Opinion
E066928
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO RODRIGUEZ, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1106014) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jose Alfredo Rodriguez guilty of attempting the premeditated and deliberate murder of his parents' tenant for stabbing her 22 times and leaving her for dead. The trial court barred appellant from eliciting his mother's testimony he was under the influence of drugs during the attack. Rodriguez argues that ruling stopped him from showing he did not have the required intent for either an attempt crime or premeditated murder.
We conclude the trial court acted within its broad discretion in sustaining the prosecutor's objections on foundation grounds. In addition, because Rodriguez elicited testimony from other witnesses that he had a long history of drug abuse and was under the influence of methamphetamine the day of the offense, any error was harmless. We therefore affirm.
I
FACTUAL BACKGROUND
A. The Offense
L.F. rented a room in the house where Rodriguez lived with his parents. Rodriguez was 20 years old at the time of these events. L.F. and Rodriguez had rooms located next to each other, and there was a window on the wall between the rooms. L.F. placed her bed against the window so her headboard would block access into her room from the window.
At the time of the offense, L.F. had lived in the house for about three or four months. She said Rodriguez made her feel uncomfortable because he often came into her room uninvited. L.F. worked nights and slept during the day. She said Rodriguez entered her room six or seven times without knocking while she was sleeping. She told Rodriguez's mother about the incidents, and that his behavior made her uncomfortable. Rodriguez's mother reassured L.F. she would talk to Rodriguez about it. About a week before the offense, L.F. decided to move out because she didn't feel safe and told Rodriguez's mother of her decision.
December 29, 2011 was her last day in the house. L.F. had packed most of her belongings and moved her bed, which left the window unobstructed. While L.F. was in her room, Rodriguez tried to climb in through the window, but lost his balance and got stuck. L.F. called Rodriguez's mother. Over Rodriguez's objection, L.F. told his mother what had happened, and his mother scolded him. Rodriguez said, "Now you made me mad." Rodriguez's father also reprimanded Rodriguez, told him to calm down, and said if he didn't they would call the police. L.F. said Rodriguez argued with his father, then returned to his own room. Father reported Rodriguez was mad, but didn't say anything before returning to his room.
About 20 minutes later, as L.F. was watching television, she heard a loud noise at the window. She opened her door to look for the mother, but she didn't hear anyone. Then she saw Rodriguez standing about five to six feet away. He had tied a rag around his hand. He said to L.F., "Why did you tell my mom?" L.F. said she could tell he was mad because he gave her a "very horrible look." She replied, "Why are you trying to come through my window?"
As L.F. turned to face him, Rodriguez came at her "like an animal" and stabbed her repeatedly. L.F. tried but was unable to get away. When she tried to grab Rodriguez and push him away, he stabbed both her arms. She put her hands in front of her chest because she saw blood coming from her hands. She said she shouted for help but no one came. Rodriguez stabbed L.F. in her chest, armpit, knee, back, and several times in the torso below her chest. L.F. fell to the floor on her back. Rodriguez's mother came into the room and tried to take something from Rodriguez's hands, but he wouldn't let her. Rodriguez told his mother not to say anything to the police and then left.
Rodriguez's mother grabbed a bottle of rubbing alcohol to put on L.F. L.F. tried to get her cell phone, but she couldn't use it because her hands were numb. Eventually, L.F. managed to call her sister for help. Meanwhile, Rodriguez's father had run to a neighbor's house and said his son had killed their tenant. He asked the neighbor to call 911. They called the police and ran over to help L.F.
Police arrived at the scene and found L.F. on the floor with blood all over her body. She had numerous slash marks and skin was hanging from her arms. She was lethargic, coming in and out of consciousness, and unable to speak. At the hospital, doctors determined L.F. had 22 stab wounds on her arms, legs, abdomen, and knee and had suffered a punctured colon, liver, and left and right diaphragm. L.F. required a chest tube in the left side of her chest. Her injuries, if left untreated, were life-threatening. She remained in the hospital for 11 days.
B. Admitted Evidence of Rodriguez's Drug Use
Rodriguez's father said Rodriguez and his half brother did crystal methamphetamine in a trailer in his backyard on the morning of December 29, 2011. Asked whether his son was "very high on drugs" on December 29, 2011, he responded, "Yes. I saw that they were smoking doing [sic] drugs in the trailer." He later admitted he did not actually go into the trailer, but he saw Rodriguez was out of control when he came out of the trailer. He said on the day of the attack Rodriguez appeared anxious and did not look good. He told Rodriguez to relax, but he wouldn't listen. Rodriguez was aggressive, destructive, and shaken up.
Rodriguez's father said he had personally seen Rodriguez smoke methamphetamine before, and said he could tell when he was on drugs and when he was not. He said Rodriguez started using drugs when he was 13 or 14 years old. He reported Rodriguez used drugs "[a] lot, all the time." "I seen him regularly using drugs. He wouldn't come out of his room. He would just stay in there smoking. He wouldn't eat or anything." When Rodriguez was on drugs, he would act aggressively and hear voices. His father said, "Sometimes he would get all violent and say we need to leave. We needed to go because they were going to kill us. He was just different. But when he wasn't using drugs, he was decent." A week or two before Rodriguez attacked L.F., his father called the police on Rodriguez, who took him into custody for a day or two. His father said Rodriguez had been arrested several times for drug possession and drug abuse.
Rodriguez's sister also testified he was a drug user and she had seen him smoke methamphetamine. She found a glass pipe and white dust in his room, and she had seen him smoke the pipe and white substance. She had previously called the police on Rodriguez, and police arrested him for being under the influence. She said there had been other times Rodriguez was under the influence when she did not call the police. Rodriguez was a completely different person when he was on drugs. He would lock himself in his room and say someone was trying to kill him and the family, and that they needed to leave the house.
She said she saw Rodriguez on the night of December 29, 2011 and reported he looked pale, his eyes were dilated, and he didn't talk much. She said he didn't even acknowledge her. When she left, she said goodbye, and Rodriguez just nodded his head.
Rodriguez's neighbor Sandra Luz Romero also said Rodriguez used drugs, and she didn't allow her daughter to have contact with him. She never saw Rodriguez use drugs, but Rodriguez's mother told her that he did.
C. Excluded Evidence of Rodriguez's Drug Use
Unlike with Rodriguez's father and sister, the trial court barred Rodriguez's mother from testifying about Rodriguez's drug use habit and whether she believed he was using drugs at the time of the attack.
Before trial, the prosecutor moved to exclude statements by witnesses that Rodriguez may have been under the influence unless the witnesses had personal knowledge he had used a specific drug. Defense counsel argued evidence of Rodriguez's voluntary intoxication was admissible under Penal Code section 29.4, subdivision (b). Rodriguez's trial brief indicated his mother said her son may have been under the influence of drugs when he attacked L.F. The court noted that without foundation or personal knowledge, her statements related to Rodriguez's possible drug use would be inadmissible.
At trial, under examination by the prosecution, Rodriguez's mother said Rodriguez did not appear normal on December 29, 2011. She said his eyes looked wide, he appeared agitated, and he did not say anything after she scolded him for trying to climb into L.F.'s room. She said she had seen Rodriguez like that many times before, and the family had twice called the police when he was in that state.
On cross-examination by defense counsel, Rodriguez's mother said he had been doing drugs for many years. She had found drug paraphernalia in his room. When defense counsel asked if she had found any type of drugs in Rodriguez's room, the court sustained the prosecutor's objection that the question lacked foundation and was vague as to time and the type of drugs. Defense counsel switched topics without attempting to cure the vagueness and foundation problems.
Defense counsel referred to his mother's testimony Rodriguez's eyes were "wide open" when he was trying to climb through L.F.'s window, and asked if she recognized that as a sign of being under the influence of drugs. The prosecutor objected based on a lack of foundation and personal knowledge. The court sustained the objection. Defense counsel asked Rodriguez's mother if she could tell when her son was under the influence. The court sustained the prosecutor's objection that the response would be speculative and lacked a proper foundation. Defense counsel then asked her what Rodriguez's wide open eyes indicated. She responded it meant he was "very high" and "very crazy." The prosecutor objected, and the court struck the answer. Defense counsel again switched topics without attempting to establish a foundation by, for example, asking whether she had seen Rodriguez take drugs or observed his behavior when he was under the influence.
Defense counsel referred to the mother's testimony Rodriguez was not okay on December 29, 2011, and asked what she meant. She replied Rodriguez "was very high on drugs. He was not in his right mind." The prosecutor again objected to the testimony as speculative and lacking foundation. The court struck the part of her testimony saying he was very high but otherwise allowed it to stand. Defense counsel again changed topics.
Defense counsel later asked Rodriguez's mother if she thought her son had a drug problem. The prosecutor objected the question lacked foundation, called for speculation, and called for a conclusion. The court sustained the objection again, and again defense counsel changed topics.
On redirect examination, the prosecutor asked Rodriguez's mother if she saw Rodriguez do drugs on the day he attacked L.F. Initially, she said yes, but then she conceded Rodriguez was in the trailer with his half brother all day and she didn't go into the trailer.
D. Charges, Verdict, and Sentence
The Riverside County District Attorney charged Rodriguez with one count of attempted murder (Pen. Code, §§ 187, subd. (a) & 664; unlabeled statutory citations refer to this code) and one alternative count of assault with a deadly weapon (§ 245, subd. (a)(1)), and alleged Rodriguez personally inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)). On the attempted murder count, they alleged he "wilfully, unlawfully, and with malice aforethought attempt[ed] the willful, deliberate and premeditated murder" of the victim and personally used a deadly and dangerous weapon. (§§ 12022.7, subd. (b)(1) & 1192.7, subd. (c)(23).)
On July 28, 2016, the jury found Rodriguez guilty of premediated and deliberate attempted murder. The jury found true allegations Rodriguez had personally used a deadly and dangerous weapon and personally inflicted great bodily injury upon the victim. On September 22, 2016, the court sentenced Rodriguez to life with the possibility of parole, plus four years for the enhancements.
Rodriguez filed a timely notice of appeal.
II
DISCUSSION
Rodriguez argues, and the People concede, evidence that appellant was voluntarily intoxicated during the attack is relevant to his defense that he did not have the specific intent required for attempted, premeditated murder.
We agree with that point. The People charged Rodriguez with attempting the premeditated murder of L.F. Proving an attempt of any crime requires the People to show "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Attempted murder is no different; "specific intent to kill is a requisite element of attempted murder." (People v. Lee (1987) 43 Cal.3d 666, 670.) Premeditated murder "require[s] as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill." (People v. Steger (1976) 16 Cal.3d 539, 545.)
Section 29.4, subdivision (b), in turn, provides evidence of voluntary intoxication is admissible on (but only on) the issue of whether "the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.) Our Supreme Court has held that provision "makes evidence of voluntary intoxication relevant on the issue of whether the defendant actually formed any required specific intent." (People v. Pensinger (1991) 52 Cal.3d 1210, 1242-1243 [discussing section 22, which was renumbered section 29.4 by Stats. 2012, ch. 162 (Sen. Bill No. 1171) § 119].)
Based on these principles, Rodriguez argues the trial court committed prejudicial error by excluding his mother's testimony about his voluntary drug use. He claims the evidence was relevant—indeed critical—to his only defense and the court placed "artificial limitations" on him by excluding it as speculative and lacking foundation. There are two crucial problems with Rodriguez's argument.
First, his mother's testimony was not adequately founded in facts within her personal knowledge. Rodriguez's mother conceded she did not observe Rodriguez taking drugs on the night of the offense. Thus, by asking his mother to testify he was voluntarily intoxicated when the offense occurred, defense counsel was asking her to infer that conclusion from Rodriguez's behavior and demeanor. But she did not testify she had seen him take drugs in the past. She did not testify she had seen him high on methamphetamine. Nor did she testify she knew how Rodriguez acted when he was high on methamphetamine. Thus, his mother's inference Rodriguez was voluntarily intoxicated on the night of the attack did not have an evidentiary basis; the inference was speculative. '"Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose."' (People v. Babbitt (1988) 45 Cal.3d 660, 681.)
The contrast with the testimony of Rodriguez's father and sister is illuminating. The court allowed Rodriguez's father to testify he believed Rodriguez was high on methamphetamine. He said he had personally seen Rodriguez smoke methamphetamine before, described his behavior while high, and said he could tell when he was on drugs and when he was not. Rodriguez's sister also testified he was a drug user and she had seen him smoke methamphetamine with a glass pipe. She also described how Rodriguez behaved while high on past occasions, and compared his behavior and demeanor on the night of the attack. Asked whether her brother appeared to be in the same condition as he was on a past occasion of intoxication, she said, "I think he even looked worse." This testimony provided a foundation for his father and sister to offer their opinions that Rodriguez was high on methamphetamine on the night of the attack, despite the fact they did not observe him taking the drug that day.
Defense counsel did not obtain the same foundation for mother's opinion. Accordingly, we do not find the trial court abused its discretion by excluding her testimony. (People v. Peoples (2016) 62 Cal.4th 718, 745.)
Second, Rodriguez's father's and sister's testimony they believed he was high on methamphetamine during the attack shows Rodriguez was not prejudiced by the trial court's orders barring his mother from testifying the same thing. Even if the court's evidentiary rulings were erroneous, we would reverse "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178.) Our review focuses on what a reasonable jury is likely to do absent the error, not on what it could do. (Id. at p. 177.)
Rodriguez does not challenge the strength of the evidence supporting the jury's conclusion he acted with specific intent to kill and his attack was premeditated and deliberate. Nor does he argue he was not allowed to put on evidence he regularly used drugs and was high on methamphetamine at the time of the attack. As we have seen, his father and sister testified to that effect. Thus, his argument reduces to the claim a reasonable jury likely would have reached a more favorable result—for example that he was guilty of assault with a deadly weapon, but not attempted murder—had Rodriguez's mother provided further evidence he was voluntarily intoxicated at the time of the attack. We conclude a more favorable result was not reasonably probable. Defense counsel put on a significant amount of testimony from which the jury could have found Rodriguez was voluntarily intoxicated. From that evidence, the jury could have concluded Rodriguez did not have the requisite intent. But the jury did not so conclude, and there is no reason to think having one more family member repeat the same opinion would have made any difference.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. FIELDS
J.