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People v. Rodriguez2/8/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury found defendant Israel Isaiah Rodriguez guilty of assault with intent to commit a felony (Pen. Code, § 220) [count 2]), forcible oral copulation (§ 288a, subd. (c)(2) [count 3]), and making a criminal threat (§ 422 [count 4]). The jury deadlocked on count 1, which had charged forcible rape (§ 261, subd. (a)(2)), and the trial court granted the prosecutor's motion to dismiss that count. Defendant was sentenced to six years in state prison. On appeal he contends the trial court erred by failing to give a sua sponte instruction on attempted criminal threat as a lesser included offense to the charge of criminal threat.
I. Facts
On the evening of July 24, 2003, defendant was at a San Jose nightclub with some friends and had agreed to give them a ride home. That night, Jane Doe went to the same club with her friends. While there, she met defendant's friend "Angel," whose real name is Martin Hermosillo. At the end of the evening, Jane Doe was unable to find her friends so she accepted a ride home with Angel; at Angel's request, defendant included her in the group he was driving home. Defendant had been drinking and appeared to be somewhat intoxicated when he began to drive. Angel and Jane Doe kissed in the back seat along the way. At some point, Angel kissed the top of Jane Doe's breast.
After dropping off one of his friends, defendant drove to Angel's house. Deciding she did not want to stay with Angel, Jane Doe asked defendant to take her home. She became uncomfortable when, instead of driving her directly home, defendant parked at the parking lot next to the playground of Arbuckle Elementary School. They were approached there by Officer Steven Spillman almost immediately after defendant parked. Spillman testified this contact took place at 2:51 a.m. on July 25, 2003.
Spillman smelled a strong odor of alcohol when he approached defendant and asked for identification. Defendant told Spillman he had stopped at the school to talk to Jane Doe. When Spillman forbade defendant or Jane Doe to drive because they both had been drinking and had suspended licenses, defendant said he could walk to his friend Angel's house, and Jane Doe said she wished to leave with defendant. Spillman testified Jane Doe did not look scared at the time.
Jane Doe was present when Spillman searched defendant's car. Spillman found no weapons or contraband. After giving defendant two jackets and Jane Doe's purse, Spillman locked defendant's keys in his car and told defendant and Jane Doe that they were free to go. Spillman left the scene at 3:09 a.m.
As defendant and Jane Doe started to walk towards Angel's house, defendant told Jane Doe to jump over a fence surrounding a playground area of the elementary school. When Jane Doe asked why, defendant said it was a "shortcut" to Angel's house. Trusting defendant, Jane Doe jumped over the fence with him. Once they were in the playground area with tanbark on the ground, defendant tried to kiss her, but she moved away. At this point, Jane Doe became "really uncomfortable" and "a little bit scared."
Defendant next grabbed Jane Doe's arms and forcibly pulled her down to the tanbark. With his penis exposed and erect, defendant told Jane Doe that if she did not "suck his dick" he was going to "shoot ." Jane Doe testified that, in response, she "felt threatene
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