Opinion
A164251
03-21-2022
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Kern County Super. Ct. No. MF013128A)
RICHMAN, ACTING P.J.
After an incident in which defendant Richard Rodriguez beat his then girlfriend with two golf clubs while she was asleep, a jury convicted him of torture and domestic violence and he was sentenced to a lengthy prison term. Rodriguez argues that the evidence was insufficient to support the intent element of his torture conviction, that the trial court had a sua sponte duty to instruct the jury on the definition of "cruel or extreme pain and suffering" in the jury instructions on torture, and that convictions for crimes he committed as a juvenile should not have been used to enhance his sentence. We affirm.
BACKGROUND
On July 24, 2019, the Kern County District Attorney filed an amended information charging Rodriguez with torture of Jazmin P. on August 28, 2018 (Pen. Code, § 206) (count 1), domestic violence against Jazmin on August 27-28, 2018 and Desarae B.-C. in March 2017 (§ 273.5, subd. (a)), (counts 2 and 4), and dissuading a witness on August 27-28, 2018 (§ 136.1, subd. (b)(2)) (count 3). With respect to count 1, the information included two enhancements for use of a dangerous weapon (§ 12022, subd. (b)(1)), and an allegation that Rodriguez committed the offense while on bail (§ 12022.1). With respect to count 2, the information included the same enhancements as count 1, with an additional enhancement for inflicting great bodily injury (§ 12022.7, subd. (e)). With respect to count 3, the information again alleged an enhancement based on Rodriguez committing the offense while on bail (§ 12022.1), and with respect to count 4, the information alleged that Rodriguez personally used a dangerous weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (e)). Finally, the information alleged with respect to all four counts that Rodriguez had previously been convicted of two serious or violent offenses-namely, a 2003 conviction for attempted murder that took place in 2001 and a 2001 juvenile adjudication for robbery- (§ 667, subds. (a) & (c)-(j), § 1170.12, subds. (a) - (e)), and with respect to count 2, that he had a 2018 conviction for domestic violence (§ 273.5, subd. (f)(1)).
Further statutory references are to the Penal Code.
The case went to trial in July and August of 2019, where Jazmin testified as follows:
Jazmin was Rodriguez's girlfriend from March of 2017 until September of 2018. On the night of August 27, 2018, Jazmin and Rodriguez got into an argument in the kitchen at his sister's house. Rodriguez was being "belligerent," "calling [her] names," and accusing her of "being a hoe and stuff like that." Because of the argument, Jazmin did not go home with Rodriguez as she would have normally done, but instead ended up falling asleep on the couch.
The next morning, Jazmin was still asleep on the couch when Rodriguez came in looking for his sister, and then left with his sister and his niece. After he left, Jazmin went back to sleep. When Jazmin woke up again, Rodriguez "was just really angry at me and he was hitting me with a golf club." The golf club, which was made of "strong plastic or wood," broke and a piece of it got stuck in Jazmin's hand. Jazmin's dog was next to her on the couch, and she was concerned for his life, because he was little, and Jazmin was concerned that if he was hit with the club he would die. Jazmin blocked the blows from the club with her left hand, which "sustained a lot of the impact." When the first golf club broke, Rodriguez obtained a second club made of metal and continued hitting Jazmin. After the attack ended, Rodriguez walked out. Before he left, Rodriguez told Jazmin" 'that's what you get for being a hoe, '" and" 'you're going to get fucked up every time I see you.' "
After the attack, Jazmin's hand was swollen and she had a piece of the first golf club lodged across her hand, under the skin. She could not feel her hand, her circulation had been cut off, and her hand was turning black, so she removed the piece of golf club herself. A friend helped Jazmin cut off her ring.
Two days later, on August 30, Jazmin became concerned about her circulation and felt her injuries were getting worse, so she went to the hospital. She had extensive bruising along the left side of her body from her shoulder down to her lower leg, numerous photos of which were taken at the hospital and shown to the jury. The bruising lasted about three weeks.
Jazmin was not able to fully use her left hand, and an X-ray revealed that her index finger, two other fingers, and her palm were all fractured. She wore a hand brace for two weeks and her hand healed, except for her pinky finger, which remained "crooked."
Jazmin testified that Rodriguez had been violent with her approximately 10-15 times before the incident. He would get mad and hit her, including one incident in which he gave her a black eye, although "never anything that extensive" and not involving a weapon.
Desarae B.-C. testified that she had a relationship with Rodriguez that ended in March of 2016, but in March of 2017, they were dating again. That month, Rodriguez and Desarae got into an argument in the bedroom at his aunt's house, with his children present. Rodriguez "told his daughter that he was going to whip my ass and she needed to leave." Rodriguez began hitting Desarae, first with his hands and then with a wooden baseball bat on her left arm and left thigh. Desarae had bruising on her thigh and a puncture wound on her arm. Desarae managed to run away but Rodriguez caught up with her in the driveway and continued hitting her with the baseball bat.
After the incident, Desarae could not walk for two weeks, and could not extend her arm for about a week. About a week or a week and a half later, Rodriguez sent Desarae a text message with a picture of the bat with the text "remember this?"
On August 1, 2019, the jury found Rodriguez guilty on counts 1, 2, and 4, and not guilty on count 3. The jury found the dangerous weapon enhancements true with respect to count 1, 2, and 4. The jury also found the great bodily injury enhancement true on count 2, and not true on count 4.
A bench trial followed on the prior conviction and bail allegations, after which the trial court found the bail allegations not true but found all of the prior conviction allegations true.
On September 11, the trial court sentenced Rodriguez to 25 years to life plus 25 years to life plus 13 years, calculated as follows: 25 years to life on count 2, plus two years for the two weapons enhancements (§ 12022, subd. (b)(1)), plus five years for the great bodily injury enhancement (§ 12022.7, subd. (e)) and a further five years for the prior strike (§ 667, subd. (a)(1)); 25 years to life on count 4, plus a one-year weapons enhancement (§ 12022, subd. (b)(1)), to be served consecutively to the sentence on count 1. The trial court exercised its discretion to strike the five-year strike prior enhancement (§ 667, subd. (a)(1)) on count 4. On count 1, the trial court imposed a sentence of 25 years to life, with two one-year weapons enhancements (§ 12022, subd. (b)(1)) and a five-year enhancement for the strike prior (§ 667, subd. (a)(1)), but stayed the sentence on that count pursuant to section 654.
Rodriguez filed a notice of appeal.
This appeal was originally to the Fifth District Court of Appeal with case number F080106. On December 20, 2021, the Chief Justice ordered this appeal transferred to the First District Court of Appeal, where it was assigned case number A164251.
DISCUSSION
Rodriguez argues that (1) substantial evidence does not support the jury's finding that he had the intent to cause cruel or extreme pain and suffering, (2) the trial court had a duty to instruct the jury sua sponte on the definition of "cruel or extreme pain and suffering," and (3) two of his prior convictions could not be used as strikes because the crimes took place when he was 16-years old.
Substantial Evidence Supports the Jury's Torture Verdict Applicable Law
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture." (§ 206.) And so the jury was instructed, pursuant to CALCRIM No. 810:
"The defendant is charged in Count 1 with torture in violation of Penal Code Section 206. To prove that the defendant is guilty of this crime, the People must prove that: [¶] First, the defendant inflicted great bodily injury on someone else; [¶] And, second, when inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, persuasion, or for any sadistic purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. It is not required that a victim actually suffer pain. [¶] Someone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself."
" 'In reviewing the sufficiency of the evidence to support a criminal conviction, we review the record" 'in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.' ([People v.] Pham [(2009)] 180 Cal.App.4th [919, ] 924-925.)" (People v. Sommer (2021) 61 Cal.App.5th 696, 702.)
Analysis
Rodriguez concedes that substantial evidence supports the jury's conclusion that he inflicted great bodily injury on Jazmin, but contends that there was insufficient evidence for the jury to conclude that he "intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." (CALCRIM No. 810.)
First, he argues that Jazmin's "injuries were not sufficiently severe to establish [he] had the specific intent to commit torture," going on to cite several cases finding that the severity of the victim's injuries could support the jury's conclusion that the defendant did have the requisite intent for torture. (See People v. Jung (1999) 71 Cal.App.4th 1036, 1041-1042 [evidence supported intent to torture where defendants burned victim with cigarettes, applied Ben-Gay to his penis, poured alcohol on fresh wounds, and beat, bit, and kicked him]; People v. Hale (1999) 75 Cal.App.4th 94, 106 [evidence supported intent where defendant struck the victim twice with a hammer in the face while she slept]; People v. Pre (2004) 117 Cal.App.4th 413, 422 [evidence supported intent where defendant choked victim to unconsciousness and then nearly bit through her ear].) But obviously this proposition does not apply in reverse. Rodriguez has already conceded that he the jury's finding that he inflicted great bodily injury on Jazmin is supported by substantial evidence. The severity of her injuries does not mean that the jury was prohibited from concluding that he had the intent to cause cruel or extreme pain. As one of the cases cited by Rodriguez explains: "That other victims of torture may have suffered more than the victim in this case sheds no light on the sufficiency of the evidence of defendants' intent to cause [Jazmin] severe pain and suffering." (People v. Jung, supra, 71 Cal.App.4th at p. 1043; People v. Pre, supra, 117 Cal.App.4th at p. 423 ["Other Court of Appeal decisions have similarly found little utility in looking to the facts of other torture cases when faced with assessing the sufficiency of the evidence"].)
Second, Rodriguez relies on four older cases where the defendant was convicted of first-degree murder and our Supreme Court reversed, holding that the evidence was insufficient to support that verdict on the theory that the murder was committed "by means of . . . torture" (§ 189, subd. (a)).
(2) People v. Tubby (1949) 34 Cal.2d 72, where the defendant was drunk and was seen from a distance striking his elderly stepfather with his fist. (Id. at pp. 74-75.) The court found the first-degree murder verdict unsupported by a theory of torture because the "record is devoid of any explanation of why the defendant might have desired his stepfather to suffer" and "[i]t is too apparent to admit of serious doubt that the unprovoked assault was an act of animal fury produced when inhibitions were removed by alcohol." (Id. at. pp. 77-78.) (3) People v. Anderson (1965) 63 Cal.2d 351, where the defendant-who had been drinking-killed the 10-year-old victim by stabbing her some 41 times, including one cut through her tongue and another "from the rectum through the vagina." (Id. at p. 356.) The court found no evidence demonstrating the requisite intent for murder by torture, but rather that "the evidence in the instant case shows only an explosion of violence without the necessary intent that the victim should suffer." (Id. at p. 360.) (4) People v. Steger (1976) 16 Cal.3d 539, where the defendant killed her three-year old stepdaughter by beating her and causing her head injuries. (Id. at p. 543.) After explaining that "murder by means of torture under section 189 is murder committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain" (id. at p. 546), the court concluded that "the evidence shows that defendant severely beat her stepchild. But there is not one shred of evidence to support a finding that she did so with coldblooded intent to inflict extreme and prolonged pain. Rather, the evidence introduced by the People paints defendant as a tormented woman, continually frustrated by her inability to control her stepchild's behavior. The beatings were a misguided, irrational and totally unjustifiable attempt at discipline; but they were not in a criminal sense willful, deliberate, or premeditated." (Id. at p. 548.) The cases are: (1) People v. Bender (1945) 27 Cal.2d 164, where the Supreme Court found that that the mere fact that the victim was struck with a blunt instrument did not support a first-degree murder by torture verdict, adding that "[t]he killer who, heedless of the suffering of his victim, in hot anger and with the specific intent of killing, inflicts the severe pain which may be assumed to attend strangulation, has not in contemplation of the law the same intent as one who strangles with the intention that his victim shall suffer." (Id. at p. 177.)
These cases are all inapposite, first because "[t]he intent required for torture as defined by section 206 is not identical to the intent for murder by torture under section 189. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1206 [premeditation is an element of section 189 but not section 206]; People v. Vital (1996) 45 Cal.App.4th 441, 444 [a premeditated intent to cause pain not a requirement of section 206].)" (People v. Hale, supra, 75 Cal.App.4th at p. 107.) And in these cases-two of which involved drunk defendants-there was no evidence of the defendant's intent, and the necessary premeditated intent to inflict extreme and prolonged pain could not be inferred merely from the nature of the victim's injuries.
Here, there was ample evidence from which the jury could conclude that Rodriguez had the intent to cause cruel or extreme pain and suffering. In particular, the attack was unprovoked, while Jazmin was asleep and therefore vulnerable and defenseless. Rodriguez beat her several times with a golf club, and when that club broke, continued beating her with a second one. The attack caused Jazmin to fear for her dog's life and led her to try to protect her dog with her hand, which sustained severe-and in the case of her pinky finger, permanent-injury. And Rodriguez's own statements after the attack ended-" 'that's what you get for being a hoe, '" and" 'you're going to get fucked up every time I see you' "-support the inference that the attack was revenge or retaliation for her imagined infidelity. All this is substantial evidence in support of the jury's finding that Rodriguez intended to cause cruel or extreme pain or suffering.
Indeed, the facts of People v. Hale, supra, 75 Cal.App.4th 94, are similar to those here. There, the victim was asleep with her three-year old daughter in bed beside her, and woke up to the loud cracking sound of a hammer hitting her face. (Id. at p. 101.) The defendant shouted" 'Die, bitch' and something to the effect of 'That's what you get' or 'You're going to get it.' [The defendant then] struck [the victim] in the face with the hammer a second time." (Ibid.) The Court of Appeal held that substantial evidence supported the intent element of defendant's torture conviction because the defendant "entered [the victim']s bedroom in the middle of the night," "attacked her while she was asleep, with her three-year old daughter in bed beside her," and "struck her once while she slept, and then a second time after she awoke screaming." (Id. at p. 106.) From the fact that defendant attacked the victim "with a hammer at night when she was asleep in bed with her daughter beside her," the jury could infer that he intended her "to suffer cruel physical pain as well as extreme anguish and terror" in the form of "extreme fear for the safety of her daughter" (ibid.), and from his statements along the lines of "that's what you get," the jury could infer the defendant "intended to cause [the victim] to suffer cruel pain for the purpose of revenge." (Id. at p. 107.) So too here. Jazmin was attacked while asleep, in a way that caused her not only extreme physical pain but also fear and terror for the safety of her small dog on the couch beside her.
In short, we easily conclude that substantial evidence supports the jury's torture verdict.
The Trial Court Did Not Have a Duty to Instruct the Jury on the Meaning of Cruel or Extreme Pain Sua Sponte
Rodriguez next argues that the jury instructions on torture was ambiguous, in that "cruel" can mean "bloodthirsty, ferocious, merciless, relentless," and "extreme" can mean "immoderate" and "beyond the ordinary or average," such that "intent to cause cruel or extreme pain and suffering" could mean either "intent to cause bloodthirsty, merciless, or relentless pain and suffering of the outermost degree" or "intent to cause immoderate pain and suffering beyond the ordinary or average." Because of this purported ambiguity, Rodriguez argues that the trial court had a duty to instruct the jury sua sponte that "intent to cause cruel or extreme pain and suffering" meant "intent to cause the utmost, or an exceedingly great degree of pain and suffering." (See People v. Roberge (2003) 29 Cal.4th 979, 988 [duty to instruct sua sponte where "a statutory term 'does not have a plain, unambiguous meaning,' has a 'particular and restricted meaning,' or 'has a technical meaning peculiar to the law or an area of law' "].)
We do not agree that there was any ambiguity requiring a sua sponte clarifying instruction. To begin with, since the instruction refers to cruel or extreme pain, there is no ambiguity introduced by replacing cruel and extreme with their definitions-"cruel or extreme pain" encompasses both. In addition, "cruel" and "extreme" are not words with particular, restricted, or technical meanings-they are ordinary words that the jury is easily equipped to understand. (See People v. Bland (2002) 28 Cal.4th 313, 334 ["A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language"].) They are also the words used in section 206. (See People v. Poggi (1988) 45 Cal.3d 306, 327 ["The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification"].)
In addition, section 206 has repeatedly been upheld against challenges that it is unconstitutionally vague. Thus, for example, People v. Aguilar (1997) 58 Cal.App.4th 1196 (Aguilar), where the court held as follows: "In section 206, the word 'cruel' modifies the phrase 'pain and suffering.' In at least two other cases, courts have held that 'cruel pain' is the equivalent to 'extreme' or 'severe' pain. (People v. James (1987) 196 Cal.App.3d 272, 297; People v. Talamantez (1985) 169 Cal.App.3d 443, 457.) This definition comports with the common dictionary definition of 'cruel' (see Webster's New Internat. Dict. (3d ed. 1965) p. 546 [as an adjective, 'cruel' means 'extreme' or 'severe']), and, in our view, is a reasonable and practical interpretation of that phrase (Williams v. Garcetti [(1993)] 5 Cal.4th [561, ] 568). We therefore conclude that the phrase 'cruel or extreme pain and suffering,' as used in section 206, is not unconstitutionally vague." (Aguilar, supra, 58 Cal.App.4th at p. 1202, fn. omitted.) Other cases are in accord. (See People v. Misa (2006) 140 Cal.App.4th 837, 844 ["We reject his contention that an ordinary person cannot understand what conduct is prohibited by section 206 and thus decline his invitation to hold the statute unconstitutional on this basis"]; People v. Barrera (1993) 14 Cal.App.4th 1555, 1572 ["The terms used in section 206 . . . are of such common usage that they are presumed to be within the understanding of reasonable jurors"].) We conclude that the trial court had no sua sponte duty to clarify the meaning of "cruel or extreme pain and suffering."
Because of our conclusion, we need not reach the Attorney General's argument that Rodriguez waived this argument by failing to raise it below, or Rodriguez's alternative argument that if he did waive the argument, his counsel was ineffective in failing to raise it.
Juvenile Adjudications May Be Used as Strikes Under the Sixth Amendment
Rodriguez's final argument is that his 2001 juvenile adjudication for robbery and his 2003 conviction for an attempted murder that took place in 2001-when he was 16 years old-could not be used as strikes, because doing so violated his right to trial by jury under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). However, as Rodriguez acknowledges, our Supreme Court rejected his argument in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), and that decision binds this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He goes on to argue that Nguyen was wrongly decided in order to preserve his right to review. However, unless and until our Supreme Court does reconsider Nguyen, that authority forecloses Rodriguez's argument here. (See Nguyen, supra, 46 Cal.4th at pp. 1022-1028 [juvenile adjudications may be used as strikes consistent with Apprendi and the Sixth Amendment].)
DISPOSITION
The judgment is affirmed.
We concur: Stewart, J., Miller, J.