] ‘An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’
[Citation.] A reviewing court
normally considers three kinds of evidence to determine whether a finding of
premeditation and deliberation is adequately supported—preexisting motive,
planning activity, and manner of killing—but ‘[t]hese factors need not be
present in any particular combination to find substantial evidence of
premeditation and deliberation.’
[Citations.]” (
118-119.)
Rodriguez
argues that his attack on Toale was a reflexive action as a result of Toale
striking him. He insists there is no
evidence of motive or planning. We
disagree. The testimony was clear that
Rodriguez did not like Toale, and that Toale did not like Rodriguez. It also appeared that Rodriguez disapproved
of his daughter dating Toale. Finally,
Toale intervened when Rodriguez was attacking C., thus preventing Rodriguez
from completing his assault. The jury
could reasonably infer that Rodriguez was motivated to attack Toale for these
reasons.
The
evidence also established that Rodriguez chased David and Toale with a knife
when they attempted to enter the house and rescue C. Rodriguez also threatened Toale when Toale
attempted to enter the house. The jury
could reasonably infer that when Toale entered the garage, Rodriguez concluded
this was his opportunity to deal with Toale.
While this
evidence is not overwhelming, it is reasonable, credible, and of solid
value. It is, therefore, substantial
evidence to support the verdict.
II. Evidentiary Issues
Rodriguez
argues the trial court made two errors in ruling on evidence. The first ruling precluded Rodriguez from
introducing any evidence regarding an alleged rape of C. The second ruling permitted the People to
introduce a tape recording of Rodriguez threatening to kill C.
We review
evidentiary rulings for an abuse of discretion.
(People v. Cox (2003) 30
Cal.4th 916, 955, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “A trial court’s exercise of discretion in
admitting or excluding evidence … will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner .…” (
9-10.) Or, stated another way, a trial
court abuses its discretion when it appears that its decision exceeds the
bounds of reason when all of the circumstances are considered. (People
v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Any error in evidentiary rulings will require reversal only if the error
resulted in a miscarriage of justice.
(Cal. Const., art. VI, § 13.)
A miscarriage of justice occurs where it appears reasonably probable the
defendant would have achieved a more favorable result had the error not
occurred. (People v. Breverman, supra,
19 Cal.4th at p. 149.)
A. Exclusion of Evidence of
Rape
Rodriguez
argued with the trial court on several occasions that he should be allowed to
introduce evidence of an incident involving C. that occurred over 10 years
before trial. As we understand the
record, Rodriguez contended that while he was in prison, he was involved in a
dispute with another individual, apparently because he would not ask C. to
smuggle drugs into prison. In order to
gain Rodriguez’s cooperation, this other individual either raped C. after he
was released, or ordered someone else to rape C. Because C. was so devastated by the rape, she
allegedly moved out of town for three months.
Rodriguez
argued this evidence was admissible to establish that C. was angry about the
rape, and she transferred her anger to Rodriguez and fabricated the allegations
against him as a result of this anger.
In
addition, Rodriguez sought to introduce evidence that as a result of this
traumatic event, C. suffered from Rape Trauma Syndrome. This condition caused C. to have a “meltdown”
shortly before the attack. To control
her anxiety, C. apparently illegally obtained some psychotropic medication that
she was using at the time of the attack.
Rodriguez
admitted he did not have any evidence to support his allegations other than his
testimony. He was not present when C.
was allegedly raped, but claimed that she confessed the incident to him. Moreover, Rodriguez admitted he had not
retained any expert witness who could testify about Rape Trauma Syndrome, who
could testify that C. suffered from Rape Trauma Syndrome, or who could testify
that C. transferred her anger to Rodriguez.
The
prosecutor informed the trial court that he had spoken with C. about the
matter, and she denied being raped.
Another potential witness, Melissa Van Lynn, admitted that C. moved out
of town for a period of time, but denied that C. was raped or that the move was
related to the alleged rape. Finally,
the prosecutor represented that another potential witness, Jessica Starks, who
Rodriguez claimed provided the psychotropic medication that C. allegedly took,
denied ever providing psychotropic medication for C.’s use.
The trial
court concluded, in essence, that the evidence should be excluded because its
probative value was substantially outweighed by an undue consumption of court
time, and that Rodriguez’s failure to provide any medical testimony to support
his theory rendered the evidence irrelevant.
Rodriguez
argues the trial court abused its discretion when it excluded the evidence
because the ruling violated his constitutional right to present a defense (
19), and his Fifth Amendment right to confront witnesses. There was no error.
Only
relevant evidence is admissible at trial.
(Evid. Code, § 350.)
Relevant evidence is evidence that has any tendency in reason to prove
or disprove any disputed fact that is of consequence to the action, including
evidence related to the credibility of a witness. (Evid. Code, § 210.) The evidence offered by Rodriguez does not
meet this threshold test.
Whether C.
was raped was not relevant because it did not have any tendency in reason to
prove that C. harbored a bias towards Rodriguez. Even if C. admitted she was raped, unless
competent, admissible evidence could establish that the rape was the result of
a dispute between Rodriguez and another individual, then it would not be
possible to establish that Rodriguez was the indirect cause of the rape. Moreover, it would not be possible to prove
that C. harbored resentment against Rodriguez as a result of the rape unless
competent psychiatric testimony was presented to establish that fact. Finally, without psychiatric testimony, it
would not be possible for Rodriguez to establish that any anger that C.
harbored towards him as a result of the rape would cause her to fabricate
testimony. Rodriguez admitted he did not
have any such evidence. Rodriguez was
merely speculating that some such evidence may exist, and he might be able to
uncover it during trial. Speculative
inferences are not admissible. (
681-682.)
When we
take into consideration the fact that all the relevant witnesses except for
Rodriguez denied that any of the events took place, it is clear that the trial
court correctly concluded that the evidence would consume an undue amount of
court time. Rodriguez would have to call
numerous witnesses who would all deny that his assertions occurred. He would then have to testify to the alleged
events, subjecting him to extensive cross-examination. The People would then have to produce
additional witnesses to rebut Rodriguez’s testimony. The trial court also correctly noted that the
jury was already aware of the animosity between C. and Rodriguez as a result of
their exchanges during cross-examination (since Rodriguez was acting as his own
attorney). Considering the very limited
probative value of the proposed testimony, the evidence was properly excluded
pursuant to the provisions of Evidence Code section 352.
The trial
court’s ruling did not exceed the bounds of reason, and no abuse of discretion
occurred.
B. Admission of Prior Threat
The People
introduced a tape recording of a threat Rodriguez made to C. In this threat, Rodriguez threatened to kill
C. if she didn’t “stop it.” It is
unclear to what Rodriguez was referring.
C. testified that she received the phone call approximately 10 months
before Rodriguez attacked her.
name="_ftnref4" title="">[4]
Rodriguez
argues the phone call was inadmissible propensity evidence, and its admission
resulted in a violation of his rights to due process, a fair trial, and
fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution. We disagree.
While the
fact a defendant committed a prior crime (propensity evidence) is generally not
admissible to prove he also committed the charged crime (Evid. Code,
§ 1101, subd. (a)), such evidence is admissible to prove a specific fact,
such as motive or intent (id., subd.
(b)).
Rodriguez
was charged with the attempted murder of C., and with committing that attempt
with deliberation and premeditation. The
People were charged with proving that Rodriguez intended to kill C., and that
he decided to kill C. before he stabbed her.
(CALCRIM No. 521.)
Rodriguez’s threat established his intent when he attacked C. The evidence was thus relevant and admissible
under Evidence Code section 1101, subdivision (b).
Rodriguez
appears to argue that the evidence should have been excluded pursuant to the
provisions of Evidence Code section 352, i.e., the probative value of the
evidence was substantially outweighed by its prejudicial affect. He asserts the phone call was highly prejudicial
because it tended to cause the jury to be emotionally biased against him. We agree the phone call was prejudicial. Ten months before he repeatedly stabbed C.,
Rodriguez had threatened to do exactly that.
In other words, his intent was clearly established by the phone
call. Moreover, Rodriguez defended
against these charges by alleging that Toale stabbed C., and he stabbed Toale
in self-defense. This evidence was relevant, and prejudicial
to Rodriguez, because it undermined Rodriguez’s defense and corroborated the
validity of the testimony provided by the other witnesses. This, however, is not the type of prejudice
at which Evidence Code section 352 is directed.
“Evidence
is prejudicial within the meaning of Evidence Code section 352 if it ‘“uniquely
tends to evoke an emotional bias against a party as an individual”’ [citations]
or if it would cause the jury to ‘“‘prejudg[e]’ a person or cause on the basis
of extraneous factors”’ [citation].” (
475.)
The threat made by Rodriguez was not the type of evidence
that would evoke an emotional bias against him, nor would it cause the jury to
prejudge him or the case, especially when the rest of the testimony is considered. The testimony established that Rodriguez
argued with C., locked her in the house, threatened Toale and David when they
attempted to come to her aid, stabbed C. when she attempted to escape, and then
stabbed Toale when he attempted to come to her aid. The threat was consistent with this evidence,
and was not likely to cause any type of emotional reaction by the jury in light
of Rodriguez’s actions that night.
Accordingly, the trial court did not err in admitting the threat because
its probative value substantially outweighed any prejudicial affect the threat
may have had.
C. Miscarriage of Justice
Even if we
agreed with Rodriguez that the above two evidentiary rulings were erroneous,
reversal would not be required because Rodriguez cannot establish the rulings
resulted in a miscarriage of justice. A
miscarriage of justice occurs when it appears reasonably probable that the defendant would have
achieved a more favorable result had the error not occurred. (People
v. Breverman,
Rodriguez
argues his threat that C.’s children would end up being raped and killed and
his false claim that she stole money from him inevitably inflamed the passions
of the jury and swayed the verdict against him.
We disagree. The evidence against
him was overwhelming. Three individuals
testified that they saw him stab C. and then stab Toale when he attempted to
come to her rescue. Two other
individuals testified that Rodriguez had the knife. No witness corroborated Rodriguez’s testimony
that Toale attacked him and that he stabbed Toale in self-defense. Moreover, every witness contradicted other
parts of Rodriguez’s testimony. For
example, Rodriguez claimed he ran through the house and then out the front door
after the stabbing. Every other witness
testified that Rodriguez ran out of the garage door after he escaped from
Jorgensen. While this point was not
significant, it did serve to undermine Rodriguez’s credibility.
Rodriguez’s
testimony was simply unbelievable because it was contradicted in every
significant respect by every other witness, including two neighbors who had no
demonstrable bias against Rodriguez.
Therefore, even if the jury had not heard the threatening phone call, or
had heard Rodriguez’s claims that C. had been raped, it is not reasonably
probable that Rodriguez would have achieved a more favorable result.
III. Section 654
Rodriguez
was convicted in count 1 of attempting to murder C. He was also convicted, in count 4, of falsely
imprisoning C. The prosecutor argued
that the false imprisonment occurred inside the house, while the attempted
murder occurred in the garage. Rodriguez
argues that these two events were part of a continuous course of conduct and
the trial court erred at sentencing when it failed to stay the sentence on
count 4 pursuant to section 654.
“Section 654 precludes multiple punishment for a single
act or indivisible course of conduct punishable under more than one criminal
statute. Whether a course of conduct is
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the ‘intent and objective’ of the actor. [Citation.]
If all of the offenses are incident to one objective, the court may
punish the defendant for any one of the offenses, but not more than one. [Citation.]
If, however, the defendant had multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be
punished for each violation committed in pursuit of each objective even though
the violations share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]” (People
v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
The trial
court determines the defendant’s intent and objective under section 654. (People
v. Cleveland, supra, 87
Cal.App.4th at p. 268.) We review the
trial court’s finding that a defendant had a separate intent and objective for
each offense to determine if it is supported by substantial evidence. (People
v. Blake (1998) 68 Cal.App.4th 509, 512.)
Rodriguez
argues the sentence on the false imprisonment conviction should have been
stayed pursuant to section 654 because the events occurred during a single
course of conduct and he harbored only one intent that evening, to kill C. There is, of course, no direct evidence to
support this claim since Rodriguez’s defense consisted of insisting that Toale
had stabbed C. Rodriguez argues,
however, that the trial court could have inferred from the events that
Rodriguez harbored this intent.
The trial
court explained at sentencing its view of the events, albeit when considering
whether to impose consecutive or concurrent sentences. It explained that the false imprisonment
began no later than when Rodriguez pulled a knife from his pocket and opened it
while in the living room of the house.
He continued arguing with C. and used the knife to prevent her from
leaving the room. The false imprisonment
ended, in the trial court’s view, when Rodriguez ran outside and chased Toale,
David, and Cilicia. At this time, C. ran
into the garage in an attempt to escape.
The trial
court concluded the interruption in the events provided Rodriguez with an
opportunity to reflect on his conduct.
Instead of terminating his confrontation with C., Rodriguez decided to
escalate the encounter. He returned to
the house, barricaded the front door, and pursued C. into the garage. While in the garage, Rodriguez attempted to
murder C. The trial court concluded the
two crimes were thus separated by time and location.
The record
amply supports each of the facts recited by the trial court, and these facts
establish that counts 1 and 4 were not part of a continuous course of conduct
with the same intent and objective.
Indeed, it makes little sense to suggest that Rodriguez’s only intent
was to murder C. when he did not attack her when she first arrived at home, but
waited until events had escalated to do so.
Nor did he attack her when he first pulled out the knife. He waited until she attempted to escape
before he attacked. This suggests the
intent to murder C. was formed when Rodriguez discovered that C. was attempting
to escape when he returned to the house after chasing Toale, David, and
Cilicia.
These facts
provide substantial evidence that the two crimes, false imprisonment of C. and
the attempted murder of C., were not part of a continuous course of conduct and
were not the result of a single intent and objective. Accordingly, the trial court did not err when
it failed to stay the sentence on the false imprisonment count.
DISPOSITION
The
judgment is affirmed.
__________________________
DAWSON, Acting P.J.
WE CONCUR:
________________________________
POOCHIGIAN, J.
________________________________
DETJEN, J.
name="_ftn1" title="">[1]Rodriguez
successfully moved to represent himself at trial pursuant to
806.
name="_ftn2" title="">[2]All
statutory references are to the Penal Code unless otherwise stated.
