P. v. Rodriguez
Filed 2/15/13 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT RODRIGUEZ,
Defendant and Appellant.
C070026
(Super. Ct. No. 07F02608)
A jury
found defendant Robert Rodriguez guilty of second
degree murder for killing his prison cellmate, who 11 years earlier had
killed defendant’s brother.
On appeal,
defendant claims: (1) his counsel was
ineffective for not requesting optional language on antecedent threats in two
jury instructions; and (2) the court abused its discretion in ordering defendant
shackled during trial. Disagreeing, we
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
On September 20, 2004, Julian Barajas
was found dead in his cell, hogtied, with his hands and feet behind his
back. Defendant was in the cell. About two weeks before Barajas was killed, he
and defendant and two other inmates had agreed to a cell switch so Barajas and
defendant could be housed together in the same cell. At the time, defendant was going by the name
Robert Rodriguez, although his birth certificate showed his actual name was
Roberto Grajeda Canchola, Jr.
Defendant’s
younger brother was Antonio Canchola. In
May 1993, Antonio was murdered by Barajas following a fight involving rival
party crews. (Party crews are groups
that promote house parties for a door charge.)
Barajas was convicted of first degree murder and was serving a life
sentence.
Defendant
testified at his own murder trial and admitted he killed Barajas, but claimed
self-defense. Barajas moved into
defendant’s cell eight days prior to his murder. At that time, Barajas threatened defendant
with a knife. From then on, their
relationship was tense. The day of
Barajas’s death, he told defendant he was in prison for murdering Antonio,
which came as a surprise to defendant.
Defendant “stood up and then [Barajas] came at him†with something that
resembled a pen or mechanical pencil.
Defendant grabbed the object and repeatedly stabbed Barajas with
it. Defendant then choked Barajas with a
cord, hogtied him, and put him atop a bunk with a blanket on his head.
DISCUSSION
I
Request
Two Jury Instructions
Defendant
contends his trial counsel was ineffective for failing to request optional
language on antecedent threats in two jury instructions. As we explain, counsel was not ineffective
because his performance was not deficient:
the given instructions told the jury to consider all the circumstances,
which included Barajas’s antecedent threats, as part of defendant’s claim of
the jury in closing argument to consider the antecedent threats in evaluating
the claim of self-defense. (See
668, 687 [80 L. Ed. 2d 674, 693] [deficient performance is the first prong of
an ineffective assistance claim].)
The
optional language defendant claims his counsel should have requested was in
CALCRIM No. 505 regarding justifiable homicide, self-defense, and CALCRIM No.
571 regarding voluntary manslaughter, imperfect self-defense.
The
optional language in CALCRIM No. 505 was as follows:
“[If you
find that ___________________ <insert
name of decedent/victim> threatened or harmed the defendant [or others]
in the past, you may consider that information in deciding whether the
defendant’s conduct and beliefs were reasonable.]
“[¶] . . . [¶]
“[Someone
who has been threatened or harmed by a person in the past, is justified in
acting more quickly or taking greater self-defense measures against that
person.]â€
The
optional language in CALCRIM No. 571 was as follows:
“[If you
find that ___________________ <insert
name of decedent/victim> threatened or harmed the defendant [or others]
in the past, you may consider that information in evaluating the defendant’s
beliefs.]
“[If you
find that the defendant knew that ___________________ <insert name of decedent/victim> had threatened or harmed others
in the past, you may consider that information in evaluating the defendant’s
beliefs.]â€
Even without this optional language, the
instructions still allowed the jury to consider the antecedent threats in
evaluating defendant’s claim of self-defense because they directed the jury to
consider all the circumstances known and appearing to defendant in assessing
his claim of self-defense. CALCRIM No.
505 as given instructed as follows:
“When deciding whether the defendant’s beliefs were reasonable,
known to and appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have believed. [¶]
If the defendant’s beliefs were reasonable, the danger does not need to
have actually existed.†(Italics
added.) CALCRIM No. 571 as given
instructed as follows: “In evaluating
the defendant’s beliefs, consider all the
circumstances as they were known and appeared to the defendant.†(Italics added.)
In addition
to the court instructing the jury that it could consider all the circumstances,
defense counsel highlighted the antecedent threats as part of what the jury
should consider when assessing defendant’s claim of self-defense.
Given the
instructions and defense counsel’s argument that adequately conveyed the
requisite concepts, counsel was not deficient for failing to request the
optional jury instruction language on antecedent threats. (See People
v. Castillo (1997) 16 Cal.4th 1009, 1014-1016 [counsel was not ineffective
for failing to request an instruction that was adequately covered by other
instructions and counsel’s closing argument].)
II
Ordering Defendant Shackled During Trial
Defendant
contends the court abused its discretion in ordering him shackled during trial
because there was no showing of a manifest need for restraints. As we will explain, the court did not abuse
its discretion.
A criminal
defendant may be shackled at trial in the presence of the jury only upon a
showing of manifest need. (
290-292.) Manifest need may be
demonstrated by “a showing of unruliness, an announced intention to escape, or
‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which
disrupts or would disrupt the judicial process if unrestrained . . . .’ †(People
v. Cox (1991) 53 Cal.3d 618, 651, disapproved of on other grounds in
421, fn. 22.) Here, the court held a
hearing to decide whether to shackle defendant.
The testimony at that hearing by the sergeant responsible for
transporting inmates to the courthouse amply justified the use of
shackles. While in prison, defendant had
engaged in the following violent conduct:
attempted murder in 2001; murder in 2000; possession of a deadly weapon
in 1999; mutual combat in 1998; battery on a nonprisoner, battery on a
prisoner, mutual combat, assault with serious bodily injuries all in 1997; and
fighting in 1993. This extensive and
prolonged history of violence that occurred while defendant was confined in
prison qualified as nonconforming conduct that would disrupt the judicial
process if left unrestrained. The court
therefore did not abuse its discretion in ordering defendant shackled.
DISPOSITION
The
judgment is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
