People v. Rodriguez
| Decision Date | 08 November 1996 |
| Docket Number | No. F021307,F021307 |
| Parties | , 96 Cal. Daily Op. Serv. 8178, 96 Daily Journal D.A.R. 13,563 The PEOPLE, Plaintiff and Respondent, v. Jose Rangel RODRIGUEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson and Karen L. Ziskind, Deputy Attorneys General, for Plaintiff and Respondent.
In this murder case, the trial court falls into the ever too common sinkhole of Wheeler error committed while selecting alternate jurors during the last gasp of more than one month of voir dire proceedings. Under almost any conceivable set of circumstances, unless remedied by a dismissal of the entire jury panel, this slip would be legally unforgivable resulting in per se reversible error. Based on the singular scenario of this case, we conclude the court's error is a "trial error" thereby subjecting its effect to a harmless
error analysis to be applied by the trial court. Whether the conviction is reinstated or a new trial granted depends upon the outcome of a hearing on remand to determine whether the prosecutor had racially neutral reasons for excusing two Hispanic jurors timely challenged by the defense counsel.
Following a preliminary hearing, Jose Rangel Rodriquez (defendant) was charged by information filed December 13, 1989, in the Tulare County Superior Court with four felony counts: murder (PEN.CODE, § 1871, subd. (a)), robbery (§ 211), forcible rape (former § 261, subd. 2), and burglary (§ 459). With respect to the murder count, the information alleged three special circumstances under section 190.2, subdivision (a)(17), each alleging the murder was committed during the commission or attempted commission of the felonies alleged in the other three counts.
On December 14, 1989, defendant appeared for arraignment. Deputy Public Defender Smukler, having represented defendant at his preliminary hearing, was reappointed to represent defendant in superior court. Defendant entered a plea of not guilty on all counts and denied all special circumstance allegations.
On August 6, 1990, defendant filed an in propria persona motion to either substitute private counsel for the public defender's office or to have a "death penalty experienced counsel Spanish speaking" appointed. This was the first of a series of similar motions. All such motions were ultimately denied, and the public defender's office continued to represent defendant through trial.
On November 16, 1990, defendant moved to suppress statements and physical evidence on the grounds the evidence was "the tainted product of unlawful detentions occurring on May 8, 1989, and May 9, 1989, and onward; of warrantless and unlawful searches and seizures occurring on May 8, 1989, and May 9, 1989; of involuntary statements; and of unlawful arrests." This motion was the subject of a five-day hearing, after which Judge Robert C. Van Auken "reluctantly" ruled the motion was meritorious, and ordered certain evidence suppressed. The prosecution sought mandamus relief from this court, and on December 17, 1991, this court granted partial relief, finding some of defendant's statements were admissible, and remanding for a determination whether the deputies who arrested defendant had probable cause to do so. A subsequent hearing before Judge Edward Kim yielded a ruling that the officers did have probable cause to arrest, and thus certain postarrest evidence was admissible. Judge Kim found a later Miranda 2 violation necessitated suppression of some statements and physical evidence. Defendant in turn sought mandamus relief from this court, asserting the trial court had failed to follow our directions. We summarily denied relief on April 9, 1992.
At some point, defendant moved to suppress his confession as involuntary. The motion was heard by Judge Kim on November 8, 1993, and denied.
Jury selection began December 1, 1993, before Judge Kim. On January 10, 1994, a 12-member jury was sworn, and selection of alternates began. The prosecutor exercised a peremptory challenge to excuse one of the potential alternates, and defendant made an immediate Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) concerning the prosecution's exercise of peremptory challenges against both members of the jury and alternates. The court denied the motion regarding selection of the 12-member panel as untimely, but found it both timely and meritorious with respect to the one potential alternate excused. The court refused to dismiss the entire panel and quash the venire, as defendant requested. Instead, it directed the excused panelist be seated if she was still available. The panelist had apparently left, however, and three alternates were selected and sworn from the remaining venire.
Following a lengthy trial, defendant was found guilty on all counts, and the special circumstance allegations were found to be true. At the end of the penalty phase, the jury fixed the sentence on count 1 at life without possibility of parole.
Defendant was sentenced on March 3, 1994. The court imposed life without possibility of parole on count 1, and stayed midterm sentences of four, six and four years, respectively, on the remaining counts, pursuant to section 654.
A timely notice of appeal was filed.
In April 1989, defendant performed yard work for the victim, 62-year-old Josefina Aquino. Before completing the job, defendant requested an additional $20 in payment. Defendant was told no. He did not argue, but completed the work and was paid the agreed upon amount, $100. At a later date, defendant received an additional $20 from the victim to cover charges for dumping the trash.
During the early morning hours of Sunday, May 7, 1989, defendant broke into the victim's mobile home. A neighbor was awakened and heard the words, "money, money, money." The neighbor saw a big shadow resembling a man pushing a woman around. The man was shirtless with straight hair.
Later that morning, Aquino's body was found lying beneath a mattress with her hands tied behind her. A sheet was wrapped several times around her face and there was an apparent blood stain around her mouth. The northeast living room window screen was freshly cut by a sharp object but the glass window was intact.
An autopsy of Aquino revealed she was 4 feet 11 1/2 inches tall, weighed 85 pounds, and had suffered multiple trauma to her face, neck, and shoulders, resulting in abrasions, lacerations, and fractured ribs. The cause of death was suffocation from clothing which had been wrapped tightly around her face and neck, preventing her from breathing, and causing death in about three or four minutes. Aquino also suffered a jagged "hemorrhage" to the outside of her vagina while still alive. Expert testimony indicated a hair removed from the bed sheet was consistent with defendant's pubic hair.
Later on that same day, at about 1:30 p.m., defendant told Francisco Sartiaguin that he had beaten or struck a man. Afterwards, he said it was an older man, then said it was an older woman. Defendant told Sartiaguin he had gone to the woman's mobile home, where he tore out the telephone cord and beat her up to frighten her, then tied her up and took about $200. Although defendant had no money the night before, on Sunday he was able to show Sartiaguin about $200; a $100 bill and some $20 dollar bills. On Monday defendant was upset, telling Sartiaguin the older woman was dead.
On May 9, 1989, defendant was interviewed by Detective Morales and Sergeant Salazar. More than $100 was seized from his person upon his arrest. During the interview, defendant related many of the details of the crime. Defendant indicated he had been drunk and under the influence of marijuana when he went to Aquino's home. He said he went there to collect $20 and she bit him. He struck her in the face several times, struggled with her, and held her in a bear-hug while he guided her around the mobile home looking for money. When she finally told him that approximately $120 was near a chair or sofa in the living room, he tied her hands and covered her face with a sheet. He adamantly denied he had intercourse with her or that she was dead when he left the residence.
On January 10, 1994, 12 jurors were sworn to decide the instant case. During the process of selecting those jurors, prosecutor Richard June exercised peremptory challenges as to two Hispanics, Amelia R. and Donna S. After the jury was sworn, the court went on to select three alternates. Two prospective alternates were called to the box, Dawnell H. and Ermelinda L. (Ms. L.) The prosecutor immediately exercised a peremptory challenge against Ms. L., and defense counsel Ben Smukler (Smukler) promptly asked for a motion to be heard outside the presence of the jury. The jury was excused, and Smukler expressed his desire to bring a Wheeler/Batson motion (People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69). The following exchange then took place:
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