Opinion
G057383
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. DESIREE PAULINE RODRIGUEZ, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF3082) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Desiree Rodriguez was convicted of multiple crimes for participating in a violent attack on Mario Barriga. She claims reversal is required because the trial court's unanimity instruction was flawed, but we disagree and affirm the judgment.
FACTS
In 2014, Barriga was working as a mobile tattoo artist in Orange County. On August 7, he got a call from codefendant Selena Siedlecki, who was one of his Facebook friends. Siedlecki said she wanted a tattoo, and Barriga was happy to oblige. Later that day, he arrived at Siedlecki's Costa Mesa residence with a backpack full of supplies and talked with her in the kitchen about what type of tattoo she wanted. Siedlecki's husband was also there, but after a few minutes, he and Siedlecki went upstairs. Then appellant and codefendant Kenneth Pearce entered the house and confronted Barriga in the kitchen.
Appellant accused Barriga of stealing a television and other items from her. When Barriga denied this, appellant and Pearce hogtied him on the floor with duct tape. They also put tape over his mouth and nose, making it hard for him to breathe. Barriga struggled to get free, but Pearce hit him in the back of the head with a metal pipe, causing him to blackout momentarily.
When he came to, appellant and Pearce removed his belt and wrapped it around his neck like a noose. Then they began peppering him with "off the wall" questions, and every time he failed to answer to their satisfaction, Pearce tightened the belt and punched him. Barriga sustained multiple blows from Pearce, and appellant kicked him several times. She also threatened to inject him with bleach and told him they were going to take him to Apple Valley and bury him there in a shallow grave.
Barriga eventually wriggled free of his restraints and ran into the garage, only to have Pearce catch up with him there and hit him with the pipe. Pearce dragged Barriga back into the kitchen and pummeled him some more with the pipe before Barriga escaped again. This time, Barriga ran into the bathroom and tried to lock the door, but Pearce broke through and hit him repeatedly. When it appeared Barriga was going to lose consciousness, Pearce doused him with cold water in the shower to keep him awake. Then he had Barriga take off his wet clothing and gave him some dry clothes to wear.
After that, Pearce and appellant took Barriga out to the garage and put him in the backseat of Siedlecki's car. Pearce got in the backseat next to him, and appellant took the wheel and drove them to her apartment complex in Newport Beach. Upon entering the parking structure, appellant noticed a police officer in the area and warned Barriga not to try to escape. But as soon as appellant stopped the car, Barriga opened his door and took off. Pearce gave chase momentarily but turned back when the pipe fell out of his pocket.
Barriga ran to the police officer and told him of his ordeal. He was taken to the hospital and treated for his injuries. In speaking with investigators there, he said appellant brandished a gun at one point during the attack. But at trial he said he did not recall seeing a gun at any time. He also said he never got back his belt or clothes, or his backpack, which contained, inter alia, two cellphones and a sketchpad. Those items were not found in Siedlecki's house, or her car, which was recovered a week after the attack in conjunction with appellant's arrest.
Appellant, Pearce and Siedlecki were jointly tried, but this appeal only concerns appellant. In closing argument, her attorney assailed the credibility of Barriga, who has a criminal record and was granted immunity on another matter in exchange for his testimony. Counsel also claimed appellant never intended to harm or steal from Barriga; rather, she simply wanted to recover the property he had previously stolen from her. The jury rejected this explanation and convicted appellant of conspiracy to commit aggravated assault, assault with a deadly weapon (adw) and torture. It also found her guilty of kidnapping, as a lesser included offense of kidnapping for robbery, and robbery, as a lesser included offense of robbery in concert. But it found not true allegations appellant used a firearm during the attack. After finding appellant had served four prior prison terms, the trial court sentenced her to seven years to life in prison, plus a consecutive term of seven years and four months.
DISCUSSION
Appellant contends reversal is required because the trial court's unanimity instruction was confusing and only referenced two of the charged offenses. Although the instruction is not flawless, we do not believe it warrants a reversal.
Respondent contends appellant forfeited her right to challenge the court's unanimity instruction because she did not object to it in the trial court. But the court had a sua sponte duty to instruct the jury properly on all of the applicable legal principles. Since it is undisputed the unanimity requirement was implicated by the facts in this case, the forfeiture rule does not apply. (People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; People v. Frazer (2003) 106 Cal.App.4th 1105, 1116, disapproved on other grounds in People v. Scott (2009) 45 Cal.4th 743; see also Pen. Code, § 1259 [instructional errors bearing on the defendant's substantial rights are reviewable on appeal even in the absence of an objection in the trial court].) --------
In reviewing appellant's arguments, we must remember jury instructions should be interpreted "'to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) In addition, we presume jurors are intelligent people capable of understanding and applying all of the instructions they are given. (People v. Lewis (2001) 26 Cal.4th 334, 390.) Unless it is reasonably likely they misunderstood the challenged instruction in a manner that violated the defendant's rights, reversal is not required. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Rogers (2006) 39 Cal.4th 826, 873.)
Jury unanimity is a bedrock principle of criminal trials. Not only must jurors be unanimous in their verdict, they "must agree unanimously the defendant is guilty of a specific crime. Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The evidence in this case showed appellant and Pearce repeatedly punched, choked and kicked Barriga at Siedlecki's house. Pearce also struck Barriga with a pipe multiple times in the kitchen and in the garage. In light of this evidence, the court gave a unanimity instruction patterned on CALCRIM No. 3500.
In particular, the court told the jurors, "The defendants are charged with torture in count 2, [and adw] in count 5 sometime on the date of August 7, 2014. [¶] The People have presented evidence of more than one act to prove that the defendants committed this offense. You must not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he or she committed."
The most obvious problem with this instruction is that it is internally inconsistent. While the first sentence references two distinct offenses, the second sentence uses the singular term "this offense." Appellant argues this variance likely led the jurors to believe they only needed to apply the unanimity requirement to one of the two offenses referenced in the instruction, not both of them.
The Attorney General disagrees. In his view, the inconsistent wording in the court's unanimity instruction was cured by CALCRIM Nos. 3515 and 203, which told the jurors they must consider and decide each of the five alleged charges separately. However, telling the jurors they needed to decide the charges on an individual basis is not the same as telling them they needed to unanimously agree on the act supporting each one of those charges. In fact, CALCRIM Nos. 3515 and 203 did not give the jury any guidance in terms of how to construe the unanimity instruction from a substantive standpoint.
Nevertheless, we are confident the jury would have understood the wording error in the unanimity instruction for what it was - a mere grammatical mistake. Given that the court identified two specific offenses in the opening sentence of the instruction, it is reasonable to presume the jury properly understood the unanimity requirement applied to both of those offenses. There was simply no apparent reason to differentiate between the two offenses for purposes of applying that requirement. While the jurors' general verdict precludes us from knowing exactly how they applied the unanimity requirement, we do not believe it is reasonably likely they applied it to only one, and not both, of the charges referenced in the court's instruction. (Cf. People v. Milosavljevic (2010) 183 Cal.App.4th 640, 649-650 [upholding unanimity instruction even though it was somewhat ambiguous as to whether it required unanimity as to each of the counts it pertained to].)
In arguing otherwise, appellant draws our attention to People v. Davis (2005) 36 Cal.4th 510, 560-562, People v. Smith (2005) 132 Cal.App.4th 1537, 1540 and People v. King (1991) 231 Cal.App.3d 493. But those decisions are inapt because, unlike here, no unanimity instruction was given by the trial court in those three cases.
Appellant claims the court's unanimity requirement was also underinclusive, in that it did not mention the kidnapping and robbery counts. However, as to the kidnapping count, the prosecutor made it clear in his closing argument that he was relying on the fact appellant and Pearce forced Barriga into Siedlecki's car and drove him to appellant's apartment complex in Newport Beach. Although the record shows Barriga was forcibly moved several times before then, while he was being attacked inside Siedlecki's house, those movements were for very short distances, and the prosecutor did not invoke them in arguing the kidnapping charge. Instead he relied on appellant and Pearce "putting [Barriga] into the car [and] driving him away." Thus, there was no danger of the jury failing to agree on the factual basis for that charge. (See generally People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [a unanimity instruction is not required when the prosecutor makes an election as to the factual circumstances supporting the charged offense].)
In comparison to how he discussed the kidnapping charge, the prosecutor did not identify any one particular factual basis for the robbery charge during his closing argument. Instead, he asserted appellant was guilty of robbing Barriga because she and Pearce took Barriga's belt, his clothing and his backpack, which contained two cellphones and a sketchpad. Appellant contends the jurors should have been instructed they had to agree unanimously on which particular item or items were taken before they could convict her of robbery. But a "unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 875, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364.) This exception, known as the continuing course of conduct exception, "applies if the defendant tenders the same defense . . . to each act and if there is no reasonable basis for the jury to distinguish between them." (Ibid.)
Here, the record shows appellant and her cohort Pearce took Barriga's belongings over the course of a single criminal episode that began with the violent attack at Siedlecki's house and culminated with Barriga's escape at appellant's apartment complex. Although the incident extended over a fair amount of time and distance, it amounted to a continuous course of conduct as far as the various underlying takings were concerned. (People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14 [successive takings of victim's car and other items over a two-day period constituted a continuing course of conduct, thus obviating the need for a unanimity instruction in connection with the robbery charge]; People v. Curry (2007) 158 Cal.App.4th 766, 782.)
Furthermore, appellant offered a singular, blanket defense to the robbery charge, that being she did not intend to deprive Barriga of any of his belongings. She did not put forth a separate legal defense as to each item of property that was taken from him. Under these circumstances, it was not necessary for the trial court to include the robbery count in its unanimity instruction. (People v. Covarrubias (2016) 1 Cal.5th 838, 879 [no unanimity instruction required for robbery charge that was predicated on the taking of multiple items of property from the victim].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.