Opinion
A147602
11-21-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIO RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-151190-6)
A jury convicted Julio Rodriguez of multiple crimes against Jane Doe 1: two counts of kidnapping for the purpose of rape (Pen. Code, § 209, subd. (b)(1)), two counts of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sodomy (§ 286, subd. (c)(2)), forcible sexual penetration (§ 289, subd. (a)(1)(A)), and second degree robbery (§§ 211, 212.5, subd. (c)). The jury also convicted Rodriguez of kidnapping Jane Doe 2 for the purpose of rape (§ 209, subd. (b)(1)) and assault with the intent to commit a felony (§ 220, subd. (a)(1)). Rodriguez appeals from the judgment, arguing (1) evidence of an uncharged offense was erroneously admitted; (2) the evidence was insufficient to support one of his convictions for aggravated kidnapping; (3) the trial court erred by failing to sua sponte instruct a juror to disregard restraints placed upon Rodriguez; (4) ineffective assistance of counsel; (5) cumulative error; and (6) his sentence constitutes cruel and unusual punishment. We affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rodriguez was tried on 10 counts originally set forth in two separate informations. The first information charged Rodriguez with eight counts against Doe 1 (committed on Dec. 27, 2013): two counts of aggravated kidnapping for the purposes of rape and robbery (§ 209, subd. (b)(1); counts one and three respectively), two counts of forcible rape (§ 261, subd. (a)(2); counts two and four), forcible oral copulation (§ 288a, subd. (c)(2); count five), forcible sodomy (§ 286, subd. (c)(2); count six), forcible sexual penetration (§ 289, subd. (a)(1)(A); count seven), and second degree robbery (§§ 211, 212.5, subd. (c); count eight). The information further alleged Rodriguez personally used a deadly and dangerous weapon, a knife, in committing all eight counts (§ 12022, subd. (b)(1)). As to the rape, oral copulation, sodomy, and sexual penetration counts (counts two, four, five, six, and seven), the information alleged Rodriguez kidnapped his victim, and personally used a dangerous and deadly weapon, within the meaning of the "One Strike" law (§ 667.61, subds. (a), (d)(2), (e)(3)).
The One Strike law provides life sentences and mandatory minimums for individuals convicted of certain sex offenses "in particularly blameworthy circumstances." (People v. Cervantes (2017) 9 Cal.App.5th 569, 583, review granted May 17, 2017, S241323; accord, § 667.61.) Specifically, it "mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under one or more 'aggravating circumstances,' such as when the perpetrator kidnaps the victim, commits the sex offense during a burglary, inflicts great bodily injury, uses a deadly weapon, sexually victimizes more than one person, ties or binds the victim, or administers a controlled substance to the victim. [Citations.] The purpose of the One Strike law is 'to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction,' 'where the nature or method of the sex offense "place[d] the victim in a position of elevated vulnerability." ' " (People v. Alvarado (2001) 87 Cal.App.4th 178, 186, italics omitted.)
The second information alleged Rodriguez committed two offenses on October 20, 2014, against Doe 2: kidnapping for the purpose of rape (§ 209, subd. (b)(1)); count nine) and assault with intent to commit rape (§ 220, subd. (a); count ten). The People's motion to consolidate the two informations for trial was initially denied by the trial court because consolidation presented "a high probability of prejudice to the defense" because the Doe 1 case involved "completed assaults and DNA evidence," whereas the Doe 2 case was "not a completed assault" and lacked DNA evidence. However, Rodriguez insisted, over his trial counsel's objection, that the cases be tried together. The trial court reconsidered its ruling and granted the motion. The People apparently prepared an amended information, which renumbered the Doe 2 counts as counts nine and ten and amended count three to allege kidnapping for purposes of rape. A. Prosecution Case
The amended information is not included in the clerk's transcript.
1. Charged Offenses Against Doe 1
Around dusk on December 27, 2013, Doe 1 left her mother's house in San Pablo to visit her friend, Omar, in Richmond. She traveled by bus to the intersection of San Pablo and MacDonald Avenues and then walked along Macdonald Avenue. Near a Target store, Doe 1 turned onto a bicycle trail. She heard footsteps approaching from behind, and a man whom she had never seen before, later identified as Rodriguez, wrapped his arm around her shoulder. He also held a six-inch knife to her side.
Believing she was being robbed, Doe 1 gave Rodriguez her cell phone and her backpack. Rodriguez said, "I don't want to kill you, but I will." He then led Doe 1 to a ditch, 10 to 15 steps away from, and three feet below, the path. She did not scream or resist because she was afraid Rodriguez would kill her. In the ditch, Rodriguez pulled down Doe 1's pants and underwear and raped her. When they heard people approaching from a tunnel near the trail, Rodriguez stopped and Doe 1 pulled up her pants.
Rodriguez then led Doe 1 to the top of a hill, which was more secluded because a few trees blocked the view from the path below. Doe 1 was crying, in shock, and continued to fear Rodriguez would hurt her. Rodriguez told Doe 1 to lay on the ground, on some flattened cardboard, and take her pants off. She complied and one of her shoes fell off in the process. Rodriguez touched her breasts and buttocks. He also put his fingers in her vagina and raped her again. After he ejaculated, Rodriguez took a 20- to 30-minute break, during which he smoked through a glass pipe and drank. He allowed Doe 1 to sit up and offered her his pipe and a drink, which she refused. She cried and begged to leave, but Rodriguez said, "no." Rodriguez then sodomized Doe 1. Rodriguez had not used a condom.
At trial, Doe 1 could not remember if Rodriguez orally copulated her.
Finally, after what seemed like an hour or two, Rodriguez took another "break," smoked from his pipe, and appeared to be high. When Doe 1 again asked if she could leave, he agreed. He did not return her phone or backpack. Doe 1 pulled up her pants, walked to Omar's house, and told Omar she had been raped.
Omar testified that, in December 2013, he had known Doe 1 for about a month. They were close friends and had been dating, but Omar was not her boyfriend. On the night Doe 1 walked to his house, it took longer than he expected for her to arrive. When she did arrive, Doe 1 was "shaken up" and crying. Her cell phone was missing. Consistent with her testimony at trial, Doe 1 told Omar a man approached her on the "BART trail" with a knife, took her to "a little spot," and sexually assaulted her. Omar drove her to the hospital.
Omar had convictions for falsely identifying himself to a police officer and resisting arrest.
Richmond Police Department Officer Garrett Wayne responded to the hospital. Doe 1, who was nervous, frightened, and crying, related a version of events almost identical to her testimony at trial. However, she told Wayne that, on the hill, Rodriguez had also orally copulated her.
A licensed vocational nurse oversaw Doe 1's sexual assault response team exam, in the early hours of December 28, 2013. Swabs were taken from Doe 1's vagina, legs, and rectal area. Doe 1's chest, left leg, and right buttocks were "Wood's Lamp positive" for semen. The nurse also observed that Doe 1 had a six-inch scratch across her chest, the bottom of her foot was dirty, and that her sweatshirt was ripped.
2. Charged Offenses Against Doe 2
On October 20, 2014, around 4:50 p.m., Doe 2 went to Wildcat Canyon in the Richmond hills. She parked near the ranger station and walked on a trail while listening to music through earbuds from her cell phone. After about 10-13 minutes, Doe 2 saw a man she had not previously seen before, but later identified as Rodriguez, walking the opposite direction. She exchanged greetings with Rodriguez as he passed. A few seconds later, Doe 2 realized Rodriguez had changed his direction and started walking her way. She became concerned, as he was also not dressed for exercise. He wore jeans and a gray hooded sweatshirt, with the hood up.
Further up the trail, Doe 2 encountered a woman coming from the opposite direction and walking her dog. The woman mentioned yellow caution tape was placed across the trail ahead. The woman said the trail was fine. By this time, Rodriguez had caught up to Doe 2, joined the conversation, and agreed it was "fine" to go beyond the yellow tape. The woman with the dog continued walking in the opposite direction. Rodriguez lifted the tape for Doe 2 to pass under, and then walked alongside her for about four minutes. He seemed friendly. He asked Doe 2 questions in Spanish, including whether she was married. When asked what kind of music she was listening to, Doe 2 stopped to look at her cellphone. Rodriguez jumped in front of her, grabbed her shoulders, and pulled her away from the trail with both hands. Doe 2 thought Rodriguez wanted to kill or rape her, and began to scream. She asked what he was doing, in Spanish, and he told her to be quiet and that everything would be okay. Doe 2 hit Rodriguez with her cell phone and keys.
Doe 2's testimony is ambiguous. Initially, she testified that Rodriguez "got my phone and my keys," but later she said he did not try to take them.
Rodriguez pulled Doe 2 approximately four to five feet off the trail, into a cutout, and pushed her to the ground toward some bushes. She landed flat on her back. Rodriguez got on top of her, tried to cover her mouth with his hand, as she was crying and screaming loudly for help. Doe 2 attempted to bite his hand, pushed him, and hit his shoulders with her phone and keys. After he gave her another hard push, Rodriguez stood up, put his hood back over his head, and ran up the hill via an unmarked trail. Doe 2 stood up, dialed 911, and ran down the hill to the parking lot. She told police that "someone tried to rape [her] up on the hill."
When police officers arrived, Doe 2 described her assailant as Hispanic, in his mid-20's, about 5 feet 4 inches tall, and weighing 140 pounds. Having grown up in El Salvador, Doe 2 recognized her attacker spoke Spanish with a Central American accent. William Granados, a detective with the East Bay Regional Park District Police, led the investigation and walked the involved trails, with Doe 2, and videotaped the crime scene. East Bay Regional Park District Ranger Neil Tierney, who was familiar with Rodriguez, had seen him walking in the park on the morning of October 20, 2014.
Rodriguez is approximately 5 feet 10 inches tall.
On the morning of October 21, 2014, police officers went to Rodriguez's home, which was less than a five-minute walk, via unmarked trail, from where Doe 2 was attacked. The man who answered the door said he did not think Rodriguez was there. Rodriguez was later arrested after being found in the house, underneath the covers of a bed in a locked bedroom. Officers collected a pair of blue jeans and a gray sweatshirt from a chair in the bedroom. Officers also photographed Rodriguez's hands, which displayed red marks.
A DNA sample was obtained from Rodriguez. The known sample obtained from Rodriguez matched the DNA profile of sperm found on Doe 1's vaginal swab.
3. Uncharged Offenses Against Jane Doe 3
Doe 3 testified that between 5:00 and 5:15 p.m. on a day near the end of January 2014, she was walking on a trail at Wildcat Canyon. About 15 to 20 minutes later, as she was returning to the parking lot, she smelled cigarette smoke, saw someone to the right of the trail, and then, after she passed, heard footsteps racing towards her. Doe 3 felt the sleeves of her sweatshirt and the scarf around her neck being grabbed. The man pulled Doe 3 across the trail, towards a more secluded spot behind the roots of an upended tree. While using her body weight to resist, she screamed very loudly, "Get your hands off me." At that point, the man let go. She ran to the parking lot, where she called 911.
The parties stipulated Doe 3's testimony would be presented via the transcript from her conditional examination.
Doe 3 identified Rodriguez at her conditional examination as possibly being her assailant. Rodriguez later pleaded guilty to false imprisonment of Doe 3 by means of violence, menace, fraud, or deceit. B. Defense Case
Against the advice of counsel, Rodriguez testified in his own defense. He was born in El Salvador and had moved to the United States when he was a teenager. Rodriguez admitted he had sex with Doe 1 on December 27, 2013, in a ditch, in a public place. He said the sex was consensual, and that he had sex with Doe 1 on two or three additional occasions. He denied sodomizing or orally copulating Doe 1, and denied taking her cell phone or backpack.
Rodriguez testified he had known Doe 2 for about 11 years. They had met in the park five or six times. Although he had "[n]ot exactly" had sex with Doe 2, he said Doe 2 claimed Rodriguez was the father of her child. She had asked him for money. He did not intend to rape her. Rodriguez admitted having pleaded guilty to false imprisonment of Doe 3, but said he had not intended to rape her.
On cross-examination, Rodriguez said he had never seen Doe 3 before. Asked whether he had ever claimed Doe 3 was his ex-girlfriend, Rodriguez responded, "We have never talked about boyfriend/girlfriend."
Near the end of Rodriguez's direct examination, defense counsel asked, "is there anything else that I have not asked you that you would like to bring up to the Court's attention?" Rodriguez answered: "Well, lots of things come to mind. But, for example, if [Doe 2], had I attacked her and had thrown her to the ground like she says, she said that she fell backwards on some rocks or stones or something, and she would have been injured on her back." Defense counsel again asked, "Anything else you want to mention?" Rodriguez responded: "[T]he pictures that were shown this morning . . . don't show at all the fact that my hands were all torn up. This whole part of my hands were what was all torn up from working. And she showed this red dot on my left hand. And I remember perfectly that I did have that on me. Because I had been working really hard. I had been digging holes in the ground. And, you know, when I was working with barbed wire, one of the wires got into my hand and . . . the other mark on me, this one right here, I have had since I was a boy."
During cross-examination, the prosecutor asked Rodriguez if he had any idea why, if they had a consensual sexual relationship, Doe 1 would accuse him of forcible sex offenses. Rodriguez answered, "Yes. I do have an idea." The prosecutor did not ask for explanation. Neither did defense counsel on redirect. At the end of Rodriguez's testimony, outside the presence of the jury, the trial court expressed its concern that, although Rodriguez said he had an explanation, neither counsel had followed up. The court asked defense counsel whether Rodriguez desired to provide additional information. Defense counsel told the court that, although he personally was "pretty much satisfied with [Rodriguez's] testimony" and had advised Rodriguez not to retake the stand, Rodriguez wanted to give additional testimony.
The next morning, the trial court granted Rodriguez's motion to reopen and the court asked Rodriguez, "[Doe 1] call[ed] the police in December and reported . . . the events that she testified about here in court and went through a physical exam . . . . And you said you were aware of a reason why she did that. So the question is, [w]hat is your understanding of the reason why that was done?" Rodriguez responded that Doe 1's boyfriend, Omar, had been present near the hill, on December 27, 2013. Omar was holding a machete and yelling, "baby . . . where are you?" Omar also yelled, "I know you are with that . . . Mexican," and threatened to kill Rodriguez. Doe 1 told Rodriguez they could have sex one last time, but that she needed to protect Rodriguez because Omar was very jealous. After they had sex, Doe 1 told Rodriguez she would never see him again. On cross-examination, Rodriguez stated his belief that, despite saying she was trying to protect Rodriguez, Doe 1 concocted her sexual assault story to avoid suspicion from Omar. He did not know why both Doe 2 and Doe 3, who do not know each other, independently accused him of dragging them off a hiking trail. C. Jury Instructions
The trial court instructed the jury, pursuant to CALCRIM No. 375, that it could consider evidence of the uncharged offense (against Doe 3) of unlawful restraint by use of violence or menace, if proved by a preponderance of the evidence, "for the limited purposes of deciding whether or not: [¶] 1. [Rodriguez] intended to kidnap or falsely imprison either [Doe 1] and/or [Doe 2]; [¶] 2. [Rodriguez] knew that his acts were not consented to by [Doe 1] and/or [Doe 2] when he allegedly acted in this case; and [¶] 3. [Rodriguez] had a plan or scheme to commit the offenses charged in this case with regard to [Doe 1] and/or [Doe 2]." The court further instructed: "Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that [Rodriguez] has a bad character or is disposed to commit crime." (Italics added.)
In addition to the charged offenses, the court instructed on the lesser-included crimes of kidnapping (§ 207, subd. (a); CALCRIM No. 1215), felony false imprisonment by violence or menace (§ 237, subd. (a); CALCRIM No. 1240), misdemeanor false imprisonment (§§ 236, 237, subd. (a); CALCRIM No. 1242), and assault (§§ 240, 241; CALCRIM No. 915).
The court also instructed the jury, pursuant to Evidence Code section 1108 and CALCRIM No. 1191B: "If you find beyond a reasonable doubt that [Rodriguez] committed one of the charged crimes, excluding Count Eight [(robbery)], then you may consider the evidence as to that crime in deciding whether [Rodriguez] was disposed to or inclined to commit the other charged offenses except for Count Eight, and based on that decision, also conclude that [Rodriguez] was likely to commit and did in fact commit one or more of the other charged crimes except for Count Eight." (Italics added.) D. Verdict and Sentence
The jury found Rodriguez guilty on all counts. The enhancement allegations were found true. Rodriguez was sentenced to a total term of 57 years to life in state prison. The sentence was composed of a term of 25 years to life for count two, a consecutive term of 25 years to life for count four, and a consecutive term of seven years to life for count nine. The court stayed sentence on the remaining counts under section 654. A timely notice of appeal followed.
II. DISCUSSION
Rodriguez argues (1) evidence of the uncharged offense against Doe 3 was erroneously admitted; (2) the evidence was insufficient to support a conviction for aggravated kidnapping of Doe 2; (3) the trial court erred by failing to sua sponte instruct a juror to disregard Rodriguez's restraints; (4) ineffective assistance of counsel; (5) cumulative error; and (6) his sentence constitutes cruel and unusual punishment. Rodriguez fails to show prejudicial error. A. Admission of Rodriguez's Uncharged Offense Against Doe 3
Rodriguez contends the trial court abused its discretion and deprived him of due process by admitting, over his Evidence Code section 352 objection, evidence of his uncharged offense against Doe 3. The trial court admitted the evidence, pursuant to Evidence Code section 1101, subdivision (b), to show whether Rodriguez "intended to kidnap [either Doe 1 or Doe 2], knew that he was acting without their consent in committing the kidnapping offense, and had a scheme or plan to engage in kidnapping."
"Evidence of prior criminal acts is admissible 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . . ),' but not to prove the defendant carried out the charged crimes in conformity with a character trait. (Evid. Code, § 1101.) 'To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. . . . [¶] . . . [¶] A lesser degree of similarity is required to establish relevance on the issue of common design or plan. . . . [¶] The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant ' "probably harbored the same intent in each instance." [Citations.]' " ' [Citations.] [¶] [H]owever, evidence of uncharged misconduct ' "is so prejudicial that its admission requires extremely careful analysis" ' and to be admissible, such evidence ' "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." ' (People v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute on another ground as stated by People v. Britt (2002) 104 Cal.App.4th 500, 505.) Thus, '[t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion." (People v. Lewis (2001) 25 Cal.4th 610, 636-637.) We will not disturb the lower court's exercise of discretion under Evidence Code section 352 unless that discretion was exercised in an " ' "arbitrary, capricious, patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Jones (1998) 17 Cal.4th 279, 304.)
Rodriguez insists the evidence was irrelevant "or only marginally relevant at best, and its prejudice . . . greatly outweighed any probative value." He maintains: "The only conceivable purpose of introducing evidence of [Rodriguez's] criminal and reprehensible conduct was to show that he was a bad, violent man." We disagree. "No evidence is admissible except relevant evidence." (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.)
Rodriguez does not go beyond conclusory statements to explain why the Doe 3 evidence was irrelevant to intent, knowledge, and common scheme or plan. "Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' " (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics omitted.) It is well established " 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." (People v. Robbins (1988) 45 Cal.3d 867, 879, italics omitted.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (Ewoldt, at p. 402; accord, Estelle v. McGuire (1991) 502 U.S. 62, 69.) "[E]vidence of a defendant's uncharged misconduct is [also] relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. [¶] . . . [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Ewoldt, at pp. 401-403.)
Kidnapping for the purpose of rape requires the prosecution to show special intent to commit rape, an issue on which we agree the Doe 3 evidence is not particularly probative. (CALCRIM No. 1203.) However, the People are also required to prove the defendant "did not actually and reasonably believe that [Doe 1 or Doe 2] consented to the movement." (Ibid.) In order to convict him of any of the lesser included offenses, the People were also required to prove Rodriguez acted with general criminal intent. (CALCRIM Nos. 1215, 1240, 1242, 915, 250.) Here, Rodriguez offered a consent defense (of sorts) to both the Doe 1 and Doe 2 charges. Rodriguez testified Doe 1 consented to sex in the ditch, and thus implicitly suggests he believed she consented to the movement. More ambiguously, Rodriguez testified he had known Doe 2 for years. And, although they had "[n]ot exactly" had sex, Doe 2 claimed Rodriguez was the father of her child and had asked him for money. Thus, the Doe 3 evidence was of particular relevance because it countered the inference that Rodriguez believed both Doe 1 and Doe 2 consented to movement off the trails. The fact that Rodriguez pleaded guilty to false imprisonment of Doe 3 by means of violence, menace, fraud, or deceit, tends to suggest that when he grabbed and moved two other women from public trails, he did not believe they consented to the movement.
We also agree with the trial court that there were sufficient similarities between all three crimes to support an inference that all three resulted from a common design or scheme: Rodriguez targeted adult women, who were walking alone, around dusk, on public trails. In all three instances, he initially approached each woman from behind, and then used physical force to drag them from the trails, into areas of relative seclusion. That Rodriguez only completed sex offenses against Doe 1, when he used a knife, does not diminish the probative value of the Doe 3 evidence. This distinction merely demonstrates the Doe 3 evidence was less inflammatory than the charged offenses.
Rodriguez also suggests the trial court abused its discretion by not finding the probative value of the Doe 3 evidence, relative to the Doe 2 charges, was outweighed by its prejudicial effect. "[T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (People v. Falsetta (1999) 21 Cal.4th 903, 917, italics omitted.)
In assessing prejudice, we must remember that "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' " (People v. Doolin (2009) 45 Cal.4th 390, 439.)
The record demonstrates the trial court considered the relevant Falsetta factors and, after balancing the probative value of the Doe 3 evidence against its potential for prejudice, found the factors in favor of admission to predominate. Rodriguez fails to demonstrate the trial court abused its considerable discretion in admitting the evidence. All three attacks occurred within a year of each other and involved independent victims. The uncharged conduct was extremely similar to the charged conduct. The potential for undue prejudice was also limited by the fact Rodriguez had been convicted and punished for the offense against Doe 3, thus eliminating the possibility jurors would seek to punish him for that offense. (See People v. Christensen (2014) 229 Cal.App.4th 781, 799 [" '[i]f the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses' "]; accord, People v. Merriman (2014) 60 Cal.4th 1, 59.) As noted ante, the Doe 3 evidence was certainly no more inflammatory than the evidence underlying the charged acts. In fact, Rodriguez insisted on consolidation of the Doe 1 and Doe 2 counts. Given the egregious nature of the evidence of Rodriguez's numerous sex offenses against Doe 1, committed under threat of death, we are unpersuaded that any additional prejudice was risked by admitting the comparatively benign Doe 3 evidence.
Because the trial court did not abuse its discretion in admitting the evidence under Evidence Code section 1101, subdivision (b), we do not consider whether, as the People suggest, the trial court also could have properly admitted the evidence under Evidence Code section 1108.
Evidence Code section 1108 "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (People v. Reliford (2003) 29 Cal.4th 1007, 1009.) The trial court rejected the People's argument the Doe 3 evidence was admissible on this basis.
Even if we were to assume the Doe 3 evidence should have been excluded, Rodriguez has not established either prejudicial error, under People v. Watson (1956) 46 Cal.2d 818, 836, or a violation of his federal due process rights—i.e., that admission of the evidence rendered the trial fundamentally unfair. (Estelle v. McGuire, supra, 502 U.S. at pp. 70, 75.) The court instructed the jury, in the language of CALCRIM No. 375, that the Doe 3 evidence could not be considered to prove Rodriguez was a person of bad character or that he had a disposition to commit crime. Juries are presumed to follow the instructions given. (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405, 458-459.) On the other hand, in the absence of the Doe 3 evidence, the jury would nevertheless have been entitled to infer disposition to commit sex offenses if it believed Rodriguez committed the charged offenses against Doe 1. (People v. Reliford, supra, 29 Cal.4th at p. 1009; People v. Villatoro (2012) 54 Cal.4th 1152, 1167 [" 'reasonable' and 'legitimate' inferences [citation] are made no less relevant merely because the evidence is based on charged, rather than uncharged, sex offenses"].) With respect to the Doe 1 counts, the evidence against Rodriguez was overwhelming. Doe 1's testimony was corroborated by DNA and other physical evidence, as well as her consistent statements to Omar and the police. Rodriguez's explanation—that Doe 1 had consensual sex with him in a public ditch and then wanted to protect him, so she lied about it to avoid her boyfriend's suspicion—was contradictory and unconvincing.
Rodriguez presents only a conclusory argument that admission of the Doe 3 evidence was prejudicial (presumably to counts nine and ten). However, he fails to explain how the trial court's decision to admit evidence of the comparatively benign attack on Doe 3 could have had any prejudicial effect beyond that inherent in the Doe 1 evidence. B. Substantial Evidence to Support Aggravated Kidnapping Conviction
With respect to count nine (aggravated kidnapping of Doe 2), Rodriguez challenges the sufficiency of the evidence underlying the asportation element of his conviction. When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417.)
Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) However, "the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the [fact finder]'s resolution . . . ." (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 209, subdivision (b), provides, in relevant part: "(1) Any person who kidnaps or carries away any individual to commit . . . rape . . . shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (Italics added.) Thus, the asportation element of aggravated kidnapping requires movement of the victim that (1) is more than merely incidental to the underlying crime, and (2) increases the risk of physical or psychological harm to the victim beyond that inherent in the underlying crime. (§ 209, subd. (b)(2); People v. Nguyen (2000) 22 Cal.4th 872, 885-886; People v. Martinez (1999) 20 Cal.4th 225, 232-233; People v. Shadden (2001) 93 Cal.App.4th 164, 168.) "These two aspects are not mutually exclusive, but interrelated." (People v. Rayford (1994) 9 Cal.4th 1, 12, disapproved on other grounds by People v. Acosta (2002) 29 Cal.4th 105, 120, fn. 7.)
Rodriguez maintains no substantial evidence supports the jury's implicit findings that the movement of Doe 2 was beyond that merely incidental to rape, and the movement increased the risk of harm to Doe 2 above that necessarily present in any rape, as required under section 209, subdivision (b). He points out Doe 2 testified she was forcibly moved only four or five feet from a trail in a public park, where she was pushed to the ground, towards some bushes, but "not into bushes or behind bushes such that [she] would be concealed or obscured from the adjacent trail." He suggests four to five feet is simply insufficient movement to establish that the movement was beyond that merely incidental to rape.
Many courts have grappled with the asportation element of aggravated kidnapping and attempted to define incidental movement of the victim, with conflicting results. (Compare People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048-1050 and People v. Shadden, supra, 93 Cal.App.4th at p. 169 ["[w]here a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer the movement was neither part of nor necessary to the rape"] with People v. Hoard (2002) 103 Cal.App.4th 599, 606-607 ["incidental and necessary do not mean the same thing"].) "The first prong of the asportation standard, whether the movement is merely incidental to the crime of rape, depends on the scope and nature of the movement. [Citation.] Although actual distance is a factor for consideration, it is not conclusive. [Citations.] Instead, the approach must focus on the 'context of the environment in which the movement occurred.' " (People v. Salazar (1995) 33 Cal.App.4th 341, 346-347; accord, People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152 (Dominguez).) " '[T]here is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.' " (People v. Martinez, supra, 20 Cal.4th at p. 233.) If the movement changes the victim's environment, it does not have to be a great distance to be substantial. (Shadden, at p. 169; see, e.g., People v. Smith (1995) 33 Cal.App.4th 1586, 1593-1594.)
Our Supreme Court, in Dominguez, supra, 39 Cal.4th 1141, clarified the controlling principles. The court observed: "The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] We have articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes. . . . [¶] Measured distance . . . is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment. In some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient. For example, moving robbery victims between six and 30 feet within their home or apartment [citation] or 15 feet from the teller area of a bank to its vault (People v. Washington (2005) 127 Cal.App.4th 290, 299) may be viewed as merely incidental to the commission of the robbery and thus insufficient to satisfy the asportation requirement of aggravated kidnapping. Yet, dragging a store clerk nine feet from the front counter of a store to a small back room for the purpose of raping her (see People v. Shadden, [supra,] 93 Cal.App.4th [at p.] 167) or forcibly moving a robbery victim 40 feet within a parking lot into a car (see People v. Jones (1999) 75 Cal.App.4th 616, 629) might, under the circumstances, substantially increase the risk of harm to the victim and thus satisfy the asportation requirement. These examples are illustrative only; each case must be considered in the context of the totality of its circumstances." (Dominguez, at pp. 1152-1153.)
In Dominguez, the defendant moved the victim, at night, 25 feet from a public road to an orchard, 10 to 12 feet below the road, which "tended to obscure [the] defendant's crime from any onlookers." (Dominguez, supra, 39 Cal.4th at p. 1153.) The court reasoned: "The movement thus changed the victim's environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue. This case is thus unlike the brief and trivial movements of the robbery victims around a room, as in [People v. Daniels (1969)] 71 Cal.2d 1119, . . . movements found to be merely incidental to commission of the offense. [The] defendant's movement of the victim down an embankment and into an orchard cannot be said to have been merely incidental to the rape. [¶] . . . [¶] [A] forced movement need not be into an 'enclosure' to effect a substantial increase in the risk of harm. Moreover, a reasonable jury could have concluded that the place to which the victim was moved was in fact one obscured from public view. Although the Court of Appeal reasoned that there was 'a clear line of sight to the top of the embankment . . . suggesting that anyone standing by the road would have had a clear view of the spot' where the rape occurred, a reasonable jury could have concluded, based on all the evidence, including the time of night and the isolated environment, that any passerby would likely be in a car, not on foot, and would not likely stop to look down the embankment into the orchard." (Dominguez, at pp. 1153-1154.)
Here too, the jury could have reasonably found Rodriguez's movement of Doe 2 was more than merely incidental to the intended rape. A rape could have been committed on the public hiking trail, where Rodriguez grabbed Doe 2. Instead Rodriguez forcibly moved Doe 2 between four and five feet, off the trail, to a cutout, where he threw her to the ground near some bushes. Rodriguez certainly did not move Doe 2 a great distance, but the jury could nonetheless have reasonably found the movement significantly changed Doe 2's environment.
In the first location, Doe 2 was upright, in a place where she would likely have been visible to other users of the surrounding hiking trails. In the second location, she was flat on her back, on the ground, in a place where she was, according to Detective Granados and video from the scene, less visible to other park users. Granados was asked: "[I]f you were back in that cutout, there would be obstructed views of somebody in that cutout from people coming in both directions on the trail as well as people on the walking trail down below?" He answered, "Correct." A video played for the jury also clearly shows that, unlike when standing on the trail, someone on the ground in that cutout area would not be visible to hikers on other trails in the park. Substantial evidence supports the jury's implicit finding that Rodriguez's movement of Doe 2 was not merely incidental to the underlying crime of rape.
Rodriguez's reliance on cases involving movements of short distances for the purpose of robbery does not compel a contrary conclusion. (See, e.g., People v. Williams (2017) 7 Cal.App.5th 644, 670 [movement was merely incidental to robbery because victims were moved to back of store "to achieve [the defendants'] objective of emptying the cages and safes of merchandise without detection by customers or other people outside the store"].) "Kidnapping for the purpose of robbery is not analogous to kidnapping for the purpose of rape. . . . [R]ape victims are more vulnerable to attack and at greater risk when they are concealed from public view." (People v. Robertson (2012) 208 Cal.App.4th 965, 986; accord, Williams, at p. 669.)
Substantial evidence also supports the jury's implicit finding the movement resulted in an increase in the risk of harm to Doe 2. "Any determination of the increase in the risk of harm involves a comparison of the victim's physical location before and after the asportation." (People v. Salazar, supra, 33 Cal.App.4th at p. 348.) "The second prong . . . includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (People v. Rayford, supra, 9 Cal.4th at pp. 13-14.) The increased risk of harm to the victim may be physical, emotional, or psychological. (People v. Power (2008) 159 Cal.App.4th 126, 138; accord, People v. Nguyen, supra, 22 Cal.4th at pp. 885-886.)
Rodriguez maintains his conviction for kidnapping with intent to commit rape must be reversed because the risk of harm to Doe 2 was not "substantially increased." (Italics added.) This test was first articulated in People v. Daniels, supra, 71 Cal.2d 1119, 1139, which provided the movement must "substantially" increase the risk of harm. However, in 1997, the Legislature amended section 209, subdivision (b)(2), and omitted the word "substantially" from the phrase. (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20.) Rodriguez does not explicitly raise any dispute regarding the meaning of the amendment in his opening or reply brief, nor does he challenge the instruction the jury received in this case. Thus, he has forfeited any argument the Legislature did not intend to modify the Daniels asportation standard. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364; Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.)
In relevant part, the jury was instructed, without objection: "As used here, the term substantial distance means more than a slight or trivial distance. The movement must have increased the risk of physical or psychological harm to the person beyond that necessarily present in the crime of rape." (Italics omitted & added.)
In any event, our Supreme Court has recognized repeatedly, albeit in dicta, that the 1997 amendment, "modified the asportation standard by eliminating the requirement that the movement of the victim 'substantially' increase the risk of harm to the victim." (People v. Vines, supra, 51 Cal.4th at p. 870, fn. 20; People v. Martinez, supra, 20 Cal.4th at p. 232, fn. 4 [aggravated kidnapping statute "does not require that the movement 'substantially' increase the risk of harm to the victim"].) Other courts have reached the issue and concluded, as we do here, that the standard applicable to offenses that postdate the amendment is "increase the risk of harm." (See People v. Robertson, supra, 208 Cal.App.4th at p. 978 [§ 209, subd. (b)(2) "does not require the People to prove that the movement substantially increased the risk of harm"].)
Rodriguez insists that, as a matter of law, he could not have increased the risk of harm to Doe 2 by moving her four to feet away from the public trail to another open spot. The People disagree, asserting that Doe 2's forced movement increased the risk of harm by moving her "from a relatively public location to a secluded area." In making this argument, the People misplace their reliance on People v. Vines, supra, 51 Cal.4th 830 and People v. Arias (2011) 193 Cal.App.4th 1428, which both involved much stronger facts. (Vines, at pp. 870-871 & fn. 21 [McDonald's employees forcibly moved 80 to 200 feet, from front counter, through cooking area, to basement via hidden stairwell, and then into a locked freezer]; Arias, at pp. 1434-1435 [upholding simple kidnapping conviction (§ 207) where defendant forcibly moved victim 15 feet from public area to the inside of an apartment].)
Although the People's authority is not precisely on point, we agree the record reasonably supports the conclusion that Doe 2, much like the Dominguez victim, was less visible to others in the park after the forced movement. In asserting "[t]here is no evidence that the location was not visible to any passerby walking on the trail," Rodriguez wholly ignores Granados's testimony. Granados testified that someone standing on the trail, at the point from where Doe 2 was forcibly moved, "could see trails all the way down to [a] parking area" and that someone standing on a trail below would have "a pretty good view" up to where she stood. But, once Doe 2 was moved into the cutout, both people using the trail she had just been on, as well as people walking on the trails below, would have at least partially obstructed views. Rodriguez has presented no reason that Granados's testimony cannot possibly be true. From the pictures and video of the scene, one could reasonably infer Doe 2, on the ground, in the cutout four to five feet away from the trail, would have remained visible to any hiker who happened to pass by the cutout on that particular trail. However, the exhibits and Granado's testimony amply support the inference that Doe 2, once moved, would not have been visible to users of any of the lower trails or users on the same trail who did not happen to pass immediately by the scene. Given that Rodriguez and Doe 2 had walked into a portion of trail that was blocked off by caution tape on either side, it is reasonable to infer that her best chance at getting aid would have been from users on other trails.
Rodriguez also moved Doe 2 to a spot steps away from an unmarked path that gave him an easy escape route to his home. Thus, the forced movement increased Rodriguez's chances of fleeing the scene without being seen by other park users. The jury could have reasonably found the change of environment made an escape by Doe 2 more difficult, decreased the likelihood Rodriguez's crimes would be detected, and enhanced his opportunity to commit additional crimes. It is not dispositive that Doe 2 resisted and was able to successfully thwart the attack before any further injury occurred. The danger does not need to materialize for the risk of harm to increase. (People v. Rayford, supra, 9 Cal.4th at p. 14.)
People v. Stanworth (1974) 11 Cal.3d 588 (Stanworth) and People v. Perkins (2016) 5 Cal.App.5th 454 (Perkins) are distinguishable. In Stanworth, the Supreme Court reversed an aggravated kidnapping conviction based on the defendant having dragged the victim to an open field, in the early evening, 25 feet away from the road. (Stanworth, at p. 597.) Thus, there was "no evidence that the relatively brief movement of the victim . . . removed her from public view or in any other manner substantially increased the risk, beyond that inherent in the underlying crimes, that she would suffer physical harm." (Id. at p. 598, italics added.)
Perkins, supra, 5 Cal.App.5th 454 involved a minor who, during a sexual assault by her stepfather, was moved 10-30 feet, from the bathroom of her private home to a bedroom. (Id. at pp. 459-461.) In concluding insufficient evidence supported the jury's finding the defendant committed aggravated kidnapping, alleged as a One Strike enhancement to the sex crimes, the Perkins court explained: "The evidence does not establish defendant moved [the victim] a substantial distance and in a manner that substantially increased the risk of harm." (Id. at p. 464.) "No evidence showed the doors to either the bathroom or the bedroom were closed during the incidents. There is evidence the bathroom was visible from the living room where [the victim's] sister was sleeping, but there is no evidence the location in the bathroom where the crimes occurred was visible from the living room. . . . [¶] . . . With defendant's significant size, it was unlikely the victim could have escaped from him in either the bathroom or the bedroom. The bedroom, assuming it was larger, may have actually given her more of an opportunity. [¶] There is also insufficient evidence that moving the victim to the bedroom enhanced defendant's opportunity to commit additional crimes. He had the opportunity to commit whatever crime he wanted in both rooms, and he did." (Id. at p. 470, italics added.)
"Since 1997, there is a difference in the asportation standards for the crime of aggravated kidnapping to commit robbery or rape and for aggravated kidnapping alleged as a one-strike enhancement to a sex crime. The former requires a showing that the movement increased the risk of harm to the victim, while the latter requires a showing that the movement substantially increased the risk of harm to the victim." (Perkins, supra, 5 Cal.App.5th at p. 466, fn. 4, italics omitted.)
As we have discussed, after the decision in Stanworth, the Legislature amended the aggravated kidnapping statute to require only that the movement of the victim "increase," rather than "substantially increase," the victim's risk of harm. (See § 209, subd. (b)(2); Dominguez, supra, 39 Cal.4th at p. 1150, fn. 5.) Unlike in Perkins, Rodriguez is not challenging the sufficiency of the evidence underlying a One Strike enhancement for kidnapping a sexual assault victim. More importantly, unlike in Perkins or Stanworth, there is substantial evidence here that the forced movement took Doe 2 from an open, public place to a place partially concealed from view. The evidence is sufficient to support Rodriguez's conviction for aggravated kidnapping. C. Failure to Instruct that Restraints Should Have No Bearing on Defendant's Guilt
Rodriguez also complains, in reliance on People v. Duran (1976) 16 Cal.3d 282 (Duran), of the trial court's failure to instruct Juror No. 43 that Rodriguez's restraints should have no bearing on the determination of his guilt.
On the second day of trial, the trial court noted, on the record outside the presence of the jury, "that perhaps [Juror No. 43] who got here pretty early this morning . . . [m]ay have been present when [Rodriguez] was transported [in restraints]" from the holding area to the courtroom. The court observed that Juror No. 43 had been working on a laptop and may not have noticed Rodriguez at all. Thus, the court proposed to question the juror about whether he had seen Rodriguez in the hallway. If the juror had seen Rodriguez, the trial court would ask, "[W]hat did he see?" The court said that, "if he had seen [Rodriguez] in shackles," it would advise the juror to disregard what he had seen and not to mention it to any other jurors. Defense counsel raised no objection to this approach.
Rodriguez volunteered that Juror No. 1 may have also seen him being escorted to the courtroom. The instructions to Juror No. 1 are not at issue on appeal. --------
The trial court asked Juror No. 43 the following questions:
"THE COURT: . . . I'm wondering whether or not before you right now have seen [Rodriguez] this morning anywhere?
"JUROR NO. 43: I believe I did, yes.
"THE COURT: And when was that[?]
"JUROR NO. 43: It would have been this morning in the hallway. I was out there working before
"THE COURT: And I noticed that you were here and you had a laptop that you were working on.
"JUROR NO. 43: Yes. I'm here every morning working.
"THE COURT: Did you notice anything particular about him?
"JUROR NO. 43: No, I did not. I think he just moved from—I just caught him kind of the corner of my eye. I think he went from this room over to the restroom, I'm guessing. I think he went across hallway escorted obviously.
"THE COURT: Why do you say 'obviously'?
"JUROR NO. 43: I guess I'm assuming he was. I shouldn't have said that. I don't recall if I saw
"THE COURT: Did you notice anything about him being escorted?
"JUROR NO. 43: I did not, no." Rodriguez is correct that, although Juror No. 43 was instructed not to discuss what he saw with other jurors, he was not instructed to disregard Rodriguez's restraints.
It is questionable whether the sua sponte duty has any application to a case, such as this, where a juror merely witnesses the defendant being transported to the courtroom in restraints. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1141 [trial court has no such duty even when restraints visible during transportation].) We need not resolve this issue because nothing in the record affirmatively indicates Rodriguez's restraints were seen by Juror No. 43. Duran only requires such an instruction in cases in which the restraints were visible to the jury. (Duran, supra, 16 Cal.3d at pp. 291-292; People v. McDaniel (2008) 159 Cal.App.4th 736, 744.) "[W]hen the restraints are concealed from the jury's view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided." (Duran, at p. 292, italics added & fn. omitted.) Because Rodriguez did not request the instruction, no error has been shown.
Any error would also be harmless. "[A] jury's brief observations of physical restraints generally have been found nonprejudical." (People v. Slaughter (2002) 27 Cal.4th 1187, 1213; accord, Duran, supra, 16 Cal.3d at p. 287, fn. 2; People v. Rich (1988) 45 Cal.3d 1036, 1084-1085 [defendant not prejudiced when at least one juror saw him escorted to courtroom in restraints].) D. Ineffective Assistance of Counsel
Rodriguez maintains his trial counsel provided ineffective assistance by "prevent[ing]" Rodriguez from testifying fully and completely in his own defense. Specifically, he complains defense counsel thwarted his constitutional right to testify in his own defense, by failing to ask Rodriguez to explain why Doe 1 would falsely accuse him. Rodriguez has failed to meet his burden to show inadequacy of counsel. (People v. Anzalone (2006) 141 Cal.App.4th 380, 394 ["[i]t is the defendant's burden to demonstrate the inadequacy of trial counsel," which "is difficult to carry on direct appeal"].)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to effective assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684-686.) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ledesma, at p. 215.) To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms, and (2) the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland, at pp. 688, 692; Ledesma, at pp. 216-217.) To satisfy the prejudice requirement, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
We may reverse on direct appeal only if " ' "the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Bradford (1997) 14 Cal.4th 1005, 1052.) When the record does not affirmatively disclose as much, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Preliminarily, we note that "[a]lthough tactical decisions at trial are generally counsel's responsibility, the decision whether to testify . . . is made by the defendant after consultation with counsel." (People v. Carter (2005) 36 Cal.4th 1114, 1198.) "A criminal defendant has the right to take the stand even over the objections of his trial counsel." (People v. Johnson (1998) 62 Cal.App.4th 608, 618 (Johnson).) However, "[a] problem arises . . . where the defendant asserts his right to testify and his attorney knows or suspects the defendant will give perjured testimony. A conflict then arises between the defendant's constitutional right to testify (and his Sixth Amendment right to the assistance of counsel) and the attorney's ethical obligation not to present perjured testimony." (Id. at pp. 618-619, fn. omitted.)
The premise of Rodriguez's argument is simply not supported by the record. Rodriguez's trial counsel did not "dictate and control what [Rodriguez] said on the stand." To the contrary, defense counsel asked Rodriguez, twice on direct examination, if there was anything else he wanted to tell the jury. Resolution of defense counsel's conflict by eliciting a defendant's testimony in narrative format, as defense counsel did here, does not constitute ineffective assistance of counsel. (People v. Guzman (1988) 45 Cal.3d 915, 946, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13; Johnson, supra, 62 Cal.App.4th at pp. 625, 629; People v. Gadson (1993) 19 Cal.App.4th 1700, 1710-1711.) We fail to see how defense counsel is to blame for Rodriguez's failure, in response to such open-ended questions, to give his explanation for Doe 1's purportedly false accusations.
Rodriguez insists that the jury might have inferred, from the method of presentation, that defense counsel did not believe Rodriguez's belatedly presented testimony. The Johnson court rejected a similar argument. "[T]he jury may surmise the 'defendant desired to testify unhampered by the traditional question and answer format.' [Citation.] Because the defendant in a criminal trial is not situated the same as other witnesses, it would not be illogical for a jury to assume that special rules apply to his testimony, including a right to testify in a narrative fashion." (Johnson, supra, 62 Cal.App.4th at p. 629.) Moreover, because the record suggests defense counsel had a reasonable tactical purpose for not asking follow up questions on redirect, Rodriguez cannot show ineffective assistance of counsel. E. Cumulative Error
Rodriguez also argues the cumulative effect of trial errors requires reversal of the judgment. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) However, we have rejected all of Rodriguez's arguments on the merits. Any errors identified or assumed, for the sake of argument, were harmless whether considered individually or collectively. F. Cruel and Unusual Punishment
Finally, Rodriguez argues his sentence of 57 years to life in prison amounts to cruel and unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Even if we assume that Rodriguez will not be eligible for parole within his life expectancy, we disagree. "Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Palafox (2014) 231 Cal.App.4th 68, 82.)
The Eighth Amendment contains a " 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11, 20.) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272.) The Eighth Amendment "forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.).) A punishment may violate article I, section 17 of the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) We assess three factors in making this determination: the nature of the offense and the offender, and the degree of danger posed to society; a comparison with sentences for more serious offenses under California law; and a comparison with sentences imposed by other states for the same offense. (Id. at pp. 425-427.)
Rodriguez's sentence was largely determined by his One Strike offenses, which involved the use of a deadly weapon to commit multiple rapes. Specifically, Rodriguez threatened Doe 1 with a knife, moved her from a public place to more secluded areas, and then repeatedly raped her and sodomized her. During the prolonged attack, Doe 1 feared for her life. On a separate occasion, he also attacked and forcibly moved Doe 2, causing her psychological trauma. Rodriguez was 30 years old at the time he committed his offenses. He was on probation for the Doe 3 offense at the time he committed the offense against Doe 2.
Rodriguez makes no attempt to compare his sentence to those imposed for more serious offenses or to argue there is a national consensus against imposing a sentence of 57 years to life in a case where an adult commits several aggravated sex offenses against multiple victims. Instead, he relies on a concurring opinion written by former Supreme Court Justice Stanley Mosk. (See People v. Deloza (1998) 18 Cal.4th 585, 600-601 (conc. opn. of Mosk, J.) [111-year sentence "is impossible for a human being to serve, and therefore violates" the state and federal constitutions; commenting on sentence for armed robbery of multiple victims]; see also People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.) [when a sentence "cannot possibly be completed in the defendant's lifetime, [it] makes a mockery of the law and amounts to cruel or unusual punishment"; commenting on 83-year sentence for burglary and sex offenses on a single occasion].) Rodriguez cites no binding authority supporting his position. In fact, cruel and unusual punishment challenges to the One Strike law have been unsuccessful, under both the Eighth Amendment and the California Constitution. (People v. Alvarado, supra, 87 Cal.App.4th at pp. 199-201 [15 years to life for rape committed during burglary constitutionally permissible]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [25 years to life for rape committed during burglary constitutionally permissible].) Rodriguez's sentence is not grossly disproportionate. Nor does it shock the conscience or offend fundamental notions of human dignity.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.