People v. Rodriguez

Citation66 Cal.App.4th 157,77 Cal.Rptr.2d 676
Decision Date20 August 1998
Docket NumberNo. B112980,B112980
CourtCalifornia Court of Appeals
Parties, 98 Cal. Daily Op. Serv. 6536, 98 Daily Journal D.A.R. 9025 The PEOPLE, Plaintiff and Respondent, v. Eugenio RODRIGUEZ, Defendant and Appellant.

Ralph H. Goldsen, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Alan D. Tate, Deputy Attorney General for Plaintiff and Respondent.

ZEBROWSKI, Associate Justice.

In this case of first impression, appellant Eugenio Rodriguez (defendant) was convicted of first degree murder. The special circumstance established by Penal Code section 190.2 subdivision (a)(21), 1 intentional murder by discharging a firearm from a vehicle at another person with intent to kill, was also found true. Defendant was consequently sentenced to life without parole (LWOP). On appeal, defendant contends that the special circumstance established by section 190.2(a)(21) is unconstitutional both on its face and as applied "under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment" of the United States Constitution. He contends that the special circumstance finding is therefore invalid, that his LWOP sentence must therefore be vacated, and that he must be resentenced to twenty-five years to life (which would allow the possibility of eventual parole.) We find section 190.2(a)(21) constitutional both on its face and as applied in this particular case, and hence affirm.

I. BACKGROUND.

Defendant and his victim encountered each other late at night in the parking lot of a convenience store. The victim had placed his car in a position blocking or impeding ingress to the parking lot. Defendant, driving a van and attempting to enter the parking lot, took umbrage at the obstacle created by the victim's car. An argument ensued between defendant (sitting in his van) and the victim (on foot outside the van). Evidence was presented that threats (including threats to kill), challenges, profanities, vulgarities, etc., flowed in both directions. After some minutes, the victim broke off the confrontation, entered his car and drove away into an alley behind the convenience store. The alley connected to nearby surface streets, and the victim apparently intended to enter the surface streets from the alley and leave the area. However, instead of allowing the confrontation to end, defendant chose to continue it. He circled his van into the same alley from the opposite direction. The defendant's van and the victim's car met in the alley behind the convenience store. They were observed stopped there for a short period, side by side, facing in opposite directions, driver's window to driver's window. Shots were fired, and defendant then turned off his headlights and drove off at a high rate of speed. The victim had been shot four times, and died soon afterward. Defendant ultimately admitted shooting the victim from defendant's van, which was consistent with the other evidence. Defendant contended that he shot out of fear that the victim was about to shoot him. Defendant claimed that movements by the victim made defendant believe that the victim was reaching for a gun. No gun was found on the victim or in his car, and there was no other evidence that the victim did have a gun (although the victim's car was moved after the shooting by his girlfriend, and it was consequently argued that she could have removed a gun from the car).

The jury instructions allowed the jury to return a verdict of either first degree murder (on grounds of shooting out of a vehicle), second degree murder (on grounds of act dangerous to life), 2 manslaughter (on a sudden quarrel or heat of passion theory, or imperfect self-defense), or an acquittal on grounds of self-defense. The jury rejected defendant's claim of self-defense and convicted him of first degree murder, with the special circumstance finding of intentional murder by shooting out of a vehicle. 3 The people did not seek the death penalty, and defendant consequently received the LWOP sentence now under review.

The pertinent statutory scheme which underlies the instructions and the resulting LWOP sentence is as follows:

Section 189 establishes three categories of first degree murder. 4 It reads: "All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 286, 288, 288a or 289 [certain sex crimes], or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." (Italics added.) Section 189 thus first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill. The jury found first degree murder on this latter basis.

Section 190 specifies three possible penalties for first degree murder: "death, confinement in the state prison for life without the possibility of parole, or confinement in the state prison for a term of 25 years to life." The jury's first degree murder finding thus exposed defendant to one of these three penalties. The sentencing options were reduced from three to two in this case by the special circumstance finding under section 190.2. Section 190.2 lists twenty-one "special circumstances," and provides that "[t]he penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true...." The finding of a special circumstance thus eliminates the possibility of a 25 years to life sentence and leaves only the sentencing options of death or LWOP. Section 190.2(a)(21) defines the special circumstance found true here: "The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death." This special circumstance is defined in the same terms as the third category of first degree murder defined in section 189. Read together, sections 189 and 190.2(a)(21) provide that any intentional murder committed by shooting out of a vehicle is punishable either by death or life without parole, but not by 25 years to life. 5

Defendant initially suggests that section 190.2(a)(21) contains a constitutional infirmity simply because it duplicates the elements which defined defendant's murder as, or "elevated" it to, first degree murder by way of the third category defined in section 189. This suggestion, however, has already been decided to have no merit, and we therefore need not consider it further. (Lowenfield v. Phelps (1988) 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568, reh. den'd 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 [special circumstance of multiple murder may duplicate elements defining defendant's crime as first degree murder]; People v. Edelbacher (1989) 47 Cal.3d 983, 1023 fn. 12, 254 Cal.Rptr. 586, 766 P.2d 1 [rejecting suggestion of similar argument regarding "lying in wait" special circumstance].)

Defendant emphasizes his argument that section 190.2(a)(21) establishes an impermissible basis for death-eligibility. This argument is based on an asserted qualitative distinction between section 190.2(a)(21) and the other twenty special circumstances specified in section 190.2. Defendant argues that all the special circumstances listed in section 190.2--except for the "shooting out of a vehicle" special circumstance--concern situations in which some level of premeditation or prior criminal involvement is inherent. For example, murder for financial gain, murder by explosive, murder of a public official in retaliation for performance of official duties, murder while lying in wait, all types of felony murder, murder by torture or poison, etc., are all argued to require premeditation or prior criminal involvement. Murder by shooting out of a vehicle, however, need not necessarily be the product of premeditation, nor need it involve prior criminal activity of any kind (as felony murder does). Instead such a murder could be the product of sudden and spontaneous rage, occurring without premeditation and not occurring in connection with the commission (or attempt to commit) any felony. 6 Unpremeditated murder resulting from spontaneous rage is normally second degree murder. Nevertheless, when such an unpremeditated murder is perpetrated by shooting out of a vehicle, it is defined by the third category in section 189 as first degree murder, and the penalty is defined by section 190.2 as death or LWOP. Defendant thus argues that the special circumstance defined in section 190.2(a)(21), murder by shooting out of a vehicle with intent to kill, is qualitatively different than the other twenty special circumstances specified in...

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