People v. Rodriguez CA2/8

Filed 11/8/22 P. v. Rodriguez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B315335
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA092986
v.
DAVID ERNESTO RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David Walgren, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
INTRODUCTION
When defendant David Rodriguez believed his wife was
cheating on him with a neighbor, he partially decapitated her
with a machete. Then, he broke down the neighbor’s door and
tried to kill him too. He was stopped when the neighbor’s family
intervened, but he injured the neighbor’s wife and son in the
process. On appeal, defendant contends that we should remand
for resentencing of one of the assault counts under Senate Bill
No. 567 (2021–2022 Reg. Sess.), which limits the court’s use of
aggravating factors to impose an upper-term sentence. We
conclude, based on the undisputed evidence at trial, that the jury
would unquestionably have found that the victim was unusually
vulnerable when she was attacked because she was asleep in her
home when the attack began. We therefore affirm.
PROCEDURAL BACKGROUND
By information dated April 26, 2021, defendant was
charged with one count of murder (Pen. Code,1 § 187, subd. (a);
count 1); one count of premeditated attempted murder (§ 664/187,
subd. (a); count 2); two counts of assault with a deadly weapon
(a machete) (§ 245, subd. (a)(1); counts 3–4); two counts of
mayhem (§ 203; counts 5–6); and one count of first degree
burglary (§ 459; count 7).2 As to counts 1, 2, 5, and 6, the
information alleged that defendant had personally used a
1 All undesignated statutory references are to the Penal
Code.
2 On July 19, 2021, the information was amended by
interlineation to correct the name of the victim in counts 4 and 6.
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machete in the commission of the offense (§ 12022, subd. (b)(1)).
As to counts 2, 3 and 4, the information alleged defendant
personally inflicted great bodily injury during the commission of
the offense (§ 12022.7, subd. (a)). As to count 7, the information
alleged that a person other than an accomplice was present
during the commission of the offense (§ 667.5, subd. (c)).
Defendant pled not guilty and denied the allegations.
After several continuances due to the Covid-19 pandemic
and a jury trial at which he did not testify, the jury found
defendant guilty of counts 1–5 and 7 and found the related
allegations true. The jury found defendant not guilty of mayhem
under count 6.
The court sentenced defendant to an aggregate term of 46
years to life. For the indeterminate part of the sentence, the
court sentenced defendant to 37 years to life. The court imposed
26 years to life for count 1—25 years to life for premeditated
murder (§ 187, subd. (a)), plus one year for the weapon
enhancement (§ 12022, subd. (b)(1)). The court imposed 11 years
to life for count 2—a life term for attempted murder (§ 664/187,
subd. (a)), plus three years for the great bodily injury
enhancement (§ 12022.7, subd. (a)) and one year for the weapon
enhancement (§ 12022, subd. (b)(1))—to run consecutively to
count 1 and to each other.
The court imposed a consecutive nine-year term for the
determinate sentence. The court selected count 3 as the base
term and imposed seven years—the upper term of four years for
the assault (§ 245, subd. (a)(1)) plus three years for the great
bodily injury enhancement (§ 12022.7, subd. (a)). The court
imposed two years for count 4—one-third the mid-term of three
years for the assault plus one-third of the three-year term for the
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great bodily injury enhancement—to run consecutively. Finally,
the court stayed counts 5 and 7 under section 654.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Defendant and Karla Rodriguez were married for 16 years
and had three children. They lived in an apartment in Los
Angeles. Rosa and Javier Orellana lived in the same apartment
complex; they also have three children. Javier and defendant
had known each other since they lived in El Salvador.
Defendant suspected Karla of having affairs with other
men, including with Javier. He told police that he had put up
with Karla’s behavior for years. He believed Karla brought other
men to the apartment for sex, and his youngest son was fathered
by someone else. Police found no evidence to support defendant’s
accusations of infidelity. To the contrary, the investigation
revealed “that Karla was a dedicated mother and wife to
[defendant], that she never strayed or had any type of affair with
anyone.”
Nevertheless, starting in December 2018, defendant began
accusing Javier of trying to take Karla away from him. Javier
had not been seeing Karla; he wouldn’t even talk to her. But
defendant repeated the accusation a half-dozen separate times.
On one occasion, when defendant and Javier were driving
separate cars, defendant honked at Javier and told him to pull
over. Defendant accused Javier of having Karla with him and
demanded to search the car. After a thorough search—including
under the floor mats—defendant calmed down. Another time,
defendant called Javier and demanded to search his apartment
for Karla. Again, he searched everywhere.
4
Defendant told police he had repeatedly confronted Karla
and asked her to tell him the truth about Javier and the other
men she had been seeing, but she always denied his accusations.
He had never caught her in the act, so he hid recorders and
phones around the apartment to monitor her activities. All day
long, Karla would say, “Come on over. Come on over. He’s gone
now.” She and the other men mocked him. But when defendant
presented her with the recordings, Karla got angry and said he
was crazy. Defendant said she refused to admit what she was
doing.
According to defendant, on June 21, 2019, he had been
listening to the recordings of Karla speaking to the other men.
So he went to his car and took a machete out of the trunk.3 Then,
he returned to the apartment and told Karla that if she didn’t
admit the affair, he would kill Javier. But Karla continued to
deny it. According to defendant, she got angry, lunged at
defendant, and tried to grab him by the throat.
At 1:22 a.m., Karla called 911. The 911 call was played for
the jury and admitted into evidence. She said, “my husband is
threatening me here. He’s—he’s saying that I have men and he
wants to kill me . . . .” Karla could be heard screaming
hysterically for help before the call went silent. Video footage
from the apartment building showed Karla fleeing the apartment
and running down the stairs to the courtyard. Defendant
pursued her, holding the machete. When Karla reached the
bottom of the stairs, she tripped and fell; defendant caught up
and struck her with the machete multiple times, nearly severing
3 The jury was shown surveillance footage of defendant
retrieving the machete.
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her head. The parties stipulated that Karla died from multiple
sharp-force injuries to the neck.
After attacking Karla, defendant went upstairs and kicked
down Javier’s locked front door. Rosa and Javier were asleep on
a pull-out sofa in the living room; their three children slept in the
bedroom. Defendant later admitted that he went to the
apartment to kill Javier. He rushed through the door and
immediately attacked Javier with the machete, slashing Javier
nine times across the face and body.
Rosa tried to defend Javier by grabbing defendant’s hands,
at which point he hit her with the machete as well. The cut to
Rosa’s head required 11 stitches and left a scar. At that point,
the children emerged from the bedroom. Defendant was still on
top of Javier, slashing at him with the machete, when the oldest
son, Erick, intervened. Erick first tried to wrench the machete
out of defendant’s hands. When he was unsuccessful, Erick
threw himself against defendant, knocking him off the bed, then
grabbed defendant by the ankles and dragged him out of the
apartment. Erick called 911 at 1:31 a.m., and the family waited
for the police to arrive.
Javier was in agony. The skin on the right side of his face
was hanging off. His arm was hanging, and his back was sliced
up. He was bleeding profusely. Erick suffered permanent
damage to four of his fingers, which required surgery.
Meanwhile, after Erick dragged him from the apartment,
defendant went back to the courtyard and sat on a bench. He
could see Karla lying on the ground and thought she might still
be alive, but he did not try to help her.
The police arrived at the apartment building at 1:28 a.m.
Two minutes later, at 1:30 a.m., they met defendant at the
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building’s locked front gate. Defendant let them in. He was
covered in blood. When officers asked defendant what had
happened, he replied, “I killed them.” Defendant was placed
under arrest.
Officers discovered Karla, dead, in the courtyard.
Defendant then directed the officers to Javier, whom they located
at 1:37 a.m. An 18-inch machete was recovered from the scene.
Defendant was advised of his constitutional rights and gave
a lengthy statement to the police.4 The recording was admitted
into evidence and played for the jury.
When Javier woke up in the hospital, he could not
remember anything about the attack. He could not feel his left
hand or his face; he has since regained only partial feeling.
Javier also lost his right eye—the socket is now filled with a
plastic replacement—and suffered multiple scars to the arms and
torso. Javier spent two weeks in the hospital. He continues to
have difficulty breathing.
DISCUSSION
Defendant contends this case must be remanded for
resentencing because a recent change in the law has rendered
unlawful his upper-term sentence for count 3, the assault on
Rosa. The People properly concede the retroactivity of the
amended statute but argue that resentencing is not required
because there is undisputed evidence of the aggravating factors
upon which the court relied. We agree with the People.
4 Defendant did not challenge the admissibility of this
statement either below or on appeal.
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1. Senate Bill No. 567 applies retroactively to defendant.
In Cunningham v. California (2007) 549 U.S. 270(Cunningham), the United States Supreme Court held that
California’s procedure for selecting upper-term sentences under
the Determinate Sentencing Law, former section 1170,
subdivision (b), violated criminal defendants’ Sixth and
Fourteenth Amendment rights to a jury trial because it gave “to
the trial judge, not to the jury, authority to find the facts that
expose a defendant to an elevated ‘upper term’ sentence.”
(Cunningham, supra, at p. 274.) The court explained that “the
Federal Constitution’s jury-trial guarantee proscribes a
sentencing scheme that allows a judge to impose a sentence
above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.”
(Id. at pp. 274–275.)
In response to Cunningham, the Legislature amended the
Determinate Sentencing Law to eliminate the requirement of
judicial fact-finding to impose a lower or upper term and to grant
judges the discretion to select any term within the statutory
range. (Stats. 2007, ch. 3, § 2.) Thus, when defendant was
sentenced in this case, the trial court had broad discretion to
decide which of the three terms specified for count 3 would best
serve the interests of justice. (See § 1170, subd. (b), as amended
by Stats. 2020, ch. 29, § 14; Cal. Rules of Court, rule 4.420(e).)
In making its selection, the court could consider the
circumstances in aggravation or mitigation (as defined by
rules 4.421 & 4.423) “and any other factor reasonably related to
the sentencing decision.” (Rule 4.420(d).)
Effective January 1, 2022, however, the Legislature
amended the Determinate Sentencing Law again—this time to
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make the middle term of imprisonment the presumptive
sentence. (See § 1170, subd. (b)(2), as amended by Senate Bill
No. 567 (2021–2022 Reg. Sess.), Stats. 2021, ch. 731, § 1.3.)
Under the amended statute, the trial court may impose an upper-
term sentence only where there are aggravating circumstances in
the crime, and the defendant has either stipulated to the facts
underlying those circumstances or the trier of fact has found
them true beyond a reasonable doubt. (§ 1170, subds. (b)(1)–(2),
as amended by Stats. 2021, ch. 731, § 1.3.)5
We “assume, absent evidence to the contrary, that the
Legislature intended an ‘amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337,
341.) “For the purpose of determining the retroactive application
of an amendment to a criminal statute, the finality of a judgment
is extended until the time has passed for petitioning for a writ of
5 As amended, section 1170 provides that a trial court “may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial. Except where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged
offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in
aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has
been a conviction of a felony offense.” (§ 1170, subd. (b)(2), added
by Stats. 2021, ch. 731, § 1.3.)
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certiorari in the United States Supreme Court.” (Id. at pp. 341–
342, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306.)
The parties agree that the amendments to the Determinate
Sentencing Law apply retroactively to defendant because his
conviction was not final when the legislation took effect. (People
v. Flores (2022) 75 Cal.App.5th 495, 500.) The People argue,
however, that remand is unnecessary because the error was
harmless.
2. Remand is not required.
Error in relying on facts not found by the jury to impose an
aggravated term is subject to review under the harmless error
standard of Chapman v. California (1967) 386 U.S. 18, as applied
in Neder v. United States (1999) 527 U.S. 1 and Washington v.
Recuenco (2006) 548 U.S. 212. (People v. Sandoval (2007) 41
Cal.4th 825, 838.) Sandoval, addressing Cunningham error,
instructed us to “determine whether, if the question of the
existence of an aggravating circumstance or circumstances had
been submitted to the jury, the jury’s verdict would have
authorized the upper term sentence.” (Sandoval, at p. 838.)6
6 There is a split of authority concerning whether we must
also determine whether the trial court would have exercised its
discretion to impose the upper term if it had been aware of the
statutory presumption in favor of the middle term. (Compare
People v. Lopez (2022) 78 Cal.App.5th 459, 463, 466–467, fns. 10
& 11 [so holding] with People v. Flores, supra, 75 Cal.App.5th at
pp. 500–501 [where a defendant is entitled to retroactive
application of Senate Bill No. 567, an upper term sentence may
be affirmed as long as it can be determined, beyond a reasonable
doubt, that the jury would have found at least one aggravating
circumstance true beyond a reasonable doubt.].) We need not,
10
“[I]f a reviewing court concludes, beyond a reasonable doubt, that
the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,
the Sixth Amendment error properly may be found harmless.”
(Id. at p. 839; see also People v. Osband (1996) 13 Cal.4th 622,
728 [a single aggravating factor is sufficient to support an upper
term].)7
Here, the court explained the reasons for its sentencing
decisions as follows:
“As far as factors in aggravation and mitigation that the
court considered, pursuant to California Rules of Court 4.421(a),
again, agreeing with the People, the crime involved great violence
and great bodily harm. The defendant was armed with or used a
deadly weapon, in this case, a machete. The victims were all
particularly vulnerable.
and do not, take a position on this question because our
conclusion would be the same under either approach.
7 There is also a split of authority concerning whether we
must “conclude beyond a reasonable doubt that a jury would have
found true beyond a reasonable doubt every factor on which the
court relied, because the amended statute requires that every
factor on which a court intends to rely in imposing an upper term,
with the exception of factors related to a defendant’s prior
conviction(s), have been admitted by the defendant or proven to a
jury [Citation].” (People v. Lopez, supra, 78 Cal.App.5th at p. 466
& fn. 10.) Because, as discussed below, only one aggravating
factor applies to the assault on Rosa, we need not, and do not,
resolve that question.
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“I would also add that I think the manner in which the
crime was carried out did indicate planning and sophistication.
And that is premised on the fact that the video revealed not only
was the defendant armed with a machete, but he evidently went
to retrieve it from his vehicle at least an hour prior to committing
the murder.
“Factors relating [to] the defendant. I would note that this
was a conceptually brutal and heinous, violent murder and
attempt murder and assaults. As far as mitigation, the probation
report notes no factors in mitigation. I disagree. And I would
agree with the People, and the People concede one factor in
mitigation is his lack of criminal record, at least as far as we are
aware of here in the United States.”
Defendant notes that the court did not specify which
aggravating factors applied to which count and argues that most
of the enumerated factors, if applied to count 3, would violate the
dual-use prohibition, under which a “fact that is an element of
the crime upon which punishment is imposed may not be used to
impose a greater term.” (Cal. Rules of Court, rule 4.420(h); see
People v. Scott (1994) 9 Cal.4th 331, 350 [court may not “use a
fact constituting an element of the offense either to aggravate or
to enhance a sentence.”]; People v. Clark (1992) 12 Cal.App.4th
663, 666 [a sentencing factor “is an element of the offense if the
crime as defined by statute cannot be accomplished without
performance of the acts which constitute such factor.”].)
To be sure, assault with a deadly weapon (§ 245,
subd. (a)(1)) cannot be accomplished without using a deadly
weapon. As such, the court could not use that factor—“defendant
was armed with or used a deadly weapon, in this case, a
machete”—to impose the upper term in count 3. Likewise, the
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court concluded that “the crime involved great violence and great
bodily harm”—but that fact was the basis for the great-bodily-
injury enhancement (§ 12022.7, subd. (a)) to count 3, and as such,
could not be used as the basis to impose the upper term. And
although the court held that “the manner in which the crime was
carried out did indicate planning and sophistication,” there is no
evidence in the record to support the conclusion that defendant
set out to attack Rosa. Instead, the evidence established that her
assault occurred only because she was trying to stop defendant
from killing her husband.
Nevertheless, as the People note, there is one enumerated
factor that properly applies to count 3: “The victims were all
particularly vulnerable.” “ ‘As used in the context of
rule 4.421(a)(3), a “particularly vulnerable” victim is one who is
vulnerable “in a special or unusual degree, to an extent greater
than in other cases. Vulnerability means defenseless,
unguarded, unprotected, accessible, assailable, one who is
susceptible to the defendant’s criminal act. . . .” [Citation.]’
[Citation.]” (People v. Esquibel (2008) 166 Cal.App.4th 539, 558.)
In assessing vulnerability under rule 4.421, we consider the “total
milieu in which the commission of the crime occurred,” including
both the personal characteristics of the victim and the setting of
the crime. (People v. Price (1984) 151 Cal.App.3d 803, 814.)
In this case, defendant did not dispute the facts of the
charged crimes below and does not do so on appeal. Nor does he
dispute the general proposition that people are particularly
vulnerable when they are asleep. (People v. Loudermilk (1987)
195 Cal.App.3d 996, 1007; see also People v. Hall (1988) 199
Cal.App.3d 914, 922 [victims were particularly vulnerable
because they were attacked in their own home].) He contends,
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however, that “it is not clear beyond a reasonable doubt that a
jury or court would find Rosa, who was awake and fighting, as
vulnerable in a ‘special or to a[n] unusual degree, to an extent
greater than in other cases.’ [Citation.]” We disagree.
On the night of the attack, Rosa and Javier went to sleep
on a pull-out sofa in the living room. Rosa slept on the left,
hemmed in by the couch on one side and Javier on the other.
She awoke at approximately 1:30 a.m., when defendant barged
into the apartment with a machete. Defendant rushed through
the door, swinging the machete, and attacked Javier within
“a matter of seconds.” Both Rosa and Javier were still in bed
when defendant attacked, and Rosa was still in bed when she
grabbed defendant in an effort to defend her husband. At that
point, defendant hit Rosa with the machete as well. The entire
attack—from the time defendant broke in until the time Erick
dragged him from the apartment by the ankles—lasted 20–25
seconds. Taken together, the undisputed evidence established
that Rosa was assaulted in her bed, less than a minute after
being awakened by the beginning of defendant’s assault. She had
virtually no time to obtain anything to shield herself from the
attack, or to escape the vulnerable position in which she found
herself on the bed.
Rosa’s testimony about the brevity of the attack is
consistent with the timing of the surrounding events. Karla
called 911 at 1:22 a.m. The first police officers arrived at
1:28 a.m. They met defendant at the building’s front gate at 1:30
a.m. During that eight minutes, defendant chased Karla down
the stairs, nearly decapitated her with a machete, headed back
upstairs, broke down the door to Javier and Rosa’s apartment,
attacked Javier and Rosa, was tackled and dragged from the
14
apartment by Erick, and returned to the courtyard to sit on a
bench and wait for the police to arrive.
We conclude beyond a reasonable doubt, that the jury,
applying the beyond a reasonable doubt standard in this case,
unquestionably would have found that Rosa was particularly
vulnerable had that aggravating circumstance been submitted for
it to decide. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed.
HARUTUNIAN, J.*
We Concur:
STRATTON, P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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