P. v. Rodriguez
Filed 10/17/13
P. v. Rodriguez CA5
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LARRY FRANK RODRIGUEZ,
Defendant and
Appellant.
F064383
(Super.
Ct. No. F11905911)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. John F. Vogt, Judge.
Francine R.
Tone, 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, Carlos A. Martinez, Marcia A.
Fay, and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant,
Larry Frank Rodriguez, contends his conviction must be reversed because the
trial court permitted the prosecutor to commit constitutional error, trial
counsel was ineffective for failing to object to the error, and the trial court
erroneously gave the flight instruction.
We find any error harmless beyond a reasonable doubt and affirm the
judgment.
FACTS AND PROCEEDINGS
On January 10, 2012, the prosecutor
filed a first amended information alleging that appellant committed assault by
means likely to cause great bodily
subd. (a)(1)).
title="">[1] It was further alleged that appellant
inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The jury convicted appellant of assault by
means likely to cause great bodily injury but did not find the great bodily
injury enhancement to be true. The court
sentenced appellant to the midterm of three years. Appellant was awarded custody credits of 126
days and conduct credits of 126 days for total credits of 252 days.
Michael Cline testified at trial
that on October 12, 2011, he was living over a department store in downtown
Fresno. Cline was working on a computer
in the common kitchen area with his friend, Dan Briam. Cline was on the phone with Michael, a
computer repairman assisting Cline with the computer repair. There were a number of people in the hall
making noise, so Cline shut the kitchen door to better hear Michael. A few seconds later, appellant slammed the
door open and said, “How dare you shut this door.â€
Cline told appellant that he closed
the kitchen door because he was on an important phone call and there was too
much noise. Cline explained that anyone
was welcome to come into the kitchen.
Appellant replied that he did not care about appellant’s phone call and
he wanted the door to stay open. When
appellant left the kitchen, Cline closed the door again. A few seconds later, appellant slammed the
door open again and said to Cline, “How dare you.†When Cline explained why he needed the door
closed, appellant very forcibly pushed Cline up against the table. Cline had seen appellant drinking alcoholic
beverages. Appellant was stumbling
around and Cline smelled alcohol on appellant’s breath. Cline believed appellant was
intoxicated.
After pushing Cline against the
table, appellant hit Cline in the head with a plate on the left temple behind
his eye. The blow was hard enough that
Cline nearly fell down and the plate broke into several pieces. Cline began to fight and wrestle with
appellant. Appellant went back to his
room after the fight. Blood was gushing
from the wound on Cline’s head. Cline’s
wound required eight stitches. Appellant
had threatened Cline three or four times in the past for “different things.â€
Briam testified that Cline closed
the kitchen door to call his friend, appellant slammed the door open, and
yelled at Cline for closing the door.
According to Briam, Cline told appellant that he was trying to make a
phone call, appellant left, and Cline closed the door a second time. Appellant threw the door open, yelled at
Cline, and Cline again explained that he was trying to make a phone call. Appellant entered the kitchen a third
time. Cline told appellant he was making
a phone call and would open the door when he was finished. Appellant then shoved Cline into the
table. Cline got into appellant’s face
and yelled. Appellant hit Cline with a
plate and Cline punched appellant. Briam
got another resident to break up the fight.
Cline had a gash on his forehead and Briam called 911. Prior to the arrival of the police, appellant
was going in and out of his room.
Appellant’s demeanor was belligerent.
Fresno Police Officers Derek Avila
and Scott Reese were dispatched to the residence just before 10:00 p.m. Avila and Reese found Cline in the common
kitchen area standing over a sink and bleeding profusely. Avila considered Cline’s injury to be a
serious wound. There was a significant
amount of blood in the kitchen. Cline
told Avila where appellant lived and told Avila appellant was in his room.
Avila knocked on appellant’s door
several times, announced who he was, and asked appellant to come to the
door. Avila was concerned about officer
safety because he heard a male voice inside the room and did not know if the
man was armed. Appellant replied that he
was not going to come to the door and that the officers needed a warrant.
appellant to come to the door, Reese kicked in the door and appellant was
arrested. Appellant had some blood on
the palms of his hands. Appellant was
belligerent, uncooperative, had watery eyes, his speech was slurred, he was
unsteady on his feet, and had a strong odor of alcohol on his breath.
CONSTITUTIONAL ERROR
Appellant contends that
admission of his refusal to leave his room without a warrant violates the
privilege to be free from comment upon the assertion of a constitutional
right. Respondent concurs with appellant
that it was error for the court to permit appellant’s comment to the police
into evidence but argues that the error was forfeited and was harmless beyond a
reasonable doubt. We agree with
respondent that any error was harmless beyond a reasonable doubt.
Criminal defendants have a
privilege to be free from comment on the exercise of a constitutional
right. (People v. Wood
(2002) 103 Cal.App.4th 803, 807-810 (Wood)
[error to admit defendant’s comment to investigators that they knew better than
to enter his property]; People v. Keener (1983) 148
Cal.App.3d 73, 78-79 [error to admit evidence that the defendant refused to
leave his apartment even though police had a right to enter without a
warrant].) In Griffin v. California (1965) 380 U.S. 609 (Griffin), the Supreme Court found it impermissible for the
prosecutor to comment on the defendant’s exercise of his Fifth Amendment right
not to testify at trial.
Constitutional violations, however,
are subject to the harmless beyond a reasonable doubt standard of appellate
review set forth in Chapman
(1967) 386 U.S. 18 (Chapman). In Wood,
the defendant was accused of animal abuse and would not allow officers access
to a field. (Wood, supra, 103
Cal.App.4th at pp. 805-807.) Although
the Wood court found the trial court
erred in permitting testimony that implicated the defendant’s guilt based on
his assertion of Fifth Amendment constitutional right not to testify against
himself, Wood found that under the
harmless beyond a reasonable doubt. In
have been admissible as impeachment
evidence. (Wood, supra, at pp.
809-810.)
Here, there is no issue concerning
appellant’s identity or the essential facts of the assault he committed on
Cline. Cline’s and Briam’s accounts of
events varied in small details, but were consistent on important details. Appellant presented no evidence to refute
Cline’s and Briam’s testimony. The
observations of the officers corroborated important details of what occurred,
including for instance, that appellant appeared to be intoxicated and had blood
on his hands. Given the strength of the
prosecution’s case, we find that any error in referring to appellant’s
assertion of the need for a warrant to be harmless beyond a reasonable doubt
under the Chapman standard of review.
Respondent argues that defense
counsel’s failure to object to constitutional error like Griffin error, is subject to forfeiture for appellate review. (See People v. Cornwell (2005) 37
Cal.4th 50, 91.) Appellant meets this
challenge by contending that his counsel was ineffective for failing to make
the objection.
title="">[3] Even if trial counsel did not have a strong
tactical reason for failing to make an objection, to prevail on an assertion of
ineffective assistance of trial counsel, the record must affirmatively
demonstrate a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different.
failed to do so beyond a reasonable doubt.
FLIGHT INSTRUCTION
Appellant
further contends the trial court erred in instructing the jury on flight.
went back to his own room and was seen in and out of the hallway prior to the
officers’ arrival. During the prosecutor’s
rebuttal argument, she mentioned both that appellant told officers he was not
coming out and they needed a warrant.
The flight
instruction is appropriate if the evidence shows a defendant left the scene of
the crime under circumstances suggesting his or her movement was motivated by
consciousness of guilt. (
v.
scene of a crime does not warrant an inference of consciousness of guilt. Flight may be shown if a defendant left the
immediate area of a crime to avoid being observed or arrested. Flight can occur even where the defendant
left the victim’s apartment after killing her but did not leave the building
where the defendant was overheard saying he needed to “get the hell out of
here,†had packed his belongings, and pled with his roommate for a ride out of
town. (People v. Bradford
(1997) 14 Cal.4th 1005, 1055 (Bradford).)
Appellant
retreated to his own room after the incident and was seen walking in and out of
his room, until the officers
arrived. Although this is not as strong
as the evidence of flight in Bradford,
appellant refused entry into his room for some 10 to 15 minutes. The prosecutor was entitled to argue that
under these facts, appellant was trying to evade arrest and the flight
instruction was properly given.
name="_ftnref7" title="">[6]
We agree
with respondent that the jury was permitted under the instruction to weigh the
evidence and determine for itself whether appellant fled the scene. More importantly, even where a flight
instruction is inappropriately given, the error is harmless where the evidence
against the defendant is overwhelming and there is no reasonable probability
that a more favorable result to the defendant would have occurred in absence of
the instruction. (People v. Clem
(1980) 104 Cal.App.3d 337, 344-345 (Clem)
[finding flight instruction error harmless under the standard of review set
forth in People v. Watson (1956) 46
Cal.2d 818, 836]; People v.
[citing Clem with approval].) We
find the error here, if any, harmless under the Chapman standard of review.
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J., Detjen, J., and
Franson, J.
name="_ftn2" title="">[1] Unless
otherwise noted, all statutory references are to the Penal Code.
