People v. Rodriguez

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

A147602

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

November 21, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 05-151190-6)

A jury convicted Julio Rodriguez of multiple crimes against Jane Doe 1: two counts of kidnapping for the purpose of rape (Pen. Code, § 209, subd. (b)(1)),¹ two counts of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sodomy (§ 286, subd. (c)(2)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and second degree robbery (§§ 211, 212.5, subd. (c)). The jury also convicted Rodriguez of kidnapping Jane Doe 2 for the purpose of rape (§ 209, subd. (b)(1)) and assault with the intent to commit a felony (§ 220, subd. (a)(1)). Rodriguez appeals from the judgment, arguing (1) evidence of an uncharged offense was erroneously admitted; (2) the evidence was insufficient to support one of his convictions for aggravated kidnapping; (3) the trial court erred by failing to sua sponte instruct a juror to disregard restraints placed upon Rodriguez; (4) ineffective assistance of counsel; (5) cumulative error; and (6) his sentence constitutes cruel and unusual punishment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Rodriguez was tried on 10 counts originally set forth in two separate informations. The first information charged Rodriguez with eight counts against Doe 1 (committed on Dec. 27, 2013): two counts of aggravated kidnapping for the purposes of rape and robbery (§ 209, subd. (b)(1); counts one and three respectively), two counts of forcible rape (§ 261, subd. (a)(2); counts two and four), forcible oral copulation (§ 288a, subd. (c)(2); count five), forcible sodomy (§ 286, subd. (c)(2); count six), forcible sexual penetration (§ 289, subd. (a)(1)(A); count seven), and second degree robbery (§§ 211, 212.5, subd. (c); count eight). The information further alleged Rodriguez personally used a deadly and dangerous weapon, a knife, in committing all eight counts (§ 12022, subd. (b)(1)). As to the rape, oral copulation, sodomy, and sexual penetration counts (counts two, four, five, six, and seven), the information alleged Rodriguez kidnapped his victim, and personally used a dangerous and deadly weapon, within the meaning of the "One Strike" law (§ 667.61, subds. (a), (d)(2), (e)(3)).²

The second information alleged Rodriguez committed two offenses on October 20, 2014, against Doe 2: kidnapping for the purpose of rape (§ 209, subd. (b)(1)); count nine) and assault with intent to commit rape (§ 220, subd. (a); count ten). The People's motion to consolidate the two informations for trial was initially denied by the trial court because consolidation presented "a high probability of prejudice to the defense" because the Doe 1 case involved "completed assaults and DNA evidence," whereas the Doe 2 case was "not a completed assault" and lacked DNA evidence. However, Rodriguez insisted, over his trial counsel's objection, that the cases be tried together. The trial court reconsidered its ruling and granted the motion. The People apparently prepared an amended information, which renumbered the Doe 2 counts as counts nine and ten and amended count three to allege kidnapping for purposes of rape.³

A. Prosecution Case

1. Charged Offenses Against Doe 1

Around dusk on December 27, 2013, Doe 1 left her mother's house in San Pablo to visit her friend, Omar, in Richmond. She traveled by bus to the intersection of San Pablo and MacDonald Avenues and then walked along Macdonald Avenue. Near a Target store, Doe 1 turned onto a bicycle trail. She heard footsteps approaching from behind, and a man whom she had never seen before, later identified as Rodriguez, wrapped his arm around her shoulder. He also held a six-inch knife to her side.

Believing she was being robbed, Doe 1 gave Rodriguez her cell phone and her backpack. Rodriguez said, "I don't want to kill you, but I will." He then led Doe 1 to a ditch, 10 to 15 steps away from, and three feet below, the path. She did not scream or resist because she was afraid Rodriguez would kill her. In the ditch, Rodriguez pulled down Doe 1's pants and underwear and raped her. When they heard people approaching from a tunnel near the trail, Rodriguez stopped and Doe 1 pulled up her pants.

Rodriguez then led Doe 1 to the top of a hill, which was more secluded because a few trees blocked the view from the path below. Doe 1 was crying, in shock, and continued to fear Rodriguez would hurt her. Rodriguez told Doe 1 to lay on the ground, on some flattened cardboard, and take her pants off. She complied and one of her shoes fell off in the process. Rodriguez touched her breasts and buttocks. He also put his fingers in her vagina and raped her again.⁴ After he ejaculated, Rodriguez took a 20- to 30-minute break, during which he smoked through a glass pipe and drank. He allowed Doe 1 to sit up and offered her his pipe and a drink, which she refused. She cried and begged to leave, but Rodriguez said, "no." Rodriguez then sodomized Doe 1. Rodriguez had not used a condom.

Finally, after what seemed like an hour or two, Rodriguez took another "break," smoked from his pipe, and appeared to be high. When Doe 1 again asked if she could leave, he agreed. He did not return her phone or backpack. Doe 1 pulled up her pants, walked to Omar's house, and told Omar she had been raped.

Omar testified that, in December 2013, he had known Doe 1 for about a month.⁵ They were close friends and had been dating, but Omar was not her boyfriend. On the night Doe 1 walked to his house, it took longer than he expected for her to arrive. When she did arrive, Doe 1 was "shaken up" and crying. Her cell phone was missing. Consistent with her testimony at trial, Doe 1 told Omar a man approached her on the "BART trail" with a knife, took her to "a little spot," and sexually assaulted her. Omar drove her to the hospital.

Richmond Police Department Officer Garrett Wayne responded to the hospital. Doe 1, who was nervous, frightened, and crying, related a version of events almost identical to her testimony at trial. However, she told Wayne that, on the hill, Rodriguez had also orally copulated her.

A licensed vocational nurse oversaw Doe 1's sexual assault response team exam, in the early hours of December 28, 2013. Swabs were taken from Doe 1's vagina, legs, and rectal area. Doe 1's chest, left leg, and right buttocks were "Wood's Lamp positive" for semen. The nurse also observed that Doe 1 had a six-inch scratch across her chest, the bottom of her foot was dirty, and that her sweatshirt was ripped.

2. Charged Offenses Against Doe 2

On October 20, 2014, around 4:50 p.m., Doe 2 went to Wildcat Canyon in the Richmond hills. She parked near the ranger station and walked on a trail while listening to music through earbuds from her cell phone. After about 10-13 minutes, Doe 2 saw a man she had not previously seen before, but later identified as Rodriguez, walking the opposite direction. She exchanged greetings with Rodriguez as he passed. A few seconds later, Doe 2 realized Rodriguez had changed his direction and started walking her way. She became concerned, as he was also not dressed for exercise. He wore jeans and a gray hooded sweatshirt, with the hood up.

Further up the trail, Doe 2 encountered a woman coming from the opposite direction and walking her dog. The woman mentioned yellow caution tape was placed across the trail ahead. The woman said the trail was fine. By this time, Rodriguez had caught up to Doe 2, joined the conversation, and agreed it was "fine" to go beyond the yellow tape. The woman with the dog continued walking in the opposite direction. Rodriguez lifted the tape for Doe 2 to pass under, and then walked alongside her for about four minutes. He seemed friendly. He asked Doe 2 questions in Spanish, including whether she was married. When asked what kind of music she was listening to, Doe 2 stopped to look at her cellphone. Rodriguez jumped in front of her, grabbed her shoulders, and pulled her away from the trail with both hands. Doe 2 thought Rodriguez wanted to kill or rape her, and began to scream. She asked what he was doing, in Spanish, and he told her to be quiet and that everything would be okay. Doe 2 hit Rodriguez with her cell phone and keys.⁶

Rodriguez pulled Doe 2 approximately four to five feet off the trail, into a cutout, and pushed her to the ground toward some bushes. She landed flat on her back. Rodriguez got on top of her, tried to cover her mouth with his hand, as she was crying and screaming loudly for help. Doe 2 attempted to bite his hand, pushed him, and hit his shoulders with her phone and keys. After he gave her another hard push, Rodriguez stood up, put his hood back over his head, and ran up the hill via an unmarked trail. Doe 2 stood up, dialed 911, and ran down the hill to the parking lot. She told police that "someone tried to rape [her] up on the hill."

When police officers arrived, Doe 2 described her assailant as Hispanic, in his mid-20's, about 5 feet 4 inches tall, and weighing 140 pounds.⁷ Having grown up in El Salvador, Doe 2 recognized her attacker spoke Spanish with a Central American accent. William Granados, a detective with the East Bay Regional Park District Police, led the investigation and walked the involved trails, with Doe 2, and videotaped the crime scene. East Bay Regional Park District Ranger Neil Tierney, who was familiar with Rodriguez, had seen him walking in the park on the morning of October 20, 2014.

On the morning of October 21, 2014, police officers...