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People v. Rodriguez1/20/1999
CERTIFIED FOR PARTIAL PUBLICATION
(San Mateo County Super. Ct. No. SC39477)
PUBLISHED PART
I. INTRODUCTION
Jose Herrera Rodriguez (Rodriguez) was convicted by a jury of auto theft (Veh. Code, § 10851, subd. (a)), assault on a police officer (Pen. Code, § 243, subd. (c)), resisting a police officer (§ 69 ) and driving with a .08 percent or more blood alcohol level (Veh. Code, § 23152, subd. (b)). Rodriguez admitted three prior prison terms and, during a bifurcated proceeding, the jury found two prior strike convictions to be true. Rodriguez was sentenced to three concurrent terms of 25 years to life for the first three counts and three consecutive one-year enhancements for the prior prison terms.
Rodriguez contends the trial court made several errors when instructing the jury which mandate reversal of (1) his conviction for resisting an officer and (2) the finding that Rodriguez's prior conviction for resisting an officer resulting in bodily injury constitutes a "second strike." We hold that the second strike finding must be reversed, but affirm the judgment in all other respects.
II. FACTS
At approximately 5:15 a.m. on September 23, 1996, a South San Francisco police officer, Robert Eastman, was dispatched to the home of Joanna Rodriguez, Rodriguez's wife, in response to a report of domestic disturbance. Ms. Rodriguez appeared upset, reported that Rodriguez had been using drugs for several days, and stated that she felt threatened by him. Eastman checked the area for Rodriguez, but did not find him. Officer Richard Amador responded to another call from the Rodriguez home at approximately 8:00 a.m. Ms. Rodriguez told Amador about Rodriguez's drug "binge," and also reported that Rodriguez entered the house in the middle of the night and was acting very aggressively. Amador had previously dealt with Rodriguez, believed that he presented a threat of violence, and decided Rodriguez should be detained. Amador advised other on duty officers to look for and detain Rodriguez.
At approximately 9:30 a.m., Officer Sam Langi encountered Rodriguez standing on the center island of Airport Boulevard in South San Francisco, talking to passing drivers. When Rodriguez walked to a nearby Shell gas station, Langi approached in his police car and asked Rodriguez what he was doing. Rodriguez responded that he was waiting for a bus to San Francisco, but then got on the bus going southbound, away from San Francisco. Langi used his P.A. system and asked Rodriguez to get off the bus. Rodriguez obeyed, but walked away from Langi and ran behind the gas station. Langi pursued with his sirens activated, found Rodriguez hiding behind a trailer across the street, and told him to stop running. Rodriguez continued to run and evaded Langi. Two other officers arrived. Rodriguez led them on a chase as he, among other things, ran back behind the gas station, attempted to climb a hill, climbed a fence, ran in and out of a bar, and then ran down the street away from the officers. At one point, an officer used his pepper spray to stop Rodriguez, but he continued to evade officers and ran back to the gas station where Thomas Byrum was filling his truck with gas. When Byrum went inside to pay, Rodriguez jumped into the truck and sped away. Rodriguez hit a van and another truck. Police tried to follow, but Rodriguez escaped.
Officers found the stolen truck about ten blocks away from the gas station. A bystander directed officers to a nearby construction site on San Bruno Mountain. Officer Amador, who had previously investigated the call from Rodriguez's wife, also arrived on the scene. Amador chased Rodriguez up San Bruno Mountain and tol
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