P. v. Rodriguez

Filed 10/30/06 P. v. Rodriguez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Nicholas Elvis Rodriguez appeals the judgment following his conviction for assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))[1] and misdemeanor battery (two counts) (§ 242). He contends there was insufficient evidence to support the assault conviction, that section 245, subdivision (a)(1) is unconstitutional as applied to this case, and that the trial court violated his right to counsel by limiting closing argument. He also makes a claim under Blakely v. Washington (2004) 542 U.S. 296. We affirm.

FACTS AND PROCEDURAL HISTORY

Victims Janet J. and Theresa C. were staying in Los Angeles on a visit from Sweden. One evening, they decided to hitchhike to Pine Street, an area in Long Beach where there were bars and clubs. When a driver let them off at a gas station, they changed their plan and agreed to go to a party with people they met near the gas station.

At the party, Janet and Theresa met Rodriguez and his friends Eddie Ntuk and James Trivette. Rodriguez offered the women a ride to Pine Street. Rodriguez said he and his friends intended to drive to Pine Street after midnight when Ntuk turned 21. Before midnight, Rodriguez drove Janet and Theresa to a market and then to his home where they drank vodka. Janet testified that she had less than two drinks, but felt very drunk as if she had been drugged.

The next thing Janet remembered was being in Rodriguez's truck with Rodriguez and his two friends. Rodriguez drove Trivette home, and returned to his house with Janet, Theresa and Ntuk. The women went to the bathroom where both vomited. They remained in the bathroom for an hour, and took baths to clean up the vomit. They wanted to return to where they were staying while on vacation from Sweden, but were in no condition to do so. They were not thinking clearly, and Theresa had trouble standing.

Janet and Theresa lay down on a couch and slept intermittently. Rodriguez touched them on the leg, stomach, and throat. Rodriguez was angry or irritated and wanted the women to leave.

After 3:00 a.m., Rodriguez offered to drive Janet and Theresa home, and they got into his truck. The women were worried because Rodriguez had grabbed Theresa by the throat earlier in the evening, and Janet discovered that her money was missing. The women conversed in Swedish, but Rodriguez heard one of them use the phrase "pepper spray." Janet had pepper spray and a small knife in her purse. Rodriguez asked the women why they were speaking Swedish and why Janet had her hand in her purse.

Rodriguez turned into a dark parking lot in an industrial area, and stopped. He began punching Janet who had unsuccessfully tried to pepper spray him. Theresa tried to get out of the truck, but Rodriguez held her back momentarily. Janet and Theresa got out of the truck and fell to the ground. Rodriguez attempted to straddle the women and hold them down with his knees, and strangle them. While Rodriguez was holding her, Theresa's sweater and shirt pulled off. The women got away and sought help. A man who lived in the area called the police.

When the police arrived at the parking lot, Rodriguez had left. Janet was treated at a hospital. Three stitches were required in the area of her left eye,[2] a staple was required to treat an injury to the back of her head, and she had multiple abrasions, and a chipped tooth.

Rodriguez, Ntuk, and Trivette testified at trial. They testified that, when the group arrived at Rodriguez's house, Janet and Theresa consumed large quantities of alcohol. Rodriguez testified that he did not put any foreign substance into their drinks. Rodriguez testified that the women vomited repeatedly, then fell asleep. Eventually, he woke them and offered to take them home.

Rodriguez testified that he got lost driving the women home because he was tired, drunk and half asleep. He heard Janet and Theresa talking in Swedish in the back of his truck, heard them use the phrase "pepper spray," and saw Janet looking into her purse. He testified that he was worried that the women were up to something, but did not think they would harm him. He pulled into a parking lot because he thought he might be pepper sprayed.

Rodriguez testified that, when he stopped, Janet lunged for him with something in her hand. He saw a can of pepper spray and knocked it out of Janet's hand. He testified that he punched Janet in the face a few times, wrestled with her, and continued punching. He did not know how hard he hit her, but did not intend to hit her in the eye. Then, Janet and Theresa opened the truck door, and fell to the ground. He testified that he tried to hold them and find out why they attacked him. Theresa's sweater came off when he grabbed her. He fell on Janet, and grabbed her as she tried to run away. He could not make sense of what happened, and drove away.

Rodriguez was charged with sexual penetration by a foreign object against Janet (§ 289, subd. (a)(1)), assault with intent to commit a rape, sodomy, oral copulation, or sexual penetration by a foreign object against Janet and Theresa (two counts) (§§ 220/264, 289), assault by means likely to produce great bodily injury against Janet and Theresa (two counts) (§ 245, subd. (a)(1)), sexual battery by restraint against Theresa (§ 243.4, subd. (a)), and misdemeanor sexual battery against Janet (§ 243.4, subd. (e)(1).) The information alleged that he personally inflicted great bodily injury on Janet in the commission of the sexual penetration offense (§ 667.61, subd. (b)), and personally inflicted great bodily injury on Janet in the commission of the section 220 assault and the assault by means likely to produce great bodily injury.

The misdemeanor sexual battery charge was dismissed prior to trial. (§ 995.) After the evidentiary phase of trial, the court granted Rodriguez's section 1118.1 motion for acquittal as to the sexual battery by restraint offense against Theresa, and the section 220 assault offense against Theresa.

The jury convicted Rodriguez of assault by means of force likely to produce great bodily injury against Janet, and the lesser offense of misdemeanor battery (§ 242) with respect to the section 220 assault offense against Janet, and the assault by means likely to produce great bodily injury offense against Theresa. The jury acquitted Rodriguez of sexual penetration by foreign object against Janet. The jury made a "not true" finding on the allegation that Rodriguez personally inflicted great bodily injury on Janet in the assault by means likely to produce great bodily injury offense.

DISCUSSION

Substantial Evidence Supports Assault Conviction

Rodriguez contends there was insufficient evidence to support the conviction for assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) We disagree.

In considering a sufficiency of evidence claim, "we examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--that would support a rational trier of fact in finding the essential element of intent beyond a reasonable doubt." (People v. Lewis (2001) 25 Cal.4th 610, 642; People v. Johnson (1980) 26 Cal.3d 557, 578.) We accord the judgment all reasonable inferences from the evidence, and will not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Great bodily injury is injury that is significant or substantial rather than moderate or trivial. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The crime of assault by means of force likely to produce great bodily injury requires the likelihood, not the actual infliction, of such injury. (People v. Roberts (1981) 114 Cal.App.3d 960, 964-965; People v. Covino (1980) 100 Cal.App.3d 660, 667.) The extent of actual injury is relevant and may be critical, but the focus is on the intensity and kind of force used, and no actual injury is required. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; Armstrong, at pp. 1065-1066.) The likelihood of great bodily injury is a question of fact, and the use of hands or fists alone, including a single blow with a fist to the victim's face, can be sufficient to support a jury's finding that a defendant used force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161; see also Aguilar, at p. 1028.)

Here, substantial evidence supports the jury's finding that the nature, kind, and intensity of the force used by Rodriguez in assaulting Janet was likely to cause great bodily injury. Evidence indicates that Rodriguez punched Janet, knocked her to the ground, and fought with her on the ground. While a punch is not always likely to cause great bodily injury, Rodriguez punched Janet several times in the head and eyes. The likelihood of great bodily injury is increased when directed at a vulnerable part of the body such as the head and eyes. Also, Janet weighed only approximately 100 pounds.

Rodriguez argues that the force he applied was not likely to have resulted in anything more serious than the minor injuries it actually caused. Although the jury found that Janet did not suffer great bodily injury, we disagree with this characterization of her injuries as minor. Rodriguez asserts that, because the punches occurred in the car, they could not have been hard punches. But, evidence shows that the blows to Janet's left eye required three stitches, and resulted in Janet's eye being swollen shut for five days. There was also an injury to her head that required a stapling, and abrasions and bruises on her face and body, and evidence that a front tooth was chipped. In addition, doctors found fluid in her left maxillary sinus that necessitated a referral to an ophthalmologist to check for a "possible small orbital wall fracture."

Section 245, Subdivision (a)(1) is Constitutional as Applied

Rodriguez asks this court to change the law regarding section 245, subdivision (a)(1). He contends that the statute is unconstitutional when applied to an assault where the blows actually land but do not result in great bodily injury. He argues that the likelihood of great bodily injury is not "logically susceptible" of proof beyond a reasonable doubt if force is applied successfully without causing great bodily injury. He asserts that, in such a case, a rational person necessarily would have a reasonable doubt. We reject the argument.

First, Rodriguez's contention is contrary to established case law. The crime of assault by means of force likely to produce great bodily injury is completed before any injury is inflicted. (People v. Wingo (1975) 14 Cal.3d 169, 176.) "While it is true that 'when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character' [citations], an injury is not an element of the crime, and the extent of any injury is not determinative. 'The crime . . . like other assaults, may be committed without infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it.' [Citations.]" (People v. Covino, supra, 100 Cal.App.3d at p. 667.) Section 245, subdivision (a)(1) repeatedly has been applied to circumstances similar to the instant case. (See, e.g., People v. Aguilar, supra, 16 Cal.4th at p. 1028; People v. Wingo, supra, 14 Cal.3d at p. 176; People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066; In re Nirran W., supra, 207 Cal.App.3d at pp. 1159-1161; Covino, supra, at p. 667.)

Second, Rodriguez is ignoring the settled rule that the likelihood of great bodily injury is a question of fact for the jury to determine. (See People v. Sargent (1999) 19 Cal.4th 1206, 1221; People v. Wells (1971) 14 Cal.App.3d 348, 358; People v. Chavez (1968) 268 Cal.App.2d 381, 384.) Despite his use of strong words such as "irrational" and "illogical" to describe the jury's action, Rodriguez is simply challenging the sufficiency of the evidence.

No Error in Limiting Time for Argument

Rodriguez contends that the time limit the trial court imposed on defense counsel's oral argument made it impossible for him to present his version of the case and infringed on his constitutional right to effective assistance of counsel. We disagree. After estimating that his closing argument would take 45 minutes, defense counsel was permitted to argue for approximately 100 minutes. There was no abuse of discretion and no violation of any constitutional right.

A criminal defendant has a constitutional right to have counsel present during closing argument, but the trial court retains broad discretion to impose reasonable time limits on argument. (People v. Marshall (1996) 13 Cal.4th 799, 854-855; People v. Rodrigues (1994) 8 Cal.4th 1060, 1184; Herring v. New York (1975) 422 U.S. 853, 862.) In exercising its discretion, the trial court should consider "the nature of the case, the quantity of evidence received, the conflicts in the evidence, if any, the nature and complexity of the legal issues . . . , and all other relevant circumstances bearing on the factfinding process." (In re William F. (1974) 11 Cal.3d 249, 255, fn. 5, disapproved on other grounds in People v. Bonin (1988) 46 Cal.3d 659, 695, fn. 4.)

In this case, the prosecutor and defense counsel both estimated that their closing argument would take approximately 45 minutes. After the prosecution argument, defense counsel argued for approximately 45 minutes when interrupted for a lunch break. After the lunch break, the court asked defense counsel how much longer his argument would take, and counsel responded, "maybe half hour, 40 minutes." The court requested that counsel finish in 15 minutes, and counsel said, "I'll do my best." Counsel then argued for between 30 and 45 minutes when the court interrupted again. Counsel estimated 15 more minutes to complete his argument, but the court limited him to 5 minutes. The court informed counsel when one minute remained, and then terminated argument. In total, defense counsel argued for more than one and one-half hours.

The next day, defense counsel moved for a mistrial on the ground that he had been deprived of the right to complete his closing argument. He stated that his argument regarding the great bodily injury enhancement and possibility of sexual battery as a lesser offense was rushed, and he could not make a planned comparison of the burdens of proof in civil and criminal cases. The prosecutor argued that both counsel had been equally rushed.

We acknowledge that the trial included eight days of testimony, and that the case had some evidentiary complexity. But, the record establishes that defense counsel made an extensive closing argument far in excess of his own estimate. Moreover, counsel had the opportunity to adjust his argument after he knew he had reached his estimate, and during his final 30 or more minutes of argument after being warned by the court regarding time. The court did not preclude counsel from arguing any subject or issue, and counsel had substantial time to argue all material aspects of the evidence and every defense theory.

Although he contends he did not have an adequate opportunity to present his version of the facts, Rodriguez fails to identify any material issue or evidence that the court's time limitation prevented him from addressing. He mentions argument concerning the allegation of personal infliction of great bodily injury, but nothing prevented him from arguing that issue at length after the lunch break. In any event, the jury found that allegation untrue.

No Blakely Violation

Rodriguez contends that the court violated the constitutional requirement that the jury determine all factual findings used by the court in imposing an upper term sentence as articulated in Blakely v. Washington, supra, 542 U.S. 296. In People v. Black (2005) 35 Cal.4th 1238, 1244, our Supreme Court held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial" under Blakely.

Rodriguez argues that Black was wrongly decided and that we should reach a contrary result based on the analysis of a New Jersey case. (State v. Natale (N.J. 2005) 878 A.2d 724, 737-738.) This court is bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Unless and until our Supreme Court revisits the issue or the United States Supreme Court decides otherwise, the trial court's exercise of its sentencing discretion to impose upper term sentences does not violate a defendant's constitutional rights. The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Robert J. Higa, Judge

Superior Court County of Los Angeles

______________________________

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.

[2] One reference in the record indicates that she had two stitches.