Opinion
B226370
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. TA109280)
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur M. Lew, Judge. Affirmed as modified.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose Rodriguez appeals from the judgment entered following his conviction by jury of two counts of assault with a deadly weapon, with the finding that he personally used a deadly and dangerous weapon and intentionally inflicted great bodily injury upon the victim. (Pen. Code, §§ 245, subd. (a)(1), 12022, subd. (b)(1), 12022.7.)He contends the trial court committed Doyle error, excluded crucial defense evidence, and committed instructional and sentencing errors. We modify the sentence and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
Doyle v. Ohio (1976) 426 U.S. 610.
STATEMENT OF FACTS
I. The Prosecution Case
In approximately July or August of 2009, Jose Santos Escobar rented a bedroom in an apartment in Compton that Sandra Munoz shared with defendant and her three children. At the time, Escobar had a romantic relationship with Munoz and it continued after he moved in. In the early part of November, Munoz asked Escobar to move to the attached garage. According to Escobar, she requested that he move because defendant was jealous of him.
Escobar acknowledged he had suffered two prior convictions for possession of drugs with the intent to sell. He also admitted obtaining fake identification cards and using different names.
On the night of November 4, 2009, Escobar returned home from work. He went into the apartment to take a shower. Defendant and Munoz's children were inside. As Escobar walked toward defendant, defendant stared at him and asked, "What's going on between you and my woman?" Escobar replied that if defendant wanted to know, he had to ask Munoz. As Escobar walked by, defendant touched him in the back and when Escobar turned, defendant stabbed him in the sternum with a pocket knife. Escobar had no weapons and was carrying nothing in his hands. Defendant continued to stab Escobar in the chest, arms, and legs and said a number of times that he was going to kill him. During the attack, defendant also slashed Escobar's face. As the assault ensued, Escobar did not strike defendant or threaten him.
Near the end of the incident, Escobar grabbed the knife and sustained cuts to his hand. During the struggle over the knife, Escobar slipped and fell to the floor. Defendant stabbed him a final time in the leg, ran out the front door, got into his car, and left. Escobar, bleeding profusely, told one of Munoz's children to call the police.
Escobar said he was stabbed or cut 25 times. He had a number of scars as a result of the attack, which he exhibited to the jury. He was in the hospital for five days and was still suffering lingering effects from the stabbing at the time of trial.
At the time of the incident, Escobar weighed 125 pounds. Defendant weighed more than 200 pounds.
Thirteen-year-old Javier Marquina is Sandra Munoz's son and he lived in the apartment where the attack took place. He referred to defendant as his stepfather and said defendant took him to school, the movies, the park, and restaurants. Javier did not have a similar relationship with Jose Escobar. Javier did not want to see defendant get in any trouble. According to Javier, Munoz had a simultaneous romantic relationship with Escobar and defendant and it caused problems between the two men.
On the evening of November 4, Javier was asleep in the bedroom. He was awakened when he heard Escobar saying "help" and calling Javier's name. Defendant and Escobar were telling Javier to call the police. Javier called 911, using the telephone that was in his room. He came out of the bedroom when an ambulance arrived at the location and saw a lot of blood. Defendant was gone.
Javier observed two prior arguments between Escobar and defendant. On both occasions, he saw Escobar waving a knife and heard him cursing at defendant. Javier never saw defendant take out a weapon and threaten Escobar.
On the night of the attack, then nine-year-old Christopher Martinez was sleeping in the living room. He was awakened by the sound of grunting and saw Escobar and defendant. He claimed that he observed the two men punching one another.
Christopher was interviewed by deputies two days after the incident. He recalled telling them that he saw Escobar bleeding and that a knife caused him to do so. He said defendant had a knife and Escobar did not. Christopher stated to the deputies that defendant cut Escobar with the knife and stabbed him in the left bicep. During testimony, Christopher claimed he did not see defendant stab Escobar. Instead, he noticed that Escobar was bleeding. Both men were yelling, "Call the police." Defendant then left the apartment. Christopher did not see any cuts on defendant's clothing, hands, or arms. Although Escobar did not have a knife in his hand, he had one attached to his pants pocket.
Christopher said Escobar and defendant did not get along. He had heard Escobar threaten to kill defendant "lots of times." However, Christopher did not hear Escobar threaten defendant on the night of the stabbing. Christopher loved defendant and did not want anything bad to happen to him.
On the evening of November 4, 2009, Los Angeles County Deputy Sheriff Marco Miranda came in contact with defendant, who was seated in the backseat of a patrol car. Deputy Miranda understood that defendant had driven to the station and had spoken with another deputy. Deputy Miranda observed that defendant had no bruising, swelling, or cuts to his face, arms, or upper body. Defendant had dried blood on his cheek and dried and wet blood on his clothes and hands. Deputy Miranda did not see any injuries to defendant's hands.
After being advised of and waiving his Miranda rights, defendant told the deputy that he stabbed Escobar in self-defense. When Deputy Miranda attempted to ask further questions, defendant became uncooperative and said that was all he was going to say. The interview ended. When conducting a later search of the car defendant had driven to the station, Deputy Miranda located a folding knife with bloodstains on the blade.
Miranda v. Arizona (1966) 384 U.S. 436.
Later that evening, Deputy Miranda interviewed Christopher. Christopher told him that he heard Escobar and defendant arguing. He saw defendant stab Escobar. He did not see Escobar stab defendant. Christopher also said he did not see Escobar with a knife.
Deputy Miranda also spoke to Escobar. Escobar said that he and defendant were arguing when defendant took out a knife and stabbed him in the arm. Defendant then stabbed him in the chest. Escobar did not describe any other injuries. Deputy Miranda observed both wounds. Although Deputy Miranda noticed only those large wounds, he could not say whether Escobar had suffered any other injuries due to the amount of blood on Escobar's body.
II. The Defense Case
Twelve-year-old Maite Marquina lived in the apartment with her mother, Sandra Munoz, defendant, Escobar, and two brothers. She saw Escobar threaten defendant two or three times. During one such threat, she observed Escobar with a knife. He was holding it up to protect Munoz because defendant was yelling at her. She also heard Escobar say he wished that defendant would be struck by a car or attacked by dogs. Maite acknowledged that she loved defendant and did not want him to get in any trouble.
Leonel Guizar is defendant's neighbor. They had lived in the same apartment building for seven years. He believed defendant to be a good man who never bothered another neighbor. In February 2010, three months after the November incident, Escobar and Munoz threatened to beat Guizar because Guizar told Escobar to move a truck out of the driveway. Guizar called the police. He admitted that he told police that Munoz had threatened to kill him and that the person who was with Munoz was bald. Guizar conceded that Escobar is not bald. Nonetheless, he was certain it was Escobar who threatened him.
Maria Ruelas has been defendant's next door neighbor for seven years and considers him a friend. She opined that defendant is a peaceful man. She believed Escobar to be an aggressive person. Two days before the November incident, Ruelas was sweeping her patio. For no reason, Escobar opened the door and called her a stupid old lady. Afterwards, defendant and Munoz stepped outside. Escobar cursed defendant and said he was going to kill him or get a Long Beach gang to do it for him.
Sotelo Garcia is acquainted with Escobar and defendant. He had a conversation with Escobar after what Garcia called the "accident," referring to the stabbing. He later changed his statement and said they spoke before the accident. Still later, he acknowledged it was possible the encounter was after the accident. Garcia approached Escobar because he appeared angry and Garcia wanted to ascertain why. Escobar said he was very bothered by the fact that defendant continued to live in the home with Munoz. Garcia responded that it was appropriate that Escobar was the one who left. (Escobar did not return to the apartment after the stabbing.) Escobar said that he wanted to kill defendant. When Garcia asked why, Escobar did not answer.
Sandra Munoz has had a relationship with defendant for seven years. She believes he is a peaceful person. In approximately April 2009, she entered into a romantic relationship with Escobar even though she continued to live with defendant. According to Munoz, defendant was unaware of her romance with Escobar. Defendant respected Escobar as a renter; Escobar was aggressive with defendant, saying often that he did not like him. On occasion, while Munoz was arguing with defendant, Escobar would insert himself into the discussion, pull his knife, and curse. Three months after Escobar began renting a bedroom in the apartment, Munoz asked him to move into the garage because he was violent, rude, and aggressive.
On November 9, five days after the stabbing, Munoz contacted the police and informed them that Escobar was threatening her. Later, Munoz corrected herself and said the threat occurred before the November 4 stabbing. She said Escobar told her that he would tell defendant, her children, and the neighbors she had AIDS if she did not stop seeing defendant. Munoz acknowledged that she had the AIDS virus, but she had not told anyone other than her sister about her condition. Escobar knew she had the AIDS virus because he and Munoz met at an AIDS clinic.
About two weeks before the trial, Munoz went to a Laundromat with Escobar. While there, Escobar told her not to come to court or she would regret it. She did not report the threat to police. She opined that Escobar was an aggressive and violent person.
Defendant said that on November 4, 2009, he was living with Munoz and her three children. Escobar stayed in the garage. That evening, Munoz called and asked him to pick her up at the Laundromat. As defendant was gathering his things, Escobar came into the kitchen. Defendant asked Escobar why he was inside, as ordinarily Escobar did not come into the apartment during night time hours. Escobar cursed and threatened to kill him. At that point, Escobar "launched himself against [defendant]." Defendant noticed Escobar had something shiny in his hand. Escobar struck him with his forearm, breaking defendant's glasses. Defendant grabbed Escobar and they struggled. Escobar reached for something near his pocket and tried to open it, but defendant prevented him from doing so. Escobar began putting pressure under defendant's chin and choking him. Defendant took out his knife and cut Escobar on the arm to get Escobar off of him. Defendant was afraid because every day during the prior month Escobar had threatened to kill him. Defendant shouted at Javier to call the police.
The men continued to struggle. Defendant cut Escobar several times; however, he did not know how many wounds he inflicted. Defendant had no idea how Escobar came to have so many wounds, as he did not intentionally stab him. Defendant could not explain Escobar's chest wound, saying he did not stab him there. At some point, Escobar fell to the ground. Defendant denied stabbing him further. He ran across the street to the police station. Later, he said he drove his car to the station.
During the struggle, defendant thought Escobar was going to kill him and the children. Defendant acknowledged that he was not stabbed or cut during the incident.
When defendant drove to the police station, he was in the midst of having a heart attack. He was gasping for air. He told an officer that he had stabbed Escobar in self-defense. After he told the officers he was having a heart attack, they took pictures of him and placed him into the backseat of a patrol car. Defendant said that no one at the station advised him that he had a right to remain silent.
DISCUSSION
I. The Alleged Doyle Error Does Not Require Reversal
As noted above, Deputy Miranda testified that after defendant said he stabbed Escobar in self-defense, Deputy Miranda tried to elicit further details but defendant told him that was all he was going to say. The prosecutor asked Deputy Miranda whether defendant told him that Escobar had a knife or had attacked him. Deputy Miranda said, "No." Deputy Miranda was asked whether defendant said anything about Escobar striking or attacking him or complained about any injuries Escobar had inflicted. To each question, Deputy Miranda answered that defendant did not. The prosecutor also argued to the jury that defendant's self-defense claim was undermined by his failure to provide the deputy with the same version of events that he testified to on the stand.
The trial court allowed the testimony after conducting an Evidence Code section 402 hearing.
Defendant claims the prosecutor's use of his post-arrest silence violates the rule set forth in Doyle v. Ohio, supra, 426 U.S. 610. In Doyle, the United States Supreme Court held that a prosecutor may not impeach a defendant's exculpatory version of events given for the first time at trial by cross-examining the defendant about his or her failure to have told police the story after receiving Miranda warnings.
Initially, the Attorney General contends defendant forfeited any claim with respect to the prosecutor's argument by failing to object. We disagree. Defendant clearly objected to the prosecutor's questions to Deputy Miranda that followed his post-arrest silence. His objection was overruled. The prosecutor's argument simply reiterated the point that defendant's silence in the face of police questioning meant his trial testimony was contrived. Having made a previous unsuccessful objection on the same ground, defendant was not required to object further to preserve his claim. (See People v. Wilson (2008) 44 Cal.4th 758, 793 [A party need not object "if doing so would be futile."].)
Defendant asserts he invoked his right to remain silent when he told Deputy Miranda that he was going to say nothing more. Thus, he argues, the court erred in allowing the prosecution to question Deputy Miranda further and to comment on his post-arrest silence during argument. The Attorney General responds that defendant did not clearly and unambiguously invoke his right to remain silent and the prosecutor properly asked the deputy whether defendant said that Escobar had attacked him and precipitated the assault. In light of the overwhelming evidence of defendant's guilt, we need not resolve the dispute.
Defendant's self-defense plea was rejected by the jury due to the simple unassailable fact that Escobar suffered 25 stabs or cuts, including a potentially life threatening stab wound to his sternum, and defendant escaped without a scratch. Defendant could not explain how Escobar came to have so many wounds, and he expressly denied stabbing Escobar in the chest. He argues the case was close, as demonstrated by the jury verdict acquitting him of attempted murder. Not so. The acquittal on the greater offense establishes that the jury did not find defendant intended to kill Escobar, not that defendant had legal cause to assault him. Doyle error, if any, could not have affected the jury's verdict and was harmless beyond a reasonable doubt. (See People v. Earp (1999) 20 Cal.4th 826, 857-858 [Doyle error is subject to harmless error test set forth in Chapman v. California (1967) 386 U.S. 18, 24.].)
II. The Trial Court Properly Excluded Evidence of an Alleged Threat Made by the Victim to Sandra Munoz
Near the end of trial, defendant's counsel informed the prosecutor that he intended to question Sandra Munoz about an incident during which Jose Escobar choked her. Escobar allegedly told her not to appear in court, bring her children to court, or provide testimony in the trial. The prosecutor objected, arguing that her testimony would create a trial within a trial as to whether the incident occurred. He pointed out the shortcomings of Munoz's story that would require him to call a number of rebuttal witnesses. He noted that Munoz called the police to lodge a complaint on Sunday; however, she did not tell defendant's counsel about the incident until after the court had adjourned for the day late Monday afternoon. The prosecutor claimed the police report stated that responding deputies met with Munoz and did not observe any marks on her throat. He also suggested the evidence was cumulative as a number of witnesses had testified to the victim's character for aggressiveness and violence. Defendant's attorney insisted that the victim's propensity to commit violent acts was crucial to his client's claim of self-defense.
After reviewing the police report of the incident, the court determined that the probative value of the proffered evidence was minimal, noting there had been testimony from a number of witnesses, including Munoz, that Escobar had threatened defendant with physical violence and had been aggressive toward others. In light of that testimony, it concluded that evidence of another threat by Escobar against Munoz was cumulative. The court excluded the evidence pursuant to Evidence Code section 352.
Defendant contends the trial court abused its discretion by excluding the evidence and its ruling denied him due process and the right to present a defense. He is incorrect on both counts.
We reject defendant's claim that the exclusion of Munoz's testimony violated his constitutional right to due process. The "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." (People v. Brown (2003) 31 Cal.4th 518, 545.) And, as will be demonstrated below, defendant had an ample opportunity to present a defense.
As to the evidentiary ruling, a trial court's decision to exclude evidence is reviewed for abuse of discretion. (People v. Williams (2006) 40 Cal.4th 287, 317.) An abuse of discretion is established by "showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
As he did in the trial court, defendant urges the victim's character for violence was relevant to support his self-defense claim. Although he is correct, defendant ignores the fact that he presented a number of witnesses who testified to the victim's aggressive nature. Sandra Munoz, her three children, Leonel Guizar, Maria Ruelas, and Sotelo Garcia testified that the victim was aggressive. Some witnesses stated that he had threatened to kill defendant. Indeed, Munoz testified to two other incidents when the victim threatened her. There can be little question that her testimony concerning a third such incident was cumulative. On the other side of the scale, the court was aware that there were other witnesses who would be called if Munoz was allowed to give her version of events. Defendant said there was a neighbor who observed the incident and the prosecutor stated there were two deputies who interviewed Munoz on the night in question and took pictures. Given the cumulative nature of Munoz's testimony and the consumption of time that would have been expended on the matter, the trial court's decision to exclude the testimony was not arbitrary or capricious. We discern no error.
III. The Flight Instruction Did Not Prejudice Defendant
The trial court instructed the jury with CALCRIM No. 372, the flight instruction.Defendant argues there was insufficient evidence of flight to warrant the instruction. He points out that he went directly to the police station after the incident and argues this hardly establishes intent to flee or to avoid detection. His claim has merit.
The jury was instructed as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
"'An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' [Citation.]" (People v. Visciotti (1992) 2 Cal.4th 1, 60.) It is difficult to conclude that defendant was attempting to flee when he went directly to the police station and was subsequently arrested. The court erred in giving the flight instruction.
Having concluded the court erred, the question remains whether defendant was prejudiced as a result. Where, as here, a court errs by giving a legally correct statement of the law that has no application to the facts of the case, reversal is required if it is reasonably probable the result would have been more favorable to defendant absent the error. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) We have previously discussed the wealth of evidence demonstrating defendant's guilt. The error at issue here does not warrant reversal.
For the same reason, defendant's claim of cumulative error fails. Whether considered singly or together, the errors were harmless.
IV. The Sentence Must Be Corrected
The trial court sentenced defendant to a three-year term on count 1 and count 2, ordering the sentences to run concurrently. The parties agree that the court should have stayed the sentence on count 2 pursuant to section 654. They are correct. Although defendant was convicted of two counts of assault with a deadly weapon, the acts occurred during the same course of conduct and involved one victim. As a result, defendant may be punished for only one count of assault. (People v. Deloza (1998) 18 Cal.4th 585, 591.)
The trial court committed a second error not raised by the parties. It sentenced defendant to the low term of two years for the assault with a deadly weapon charge and added a consecutive one-year term for the dangerous weapon enhancement pursuant to section 12022, subdivision (b). Defendant cannot be sentenced on an enhancement that is an element of the offense. Thus, the sentence for the enhancement cannot stand. (People v. Summersville (1995) 34 Cal.App.4th 1062, 1069-1070.)
Although we could remand the matter for the trial court to recalculate the sentence, to avoid the unnecessary waste of judicial resources we will simply correct it. In People v. Smith (2001) 24 Cal.4th 849, 854, our Supreme Court recognized that "certain errors are so obvious and so easily fixable that correction of these errors in the absence of an objection at sentencing will not unduly burden the courts or the parties." This case involves such an error. A reading of the transcript makes it clear the trial court believed a three-year sentence was appropriate. In order to avoid imposing a longer sentence, it struck the three-year enhancement for the section 12022.7 allegation. If an objection had been lodged, the court would have been advised that the one-year term for the section 12022, subdivision (b) enhancement could not be imposed. Nonetheless, it could have achieved its goal of imposing a three-year sentence simply by selecting the middle term of three years for the assault charge. We will correct the sentence accordingly.
DISPOSITION
The sentence is modified to reflect that defendant is sentenced to a three-year term comprised of the middle term of three years for the assault charge. The one-year term for the section 12022, subdivision (b) enhancement is stricken. The sentence on count 2 is stayed pursuant to section 654. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P.J.
MANELLA, J.