P. v. Rodgers

 

 

 

 

 

 

 

 

 

 

 

Filed 7/16/13 
P. v. Rodgers CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. RONNIE RODGERS,             Defendant and Appellant.

A135209         (San Francisco City and County       Super. Ct. No. 2353889)

 

            Ronnie
Rodgers was charged with attempted murder,
assault with a deadly weapon, and making criminal threats after attacking a
hotel manager with a pair of scissors. 
The jury heard evidence of four prior stabbing incidents by Rodgers,
with consideration of the evidence limited to the issue of whether Rodgers
acted with the intent to kill in the current assault.  The jury acquitted Rodgers of attempted
murder, but convicted her of the other charges. 
Rodgers argues the limiting instruction given to the jury improperly
allowed the jury to consider the prior bad acts evidence with respect to the
criminal threats charge.  We disagree and
affirm.

I.          Background

            In
February 2008, Ronnie Rodgers was charged with attacking Shaker Dahud with
a pair of scissors at the Hurley Hotel in the Tenderloin neighborhood of San
Francisco.  The operative second amended
information charged Rodgers with attempted murder (Pen. Code, §§ 664, 187,
subd. (a);href="#_ftn1" name="_ftnref1"
title="">[1]
count 1); assault with a deadly weapon (scissors) (§ 245,
subd. (a)(1); count 3); and making criminal threats (§ 422; count 5).href="#_ftn2" name="_ftnref2" title="">[2]  As to count 1, it was alleged that
Rodgers used a deadly weapon (scissors). 
(§ 12022, subd. (b)(1).) 
As to all counts, it was alleged that Rodgers was ineligible for
probation pursuant to section 1203, subdivision (e)(4); that she had
two prior convictions within the meanings of section 667, subdivisions
(a)(1), (d) and (e) and section 1170.12, subdivisions (b) and (c);
and that she had served a prior prison term within the meaning of
section 667.5, subdivision (b).

A.        Trial Evidence on
Charged Offenses

            In
July 2007, Dahud became the manager and Harold Hunt became the assistant
manager of the Hurley Hotel, where Ronnie Rodgers lived.  Dahud testified that Rodgers struggled with
“constant alcohol and drug addiction,” drank alcohol and smoked crack cocaine,
and would stay up all night yelling and screaming.  She frequently yelled in a “violent” tone in
her room, in the lobby, and on the street, and she would curse and make
threatening statements.  In about
January 2008, Dahud evicted Rodgers due to this behavior and helped move
her to a different hotel.  Rodgers,
however, would frequently come back to the Hurley and ask Dahud, Hunt and
others for money.  Dahud often gave her
money because she was loud, “in your face,” and would not take no for an answer.href="#_ftn3" name="_ftnref3" title="">[3]>

            On
February 4, 2008, Rodgers came by the hotel three times.  On the first two occasions, Dahud noticed
that she was under the influence of alcohol or drugs.  When she returned at 11:00 p.m., she was
violent and loud as usual.  Hunt buzzed
her in through the outside front door, then slightly opened the door to the
lobby.  Rodgers pushed by him, entered
the lobby, and walked into the office where Dahud was situated.  She loudly yelled, cursed and asked for
money.  Dahud told her he had no money,
yelled at her to leave, and pushed her away.

            As Dahud
turned partially away from Rodgers, he saw that she was holding a pair of about
eight-inch scissors at her eye level. 
Dahud grabbed the hand holding the scissors to protect himself.  Rodgers, who was very aggravated, ripped
Dahud’s shirt and the tip of her scissors almost touched Dahud’s stomach.  They then struggled on the ground.  At first, Rodgers was face down and Dahud was
on her back, still holding onto the scissors. 
Dahud told Rodgers to let go of the scissors but she would not do
so.  Then Rodgers got loose and turned
face up, cutting Dahud’s pants and scratching his legs with the scissors in the
process.  Dahud managed to regain control
over her.  At another point, Rodgers
attempted to stick Dahud in the hand with the scissors and cut him, but he was
able to stop her.  The scissors came
within eight inches of Dahud’s face. 
Rodgers also tried to bite him. 
Dahud finally was able to take the scissors from Rodgers and he let her
stand up.  The police then arrived.

            Dahud
testified that, during the struggle, Rodgers yelled, “Let me go”; “I’ll get
you, you mother fucker”; “I’ll kill you”; “I’ll see you outside”; “I’ll get my
people to get you.”  At the time, Dahud
took these threats seriously.  He
considered it a different situation from other times when she had made threats
because this time she had a weapon in her hand.

            Rodgers
testified in her own defense.  On
February 4, 2008, she drank vodka and smoked crack cocaine.  At about 11:00 p.m., she went to the Hurley
Hotel to pick up her mail.  She recalled
that Hunt buzzed her in through the front door and Dahud was over by the office
door.  She then “blanked out or
something.”  She testified, “[T]he next
thing I know, I’m on the ground, and I can’t breathe, and he’s on top of
me.  And I . . . had these
scissors in my hand.  And he was telling
me . . . [whenever] you give me the scissors, . . . I’ll let
you up, and that’s what I did.”  Rodgers
testified that when Dahud was on top of her, she scrounged around in her pocket
or bag and grabbed the scissors to get Dahud off of her.  She did not recall yelling at Dahud during
the incident.

B.        Prior Bad Acts Evidence
Presented at Trial

            The trial
court admitted evidence of four prior stabbings committed by Rodgers pursuant
to Evidence Code section 1101, subdivision (b) and allowed the People
to impeach Rodgers with a manslaughter
conviction in one of the incidents. 
The prosecutor argued that the evidence was admissible to establish the
specific intent to kill on the attempted murder charge, the “seriousness of the
intent in the 422 threats case,” and the general intent on the assault charge,
“that the attempted stabbing in this case was not the result of mistake or
accident.”  The court ruled the evidence
was probative on the issue of intent under the rationale that “the more often
that one does something, the more likely it is that something was intended
rather than accident or spontaneous.”

            The
following evidence of the prior offenses was presented at trial.

            In 1985,
Thomas Kardos was stabbed in the back while he was in Logan’s Bar in the
Tenderloin.  Kardos told police the
assailant told him, “You’re the one who murdered me.”  A witness to the stabbing gave police a description
of Rodgers and directed them to a bar known as a hangout for methamphetamine
users.  Police located Rodgers there and
found a bloody pair of scissors in her pocket. 
She was very agitated and emotional. 
As Rodgers was being transported to jail, she told police she stabbed
Kardos because she had given him money for crank (methamphetamine) and he had
stolen the money.

            In 1988,
Anthony Lacey was stabbed to death at the Vincent Hotel in the Tenderloin.  An audio recording of a police interview with
Rodgers about the incident was played for the jury.  Rodgers said she went to the Vincent Hotel to
get some belongings from a friend when she encountered Lacey.  She hated Lacey because he had stolen a radio
from her and her friend and because he had pushed her around a few days
earlier, demanding money.  She told
police she had tried to put the incidents behind her, but she “couldn’t stay
away.  I had to go back and get” her
things from her friend.  She decided to
stab Lacey if he ever laid a hand on her again and she made sure she was armed
with a knife when she returned to the hotel. 
On the day in question, Rodgers told Lacey, “Fuck you” when she saw
him.  He responded by hitting her and she
“rushed him” with a steel steak knife, stabbing him in the throat and
chest.  “I blanked out.  I just hit him.”  Rodgers denied being intoxicated.  She told police, “If I had to do it over
again, . . . I’d do it again.” 
Rodgers pled guilty to voluntary manslaughter in the case.

            In 2004,
James Collins was stabbed in the back in the Tenderloin.  He told police he had been stabbed by his
lover, Rodgers, in her apartment at the Hurley Hotel.  Police located Rodgers at the Hurley:  she was agitated, sweaty, loud, and angry,
and she told the investigating officer that a “gangster” had asked her for sex
and punched her when she refused, knocking over her television as he left.  She chased him out of the room and stabbed
him with scissors on the stairs.  Police
did not observe any injuries on Rodgers, but found a pair of scissors in her
right rear pants pocket.

            In 2007,
Rodgers stabbed her lover, Leonard Boyland, in the face with a knife and
carving fork in front of the Hurley Hotel. 
They had been smoking and drinking, but were not yet high, and they “got
into it,” with Boyland kicking Rodgers and saying he was going to leave her.

C.        Jury Instructions

            The trial
court gave the following instruction on consideration of the prior bad acts
evidence:  “During the trial, certain
evidence was admitted for a limited purpose. 
You may consider that evidence only for that purpose and for no other.
[¶] The People presented evidence that Ms. Rodgers committed other
offenses involving stabbing assaults that were not charged in this case.
. . . [¶] . . . [¶] . . . If you decide that
Ms. Rodgers committed the uncharged offenses, you may, but are not
required, to consider that evidence for the limited purpose of deciding whether
or not Ms. Rodgers acted with the intent to kill and whether her actions
were the result of mistake or accident. [¶] . . . [Do] not
consider this evidence for any other purpose except for the limited purpose of
intent and lack of mistake or accident.”

            As relevant
here, the court provided the following instructions on the two charged specific
intent offenses:

            “To
prove that [Ms. Rodgers] is guilty of attempted murder, the People must
prove:  one, that Ms. Rodgers took
at least one direct, but ineffective, step toward killing another person; and
two, that she [intended] to kill that person.”

            “To
prove that [Ms. Rodgers is] guilty of [having made a criminal threat], the
People must prove: [¶] One, that she willfully threatened to unlawfully
kill or unlawfully cause great bodily injury to Chuck Shaker Dahud;
[¶] Two, that she made the threat orally; [¶] Three, that she intended
that her statement be understood as a threat; [¶] Four, the threat was so
clear, immediate, unconditional, and specific that it communicated to Chuck
Shaker Dahud a serious intention and the immediate prospect that the threat
would be carried out; [¶] Five, the threat actually caused Chuck Shaker
Dahud to be in sustained fear for his own safety; [¶] And, finally, his
fear was reasonable under the circumstances. 
[¶] . . . [¶] Someone who intends that a statement be
understood as a threat does not have to actually intend to carry out the
threatened act or intend to have someone else do so.”

            “The
specific intent required for the crime of attempted murder is the intent to
kill.  The specific intent required for
the crime of criminal threats is that the defendant intended that her statement
be understood as a threat. [¶] The People must not only prove that
Ms. Rodgers did the acts charged, but also that she acted with these
particular intent[s] or mental state[s].”

D.        Verdict

            The jury
found Rodgers not guilty of attempted murder and guilty of assault with a
deadly weapon and making criminal threats. 
The court found the prior conviction allegations true.

E.         Motion for New Trial

            Rodgers
moved for a new trial on the ground that the court erroneously admitted
evidence of prior bad acts and misinstructed the jury on the use of that
evidence.  On the latter issue, Rodgers
argued the court erred by not specifically instructing the jury >not to consider the bad acts evidence
with respect to the criminal threats charge. 
The prosecutor argued the evidence was relevant to the criminal threats
charge because it “demonstrate[d] the seriousness of the threat on the part of
the person making the statement,” but the court disagreed, noting that a
defendant can be guilty of making criminal threats even if she does not intend
to follow through on the threat.  The
court tentatively concluded it had erred because “the instruction should not
have referenced the prior [bad acts] with respect to [section] 422,” the
criminal threats charge, and the error might not have been harmless.  The court gave the parties an opportunity to
submit supplemental briefing on the issue. 
After the supplemental briefing, the court concluded there was no
instructional error.  “The only issue is
whether the 1101(b) evidence was connected to the 422 charge. . . .
[I]t’s not. . . . [¶] . . . [¶] . . . [T]he
instructions that were given to the jury told them that they could consider the
1101 evidence for purposes that are not connected to any of the elements of the
422 charge.”

F.         Sentence

            The trial
court struck one of the prior convictions pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497.  For the assault
conviction, the court imposed the three-year middle term, doubled the term for
a prior conviction, and imposed consecutive five-year terms for the two prior
serious felony enhancements, for a total prison term of 16 years.  On the criminal threats conviction, the trial
court imposed the two-year middle term, doubled the term to four years based on
the prior conviction, and stayed the sentence pursuant to
section 654.  The court imposed
various statutory fines and fees.  It
awarded Rodgers 1,505 days of actual presentence credits and 225 days of
conduct credits for a total of 1,730 days of credit.

II.        Discussion

            On appeal, Rodgers challenges the
limiting instruction on the jury’s use of the prior bad acts evidence, but does
not renew his challenge to the admission of the evidence itself.  Rodgers argues the instruction as given
permitted the jury to consider the evidence with respect to the required
specific intent for the criminal threats charge.  We disagree.

            Although a
trial court has no sua sponte duty to provide a limiting instruction on the use
of prior bad acts evidence, if it provides such an instruction it must do so
accurately.  (People v. Nottingham (1985) 172 Cal.App.3d 484, 497.)  In considering challenges to jury
instructions, we view individual instructions in the context of the overall
charge.  (People v. Wallace (2008) 44 Cal.4th 1032, 1075 (>Wallace).)  We assume the jurors are intelligent and use
common sense when applying instructions. 
(People v. Bragg (2008) 161
Cal.App.4th 1385, 1396.)  We reverse only
if there is a reasonable likelihood that the jury would have returned a more
favorable verdict if the instructional error had not occurred.  (People
v. Watson (1956) 46 Cal.2d 818, 836; see e.g., People v. Humphrey (1996) 13 Cal.4th 1073, 1089.)  We reverse when instructions are ambiguous
only if there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.  (>Wallace, at p. 1075.) 

            The
challenged instruction here accurately stated that the prior bad acts evidence
could be considered only on the
issues of whether Rodgers acted with the intent to kill and whether her actions
were the result of mistake or accident. 
The court accurately instructed that intent to kill was an element of
the attempted murder charge and that the criminal threats charge required proof
of different elements.  Indeed, the court
specifically distinguished the intent elements of the two crimes,
instructing:  “The specific intent
required for the crime of attempted murder is the intent to kill.  The specific intent required for the crime of
criminal threats is that the defendant intended that her statement be
understood as a threat.”  Because the
instruction plainly directed the jury to consider the prior bad acts evidence
only on an intent issue that was relevant to the attempted murder charge and
not to the criminal threats charge, Rodgers’s factual premise for her claim of
error is incorrect.

            Rodgers
argues the instruction directed the jury to consider the evidence with respect
to all “charges” indiscriminately.  She
refers to language indicating that the evidence was relevant to more than one
charge:  “In evaluating this evidence,
consider the similarity or lack of similarity between the uncharged offenses
and the charged offenses.
. . . [¶] . . . [¶] . . . If you conclude that
Ms. Rodgers committed the uncharged offenses, that conclusion is only one
factor to consider along with all the other evidence.  It is not sufficient by itself to prove that
Ms. Rodgers is guilty of the charges.  The People must still prove >each charge and allegation beyond a
reasonable doubt.”  (Italics added.)  “We credit jurors with intelligence and
common sense [citation] and do not assume that these virtues will abandon them
when presented with a court’s instructions. 
[Citations.]”  (People v. Coddington (2000)
23 Cal.4th 529, 594, overruled on
other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13.)  Thus, we must conclude
that the jurors understood the very clear and specific statement in the
instruction that the jurors could “not consider this evidence for any other
purpose except for the limited purpose of intent and lack of mistake or
accident.”  We reject Rodgers’s argument
that the distinction between the intent element of attempted murder (intent to
kill) and of the criminal threats charge (intent that statement be understood
as a serious threat) was too fine for lay jurors to understand.href="#_ftn4" name="_ftnref4" title="">[4]  The court specifically instructed the jury,
“Someone who intends that a statement be understood as a threat does not have
to actually intend to carry out the threatened act or intend to have someone
else do so,” thus expressly drawing the distinction.  We fail to see how this explanation was
ambiguous or confusing, or how reasonably intelligent lay jurors would
misunderstand this common sense concept.

            Moreover,
the record of this particular trial does not support an inference that the jury
misunderstood the challenged instruction. 
In closing argument, the prosecutor referred to the prior bad acts
evidence only with respect to proving Rodgers’s intent to kill on the attempted
murder charge.  He argued the prior
incidents demonstrated that Rodgers brought the scissors with her to the Hurley
Hotel because she anticipated a confrontation and intended to use it if that
occurred.  “This is no mistake.  This is no accident.”  During deliberations, the jury focused on the
intent to kill element, as evidenced by a jury question to the court about the
meaning of the term.  They then acquitted
Rodgers of the crime that required proof of that element, attempted murder, and
convicted her of the crime of making a criminal threat, which did not require
proof of such intent.  We find it
implausible that the jury would have acquitted Rodgers of attempted murder
(inferably having found a reasonable doubt about her intent to kill) and then
convicted her of making a criminal threat under the mistaken impression that
the required intent to convey a serious threat was equivalent to “intent to
kill” and the jury could therefore consider Rodgers’s prior bad acts in finding
that element to be proven beyond a reasonable doubt.

            Rodgers understandably draws our
attention to the trial court’s tentative conclusion at the first hearing on her
motion for a new trial that it had
erred in giving the limiting instruction it did.  The court’s comments, however, clearly
indicate that the court was operating under the mistaken recollection that the
instruction had permitted the jury to consider the prior bad acts evidence with
respect to criminal threats charge.  The
court said, “[T]he instruction should not have referenced the prior [bad acts]
with respect to 422. . . . Those convictions should have been limited
to the other counts”; and “I am, at this point, tentatively concluding that it
was error to tie the 1101(b) evidence to the 422.”  Following additional briefing, the court
accurately noted that the instruction did not so permit—“[T]he instructions
that were given to the jury told them that they could consider the 1101
evidence for purposes that are not connected to any of the elements of the
422 charge”—and thus that it had not erred in providing the
instruction.  We agree.

            Finally,
Rodgers’s argument at best is an argument that the instruction should have been
clarified so there was no possibility the jury would understand it as applying
to the criminal threats charge.  This
argument is forfeited because Rodgers has not shown that she requested
clarification of the instruction during trial. 
(See People v. Lang (1989)
49 Cal.3d 991, 1024.)

>III.       Disposition

            The judgment
is affirmed.

 

 

                                                                                    _________________________

                                                                                    Bruiniers,
J.

 

We concur:

 

_________________________

Jones, P. J.

 

_________________________

Needham, J.