Filed 9/24/14 P. v. Rodriguez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B250759

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA294419)
         v.

HERIBERTO RODRIGUEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Curtis B. Rappe, Judge. Affirmed.


         Brett H. Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff
and Respondent.
                                ___________________________________
                                   INTRODUCTION
       This appeal arises from a capital murder case. Appellant Heriberto Rodriguez
contends the trial court improperly instructed the jury and erred in imposing victim
restitution on dismissed counts. We find no error and affirm.
                                         FACTS
The Crimes
       Reviewed in accord with the usual standard of review (see, e.g., People v. Brown
(2014) 59 Cal.4th 86, 105-106), the evidence presented at Rodriguez’s trial established
the following facts.
Count 1 (Murder)
       On November 16, 2005, Rodriguez and Christian Perez beat Chadwick Cochran to
death in a communal dining area in the Los Angeles County Men’s Central Jail. All three
were jail inmates at the time. During the course of the 30-minute attack, Rodriguez and
Perez repeatedly beat Cochran with food trays, knocked him to the floor, punched and
kicked him, and jumped onto him from benches in a manner which an inmate witness
described as being like professional wrestling. Rodriguez and Perez also invited other
inmates to join in the beating, which a handful did. When Cochran became unconscious
a number of times during the attack, Rodriguez and Perez got glasses of water and
splashed the water into Cochran’s face to bring him back to awareness before continuing
their assaults. Cochran died from blunt force trauma.
Count 3 (Robbery)
       On July 29, 2004, Rodriguez went to gas station near Sepulveda Boulevard and
Chatsworth Street, pulled out a handgun, and pushed it into the rib cage of the cashier,
Rene Chavez. Rodriguez told Chavez to hand over all of the money he had, and Chavez
complied.
       Rodriguez committed a series of crimes on July 31, 2004, at about 1:30 a.m. They
are listed below chronologically and with reference to the respective counts.




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Count 11 (Attempted Carjacking)
       Rodriguez approached Juan Gomez as he was sitting in his car at a Jack-in-the-
Box restaurant in San Fernando. Rodriguez pulled out a gun and put it on Gomez’s neck
through the open driver’s side window, and said, “You’re going to take me somewhere.”
Rodriguez threatened to kill Gomez if he refused. Gomez nevertheless refused.
Rodriguez kept trying to unlock the doors of Gomez’s car as Gomez kept using a door
lock switch to relock them. Rodriguez and Gomez “kept going back and forth” for a
period of time, until Rodriguez walked to a truck in front of Gomez’s car.
Counts 5 and 7 (Kidnapping During a Carjacking and Robbery)
       Rodriguez next approached John Silva who was sitting in his Chevy S-10 truck.
Rodriguez pointed a gun at Silva, then opened the driver’s door and pushed his way into
the driver’s seat, as Silva moved to the passenger seat. Rodriguez then drove the truck
away.1 At some point, Los Angeles County Police Department Officer Timothy
Wedemeyer and his partner, driving a black and white police car, began a pursuit of the
S-10. Rodriguez drove “fast, recklessly, [and] from side to side . . . .”
Count 4 (Kidnapping During a Carjacking)
       Rodriguez eventually struck Julian Ufano’s car near Fox Street and Laurel Canyon
Boulevard. Ufano initially began to get out of his car, then noticed a police car with its
lights activated, and decided to stay put. As Ufano was settling back in his car,
Rodriguez approached, holding an object that looked like a gun. Rodriguez told Ufano to
move over. Rodriguez got into the car with Ufano, and began driving away. The police
pursued Ufano’s car on surface streets and the freeway.
Count 12 (Felony Evading a Peace Officer)
       The officers continued to pursue Rodriguez after he drove Julian Ufano’s car away
from the area of Fox Street and Laurel Canyon Boulevard. During the pursuit, Rodriguez
drove through stop signs and solid red traffic lights, and led police vehicles onto and off
and onto and off a local freeway. He drove head on at other vehicles, and at different

1     The alleged crimes involving victim John Silva included a count 6 charging the
crime of kidnapping to commit robbery. The jury found Rodriguez not guilty of count 6.

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points during the pursuit, exceeded speeds of 100 miles per hour. He drove eastbound in
the westbound lanes of the freeway. A police helicopter joined the pursuit. Eventually,
the car broke down in a public parking lot at a shopping center. The pursuit covered
upwards of 20 miles over a half-hour period of time. Officers arrested Rodriguez at the
scene where the pursuit ended.
The Criminal Case
       In August 2006, the People filed an information charging Rodriguez with the
offenses summarized above.2 The charges were tried to a jury in spring 2013. The jury
convicted Rodriguez of first degree murder (Pen. Code, § 187, subd. (a)),3 with a special
circumstance finding that the murder was intentional and involved the infliction of
torture. (§ 190.2, subd. (a)(18).) The jury also convicted Rodriguez of two counts of
second degree robbery (§ 211), two counts of kidnapping during a carjacking (§ 209.5,
subd. (a)), one count of attempted carjacking (§§ 664; 215, subd. (a)), and one count of
evading a peace officer with wanton disregard for safety, a felony (Veh. Code, §§ 2800.1,
subd. (a); 2800.2, subd. (a)). In the penalty phase, the jury returned a verdict setting
Rodriguez’s penalty at life without possibility of parole for the first degree special
circumstance murder. The trial court thereafter found that Rodriguez had a prior
conviction with a prison term. (§ 667.5, subd. (b).)
       In early August 2013, the court sentenced Rodriguez to a term of life without
possibility of parole for the first degree special circumstance murder. Further, the court
sentenced Rodriguez to two consecutive terms of life for the two counts of kidnapping
during a carjacking. The court imposed a consecutive determinate term of seven years
six months for the two second degree robberies, the attempted carjacking and the felony


2      Count 2 charged Perez with the murder of Cochran. Rodriguez was tried alone.
Perez was not involved at Rodriguez’s trial; Perez is not involved in Rodriguez’s current
appeal. The information included additional counts upon which the jury did not return
verdicts. Those counts are relevant to Rodriguez’s current appeal only as to a restitution
issue which we discuss below.

3      All further section references are to the Penal Code except as otherwise noted.

                                              4
evading. The court ordered Rodriguez to pay victim restitution to multiple victims of his
crimes, and set a restitution hearing. Rodriguez filed a notice of appeal before the
amounts of restitution were determined.
                                        DISCUSSION
I.       The Special Circumstance Instructional Error Claim
         Rodriguez contends the jury’s special circumstance finding must be reversed
because the trial court erred by instructing the jury with CALCRIM No. 733 [defining the
elements of the murder with torture special circumstance], and not further instructing sua
sponte with CALCRIM No. 702 [defining the mental state required for accomplice
liability when a special circumstance is charged and there is sufficient evidence to show
the defendant may have been an accomplice and not the actual killer]. Rodriguez’s
argument is that the jury may not have understood it had to find that he harbored an intent
to kill to find the special circumstance murder with torture true. We find no instructional
error.
         The information charged Rodriguez with the murder of Chadwick Cochran and
alleged the murder was committed by means involving the infliction of torture, a special
circumstance allegation pursuant to section 190.2, subdivision (a)(2). The trial court
instructed the jury with respect to the substantive offense of murder that a defendant
could be liable by committing an offense as the perpetrator, an aider and abettor, or a co-
conspirator. (See CALCRIM Nos. 400, 401 & 416.) The prosecutor, in turn, argued to
the jurors that if they doubted Rodriguez directly perpetrated the murder of Cochran, they
could still find Rodriguez was guilty of murder as an aider and abettor, or as a co-
conspirator.
         With respect to the degree of the murder, the trial court instructed the jury with
CALCRIM No. 521 that Rodriguez was being prosecuted for first degree murder under
two theories: (1) that the murder was willful, deliberate and premeditated; or (2) the
victim was “murdered by torture.”




                                               5
       The prosecutor argued to the jurors that they could convict Rodriguez of first
degree murder even if they concluded that he did not have the intent to kill Cochran.
Specifically, the prosecutor argued: “Murder by torture. [¶] . . . is the other theory of
first-degree murder. [¶] So willful, deliberate and premeditated with express malice is
one theory. [¶] [Murder by torture] is now a separate theory of first-degree murder.
 [¶] . . . [¶] There is no intent to kill required here. . . . [¶] The first theory that we have
is express malice plus it being willful, deliberate and premeditated. . . . [¶] Express
malice is intent to kill. [¶] Th[e] murder by torture theory of first-degree murder no
intent to kill is required. [¶] So as long as you believe that the elements of murder by
torture have been met . . . [¶] . . . [¶] [n]o intent to kill required.”
       With respect to the special circumstance allegation attached to the murder count,
the trial court instructed the jurors using CALCRIM Nos. 700, 704, 705, 706, and 733.
These instructions told the jury: “If you find the defendant guilty of first degree murder,
you must also decide whether the People have proved that . . . the special circumstance[]
[allegation] is true.” (CALCRIM No. 700, emphasis added.) Also: “In order to prove
the special circumstance[] of [murder involving the infliction of torture], the People must
prove not only that the defendant did the act[] charged, but also that he acted with a
particular intent or mental state. . . .” (CALCRIM No. 705, emphasis added.)
       Pursuant to CALCRIM No. 733, the court further instructed the jury as follows:
               “The defendant is charged with the Special Circumstance of Murder
       Involving the Infliction of Torture in violation of . . . section 190.2(a)(18).
       To prove that this special circumstance is true, the People must prove that:
               “1. The defendant intended to kill Chadwick Cochran;
               “2. The defendant also intended to inflict extreme physical pain and
       suffering on Chadwick Cochran while that person was still alive;
               “3. The defendant intended to inflict such pain and suffering on
       Chadwick Cochran for the calculated purpose of revenge, extortion,
       persuasion, or any other sadistic reason; AND



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              “4. The defendant did an act involving the infliction of extreme
       physical pain and suffering on Chadwick Cochran.” (Emphasis added.)


       In accord with these instructions, the prosecutor argued to the jury:
              “Now, the special circumstance of torture. Now, remember, this is
       different from the theory of first-degree murder of torture. It has slightly
       different elements. [¶] So the first torture that we talked about is one way
       to get to first-degree murder. [¶] Now, once you’ve gotten to first-degree
       murder, either way you get there, whether it’s through torture, murder by
       torture, or that it’s intent to kill, being express malice, and it’s willful,
       deliberate and premeditated, once you have got to first-degree murder
       through one of those theories you must find -- make a finding with regard
       to the special circumstances that is alleged and the special circumstance is
       that the murder was intentional and involved the infliction of torture. [¶]
       So in this instruction for purposes of the special circumstance you must find
       that the defendant intended to kill Mr. Cochran.” (Emphasis added.)

       We disagree with Rodriguez’s proposition that an instructional error is present in a
first degree murder case when it is prosecuted on aiding and abetting, conspiracy, and
murder by torture theories, and only CALCRIM No. 733 is given as to a torture special
circumstance allegation. While it is true that a jury may find first degree murder under a
murder by torture theory without finding an intent to kill, the jury cannot thereafter find a
special circumstance allegation to be true under CALCRIM No. 733 without finding that
the “defendant” had an intent to kill. In other words, a jury possibly can find a murder to
be a first degree murder without determining whether there was an intent to kill. But, to
continue on and find a torture special circumstance allegation to be true, the jury must
then make the determination that the defendant intended to kill.




                                                7
       Rodriguez points out that CALCRIM No. 702 specifically addresses those
situations in which a defendant “is not the actual killer,” and imposes an “intent to kill”
element for such special circumstance findings. That instruction provides, in pertinent
part: “If you decide that (the/a) defendant is guilty of first degree murder but was not the
actual killer, then, when you consider the special circumstance[s] of ______<insert only
special circumstance[s] under Pen. Code, §§ 190.2(a)(2), (3), (4), (5), or (6)>, you must
also decide whether the defendant acted with the intent to kill. [¶] In order to prove
(this/these) special circumstance[s] for a defendant who is not the actual killer but who is
guilty of first degree murder as (an aider and abettor/ [or] a member of a conspiracy), the
People must prove that the defendant acted with the intent to kill.”
       Rodriguez is correct that a torture special circumstance finding in a first degree
murder by torture case requires that a defendant who is liable as an aider or abettor or a
co-conspirator must include a finding that the defendant him or herself personally
harbored an intent to kill the victim. (People v. Pearson (2012) 53 Cal.4th 306, 323.)
It does not follow, however, that the jury was improperly instructed in his case.
       When a reviewing court considers a defendant’s claim that a particular jury
instruction was wrong or misleading, the court must first ascertain what the relevant law
provides, and then determine what meaning the instruction given conveyed; the test is
whether there is a reasonable likelihood that the jurors understood the instruction in the
manner that the defendant argues they may have. (People v. Andrade (2000) 85
Cal.App.4th 579, 585.) A reviewing court determines whether the particular instruction
was misleading in the context of all the instructions as a whole. (People v. Campos
(2007) 156 Cal.App.4th 1228, 1237.) A reviewing court should not find an instruction
was misleading unless there is a reasonable likelihood that the jurors misconstrued or
misapplied its words. (Ibid.)
       The court’s instructions were consistent with the Use Note to CALCRIM No. 702,
which provides that CALCRIM No. 702 is not required when CALCRIM No. 733 is
given. The Use Note states, “[f]or those special circumstances where intent to kill is
required for both the actual killer and the accomplice, this instruction is not required.

                                              8
For those special circumstances, the instruction on the special circumstances states ‘the
defendant intended to kill’ as an element.” CALCRIM No. 733 expressly told the jurors
that the People had to prove that “[t]he defendant intended to kill Chadwick Cochran.”
Rodriguez was the only “defendant” on trial. The instruction plainly told the jurors that
they had to find that Rodriguez intended to kill Cochran before they could return a true
finding as to the special circumstance allegation. The earlier instructions dealing with
theories of guilt for the substantive offense of murder (e.g., CALCRIM Nos. 520 & 521),
namely, aiding and abetting and conspiracy were plainly focused on the substantive
offense of murder.
       Rodriguez asserts the trial court’s aiding and abetting instructions, and conspiracy
instructions, suggested to the jury that the word “defendant” meant, or included within its
meaning, the same thing as “perpetrator.” And, thus, when the jurors considered the
word “defendant” as used in CALCRIM No. 733, they could have been thinking
“perpetrator.” This means, argues Rodriguez, that the jurors may have found the torture
special circumstance allegation to be true based on a finding that Perez was the
perpetrator and harbored the intent to kill, without actually finding that Rodriguez also
harbored the intent to kill. We note Rodriguez did not request a modification to
CALCRIM No. 733, and has forfeited the claim. (People v. Lee (2011) 51 Cal.4th 620,
638.) Even so, we are overwhelmingly satisfied that no reasonable juror would have
thought that, in every instruction given at trial, and in particular in CALCRIM No. 733,
the word “defendant” may have meant “perpetrator.”
       To the extent that Rodriguez argues an error of constitutional magnitude, we are
also not persuaded. Not every ambiguity, inconsistency, or deficiency in a jury
instruction rises to the level of a due process violation. The question is whether the
instruction resulted in a due process violation, which entails a determination whether
there is a likelihood the jury applied the challenged instruction in a way that violated a
defendant’s constitutional due process rights, e.g., by removing the requirement of proof
beyond a reasonable doubt of the elements needed for a particular finding. (See, e.g.,
Middleton v. McNeil (2004) 541 U.S. 433, 437.) We simply do not see that CALCRIM

                                              9
No. 733 removed from the jurors the issue of whether Rodriguez intended to kill the
victim. Instead, CALCRIM No. 733 directly informed the jury it had to find he intended
to kill before the special circumstance could be found true.
II.    The Victim Restitution Error Claim
       Rodriguez contends the trial court erred in imposing victim restitution on the
charges which the jury did not return verdicts. We disagree.
       The jury at Rodriguez’s trial did not return verdicts on three counts. Specifically,
the jury did not return a verdict on count 8 –– alleging an attempted carjacking of Manuel
Canela, or on count 9 ––– alleging a robbery of Manuel Canela, or on a count 10 –––
alleging a robbery of Elbia Canela. As to those counts, the Canelas testified that they
were parked in their car near Brand and Pico in the City of San Fernando, with engine
problems, on July 31, 2004, when a man rode up on a bicycle. The man pulled out a gun
and told Manuel Canela that he (the man) wanted a ride. The man got into the back seat
of the Canelas car, but Manuel could not get the car to start. The man cursed, and
demanded their money. After taking the Canelas’ money, IDs, and cell phones, the man
got back on the bicycle and fled. At trial, Manuel and Elbia both identified Rodriguez in
court; the reason for the jury’s inability to reach a verdict on counts 8, 9, and 10 is not
readily apparent from the record.
       When the trial court sentenced Rodriguez on the counts for which verdicts had
been returned by the jury, a resolution of counts 8, 9, and 10 was reached by agreement
between the court, the prosecutor, and Rodriguez’s defense counsel. Under the terms of
the agreement, counts 8, 9, and 10 were dismissed and Rodriguez agreed that the court
could order restitution to the victims who were involved in the counts. In accord with the
agreement between the court and the parties and their lawyers, the court took a waiver
from Rodriguez, ostensibly pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Under Harvey, a sentencing court retains authority, subject to a defendant’s consent or
waiver, to consider the facts of dismissed counts in ordering victim restitution.
(See People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078.)



                                              10
       The trial court set a hearing for September 13, 2013 to determine the amount of
victim restitution. The record on appeal does not include a reporter’s transcript or minute
order from the hearing on September 13, 2013. Thus, we do not know whether the trial
court ordered Rodriguez to pay restitution to the Canelas.
       On appeal, Rodriguez argues he cannot be held to his agreement to pay restitution.
He argues a Harvey waiver was not applicable because he did not plead guilty to any
offense at the time he agreed to pay restitution to the victims involved in counts 8, 9,
and 10. He argues that, without an underlying conviction by plea agreement to at least
one of the three counts at issue, the court could not order any victim restitution on the
dismissed counts.
       We agree with Rodriguez that his situation did not exactly fit the ordinary Harvey
waiver situation; he was not pleading guilty to one or more counts. We are left to ponder
whether Rodriguez would like us to reinstate the counts and require that he plead to one
of them and then allow the court to impose victim restitution. But we need not do so.
Rodriguez’s arguments do not persuade us that he should be allowed to avoid the bargain
to which he agreed at the time the trial court dismissed counts 8, 9, and 10, regardless of
whether it fit distinctly within the parameters of a Harvey waiver. Rodriguez received a
benefit from the negotiated settlement—three charges against him were dismissed. The
prosecution should likewise receive their bargained for benefit of restitution for the
Canelas. Further, in accord with the invited error doctrine, we find that Rodriguez should
not be allowed to gain a reversal of an order on appeal when the order was entered upon
an agreement that he (by his trial counsel) negotiated with the prosecutor, and which he
requested the trial court implement.
       We do not have to address whether it would be appropriate for a defendant who
was charged with three counts in the first instance to agree to a bargain under which all
three counts would be dismissed in exchange for an order directing payment of victim
restitution to a victim or victims involved in the counts. Where no conviction was
entered in a criminal case, it may or may not be proper to award victim restitution under
the Penal Code. But here Rodriguez was first convicted of multiple counts.

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                                 DISPOSITION
     The judgment is affirmed.




                                               BIGELOW, P.J.
We concur:


                  RUBIN, J.




                  GRIMES, J.




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