California Court of Appeal Jul 20, 2015 No. E061774Unpublished
Filed 7/20/15 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061774
v. (Super.Ct.No. RIF1207100)
RAUL ALONSO RODRIGUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed as modified
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Respondent.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent.
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I
INTRODUCTION
Defendant and appellant Raul Alonso Rodriguez appeals from a judgment entered
following jury convictions for engaging in sexual intercourse with a child (Pen. Code,1
§ 288.7, subd. (a); count 1) and commission of a forcible lewd act on a child (§ 288,
whether error has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole.” (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)
Here, the trial court gave modified CALJIC No. 3175 on the aggravated
kidnapping enhancement. The court instructed the jury that, “[t]o prove this allegation,
the People must prove that: [¶] 1. The defendant took, held, or detained [Jane Doe], by
the use of force or by instilling reasonable fear; [¶] 2. Using that force or fear, the
defendant moved [Jane Doe] a substantial distance; [¶] 3. The movement of [Jane Doe]
substantially increased the risk of harm to her beyond that necessarily present in the
Lewd and Lascivious Act by Force” (count 2).
Defendant asserts the trial court erred in omitting the optional bracketed paragraph
4, which states: “[Jane Doe] did not consent to the movement.” (CALCRIM No. 3175.)
Defendant acknowledges the trial court instructed the jury on principles concerning a
child who is incapable of consent. The court gave CALJIC No. 1201, which stated in
part that to prove the defendant is guilty of kidnapping a child, the People must prove, “1.
The defendant used physical force to take and carry away an unresisting child; [¶] 2. The
defendant moved the child a substantial distance; [¶] 3. The defendant moved the child
with an illegal intent or for an illegal purpose; [¶] AND [¶] The child was under 14 years
old at the time of the movement. [¶] . . . [¶] A person is incapable of giving legal consent
if he or she is unable to understand the act, its nature, and possible consequences.”
(CALCRIM No. 1201.)
Defendant argues that, because there was substantial evidence supporting the
consent defense, the trial court erred in failing to instruct that consent was a defense.
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Defendant relies on his own testimony that Jane Doe followed him and voluntarily came
with him into his bedroom. Defendant denied carrying her there. Defendant further
asserts that she was old enough to know where she was going. She was in her family’s
home and had been in defendant’s bedroom before.
The People argue there was no prejudicial error in not instructing on consent
because there was evidence defendant used force and fear, and “the concepts of consent
and force or fear with regard to kidnapping are inextricably intertwined.” (People v.
Majors (2004) 33 Cal.4th 321, 331.) The court in People v. Davis (1995) 10 Cal.4th 463,
517, held that the trial court properly instructed the jury on kidnapping by stating that,
“To consent to an act or transaction a person must, one, act freely and voluntarily and not
under the influence of threats, force or duress.”
Even assuming the trial court erred in omitting the optional paragraph on consent
from the CALCRIM No. 3175 instruction, such omission was harmless error. We
recognize there is disagreement among the courts as to whether consent is an element of
kidnapping or a defense, and whether the Chapman3 or Watson harmless error standard
of review applies. Regardless, we conclude that under either standard, the absence of
instruction on consent was harmless error. (People v. Sengpadychith (2001) 26 Cal.4th
316, 326; People v. Dickey (2005) 35 Cal.4th 884, 905; People v. Corning (1983) 146
Cal.App.3d 83, 89.)
3 Chapman v. California (1967) 386 U.S. 18, 24.
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Here, there was overwhelming evidence that defendant used threats, force and
duress to transport Jane Doe to his bedroom for the purpose of committing a lewd act.
The instructions given as a whole were sufficient in instructing the jury that the
aggravated kidnapping enhancement required a finding that Jane Doe’s movement from
her bedroom to defendant’s bedroom during the kidnapping, was nonconsensual and the
result of defendant using force, fear, or duress. There is no reasonable possibility that the
absence of instruction on consent contributed to the jury finding true the enhancement.
(People v. Archer (2000) 82 Cal.App.4th 1380, 1394.) Such instruction would not have
made any difference in the jury’s finding on the aggravated kidnapping enhancement.
Not only is it highly probable the jury understood a lack of consent was required for the
enhancement but, in addition, as discussed in the preceding section, there was
overwhelming evidence that defendant used force, fear, and duress to move Jane Doe
from her bedroom to his bedroom.
V
ABSTRACT OF JUDGMENT AND MINUTE ORDER CORRECTION
Defendant contends the sentencing minute order and abstract of judgment should
be amended to show that the sentence on count 1 was imposed concurrent, not
consecutive, to count 2. The People agree, as does this court.
During sentencing, the trial court imposed a 25-years-to-life sentence for count 1.
The court ordered the sentence to run concurrent to the sentence for count 2 of life
without the possibility of parole. The minute order and abstract of judgment, however,
state that the trial court ordered the sentence for count 1 to run consecutive to the
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sentence for count 2. The minute order and abstract of judgment must be amended to
correct this clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
VI
PAROLE REVOCATION FINE
Defendant requests this court to strike the parole revocation fine from his sentence
because he was sentenced to a term of life without the possibility of parole. The People
agree, as does this court.
At sentencing, the trial court imposed a $10,000 restitution fined under section
1202.4, subdivision (b), and a $10,000 suspended parole revocation fine under section
1202.45. “A parole revocation fine may not be imposed for a term of life in prison
without possibility of parole, as the statute is expressly inapplicable where there is no
period of parole.” (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) Here, the trial
court improperly imposed the $10,000 suspended parole revocation fine because
defendant was sentenced to life without the possibility of parole for count 2. The fine
must therefore be stricken.
VII
DISPOSITION
The trial court is directed to amend the sentencing minute order dated August 15,
2014, to state that sentencing on count 1 was imposed concurrent to the sentence on
count 2. Also, the parole revocation fine is ordered stricken because defendant was
sentenced to life without the possibility of parole. The judgment is affirmed as modified.
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The trial court is directed to issue a modified abstract of judgment and forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that while the trial court erred in failing to instruct on a lesser included offense and potentially on a consent defense, such errors were harmless given the overwhelming evidence of force and duress. The court also corrected clerical errors in the sentencing minute order and struck an improperly imposed parole revocation fine.
Issues
Did the trial court err by failing to instruct sua sponte on the lesser included offense of nonforcible lewd act?
Did the trial court err by failing to instruct on consent as a defense to the special circumstance kidnapping allegation?
Must the sentencing minute order and abstract of judgment be corrected to reflect a concurrent sentence?
Should the parole revocation fine be stricken for a defendant sentenced to life without the possibility of parole?
Disposition. Affirmed as modified
Quotations verified verbatim against the opinion
“We conclude that any instructional error was harmless error.”
“The failure to instruct sua sponte on a lesser included offense “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.””
“A parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole.”