People v. Rodriguez

• Decision Date: 30 July 1998
• Docket Number: No. A077543,A077543
• Citation: 77 Cal.Rptr.2d 279,65 Cal.App.4th 1156
• Parties: Previously published at 65 Cal.App.4th 1156 65 Cal.App.4th 1156, 98 Cal. Daily Op. Serv. 5988, 98 Daily Journal D.A.R. 8297 The PEOPLE, Plaintiff and Respondent, v. Guillermo RODRIGUEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 279

77 Cal.Rptr.2d 279

Previously published at 65 Cal.App.4th 1156

65 Cal.App.4th 1156, 98 Cal. Daily Op. Serv. 5988,

98 Daily Journal D.A.R. 8297

The PEOPLE, Plaintiff and Respondent, v. Guillermo RODRIGUEZ, Defendant and Appellant.

No. A077543.

Court of Appeal, First District, Division 4, California.

July 30, 1998.

Certified for Partial Publication. ^*

Review Granted Nov. 18, 1998.

Clifford Gardner Gardner & Derham, San Francisco, for Defendant and Appellant.

Daniel E. Lungren Attorney General Aileen Bunney Deputy Attorney General, for Plaintiff and Respondent.

HANLON, Presiding Justice.

Guillermo Rodriguez (appellant) was convicted by a jury of aggravated sexual assault upon a child (PEN.CODE , § 269¹, subd. (a)(4)). The jury also found true the enhancement that appellant kidnapped the victim for the purpose of committing the sexual offense (§ 667.8, subd. (b)). On appeal, he contends that the trial court violated his Sixth Amendment right to a jury trial by discharging the sole holdout juror for a not guilty verdict.

He also contends that the trial court committed error in failing to instruct the jury that it could consider evidence of appellant's intoxication as a defense to the section 667.8 kidnapping enhancement and that there is insufficient evidence to support the kidnapping enhancement. We reverse, concluding that appellant's Sixth Amendment right to a unanimous jury was violated and that the trial court committed instructional error.

FACTS

On July 1, 1995, Alfonso C., a seven year old boy, went with his father, brother and sister to watch a soccer game at Crocker-Amazon Park in San Francisco. During the game, Alfonso walked alone to the bathroom. On the way, he encountered appellant. Appellant asked Alfonso if he wanted a dollar. Alfonso replied, "no" and kept walking towards the bathroom. Appellant followed him. When Alfonso was within four and one-half and five feet from the bathroom door, appellant grabbed both of Alfonso's hands and pulled him into the bathroom. Appellant pulled Alfonso into one of the bathroom stalls and locked the door. Alfonso was crying. No one was in the bathroom at the time.

In the bathroom stall, appellant pulled Alfonso's pants down. He picked Alfonso up and placed him on top of the toilet and orally copulated him. He then placed Alfonso back on the floor. Appellant unzipped his pants and placed Alfonso's hand on his erect penis. Appellant shook Alfonso's hand after he placed it on his penis. Alfonso was still crying. He then heard some other men talking in the bathroom. The men started to kick the stall door. Appellant unlocked the stall door. Alfonso ran out of the bathroom, screaming, "help". Appellant pulled his pants back up and also ran out of the bathroom.

Angel Montes was one of the men that was in the bathroom. Montes, Carlos Jacob and two of their friends stopped at the bathroom before leaving the playground. They entered the bathroom and talked about the soccer game. Montes then heard a little boy's voice but could not see him. Montes' friend, Sergio, looked over the top of the adjoining bathroom stall and told Montes that a man was in the stall with a little boy. Jacob then pushed open the stall door. Montes and Jacob saw Alfonso against the stall door while appellant was facing him. Appellant was pulling his pants up. Jacob asked Alfonso if appellant was his father. Alfonso said "no" and ran out of the bathroom. Appellant then ran out of the bathroom, pushing Jacob to the floor. Jacob told Sergio to follow appellant.

Alfonso ran to his father. Montes followed him. Montes told Alfonso's father that something had happened to his son and to follow him back to the bathroom. As they walked towards the bathroom, Alfonso told Montes that "the man want[ed] him to put his thing in his mouth." When they reached the bathroom and found that no one was inside, Montes called the police. Montes then walked to the parking lot area where he saw appellant surrounded by several people.

Police Officer Robert Kaprosch responded to the scene. Appellant was surrounded by 20 to 25 people and had an abrasion on his forehead. Kaprosch saw Alfonso, who was crying, repeatedly point at appellant. The police took Alfonso to San Francisco General Hospital.

Dr. David Bell examined Alfonso. Bell took a swab of Alfonso's penis to test it for saliva. Criminalist Ralph Whitten tested the swab for saliva and found a small amount.

In defense, appellant testified that on the morning of July 1, 1995, he went to the park to watch soccer games. He started to drink beer at about 10 a.m. and consumed about 18 beers that day. He testified that he did not remember seeing Alfonso that day nor did he remember any of the incidents in the bathroom. He did, however, remember being arrested by the police. He had never been arrested prior to that day.

DISCUSSION

I. Discharge of Juror No. 2 ²

Pursuant to section 1089, the trial court may, upon good cause, discharge a juror and replace him with an alternate juror, "[i]f at any time, whether before or after the final submission of the case to the jury, a juror ... is found to be unable to perform his duty...." (See also Code Civ. Proc., § 233.) " '[T]he trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.' " (People v. Collins (1976) 17 Cal.3d 687, 696, 131 Cal.Rptr. 782, 552 P.2d 742; quoting People v. Compton (1971) 6 Cal.3d 55, 60, 98 Cal.Rptr. 217, 490 P.2d 537, fn. omitted.) On appeal, the court's finding that there was good cause to discharge a juror will be upheld if substantial evidence supports it. (People v. Johnson (1993) 6 Cal.4th 1, 21, 23 Cal.Rptr.2d 593, 859 P.2d 673.)

Here, on the fourth day of deliberations, the foreperson of the jury sent a note to the court stating, "[o]ne of our Jurors wishes to quit." Juror No. 2 then sent the following note to the court: "I can't possibly make a decision on whether defendant is guilty or not. [p] The instructions itself [sic] seem impossible to understand taken as a whole. [p] I ask to be excluded in this jury." The jury foreman also sent a note asking to speak to the court about "how to make a [decision] if there is doubt whether or not the defendant is guilty. The law instructions are somewhat very confusing." Finally, the court received a note signed by Jurors Nos. 1, 7, and 11, stating, "I can not continue [deliberating] with a juror that can not follow the law and [instructions] given by the Judge. This is not fair to anyone involved. The juror has stated to us that [Juror No. 2] can not follow the laws or instructions as given to come to a conclusion."

After receiving these notes, the court spoke to Juror No. 2 in chambers. The following colloquy occurred:

"[THE COURT]: Don't tell me any votes on Count 1, any of the vote numbers, okay. Don't tell me any vote numbers right now. I don't want to know the results of the vote numbers at this point. Okay. [p] I just want you to tell me what you mean in your note and why you want to be excluded.

"[JUROR NO. 2]: Well, I--I don't know how to say without telling about the votes.

"[THE COURT]: Tell me generally, if you can.

"[JUROR NO. 2]: I don't know if I can. I mean--

"[THE COURT]: Let me ask you some questions. Maybe I can help you. [p] Obviously, you have taken many votes, I would assume. You have been here for four days, practically--

"[JUROR NO. 2]: The group--

"[THE COURT]: You can tell me how many votes you have taken. How many votes has the group taken?

"[JUROR NO. 2]: How many times we have voted?

"[THE COURT]: Yes.

"[JUROR NO. 2]: Three.

"[THE COURT]: Three times. Okay. [p] Now, is the reason that you feel that you can't work with this jury because you don't agree with them, or is it because you don't understand the process or is it because you don't wish to deliberate any longer? [p] There is no right answer, I want to assure you of that. I just need to know--

"[JUROR NO. 2]: I deliberated. But I feel there is a possibility that the deliberation is not accurate because the instructions are confusing and because I am taking into account some holes in the evidence, some things that don't match. [p] Hum, I suppose other jurors have put aside the holes or the things that don't match and they have voted otherwise. In my case, I can't.

"[THE COURT]: So are you--

"[JUROR NO. 2]: It's either one or zero. [p] But I cannot say, okay, it's probably this. I have to be completely sure.

"[THE COURT]: Are you saying then that you think that there is insufficient evidence for you to vote guilty or not guilty? [p] Is the evidence insufficient for to you make a vote?

"[JUROR NO. 2]: The vote--the evidence is insufficient to prove him guilty.

"[THE COURT]: In your mind.

"[JUROR NO. 2]: In my mind. That leaves you the other choice, which is not guilty."

The court also met with the jury foreperson. After confirming with her that the jury had taken three votes on count 1, the court asked her if they only reached count one. The foreperson confirmed that they had worked only on count one and explained that "[t]here was the concern we had because [Juror No. 2] came into the jury room and [Juror No. 2] came in very confused. And since the very beginning since it [sic] was started deliberating [Juror No. 2] was somewhat not sure whether [Juror No. 2] wanted to be there or not, yet [Juror No. 2] felt that ... by not obeying the law, not obeying your rules, [Juror No. 2] would be in trouble. [p] So [Juror No. 2] decided to proceed with it. And [Juror No. 2] would say, 'but in the police report of this--or "I need this [sic] things", that were irrelevant to the case. [p] [Juror No. 2] wanted records of those things because [Juror No. 2] truly believes the child is lying. Since the very beginning [Juror No. 2] believes that the child--[Juror No. 2] don't give credibility to the...