P. v. Rodriguez

Filed 7/3/07 P. v. Rodriguez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Frank S. Rodriguez, Jr. (Rodriguez) appeals from his conviction of stalking, indecent exposure, annoying or molesting a child, and receiving stolen property. He argues that: (1) the police search of his vehicle was unlawful, (2) the court erred in denying his motion to sever the stolen property charge, and (3) the court erred in granting his motion to represent himself because it denied him his right to a fair trial. We affirm.

II.

PROCEDURAL BACKGROUND

The Solano County District Attorney charged Rodriguez by information with stalking (Pen.[1] Code,  646.9, subd. (a)), four counts of annoying or molesting a child ( 647.6, subd. (a)), indecent exposure ( 314, subd. (a)), and receiving stolen property ( 496, subd. (a)). The information also alleged that Rodriguez had two prior strike convictions for rape and kidnapping. The court appointed counsel for Rodriguez, and he pled not guilty to the charges and allegations.

Rodriguezs counsel filed a motion to set aside the stalking charge, which was denied. The court also denied Rodriguezs motion to sever the receiving stolen property charge from the other charges. Counsel for Rodriguez also filed a motion to suppress all evidence seized from Rodriguezs vehicle after his arrest, which was denied.

Rodriguez made two Marsden^[2] motions, which were denied. On January 12, 2005, the court granted Rodriguezs motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta).

Following a jury trial, Rodriguez was found guilty of all charges. He waived his right to jury trial on the two prior strike allegations. The trial court found these allegations true. The court sentenced Rodriguez to 50 years to life.

III.

FACTUAL BACKGROUND

On June 17, 2004, S.S. took her two daughters, ages three and five, to Lake Solano Park. They walked along a creek side trail towards a cove, passing Rodriguez on the trail. He was holding a video camera and told S.S. he was making a wildlife video. S.S. was carrying a small boat, which she set down in order to carry her younger daughter across a ravine. When she turned around, Rodriguez had carried the boat across. She thanked him, and she and the children continued to the cove.

S.S. and her daughters arrived at the cove where they sat down and applied sunscreen. A short time later, S.S. noticed Rodriguez watching her and the girls from the top of a small hill. Initially, S.S. could see only his face and his video camera next to his head, with the rest of his body obscured by trees. She testified that when Rodriguez saw her notice him, he stepped out of the bushes towards her. Rodriguez was completely naked and masturbating, with the video camera pointed in her direction. S.S. was terrified, and immediately started to think of a plan to get [her] girls to safety. She grabbed the children, told them it was time to go fishing right now, and threw them in the boat. As she was pushing the boat into the water, Rodriguez started to approach them. S.S. jumped into the boat and began paddling. Rodriguez followed them, walking on a trail that was visible from the water. He was still naked, and continued to videotape them and masturbate. S.S. held up her paddle and screamed No. S.S. maneuvered the boat to the shore, near a campsite where she had seen a camper, and started screaming. She told her children that she had seen a bad animal and needed to find a ranger. One of the children pointed out a rangers truck, and S.S. ran towards Jacob McNeil, a Solano County Parks Department ranger. She informed him of Rodriguezs actions, and pointed out Rodriguez to Ranger McNeil.

Ranger McNeil detained Rodriguez. Rodriguez was wearing only shorts, and carrying the rest of his clothing. Ranger McNeil searched Rodriguezs shorts, finding a key ring with keys and a hard plastic object. When Ranger McNeil removed the plastic object, Rodriguez said, Thats my vibrator. Rodriguez was carrying sandals, a towel, shirt and a video camera. He was 30 to 50 feet from his vehicle.

Solano County Deputy Sheriff Mark Thompson was dispatched to the scene. He viewed the videotape on the video camera seized from Rodriguez. He conducted an inventory search of Rodriguezs vehicle, a truck with a camper shell. In the bed of Rodriguezs truck, he found womens clothing, . . . sleeping bags, . . . audio equipment, video equipment, . . . a wallet with [Rodriguezs] ID in it with various credit cards that did not belong to him, and . . . a fairly large vibrator. The credit cards were in a box in the truck bed. Barbara Sholty testified that certain of these credit and bank cards belonged to her. The cards had been in her purse, which was stolen from her car on June 11, 2004.

Kurtis Caldwell, an investigator with the district attorneys office, watched the entire videotape found in the video camera Rodriguez was carrying. Playing the videotape took approximately one hour and 37 minutes. The latter part of the videotape was of S.S. and her two daughters. The first portion of the videotape was about 45 minutes of two girls in bathing suits. Caldwells investigation revealed that these girls, ages 6 and 11, were at Lake Solano with their aunt on June 17, 2004.

The videotape was played for the jury, and a transcript of the audio portion of the tape was entered into evidence. The audio portion of the videotape was of a man making numerous comments of a sexual nature about the girls on the videotape, as well as breathing heavily.

Rodriguezs mother and aunt testified as character witnesses. Rodriguezs aunt testified that he was a good, honest and respectful person. She had never seen him approach other women in a sexual way or act disrespectfully towards his children or her grandchildren. To her knowledge, he had never been arrested. Rodriguezs mother testified that he was a good person, but agreed that his actions havent always been good. She had testified for Rodriguez at a prior trial in which it was alleged that he kidnapped a woman, raped her, and shot her, and left her for dead. . . . She agreed that Rodriguez had been convicted of those three charges. She also knew that Rodriguez had been charged with false imprisonment of an eight-year-old girl in 1988, but did not know if he had been convicted. The court took judicial notice of Rodriguezs conviction in that case.

Rodriguez testified on his own behalf. He denied masturbating while videotaping S.S. and her daughters, and denied making comments of a sexual nature while videotaping. He explained that certain words on the audio portion of the videotape could have more than one meaning, and that he was breathing heavily because he has a heart condition and [his] vascular system is not that great. Rodriguez testified that he found a whole lot of stuff . . . and a lot of things laying [sic] around on the side of the road heading towards Lake Solano. He denied putting the credit cards in his wallet, and testified that he intended to give them back.

IV.

DISCUSSION

A. Search of Rodriguezs Vehicle

Rodriguez maintains that the court erred in denying his motion to suppress[3] the items found in the search of his truck, specifically the credit cards of Barbara Sholty. He argues that the search was neither a lawful search incident to arrest, nor a proper inventory search.

The Attorney General contends that the search was lawful as both a search incident to arrest and an inventory search, but asserts in the alternative that the inevitable discovery doctrine renders the evidence admissible. While we defer to the trial courts findings of fact if supported by substantial evidence, we conduct an independent review of the courts legal ruling. (People v. Ayala (2000) 23 Cal.4th 225, 255.)

The inevitable discovery doctrine operates as an exception to the exclusionary rule: Seized evidence is admissible in instances in which it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. (Murray v. United States (1988) 487 U.S. 533, 539 . . . , italics omitted . . . see alsoNix v. Williams (1984) 467 U.S. 431, 442-443 . . . .) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (People v. Robles [2000] 23 Cal.4th [789,] 800.) (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1215-1216.)

The prosecution bears the burden of proving by a preponderance of the evidence that evidence otherwise unlawfully obtained would have been inevitably discovered. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62.) The phrase inevitable discovery is somewhat of a misnomer, because the doctrine does not require certainty. (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1136.) Instead, there must be a reasonable probability that [the challenged evidence] would have been procured in any event by lawful means. (People v. Boyer (1989) 48 Cal.3d 247, 278, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

Here, Rodriguez was arrested 30 to 50 feet from his vehicle. He told Ranger McNeil that the vehicle belonged to him. Solano County Deputy Sheriff Betts responded to the scene after Rodriguez was arrested. He testified about the Solano County Sheriffs Department policy regarding inventory searches. Deputy Betts explained: When someone is arrested, then we will tow the vehicle, and subsequent to towing the vehicle, we will do an inventory of the vehicle and list those contents. . . . Part of the . . . issue . . . is due to liability. It assures, one, the protection of the individual of the vehicle that is being towed, as well as for the department, to assure no fraudulent or frivolous claims are placed against the department. Deputy Betts testified he was present at the scene during a portion of an inventory search of Rodriguezs vehicle. Video and audio cassette tapes, camping equipment, a dildo, and numerous credit cards that were in names, other than [Rodriguezs] were seized from the vehicle. Deputy Betts took the credit cards into custody and put them in for safekeeping.

Here, the search of Rodriguezs vehicle, though described as an inventory search, was conducted before the truck was towed. Accordingly, it was not conducted pursuant to the department policy to which Deputy Betts testified. Nevertheless, given that Rodriguez had been arrested and had identified the truck as belonging to him, the vehicle would have been impounded and an inventory search subsequently conducted according to the Solano County Sheriffs Department policy. Under these circumstances, the evidence demonstrates that the credit cards  would have been eventually secured through legal means regardless of the [allegedly] improper official conduct. [4] (See People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673.)

B. Denial of Motion to Sever

Rodriguez maintains that the trial court erred in denying his motion to sever the trial on the charge of receiving stolen property (the credit cards) from the other charges, requiring reversal of his conviction of receiving stolen property. Rodriguez maintains the evidence supporting this conviction was weak[5]because the evidence that he knew the credit cards were stolen was circumstantial and turned on the credibility of [his] claim that he had found the credit cards of Ms. Sholty and others by the roadside and intended to turn them in when he got the chance to do that. Respondent urges that, assuming it was error to deny severance of the receiving stolen property charge, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. The parties agree that the standard is whether Rodriguez has demonstrated it is reasonably probable that a result more favorable to [Rodriguez] would have been reached in the absence of error. 

The elements of the crime of receiving stolen property are that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen. (People v. Reyes (1997) 52 Cal.App.4th 975, 984-985, and fn. 7, citing People v. Anderson (1989) 210 Cal.App.3d 414, 420.) [P]roof of knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendants knowledge of the tainted nature of the property. This inference is so substantial that only slight additional corroborating evidence need be adduced in order to permit a finding of guilt. (People v. Anderson, supra, 210 Cal.App.3d at p. 421.) Although [a defendants] guilty knowledge of the fact that the property was stolen is an essential fact to be proved . . . such knowledge need not be . . . acquired from personal observation of the fact, [and it] is not necessary that the defendant be told directly that the property was stolen. [Citation.] [The defendants k]nowledge may be circumstantial and deductive. (People v. Boinus (1957) 153 Cal.App.2d 618, 621.) Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen. (Id. at p. 622.) [W]hile a specific fraudulent intent by the perpetrator . . . is not an element of the crime which the prosecution must prove, the absence of any such guilty intent is a defense which, if established, disproves the charge. . . . If defendant received the stolen [property] with an intention of returning it to the true owner, that was a matter of defense . . . . (People v. Osborne (1978) 77 Cal.App.3d 472, 475-476, citing State v. Powers (1914) 255 Mo. 263.)

Here, Sholty testified her credit cards were stolen on June 11, 2004, six days before Rodriguez was arrested. Police found the credit cards in a wallet in his vehicle, along with other individuals credit cards. Rodriguez testified that he found Sholtys credit cards by the side of the road, and intended to turn them over to authorities. He denied having other peoples credit cards, despite evidence that police found credit cards in the name of individuals other than Rodriguez or Sholty in his vehicle. Rodriguez testified that he did not remember much in regard to his possession of the credit cards, other than that he found them. In response to questions about whether he had permission to have Sholtys credit cards, or had ever spoken to her, Rodriguez repeatedly responded: That depends on how you look at it. He testified that I dont remember, you know, that [the credit cards] were stolen or anything.

The evidence that Rodriguez knew the cards were stolen, while circumstantial and deductive, was not weak. The fact that Rodriguez had Sholtys recently stolen credit cards in his possession, together with his unsatisfactory explanation of the possession [and the] suspicious circumstances, permits an inference that he knew the credit cards were stolen. (People v. Boinus, supra, 153 Cal.App.2d at p. 622.) Rodriguezs testimony that he did not remember if the cards were stolen, together with his semantic assertion that whether he had permission to have the credit cards depends on how you look at it did not render the evidence of his guilt weak. The jury, moreover, was specifically instructed that it must decide each count separately.

Even if the court erred in denying Rodriguezs motion to sever the receiving stolen property charge, Rodriguez has not demonstrated that it is reasonably probable that a jury would have found him not guilty of that charge if it had been tried separately.

C. Rodriguezs Self-Representation

Rodriguez argues that the trial court failed to obtain a proper waiver of [his] right to a fair trial before granting his request to represent himself. In support of this assertion, he relies on Justice Blackmuns dissent in Faretta, supra, 422 U.S. 806, which asserted that a defendants right to waive representation by counsel was at odds with the right to representation by counsel, because representation by counsel is necessary to ensure a fair trial. (Id. at p. 851.)

We note at the outset that Rodriguez does not claim that the court failed to obtain a proper waiver of his right to counsel.[6] In fact, he quotes at length from the trial courts advisements to him, including the courts pointed advice that representing himself would be one of the most foolish things you have ever done in your life, in all likelihood. The court informed him, inter alia, that he was facing a prison sentence of 50[7]years to life, that he would be opposed by an experienced prosecutor, that he would be required to follow all rules an attorney would have to follow and that he would have less access to certain materials than an attorney by virtue of his incarceration. The court explained to Rodriguez: What I am doing is trying to talk you out of representing yourself because I think its an extremely foolish thing to do. . . . [E]verything I said here is . . . true and consistent with the law and required of me to hopefully show you how foolish your decision would be to represent yourself.

Instead, Rodriguez argues that representing himself resulted in a denial of his right to a fair trial, which, he asserts, he did not waive. Courts have repeatedly rejected this claim. (See People v. Blair (2005) 36 Cal.4th 686, 739-740, and cases cited therein.) Once  a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.. . . (People v. Joseph (1983) 34 Cal.3d 936, 943, original italics and italics added, citing People v. Windham (1977) 19 Cal.3d 121, 128.) The United States Supreme Court has adhered to the principles of Faretta even with the understanding that self-representation more often than not results in detriment to the defendant, if not outright unfairness. (See Martinez [v. Superior Court (2000)] 528 U.S. [152,]161 [Our experience has taught us that a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney  (fn. omitted)]; see also id. at p. 161, fn. 9, . . . [acknowledging the view of some observers that allowing certain defendants to represent themselves at trial is akin to allowing them to waive their right to a fair trial]; . . . see also ibid. [[A]lthough he may conduct his own defense ultimately to his own detriment, his choice must be honored.] (People v. Blair, supra, 36 Cal.4th at pp. 739-740.)

Whatever the merits of Rodriguezs argument in this regard, we are bound by the holdings of higher courts. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As the California Supreme Court explained: we are not free to hold that the governments interest in ensuring the fairness and integrity of defendants trial outweighed defendants right to self-representation. (People v. Blair, supra, 36 Cal.4th at p. 740, fn. omitted.)

V.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] All further undesignated references are to the Penal Code.

[2]People v. Marsden (1970) 2 Cal.3d 118.

[3] Rodriguez was still represented by counsel at the time this motion was filed.

[4] Because we have concluded that, assuming the search was unreasonable, the exclusionary rule should not be applied to bar admission of evidence of the credit cards because they would have been inevitably discovered, we need not address Rodriguezs remaining contentions regarding the vehicle search. (See People v. Jenkins (2000) 22 Cal.4th 900, 980, fn. 12.)

[5] In his motion to sever in the trial court, Rodriguez maintained that evidence of the stalking charge was weak in comparison.

[6] Rodriguez asserts that the validity of a Faretta waiver is reviewed de novo, but does not maintain that his Faretta waiver itself was inadequate.

[7] Rodriguez concedes that the transcript of the hearing indicating that he would be exposed to a sentence of 15-to-life assuredly was a result of mishearing 50-to-life given the concurrent advisement that this was a three-strikes matter.