P. v. Rodriguez

Filed 4/5/06 P. v. Rodriguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hoffman, Judge. Affirmed.

Frank Lloyd Rodriguez appeals a judgment arising out of his convictions of three counts of attempted murder, three counts of assaulting a peace officer and one count of evading an officer. He contends that the trial court abused its discretion in discharging one of the jurors and that there was insufficient evidence as a matter of law to support his convictions for attempted murder. We find Rodriguez's arguments unavailing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning in June 2003, Autumn Reed tried, unsuccessfully, to steal a parked pickup truck; however, the owner of the truck caught Reed and pulled her out of the truck. Reed escaped by jumping into a Buick Regal driven by Rodriguez. The victim of the attempted theft followed the Buick for a short distance and called the police to give them a description of the car. The police determined that the Buick was stolen and that Sheriff's Deputies John Kwiatkowski and Jimmy Vanmiddlesworth were also looking for it for unrelated reasons.

Four hours later, California Highway Patrol Officer William Strom spotted a tan Buick with a male driver and a female passenger. After confirming that the Buick was stolen, Officer Strom tried to pull Rodriguez over. However, Rodriguez refused to stop and sped away; in trying to evade Officer Strom, Rodriguez drove at excessive speeds, ran a stop sign and turned onto westbound Highway 76. Deputies Kwiatkowski and Vanmiddlesworth joined in the pursuit behind Officer Strom in their Ford Expeditions.

On the highway, Rodriguez continued to speed, driving up to 95 m.p.h., and moved into opposing traffic lanes, forcing oncoming drivers to brake and swerve to the right to avoid a collision. At one point, Rodriguez pointed a semiautomatic AK-47 style rifle backward over his shoulder, in the direction of Officer Strom, and fired two shots. After hearing the first shot, Officer Strom swerved to avoid being hit.

Rodriguez then slowed down to 40 or 45 m.p.h., moved off onto the right shoulder of the highway and made a U-turn, so that Officer Strom was moving toward him; when Officer Strom was approximately 15 feet away, he saw that Rodriguez had the rifle pointed directly at him, so he quickly accelerated to get out of the line of fire and, as a result, careened his patrol car into a chain link fence. Deputy Kwiatkowski attempted to keep Rodriguez from shooting Officer Strom by bumping the driver's side of the Buick with his Expedition.

Startled by Kwiatkowski's actions, Rodriguez shifted his focus away from Officer Strom and either dropped or put down the rifle. As Deputy Kwiatkowski started to get out of his Expedition with his gun drawn, Deputy Vanmiddlesworth hit the front end of the Buick. Despite having been hit twice, Rodriguez was able to continue driving east on Highway 76. The deputies followed the car, which traveled at 80 to 85 m.p.h. and drove in and out of the oncoming lanes of traffic.

As he drove, Rodriguez again picked up the rifle, pointed it over his left shoulder and fired two rounds at the deputies. Deputy Vanmiddlesworth, who was the closest to Rodriguez, saw what Rodriguez was doing and swerved to avoid being shot; the shots hit Deputy Kwiatkowski's vehicle in the front fender, although Deputy Kwiatkowski was uninjured.

In an attempt to stop Rodriguez, the deputies tried to hit the Buick with their vehicles. Rodriguez again picked up the rifle and pointed it at Deputy Vanmiddlesworth, at which point Deputy Kwiatkowski hit the Buick hard enough to force the car into a sideways skid. The chase ended shortly thereafter, when Rodriguez pulled into a driveway. The deputies took Rodriguez and Reed into custody. As he was being taken to the Vista jail, Rodriguez told the transporting officer that the only reason he did not fire more rounds at the officers during the pursuit was because his home-made rifle kept jamming.

Rodriguez was charged with three counts of attempted murder, three counts of assaulting a peace officer and one count of evading an officer. At trial, Rodriguez's defense was that he never intended to kill the officers, only to scare them so that he could escape. Rodriguez elicited evidence that shooting backward over one's shoulder is not the optimal way to hit a target and that he had had ample opportunity to shoot the officers facing forward and at closer range after he made the U-turn and the officers moved in on him. He also introduced evidence that he could have easily ejected a jammed cartridge, which would have allowed him to attempt additional shots if he had wanted to take them.

A jury found Rodriguez guilty of all counts and made true findings on various enhancement allegations, including his personal use of a firearm. The court denied Rodriguez's motion for a new trial and thereafter sentenced him to three consecutive life terms on the attempted murder counts plus 60 years for the personal use enhancements on those counts; it imposed, but stayed, sentence on the remaining counts. It also revoked Rodriguez's probation in two prior criminal proceedings against him and sentenced him to two consecutive eight-month terms.

DISCUSSION

1. Discharge of Juror No. 10

A. Factual Background

On the second day of trial, after the completion of jury selection and the court's preinstructions but before the presentation of any evidence, Juror No. 10 sent the court a note indicating " . . . I am becoming uncomfortable with my ability to determine the fate of one man's life. I would hope to be objective, but I'm not sure that I could be at this point." After conferring with counsel, the court conducted a hearing outside the presence of the other jurors. It explained to Juror No. 10 that the jury's role was limited and did not include the issue of punishment and reassured her that most of the other jurors were probably also somewhat uncomfortable with the process. It inquired whether Juror No. 10 was incapable of carrying out the responsibilities of sitting as a juror and Juror No. 10 responded "I don't know that I'm incapable. I just felt the need to express that to you," but also indicated that she would "do my best."

In response to questions from counsel, Juror No. 10 indicated that she was "a very fair person" and could assess the evidence, but noted several times that sitting on the jury would be a "huge burden" and that sitting in judgment of someone else was a "heavy weight." She also stated that, although she was not certain whether the gravity of the offense and the potential consequences would affect the way she looked at the evidence or her deliberations, "right now I feel that it would." She also indicated that she would rather not sit on the jury.

The court granted the prosecution's motion to excuse Juror No. 10 for cause, concluding that her statements at the hearing were different than some of her responses during voir dire the day before and that this created a question about whether she would be able to be entirely fair and impartial. After trial, the court denied Rodriguez's motion for mistrial based on the dismissal of Juror No. 10. It found that there was sufficient cause to dismiss Juror No. 10 and that, if she had answered the voir dire questions in accordance with her statements at the hearing the next day, she would not have been one of the sworn jurors.

B. Applicable Legal Principles

"If at any time . . . a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefore, the court may order the juror to be discharged and draw the name of an alternate[.]" (Pen. Code, § 1089.) A court may properly discharge a juror if the nature of the case makes it difficult for that juror to keep an open mind so that he or she is actually unable to perform her duty. (People v. Compton (1971) 6 Cal.3d 55, 59, disapproved on another point in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) However, if the juror can set aside a general abstract bias and is capable of acting impartially, the juror need not be excused even though he or she may have to make a special effort to be objective. (People v. Compton, supra, 6 Cal.3d at pp. 59-60; People v. Davis (1972) 27 Cal.App.3d 115, 120.)

The decision whether to retain or discharge a juror rests within the sound discretion of the trial court and will be upheld if supported by substantial evidence. (People v. Boyette, supra, 29 Cal.4th at p. 462.) Juror bias is not presumed and thus the juror's inability to perform his or her duty "' . . . must appear in the record as a "demonstrable reality.'" (People v. Beeler (1995) 9 Cal.4th 953, 975, quoting People v. Thomas (1990) 218 Cal.App.3d 1477, 1484.) Where a juror's statements are conflicting, we will not find an abuse of discretion so long as the trial court's determination finds fair support in the record. (See People v. Farnam (2002) 28 Cal.4th 107, 132.)

C. Analysis

Rodriguez contends that there was little or no evidence to suggest, as a demonstrable reality, that Juror No. 10 was unable to perform her duties as a juror. However, Juror No. 10 repeatedly expressed discomfort about her ability to view the case objectively, expressed her preference to be removed from the jury and stated unequivocally that, although her view might change if she remained on the jury, at that time she felt that the gravity of the offense and the potential consequences to Rodriguez would affect her consideration of the evidence and her deliberations. Her statements are sufficient to support the trial court's determination that there was good cause to discharge her, even in the face of other statements by her suggesting that she would do her best to be fair and unbiased if she remained on the jury. (See People v. Farnam, supra, 28 Cal.4th at p. 132; see generally People v. Compton, supra, 6 Cal.3d at p. 59.) The trial court did not abuse its discretion or violate Rodriguez's Sixth Amendment right to trial by an impartial jury in excusing Juror No. 10. (See People v. Bowers (2001) 87 Cal.App.4th 722, 729, citing Miller v. Stagner (9th Cir.1985) 757 F.2d 988, 995.)

2. Sufficiency of the Evidence to Support the Attempted Murder Convictions

Rodriguez also contends that the evidence was insufficient, as a matter of law, to support his convictions for attempted murder because there was no evidence that he acted with the specific intent to kill the officers. (See People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [attempted murder requires specific intent to kill].) However, a person's intent is rarely established by direct evidence, but often must be determined from a consideration of the totality of the circumstances, including the defendant's actions. (Ibid.) Whether a defendant possessed the requisite intent to kill is a question of fact and, on appeal, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; we cannot reweigh the evidence or second guess the reasoning or wisdom of the fact finder. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)

Here, the circumstantial evidence was sufficient to establish that Rodriguez acted with the specific intent to kill Deputy Vanmiddlesworth and Officer Strom as charged in counts 2 and 3, respectively. While these officers were chasing him, Rodriguez fired two shots, in quick succession, at each of them, at a time when each was well within the rifle's firing range and there was nothing behind the Buick that could have blocked the shots from reaching the officers' vehicles. Although the evidence also showed that each of the officers was able to avoid being hit by taking evasive action, the fact that both of the shots Rodriguez fired at Deputy Vanmiddlesworth's Expedition actually pierced the bumper of Deputy Kwiatkowski's vehicle after Deputy Vanmiddlesworth swerved might have been seen by the jury as discrediting Rodriguez's argument that he fired the shots without aiming and in an entirely random fashion. Rodriguez's statements to police that he would have fired more shots if the rifle had not kept jamming provides further support for the conclusion that Rodriguez intended more than just to scare the officers. The foregoing evidence was sufficient to support the jury's finding that Rodriguez acted with the specific intent to kill Deputy Vanmiddlesworth and Officer Strom. (See People v. Smith (2005) 37 Cal.4th 733, 741 [recognizing that the act of firing toward a victim at a close range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill"].)

Rodriguez points out that the evidence also showed that he did not take other opportunities he had to shoot at Officer Strom and Deputy Kwiatkowski while they were in front of him and much closer to him; he argues that this evidence, as well as his statements to the police after the chase was over, establishes that he did not intend to kill the officers. However, although Rodriguez properly argued this point to the jury, contending that the circumstances did not support a factual finding that he acted with the specific intent to kill, he has not cited any authority holding that such circumstances establish, as a matter of law, that he lacked the requisite intent.

Finally, Rodriguez contends that his firing of shots at Deputy Vanmiddlesworth and Officer Strom was not sufficient to establish that he had the specific intent to kill Deputy Kwiatkowski. However, a defendant who fires a shot into a group of people might nonetheless be found to have acted with the intent to kill everyone in the group. (See People v. Chinchilla, supra, 52 Cal.App.4th at pp. 690-691 [one shot fired at two police officers was sufficient to support a finding of specific intent to kill both where the first officer was crouched in front of the second officer].) Rodriguez correctly points out that where a single act is alleged to be an attempt on two or more persons' lives, the determination of whether the defendant had the intent to kill must be evaluated separately as to each victim. (People v. Bland (2002) 28 Cal.4th 313, 328.) Notably, however, he did not argue this point to the jury and, in any event, the evidence presented at trial was sufficient to permit the jury to infer that Rodriguez intended to kill each of the officers who was chasing him, including Deputy Kwiatkowski, the only officer whose vehicle was actually hit by his shots. (See ibid. [concluding where the defendant fired a flurry of bullets into a fleeing car, the jury could reasonably infer that he harbored an intent to kill all the persons in the car even if his primary intent was to kill only one of them].) The fact that Rodriguez might not have been able to see Deputy Kwiatkowski at the time he fired the shots does not negate a specific intent to kill. (People v. Vang (2001) 87 Cal.App.4th 554, 563-564.)

For these reasons, we reject Rodriguez's contention that there was insufficient evidence to support his convictions for attempted murder.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

IRION, J.

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