APPEAL from a judgment of the Los Angeles Superior Court, Michael A. Latin, Judge. Affirmed. (Los Angeles County Super. Ct. No. MA038905).
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Cirilo Rodriguez appeals from his convictions of attempted murder and mayhem stemming from an attack on his wife, Sandra Rodriguez. His sole contention on appeal is that the trial court erred by instructing the jury that it could consider his failure to explain or deny incriminating facts. In the published portion of the opinion, we conclude there is no constitutional infirmity in the challenged instruction. In the unpublished portion of the decision we conclude there was a sufficient evidentiary basis to warrant giving the instruction.
FACTUAL AND PROCEDURAL SUMMARY
The victim, Sandra Rodriguez, returned home with her children on the night of April 28, 2005, following a visit with family in Tijuana, Mexico. She found the house in disarray, with the contents of the refrigerator and family photographs on the floor. Flowers were arranged with the photographs as if for an altar or shrine. Appellant was home, but did not know where his car was. Sandra called the police to report the vehicle as stolen. The responding officers advised her to take appellant to the hospital based on his strange behavior. Sandra called her sister to take the children to the sister's house while Sandra took appellant to the hospital.
Appellant convinced Sandra to get some sleep before taking him to the hospital because she was tired. This was around 1:00 a.m. Sandra fell asleep and was awakened about 3:00 a.m. when she felt a presence standing next to her. Appellant said, "'Sandra, I love you very much'" "'but I have to kill you'" and pulled a large knife from behind his back. When appellant made a stabbing motion toward her neck, Sandra grabbed the knife with both hands. As she attempted to get up her lip was cut by the knife appellant held. Sandra screamed and fought with appellant. She got the knife away from him and ran from the house.
Sandra went to several neighbors' homes, knocking on their doors and screaming in an effort to get help. She dropped the knife before getting to the Garay home, the fifth house she tried. Sisters Sandra and Alicia Garay responded to the screams. Sandra Garay called the police and an ambulance while Sandra Rodriguez collapsed, bleeding, on their porch. The victim kept saying that he was "'trying to kill'" her and that "'he was coming for her.'"
In response to Sandra Rodriguez's claim that her assailant was coming after her, Alicia went to a bathroom window that gave her a better view of the front lawn. She saw appellant come onto the lawn a short distance from the victim. Appellant said the victim had problems and he was trying to help her. From their position inside their screened front door, Alicia, her sister Sandra, and their father told appellant to move away from the victim. They said this at least 10 times. Appellant finally moved across the street, but continued to say he was the victim's husband and was there to help her. He had one hand clenched and the other in his pocket. Appellant left and walked off. Later that evening he was arrested a short distance away.
Sandra suffered a cut from her lower lip down her chin. It required seven stitches and left a permanent scar. Her right, dominant hand, suffered cuts to tendons, ligaments, and arteries. After two surgeries, Sandra could not feel her index finger, a permanent injury. At the time of trial, she still suffered pain in her wrist. She had numerous scars on her right hand. Her left hand was also severely cut and scarred, but she did not lose feeling or movement in that hand.
Appellant was charged with premeditated attempted murder, aggravated mayhem, and mayhem. He testified in his own defense that he had been using cocaine and crystal methamphetamine heavily for several months. He said that a stuffed animal on the television told him to cut the victim. A defense psychiatrist testified to the effects of heavy cocaine and methamphetamine use.
The jury found appellant guilty of premeditated attempted murder and mayhem with personal weapon use and infliction of great bodily injury as charged. He was acquitted of aggravated mayhem. Appellant was sentenced to prison for life, consecutive to a term of five years for the enhancements. He filed a timely appeal.
A claim of instructional error is subject to independent review by our court. (People v. Posey (2004) 32 Cal.4th 193, 218.) The challenged instruction, CALCRIM No. 361, reads: "If the defendant failed in [his] testimony to explain or deny evidence against [him], and if [he] could reasonably be expected to have done so based on what [he] knew, you may consider [his] failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a ...