Filed 11/27/18 P. v. Rodriguez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ORLANDO RODRIGUEZ, Defendant and Appellant.

H044002 (Santa Clara County Super. Ct. No. C1632174)

Defendant Orlando Rodriguez was convicted by jury of assault with a deadly weapon. The assault charge stemmed from an incident at a public library where defendant placed another patron in a choke hold and held a knife near the victim’s face. Defendant argues on appeal that the trial court should have instructed on brandishing as a lesser included offense of assault with a deadly weapon, and that the failure to instruct violated his due process right to present a defense. Defendant also contends the trial court erred by summarily denying his petition for disclosure of jurors’ identifying information, contending he needed the information to determine whether jurors improperly experimented with the knife allegedly used in the assault. Finding no error, we will affirm the judgment.

• I. Trial Court Proceedings

Defendant was charged by felony information with one count of assault with a deadly weapon (a knife). (Pen. Code, § 245, subd. (a)(1); unspecified references are to this Code.) The information alleged defendant personally used the knife (§ 1192.7, subd. (c)(23)) and also that defendant had served three prior prison terms. (§ 667.5, subd. (b).)

1. Trial Evidence

Clint Bidwell testified that he was sitting at a public library computer in San Jose one day around noon. A friend named Katherine was sitting at a computer across from Bidwell, and an acquaintance named Eric was sitting at another computer nearby. According to Bidwell, he and Katherine were speaking “in a normal voice” for about 20 minutes. Bidwell noticed someone staring at him in the computer area (identified by Bidwell at trial as defendant). Defendant approached Bidwell, whispered something into his ear (Bidwell could not remember what defendant whispered), placed him in a choke hold from behind, pulled out a knife, and pointed the knife toward Bidwell’s face. When the knife was about 10 inches from his chin or neck area, Bidwell closed his eyes. Defendant released the choke hold after five or 10 seconds and then poked Bidwell in the back a few times with the knife before walking away. (Bidwell acknowledged that he did not sustain any injuries to his back.) Bidwell testified the knife was black.

Eric testified about the interaction between defendant and Bidwell. He observed defendant approach Bidwell from behind, grab Bidwell with his left hand, and hold a black knife to Bidwell’s throat with his right hand. Eric heard defendant say something to Bidwell “about shut[ting] his mouth or something like that.” Eric could not really see what defendant was doing with his left hand, but “[t]here was no way [Bidwell] could have gone anywhere.” Eric stated the interaction lasted a few seconds, at which point defendant poked Bidwell in the back a few times with the knife and then walked away.

A San Jose State University police officer testified about arresting defendant. The officer responded to an incident report at the library. A security guard pointed defendant out to the officer, and the officer stopped him. The officer found a folding knife in defendant’s front pants pocket; the knife was closed when the officer found it. The knife was admitted into evidence at trial, and at the prosecutor’s request the officer opened the knife and walked in front of the jury displaying it open.

After the prosecution rested, the trial court read to the jury a stipulation regarding an interview the deputy district attorney prosecuting the case had conducted with Bidwell. (The stipulation avoided the possibility that the prosecutor would have to testify about the interview.) The stipulation read, in relevant part: “Mr. Bidwell said he believed the defendant became upset because of the nature of the conversation he was having with Katherine. Mr. Bidwell was explaining to Katherine that he questioned why he as a white boy was selected for a job in Salinas over two Mexicans.”

2. Requested Brandishing Instruction

Before closing arguments, defense counsel asked the court to instruct the jury on the crime of brandishing (§ 417). Counsel noted that the prosecution had elected not to use defendant’s conduct of poking Bidwell in the back with a knife as a theory of assault, leaving as the sole theory placing Bidwell in a choke hold and holding a knife close to his face. Defendant contended that under the accusatory pleading test, brandishing was a lesser included offense of assault with a deadly weapon. The court denied the request for a brandishing instruction.

3. Deliberations, Verdict, and Sentencing

The knife was a primary focus during closing arguments and generated several questions from the jury. Defense counsel argued in closing that the knife was a “factor that’s incredibly important in this case which should raise questions about who exactly was involved in this incident.” He argued: “You’re going to have the picture that the alleged victim drew of the knife in this case. The knife that he drew does not look ... anything like the knife in this case.” Counsel told the jury “[y]ou will have the ability if you choose to do so to take out the knife that’s marked as an exhibit, manipulate it to see the weight of it, how sharp it is[,] and look at any different aspects of it that are interesting to you.”

In the morning of the first full day of deliberations, the jury asked “to see [the] knife and how it is opened,” and requested that the “deputy please bring it back and demonstrate how it can be opened[].” Outside the presence of the jury, the court memorialized an earlier off-the-record discussion with the parties. The court noted “[i]t’s generally my practice not to permit a weapon that is arguably a dangerous lethal weapon [to] go back in the jury room ... for jury safety reasons.” Rather than send the weapon into the jury room, the court and parties agreed “to have the deputy assemble the jury here in open court on the record with the parties present” and then had the deputy “open the knife, hold it up for the jury[,] and close the knife.”

Later that day, the jury submitted several more questions about the knife: “We need to see a demonstration of opening the knife with one hand, if that is possible by using one hand [and] a flinging motion, rather than with 2 hands as was demonstrated this morning.”; “Is it possible to demonstrate opening the knife one-handed [or] with a backwards ‘flip’ of the knife in right hand? Can deputy demonstrate that?”; “Is it possible to open the knife with only one hand?”; “Pls demonstrate how knife can be opened with one hand.” (Errors in original.) Both the prosecutor and defense counsel objected to sending the knife to the jury deliberation room on the ground that it would allow the jury to conduct improper experiments with the evidence. The trial court did not believe an improper experiment would occur, stating “from my perspective, this is not even a close call. It seems completely appropriate that the jury, if they want to see the knife, they should be allowed to see the knife.” The court instructed the deputy to take the knife to the jury deliberation room, and the deputy collected it from the jury 15 minutes later.

On the second full day of deliberations, the jurors informed the court that they were deadlocked 11 to one (the court ensured that the jurors did not disclose whether the majority was in favor of guilt or acquittal). The court instructed the jurors to continue deliberating. On the third full day of deliberations, among other questions, the jurors asked to see the knife again and also asked “if knife is present during assault but not open[,] is it still considered a deadly weapon?” The trial court directed a deputy to deliver the knife to the deliberation room again, and instructed the jurors to review the assault with a deadly weapon instruction (CALCRIM No. 875). That afternoon, the jury found defendant guilty of assault with a deadly weapon, and found true the allegation that he personally used a deadly weapon in committing the offense. At a bifurcated court trial on the prior prison term enhancements, the court granted the prosecution’s motion to strike one prior conviction in the interest of justice and found true the remaining two prior prison term allegations. (§ 667.5, subd. (b).)

At the sentencing hearing, defense counsel attempted to file a petition for access to juror identifying information. The trial court rejected the filing as untimely and explained the petition would have been subject to noticed motion procedures and a hearing after a showing by defendant of good cause. As none of that had occurred, the court inquired about the reason for the filing delay, and defense counsel responded: “there is no good cause for why it wasn’t addressed earlier. Just took time to research.” The trial court did not continue the hearing to allow for the filing. It proceeded to sentence defendant to four years in prison, consisting of the middle term of three years for assault with a deadly weapon (§ 245, subd. (a)(1)) and one year for one prior prison term (§ 667.5, subd. (b)); the court struck the punishment for the other prior prison term.

• II. Discussion

Defendant argues that brandishing is a lesser included offense of assault with a deadly weapon under the accusatory pleading test, and that the trial court erred by denying defendant’s request for a brandishing instruction. He argues the trial court’s refusal to instruct on brandishing violated due process by depriving him of a meaningful opportunity to present a defense. Defendant also challenges the trial court’s summary denial of his petition to access jurors’ personal identifying information (Code Civ. Proc., §§ 206, 237), arguing that the information was necessary to determine whether the jury conducted improper experiments with the knife during deliberations. Defendant does not directly challenge—and we therefore do not address—the propriety of the trial court’s decision to allow the knife into the jury deliberation room.

1. Brandishing as a Lesser Included Offense

1. Legal Standards

A jury may convict a defendant of “any offense, the commission of which is necessarily included in that with which he is charged.” (§ 1159.) Trial courts have a sua sponte duty to “ ‘instruct a criminal jury on any lesser offense “necessarily included” in the charged offense, if there is substantial evidence that only the lesser crime was committed.’ ” (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).) “ ‘[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ ” (Id. at p. 240.) An opinion by a different panel of this court has also endorsed the possibility of considering the preliminary hearing testimony under certain circumstances when applying the accusatory pleading test (People v. Ortega (2015) 240 Cal.App.4th 956, 969 (Ortega)), which we will discuss in our analysis. “The evidence adduced at trial is not to be considered in determining whether one offense necessarily is included within another.” (People v. Cheaves (2003) 113 Cal.App.4th 445, 454; accord People v. Burnell (2005) 132 Cal.App.4th 938, 945 [“the pleadings test does not permit the use of events at trial to add to the language of the information”]; see also Smith, supra, 57 Cal.4th at p. 244 [accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial”].) We review the instructional issue de novo. (Ortega, at p. 965.)

2. Charging Document and Factual Record

The information charged defendant with committing assault “with a deadly weapon and instrument other than a firearm, a(n) knife.” Bidwell testified at the preliminary hearing that defendant put him in a choke hold and then held a knife toward his throat. Bidwell also testified that defendant poked him in the back with the knife several times. Bidwell’s trial testimony was consistent with his preliminary hearing testimony. The prosecution elected after the close of evidence at trial to focus on defendant placing Bidwell in a choke hold with a knife pointing toward his face or neck as the sole theory to support the assault count.

3. Brandishing is Not a Lesser Included Offense on this Record

As defendant does not argue that the statutory elements test makes brandishing (§ 417, subd. (a)(1)) a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)), we focus on the accusatory pleading test. Under the standard accusatory pleading test in which we look solely to the charging document, defendant’s argument is unavailing because the information alleged generally that defendant committed assault “with a deadly weapon and instrument other than a firearm, a(n) knife.” A person can commit assault with a knife as a deadly weapon without carrying out the exhibiting-or-drawing-a-weapon element necessary to commit brandishing (e.g., by poking someone in the back). (§ 417, subd. (a)(1); see People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [assault with a deadly weapon “might be committed by a hidden sniper, or by a stealthy prison stabbing, or in other innumerable ways without at the same time being a violation of section 417”].)

But defendant argues that brandishing is a lesser included offense of assault with a deadly weapon here because the “prosecution in this case chose to allege a way of committing assault that subsumes the lesser offense of brandishing” through eliciting testimony at the preliminary hearing and electing at trial to use the choke hold and knife-holding conduct as its only theory to support the assault charge. Defendant argues such a conclusion is compelled by Ortega. Ortega was charged with forcible sexual penetration (§ 289, subd. (a)(1)(A)) and the information did not specify whether Ortega used a body part or a foreign object in committing the crime. (Ortega, supra, 240 Cal.App.4th at p. 968.) He argued on appeal that the trial court should have instructed the jury about sexual battery (§ 243.4, subd. (a)) as a lesser included offense. (Ortega at p. 967.) The Ortega court determined that sexual battery was not a lesser included offense under the statutory elements test because “the forcible sexual penetration statute encompasses different types of contact than the sexual battery statute, [meaning] it is possible to commit the greater without committing the lesser (e.g., where penetration is accomplished by means other than a part of the perpetrator’s body.)” (Ibid.) But in applying the accusatory pleading test to the facts of that case, the Ortega court looked to the preliminary hearing transcript and determined that sexual battery was a lesser included offense of forcible sexual penetration there because the preliminary hearing testimony “supported only one means by which defendant committed sexual penetration: by inserting his fingers into Doe’s vagina.” (Id. at p. 969.)

The People argue that we should reconsider the use of preliminary hearing testimony in applying the accusatory pleading test because it is inconsistent with statements of the Supreme Court. (Citing Smith, supra, 57 Cal.4th at p. 244 [“The trial court need only examine the accusatory pleading.”]; People v. Montoya (2004) 33 Cal.4th 1031, 1036 [in a section 954 case, “[c]onsistent with the primary function of the accusatory pleading test—to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense”].) We decline to reconsider Ortega in this case because it is factually distinguishable. The preliminary hearing evidence in Ortega revealed that the defendant had been held to answer on a single factual theory of liability. Here the prosecution offered two different factual theories at the preliminary hearing to prove a single count of assault with a deadly weapon: the choke hold with knife-holding conduct, and defendant’s conduct of poking Bidwell in the back multiple times. As brandishing requires a defendant to draw or exhibit a deadly weapon (§ 417, subd. (a)(1)) and poking Bidwell in the back did not involve drawing or exhibiting the knife, brandishing was not a lesser included offense of assault with a deadly weapon in this case, even if we were to consider the preliminary hearing testimony. That the prosecution elected to pursue the choke hold and knife-holding conduct as the sole theory on which to seek a conviction at trial is irrelevant to our analysis because the accusatory pleading test “does not require or depend on an examination of the evidence adduced at trial.” (Smith, supra, 57 Cal.4th at p. 244.)

Defendant relies on a statement from Smith: “[S]o long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense.” (Smith, supra, 57 Cal.4th at p. 244.) But Smith is also factually distinguishable because in that case the information itself alleged two different factual methods of committing the crime at issue (§ 69): that the “defendant attempted, through threat or violence, to deter or prevent an executive officer from performing a duty,” and that the defendant “ ‘knowingly resist[ed], by the use of force or violence, such officer, in the performance of his duty.’ ” (Smith, at p. 242.) Our decision is consistent with Smith.

2. Due Process Right to Present a Defense

Defendant asserts that trial court’s refusal to instruct on brandishing prevented defense counsel from arguing that he was guilty of that crime instead of assault with a deadly weapon, violating his California and federal Constitutional due process right to a meaningful opportunity to present a defense. (Citing Crane v. Kentucky (1986) 476 U.S. 683, 690; In re Martin (1987) 44 Cal.3d 1, 30.) But defendant’s argument is premised on the necessity to instruct on brandishing as a lesser included offense, and we have already found no instructional error. Defendant cites no case where a trial court’s proper refusal to instruct on a crime that is not a lesser included offense nonetheless deprived a defendant of the right to present a meaningful defense. And defense counsel here was free to argue (and did argue) that the prosecution had not met its burden to show defendant was guilty of any crime at all. Defendant has failed to show a constitutional violation.

3. Juror Identifying Information

Defendant contends the trial court erred in denying his petition to access personal juror identifying information because the motion was timely and defendant made a prima facie showing of good cause necessary to set the matter for a hearing. We review the trial court’s decision for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.)

Code of Civil Procedure section 206, subdivision (g) states: “Pursuant to [Code of Civil Procedure] Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” Code of Civil Procedure section 237 discusses the process for sealing and unsealing juror personal identifying information. “Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors ... shall be sealed until further order of the court as provided by this section.” (Code Civ. Proc., § 237, subd. (a)(2).) Any person may file a petition supported by a declaration containing facts sufficient to establish good cause for the release of the personal identifying information, and the trial court must set the matter for a hearing unless “there is a showing on the record of facts that establish a compelling interest against disclosure.” (Code Civ. Proc., § 237, subd. (b).) If a hearing is set, “the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action” and each affected juror. (Code Civ. Proc., § 237, subd. (c).)

Though neither of the foregoing Code of Civil Procedure sections specifies a deadline for filing a petition, the appellate court in People v. Duran (1996) 50 Cal.App.4th 103 (Duran) found untimely a petition for juror personal identifying information filed on the day of sentencing without a showing of good cause for the delayed filing. Duran was convicted of murder. (Id. at p. 108.) Defense counsel discovered after Duran was convicted that one of the jurors had dated a man whose cousin had recently been killed (defense counsel had seen the juror at the trial for the cousin’s homicide). (Ibid.) Defense counsel moved for a new trial arguing juror misconduct for failing to disclose the relationship with a person whose cousin had been killed; counsel did not petition to obtain the juror information at that time. (Id. at pp. 108–109.) At the joint hearing on the motion for new trial and sentencing, the trial court denied the new trial motion because the victim in the other homicide case did not fit into the category of a close personal friend (finding the juror had not committed misconduct by not mentioning the homicide). Defense counsel also sought access to the personal information of other jurors to investigate whether the juror ever mentioned the other homicide during deliberations. The trial court denied the requests as untimely. (Id. at p. 110.)

On appeal, the reviewing court noted that though section 206 “does not contain an express time limitation, it does impose a requirement that the information be sought for a lawful purpose.” (Duran, supra, 50 Cal.App.4th at p. 122.) As such, the court reasoned that the petition for juror information must be considered “in light of any time limitations associated with the purpose for which the information is sought.” (Ibid.) Because Duran sought the information to support a new trial motion, the court looked to section 1182, which requires new trial motions to be “ ‘made and determined before judgment.’ ” (Duran, at p. 122.) Thus, “for the requested information to be used for the lawful purpose for which it was sought, it would be necessary to continue not only the hearing on [Duran’s] motion for new trial but the imposition of judgment as well.” (Ibid.) The court noted it had previously found untimely a similar request based on section 1050, which imposes “a duty on the courts to expedite all proceedings in criminal cases and allows for continuances only upon a showing of ‘good cause,’ ” (Duran, at p. 122, citing People v. Atkins (1988) 203 Cal.App.3d 15, 28), which includes a showing of due diligence. (Duran, at p. 122, citing People v. Mickey (1991) 54 Cal.3d 612, 660.) The Duran court found counsel had not exercised due diligence because counsel filed the petition six weeks after learning about the juror’s connection to the other case. (Duran, at p. 123.) Because there was no showing of due diligence, there was no basis to continue the hearing on the new trial motion. And because there was no basis to continue the new trial motion, the Duran court concluded “there was no longer a lawful purpose to be served by releasing this information” and the trial court “thus acted properly in denying the untimely request for juror information.” (Ibid.)

Defendant acknowledges Duran in his reply brief, but makes no attempt to distinguish it other than to argue that “there is no dispositive precedent or statute requiring that” defendant show cause to explain the untimeliness of his petition. We find the reasoning of Duran persuasive and applicable here. Defense counsel’s declaration accompanying the petition states that he sought the information to develop a motion for a new trial. Counsel waited until the day of sentencing to file the petition—over a month after the knife was allowed into the jury deliberation room—and offered no justification other than that it “[j]ust took time to research.” The trial court acted within its discretion in rejecting the petition as untimely. (§§ 1182, 1050, subds. (a)–(d); Code Civ. Proc., §§ 206, 237.)

• III. Disposition

The judgment is affirmed.

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Grover, J.

I CONCUR:

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Greenwood, P. J.

H044002 - People v. Rodriguez

BAMATTRE-MANOUKIAN, J., Concurring.

I concur in the result reached in the majority opinion that (1) the trial court did not err in declining to instruct on brandishing as a lesser included offense of assault with a deadly weapon, (2) defendant has failed to show a violation of due process, and (3) the trial court did not err in rejecting as untimely defendant’s petition for access to juror information. I write separately to express my view that, in applying the accusatory pleading test to determine whether a defendant is entitled to a jury instruction on a lesser included offense, a court may consider only the facts alleged in the accusatory pleading and may not consider the facts adduced at the preliminary examination.

The California Supreme Court has stated that, under the accusatory pleading test—“to determine whether a defendant is entitled to instruction on a lesser uncharged offense—we consider only the pleading for the greater offense.” (People v. Montoya (2004) 33 Cal.4th 1031, 1036 & fn. 4 [disapproving People v. Rush (1993) 16 Cal.App.4th 20 to the extent it held otherwise]; accord, People v. Macias (2018) 26 Cal.App.5th 957, 964, petn. for review pending, petn. filed Oct. 4, 2018, S251748.) As an intermediate appellate court, we are required to follow California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, I would not consider the facts adduced at the preliminary examination to determine whether defendant in this case was entitled to an instruction on brandishing under the accusatory pleading test.