Opinion
E064002
02-13-2018
THE PEOPLE, Plaintiff and Respondent, v. EARL EUGENE CANNEDY, JR., Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Seth Friedman, Barry Carlton, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF046350) OPINION APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Seth Friedman, Barry Carlton, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
In April 2006, a jury convicted defendant and appellant Earl Eugene Cannedy, Jr., of three counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code. § 288, subd. (a) ) and one count of dissuading a witness (§ 136.1, subd. (b)(1)). On February 7, 2013, the United States Court of Appeals for the Ninth Circuit granted defendant's habeas corpus petition on grounds of ineffective assistance of counsel. (Cannedy v. Adams (9th Cir. 2013) 706 F.3d 1148.) On June 1, 2015, the Riverside County District Attorney filed a second amended information with the same charging allegations as those which defendant had been convicted of in 2006. On June 17, 2015, a jury returned guilty verdicts on all four counts, and found true the special allegation in two of the section 288 counts, that defendant had engaged in substantial sexual conduct with A.G. (victim) within the meaning of section 1203.066, subdivision (a)(8). The trial court sentenced him to 10 years 8 months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals, contending: (1) the trial court violated his due process rights in excluding evidence of victim's America Online Instant Messenger (AIM) internet account message; (2) the trial court abused its discretion in admitting evidence of defendant's prior uncharged sex offense; (3) the prosecutor committed misconduct during closing argument; (4) the verdict form for count 2 is incorrect; and (5) the trial court erred in denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). The verdict form for count 2 must be corrected; otherwise, we affirm the judgment.
I. PROCEDURAL AND FACTUAL BACKGROUND
Victim's mother and defendant began dating when victim (born in 1990) was about eight years old. Victim testified that the couple married, and defendant provided a stable home and was a father figure in her life. The family lived in Palm Desert and included defendant, victim, her mother, her two younger half sisters, and her younger stepbrother. Victim turned 13 years old in August 2003.
According to victim, one night in December 2003, she and defendant were in the living room watching a movie. Her siblings were asleep, and her mother was at work. Defendant asked victim if she would like her feet rubbed, and she said, "'Yeah, that sounds nice.'" She was lying on the couch with her feet on defendant's lap. During the foot massage, defendant reached up her pajama pants, under her underwear, and began touching her vagina. She got up and went straight to her bedroom. She did not immediately tell anyone about the incident.
A couple of weeks later, still in December 2003, defendant touched victim again. She did not go to school because she was sick. Defendant asked her how she was feeling, and she told him her back hurt. He offered to give her a back rub. Victim could not recall her response; however, defendant gave her a back rub. She was lying on her stomach and defendant was sitting on her legs. He rubbed her back and then began moving his hands lower on her body. He lifted her hips and pulled her pants down and began massaging her bottom. Neither one said anything. Defendant placed his mouth on her vagina from behind. Victim had her face in a pillow and cried. Defendant stopped and apologized, saying he did not know "what got ahold of him," and that "it would never happen again." Victim went to her room. She did not tell anyone about the incident because she believed defendant's promise not to do it again.
The next incident occurred on Christmas morning 2003, when victim and her half sisters woke up and climbed into their parents' bed while they waited to open presents. Victim was facing away from defendant. He reached around her from behind, over the side of her body, and put his hand down her pants. He touched her vagina. She got out of the bed and went to her bedroom. She did not say anything to her mother that day because she did not want to ruin Christmas.
Shortly after Christmas, victim traveled to northern California to visit her biological father and his family. She was gone for approximately one week and returned just before school resumed. In January 2004, victim told her best friend, A.M., about the molestations. She asked A.M. not to tell anyone, but A.M. convinced victim to tell A.M.'s mother, M.M. M.M. convinced victim to talk to her mother. Victim disclosed the incidents to her mother, who left "to go home and talk to [defendant] about it." A couple of hours later, victim's mother returned to M.M.'s house and told victim that defendant was going to be leaving the house for a time, while they "figured out what to do next."
Defendant returned home "a few days to a week later." He apologized for what had happened. He and the mother said they needed to "keep it in the family and not say anything to anyone." During the conversation, defendant told victim that if she were to say anything to anyone else, she would be taken away from her half sisters, would not get to see them again, and would not be with her family anymore. Defendant said that if somebody asked, she should deny anything happened. Defendant said that she would be placed in foster care; he specifically told her not to disclose anything if contacted by Child Protective Services (CPS) or law enforcement.
In addition to A.M. and M.M., victim had reported the abuse to her boyfriend. A.M. and M.M. testified about the details of the disclosure. Denise Bowman, a CPS child forensic interviewer, also testified regarding her interview with victim. Officer Michael Luna of the Riverside County Sheriff's Department testified about his investigation into the allegations. Dr. Jody Ward testified as an expert about Child Sexual Abuse Accommodation Syndrome.
M.M. contacted her brother, a police officer, who testified that he notified the sheriff's department about the allegations.
The prosecution called T.C. and C.B., sisters of victim's mother, to testify about a prior act under Evidence Code section 1108 which had occurred with T.C. in 2000 when T.C. was 17 years old. Victim's mother testified about victim's disclosure and the incident involving T.C.
Defendant called three witnesses: J.C. (victim's friend), B.L. (a friend of defendant's son), and D.K. (defendant's friend and neighbor), to testify that victim had expressed a desire to move in with her biological father in January 2004. Defendant also called CPS Investigator Susan Adams regarding victim's statement about moving in with her biological father.
II. DISCUSSION
A. The Trial Court Properly Excluded Evidence of Victim's AIM Message.
In the federal habeas proceedings that resulted in a reversal of the judgment in defendant's first trial, testimony about an alleged recantation by victim was introduced into evidence. (Cannedy v. Adams, supra, 706 F.3d at p. 1153.) J.C. had logged onto AIM in the second week of February 2004 and stated she saw a message posted on victim's account which read: "'To everyone whos [sic] reading this, the rumors that you've heard are wrong. I just wanted to move to my dads [sic] because everyone hates me, and I don't want to put up with it anymore. Everything you've heard isn't true. I just made it up, so I could get away from it all. I'm living at my dads [sic] where I have friends, and I am very happy. I'm at [A.M.'s house] right now, but I'm only going to be here for a day, so you can reach me at [A.M.'s house] if you want to talk.'" (Id. at pp. 1153-1154.) Because defense counsel for the first trial failed to investigate this information or attempt to admit it, the convictions were reversed. (Id. at pp. 1165-1166.) In the current trial, defense counsel sought to admit evidence of the AIM message; however, the trial court ruled it was inadmissible due to lack of foundation and prejudice under Evidence Code section 352.
Defendant contends the trial court's ruling violated his constitutional right to due process. We disagree.
1. Additional Factual and Procedural Background.
In ruling on the defense motion, the trial court reviewed the August 24, 2009, evidentiary hearing held in the United States District Court for the Central District of California. In that hearing, J.C. testified that in January 2004, victim told her that defendant had molested her. According to J.C., victim was also going through a "pretty bad breakup" with her boyfriend, who was very popular at school, and "she kind of earned a lot of enemies." Victim said that "with everything that was happening . . . she thought it would be best to live with her dad at that time." In the second week of February 2004, J.C. signed onto AIM and clicked on victim's profile. She saw a message stating "she [(victim)] was in the area, and that for everyone who heard about the rumors at school, that they were untrue, and that she was living with her father, and that she was really happy." J.C. was shocked by the message, because victim "had told everyone at school what had happened with her father, and then she posted an Away message saying this."
An "Away message" is a notice used on the internet that a person will be unavailable for a while.
J.C. testified she immediately showed the message to her mother, J.V., a neighbor and best friend of victim's mother. J.V. described the message as having to do with victim "alerting her friends about, if they had heard rumors at school of things that she had said, and she wanted to inform them that it wasn't true, that she was very unhappy, and she wanted to live with her real father and hadn't been able to, and that she was very mad because she felt all her friends hated her, and I guess she felt very unwanted at school, and she just wanted to be with her dad." The two contacted victim's mother, but by the time she was able to come over, the message was gone. No one had printed the message, saved it on the computer, or copied it. "About a day or two later," J.C. wrote down what she had read.
Mark Sullivan, defendant's attorney from the first trial, testified that about three or four weeks before trial, victim's mother and defendant said there was a "rumor" that victim had posted something online which was similar to the statement that J.C. had written. He testified that such evidence would have had "tremendous value" to him, and that he had asked them to get him something more specific, such as a source for the rumors for him to investigate, but they had never been able to supply him with anything. Victim denied ever posting or writing such a statement. Defendant presented no evidence of any attempt to recover the message from America Online, nor was there any evidence that the message was lost or could not be recovered.
The trial court noted that according to J.C. and J.V. (her mother), they had "clicked [victim's] profile to see what her away message said, and she said she was in the area, and that for everyone who heard about the rumors at school, that they were untrue, and that she was living with her father, and that she was really happy." The court went on to state: "Now, I believe also [victim] never admitted to writing that. A copy was never made. Whatever was written on there supposedly these witnesses then wrote on a piece of paper what they believed a day or two later . . . they read, and nothing was ever found on the computers and never any documentation of what the actual AOL message was." The court was concerned that the evidence was misleading because the reference to "rumors" was vague, given the fact that victim was having problems with kids at school. The court further observed there was no evidence that victim made the statement; in fact, she denied making it.
Considering the above, the trial court ruled the evidence of victim's AIM message was inadmissible because there was a lack of foundation as to whether the message actually existed. Additionally, the court found the evidence to be "misleading" because the word "'rumors'" was used, and there was "nothing about the allegations" that victim made. The court noted that victim had issues at school with other kids and "[t]here were rumors about her."
2. Applicable Law.
"A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations]. . . . Although the high court in [Chambers v. Mississippi (1973) 410 U.S. 284] determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question 'the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citation.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on other grounds as stated in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The question of whether the defendant presented an adequate foundation to establish the relevance of the evidence also lies within the trial court's broad discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) "'Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.' [Citation.] But 'exclusion of evidence that produces only speculative inferences is not an abuse of discretion.' [Citation.]" (People v. Cornwell, supra, 37 Cal.4th at p. 81.)
3. Analysis.
Defendant sought to introduce the contents of the alleged AIM message to impeach victim's testimony that defendant had molested her. Such recantation is admissible as a prior inconsistent statement if it was made. (Evid. Code, §§ 770, 1235.) However, because the alleged statement was in writing, defendant had to authenticate it by providing evidence from which a jury could conclude victim actually wrote it. (Evid. Code, § 1401, subds. (a), (b).) "Evidence Code section 1521, subdivision (a), provides that '[t]he content of a writing may be proved by otherwise admissible secondary evidence,' excepting when '[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion' or when '[a]dmission of the secondary evidence would be unfair.' The admission of oral testimony regarding the contents of a writing is specifically governed by section 1523, which provides, in pertinent part, that such testimony is admissible 'if the proponent does not have possession or control of the original or a copy of the writing and . . . . [¶] . . . [n]either the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means. . . .' [Citation.]" (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1068.)
In this case, defendant failed to show that the message was either lost or unavailable within the meaning of Evidence Code section 1523. He presented no evidence of any attempt to contact AOL to see if the message could be retrieved. Rather, he sought to rely on the testimony of two witnesses who claimed that they saw a message from victim and wrote down what they recalled was in the message. However, victim denied writing the message. Also, to assume that the reference to "rumors" was in regard to victim's allegations that defendant had molested her is speculative, at best. J.C. testified that victim had just gone through a bad breakup with her boyfriend who was very popular at school, and that "she kind of earned a lot of enemies." Those "rumors" could have been about her breakup, and not her allegations against defendant.
Moreover, the circumstances surrounding the revelation of the message and its contents are suspect. J.V., victim's mother's best friend, allegedly had told victim's mother about the AIM message in February 2004; however, victim's mother mentioned it to defendant's attorney only three to four weeks prior to the first trial, and neither she nor defendant followed up with providing defense counsel with more information. Additionally, J.V. and J.C. provided different recollections regarding the contents of the message. J.C. testified that the message conveyed that rumors at school were untrue, that victim was living with her father and was very happy. In contrast, J.V. testified the message said that victim was "very unhappy"; she wanted to live with her real father and had not been able to; she was very mad that her friends hated her, "felt very unwanted at school," and that she just "wanted to be with her dad." Because evidence of the contents of the AIM message was secondary and inconsistent, authentication was imperative. The trial court did not abuse its discretion in refusing to allow testimony about its contents.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Defendant's Prior Uncharged Sex Offense Involving T.C.
Defendant contends the trial court erred in admitting evidence that he had been convicted of molesting victim's 17-year-old aunt, T.C., because that conviction was based in part on defendant's prior conviction (involving victim) which was subsequently vacated by the federal court on habeas. Defendant further faults the prosecutor for using the fact that he was convicted in the case involving T.C. to argue that T.C. was telling the truth.
1. Additional Factual and Procedural Background.
Prior to trial, the prosecution moved to admit evidence of defendant's prior sexual offense involving T.C. under Evidence Code section 1108. Defense counsel objected on the grounds that the conviction in T.C.'s case was "attained by bringing [victim] to testify against [defendant] when he had just been convicted by the conduct in her case." At the conclusion of the pretrial hearing, the court granted the prosecution's motion. The court found: (1) the prior sexual assault was similar to the charged assault; (2) the prior sexual assault was not remote having occurred in 2000; (3) there was a high degree of certainty as to defendant having committed the prior sexual assault because he was convicted of the charge; and (4) there was no risk that introduction of the evidence would turn into a "mini trial." While concerned about the prejudicial effect of the evidence, the court found that the probative value is outweighed by the prejudicial effect.
At trial, T.C. testified that when she was in the 11th grade and was spending Christmas break with her sister (victim's mother) and defendant, defendant had taught her to "guzzle" vodka. She lost consciousness at one point, and when she regained it, she was lying on a bed and defendant was in the room. He was saying how he liked to "do oral sex on female body parts." He "complimented [her] vagina" and showed her a dildo. He licked her genitalia and inserted the dildo. Victim's mother walked into the room and screamed at T.C., demanding to know how she could do such a thing to her family.
When victim's mother testified, she denied that defendant had done anything to T.C. Rather, victim's mother claimed that T.C., after openly masturbating, had come on to defendant and had to be removed from the house.
In rebuttal, the prosecutor called C.B., another sister of victim's mother, who testified that on the night of the incident involving T.C., victim's mother called her. Victim's mother was highly upset, gasping for air, when she told C.B. that defendant had been having oral sex with T.C. Victim's mother demanded that C.B. come by to pick up the "'little lolita.'" Later, in person, victim's mother told C.B. that she had gone searching through the house for defendant and had found him under the covers with T.C. She pulled back the blanket and pulled him off her. Defendant responded by going to the bar, getting another shot; then he "went back into the room."
T.C. did not report the incident for several months, as she was afraid of breaking up the family. She also did not want to remember the "image of a 40-year-old man on [her]." She began failing classes at school and getting into trouble. Eventually, C.B. told their parents what had happened, and they reported it.
2. Applicable Law.
Evidence Code section 1108 allows the admission of evidence of a defendant's commission of another sexual offense subject to the weighing process of Evidence Code section 352. Under that weighing process, the court considers, among other factors, "(1) whether the propensity evidence has probative value, e. g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.]" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.) We review the trial court's ruling to admit evidence pursuant to an Evidence Code section 352 analysis under the deferential abuse of discretion standard. (People v. Jenkins (2000) 22 Cal.4th 900, 1008.)
3. Analysis.
Applying the above standard, we conclude the trial court did not abuse its discretion in admitting defendant's prior offense involving T.C. It occurred approximately three years prior to defendant's current offense; it was no more inflammatory than the act committed against victim, and minimal time was spent proving it. Nonetheless, defendant contends that "through an unusual procedural twist of fate," his convictions in the case involving T.C. and the case involving victim were "improperly bootstrapped" to his initial conviction (for sexually molesting victim), which was reversed. However, the reason that his initial conviction for molesting victim was reversed was due to ineffective assistance of counsel, not insufficient evidence. Contrary to defendant's claim, the prosecutor did not "urge[] the jury to use the fact of conviction to improperly shortcut their obligation to evaluate [T.C.'s] and [C.B.'s] credibility based on the testimony at trial." The prosecutor referenced T.C's. testimony and argued propensity, i.e., that defendant had done the same thing to her. She maintained that defendant's conduct towards both girls was "very similar" and that in the case involving T.C., the jury found proof of defendant's guilt "beyond a reasonable doubt." The prosecutor's argument that T.C. was molested by defendant was proper; he did not address T.C.'s or C.B.'s credibility. (People v. Wesson (2006) 138 Cal.App.4th 959, 967-968 [upholding the admission of the official record of the defendant's prior conviction of a sexual offense under Evidence Code section 1108].)
Defendant was originally convicted on April 28, 2005, of sexually molesting victim. (People v. Earl Eugene Cannedy, Jr. (June 12, 2007, E040379, E042488) [nonpub. opn.].) Later, during his trial for sexually molesting T.C., victim testified about her (victim's) allegations against defendant pursuant to Evidence Code section 1108. The jury was told that defendant had been charged and convicted of his acts against victim. (People v. Earl Eugene Cannedy, Jr. (Feb. 26, 2009, E044512) [nonpub. opn.].) We take judicial notice of our prior opinions. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) In 2013, defendant's conviction for sexually molesting victim was reversed in federal habeas proceedings. (Cannedy v. Adams, supra, 706 F.3d 1148, 1151.)
The People also request that we take judicial notice of Cannedy v. Cate (C.D.Cal. Nov. 10, 2010, No. ED CV 10734CJC(E)) 2010 U.S. Dist. LEXIS 138148, and Cannedy v. Cate (C.D.Cal. Dec. 27, 2010, No. ED CV 10734CJC(E)) 2010 U.S. Dist. LEXIS 138657.
C. There Was No Prosecutorial Misconduct During Closing Argument.
Prosecutorial misconduct will be found where the prosecutor uses "'"deceptive or reprehensible methods to attempt to persuade either the court or the jury."' [Citation.]" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Defendant argues that the prosecutor committed prejudicial misconduct by (1) claiming the defense was fabricated, (2) arguing certain witnesses were not credible because they had failed to contact law enforcement with their exculpatory evidence, and (3) vouching for victim.
1. Claiming the Defense was Fabricated.
a. Additional factual and procedural background.
During closing argument, the prosecutor talked about victim's mother's reasons for supporting defendant over her daughter. She pointed out that victim's mother had two other little children, was five months pregnant, and worked part time as a server at a restaurant. She argued it is easier for victim's mother to be untruthful about what happened to her daughter than face the possibility of losing her lifestyle and breaking up the family. In contrast, the prosecutor argued: "[Victim] has no motive to lie. During direct examination, the People talked to [victim's mother] about statements that she made to investigator Patty Phoenix. And during that interview, [victim's mother] said that she could not think of anything concrete of why victim would make up the allegations. [However, t]hat was before any testimony from [J.C., B.L. and D.K.]. The motives were created by the defense team in anticipation of court." Defense counsel objected on grounds of prosecutorial misconduct. The objection was sustained. The prosecutor continued, arguing that victim's mother had coordinated the defense, and that she had begun attributing false motives to victim only after she had initially told the investigator that she could not think of any reason why victim would lie.
"The motives were created after the line in the sand had been drawn by these defense witnesses. They knew what side they were going to take, and they were going to help the defendant at any cost. And these efforts were coordinated by [victim's mother]. And we heard [B.L.] testify about this statement that he made. And he said he wrote that at the request of his mother . . . and [victim's mother]. And we heard from [J.C.], and [J.C.] testified that [victim's mother] had told her, I think your testimony is very important.
"And [D.K.]. He talked about being in contact with [victim's mother], sharing the same thoughts and feelings about the case that he did.
"[Victim's mother], now willing to do anything she can to try to take back her own words at all costs, at any costs to try to protect the defendant. If she thinks it will make him look good, she will say it.
"Defense counsel asked [victim's mother] during his crossexamination about being an open book. And [victim's mother] is an open book, an open book of lies. [She's] told so many stories, she does not know what the truth is. She is unwilling to answer questions directly. This Court had to order her time and time again just to answer the questions, and she refused. She is unwilling to recount the basic facts in fear of saying the wrong thing.
"The blame game. It is [C.B.'s] fault. It[']s [T.C.'s] fault. It's [M.M.'s] fault. It is [A.M's] fault. It is [victim's] fault. Again, it is everybody else's fault, but not the defendant's fault."
b. Analysis.
Defendant cites several cases that establish prosecutorial misconduct arises when the prosecution suggests that defense counsel has helped fabricate a defense. (People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [improper to assert defense counsel presented a "'sham' defense"]; People v. Clark (2011) 52 Cal.4th 856, 961-962 [prosecutor "is not permitted to make false or unsubstantiated accusations that counsel is fabricating a defense or deceiving the jury"]; People v. Stitely (2005) 35 Cal.4th 514, 560 ["falsely accusing counsel of fabricating a defense or otherwise deceiving the jury" is a "forbidden prosecutorial tactic"]; People v. Bemore (2000) 22 Cal.4th 809, 846 ["[i]t is generally improper for the prosecutor to accuse defense counsel of fabricating a defense"]; People v. Bain (1971) 5 Cal.3d 839, 845-847 ["unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct"].) Contrary to defendant's assertion, the prosecutor did not accuse defense counsel of fabricating the defense. When she referred to the "defense team" as attributing false motives to victim, she qualified the reference to the team that was led by victim's mother. The prosecutor argued that after victim's mother became aware that her friends would stand by defendant, she coordinated the defense theory. Because the prosecutor's accusation of fabrication was not directed at defendant's counsel, there was no misconduct.
2. Arguing Certain Witnesses Were Not Credible Because They Had Failed to Contact Law Enforcement with Their Exculpatory Evidence.
a. Additional factual and procedural background.
Defendant called three witnesses who testified they knew that victim was trying to get out of the house. J.C. claimed victim had told her that defendant was molesting her, but would not supply any details, and that she wanted to move away and live with her real father. B.L. testified that right about the time the accusations came out, victim was saying she had just gotten back from seeing her real dad and that she wanted to move up there with him. B.L. was 11 years old at the time, and his mother and victim's mother had him write a letter memorializing what he had heard. D.K., a neighbor, testified that just before the accusations came out, he heard victim make the following statements: "'I am going to move up there. I am going up there.'" "'I don't know what I am going to do. But I am going to do what it takes. I don't care what it takes.'" D.K. testified that he was "shocked" by victim's statements, and immediately told victim's mother about them.
Although each of these witnesses knew that defendant had been charged with molesting victim, none of them ever contacted the authorities to convey what they had heard victim say. Rather, they rebuffed the attempts of authorities to talk to them. J.C. admitted that the prosecution had tried to contact her, and suggested that she might have talked if someone had contacted her personally and not through her mother. B.L. claimed he would have been happy to talk with law enforcement, but admitted that he told the prosecution's investigator that he had to talk to defendant's lawyer first. B.L. stated he did not have a chance to return the investigator's call, assuming that the prosecution would have contacted him again "if it was important enough." D.K. put $50,000 of the equity in his house to post bail for defendant. He volunteered that he did so "because [he] knew [defendant] was innocent." D.K. acknowledged that his 2004 letter to the court failed to include anything about what he had allegedly heard victim say. He had been involved with the defense team since 2004, but he had not contacted law enforcement about what he had heard. He did not remember the prosecution's investigator calling him at work, even when shown the report. While asserting that he had never been contacted by the prosecution's office about the case, he admitted that "two guys with guns" had come by his house and talked to his wife while he was away on business. He did not recall them leaving a business card, nor did they ask that he call them back. He also did not recall the prosecution's investigator calling him two weeks before his testimony, but admitted the investigator "may have" left a voice message, stating "I don't return calls from . . . number[s] . . . I don't recognize."
The prosecution's investigator, Bruce Moore, testified that he had gone to D.K.'s home, spoke to his wife, asked her to have D.K. contact him, and provided her with his business card. Later, the investigator left a message with his contact information on D.K.'s voicemail, asking for a return call.
In her summation to the jury, the prosecutor argued that victim had every reason to stay in Palm Desert because she "had school, friends. She was close to family, and for the first time in her whole entire life, she had some stability. She was at a place for more than two years straight. And that gave her comfort. She did not want to leave Palm Desert. She did not want to live with her real dad, her real dad who[m] she had not lived with since she was three years old. She had a best friend." The prosecutor pointed out that if victim had wanted to move, all she had to do was ask. The fact that she never contacted CPS or the police, did not want others to do so, and then told law enforcement that defendant had not done anything to her, shows that she did not want to move. The prosecutor argued that in order to explain victim's lies, the defense had to come up with a motive: "These mythical motives are not based on the truth, they are based on after the fact, speculation, and lies by witnesses who have a vested interest in the outcome of the case, witnesses who were unwilling and did not contact law enforcement, did not contact the district attorney's office." Defense counsel's objection that the argument shifted the burden of proof was sustained.
b. Analysis.
On appeal, defendant contends the prosecutor committed misconduct by suggesting that the witnesses fabricated the defense by failing to provide any exculpatory evidence to law enforcement. He argues that such suggestion may be made only if the prosecution lays a foundation that the witnesses had reason to make the information available, were familiar with how to do so, and the defense did not ask the witnesses to refrain from doing so. (People v. Radcliff (1987) 189 Cal.App.3d 696, 701.) Contrary to defendant's claim, the prosecutor's argument was based on evidence that had already been admitted without objection. It is proper for the prosecution to impeach witnesses with their failure to reveal exculpatory information in a timely manner. (People v. Tauber (1996) 49 Cal.App.4th 518, 524-525 ["While there may be no legal obligation to come forward, it is so natural to do so that the failure to promptly present that evidence makes suspect its later presentation at trial."].)
J.C., B.L. and D.K. claimed to have forceful evidence that defendant, with whom they were close, had been falsely accused by victim. However, they never came forward with this evidence despite the prosecution's attempt to talk with them. Their reasons for failing to timely disclose the exculpatory evidence were suspect, such that the prosecutor was entitled to impeach them and reference it in argument.
3. Vouching for Victim.
a. Additional factual and procedural background.
According to defendant, victim was lying: "What a tangled web we weave, when first we practice to deceive." In response, the prosecutor argued that to accept defendant's theory that victim was a liar, the jurors must believe that she was a brilliant deceiver, sophisticated beyond her 13 years. Otherwise, victim's story could not have fit so well with facts a 13-year-old would have no reason to know. The prosecutor added that victim somehow "had enough experience to know what to say to convince an investigator that the charges are true; that she had enough wherewithal to convince a CPS worker that these things actually happened to her." By implication, the prosecutor argued that victim's story was concrete for the simple reason that it was true.
b. Analysis.
Defendant maintains the last part of the prosecutor's argument about the investigator and the CPS worker constituted improper vouching. The trial court agreed there was vouching, but not misconduct. We find neither.
A prosecutor improperly vouches for a witness by arguing that matters outside the record, to which the prosecutor is presumably privy, mean the witness should be believed. (People v. Redd (2010) 48 Cal.4th 691, 741.) The prosecutor's statements do not constitute improper vouching. Rather, they suggest it was unlikely, based on the evidence, that victim fabricated everything and engaged in one very big lie. The prosecutor never suggested that she knew victim was telling the truth based on some undisclosed information she personally possessed but which was not presented at trial. Furthermore, the court sustained defendant's objection and admonished the jury not to consider the last part of the prosecutor's argument. Therefore, the prosecutor's comments do not constitute prejudicial error, since it is presumed the jury followed the court's directions and disregarded the argument. (People v. Martinez (2010) 47 Cal.4th 911, 957.) It is thus not likely the outcome would have been any different had the statements not been made. (People v. Davis (2009) 46 Cal.4th 539, 612.)
D. The Verdict Form Should Be Corrected as to Count 2
Defendant was charged and convicted of violating section 288, subdivision (a) (nonforcible lewd and lascivious conduct). However, the count 2 verdict form reflects that the jury found defendant guilty of a violation of section 288, subdivision (b) (forcible lewd and lascivious conduct). The parties agree the verdict form simply reflects a clerical error. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) A trial court has the authority to correct clerical errors in court documents. (People v. Trotter (1992) 7 Cal.App.4th 363, 369-370.) Here, the prosecution's argument coincided with the jury instructions and clearly set forth the elements that had to be proven before defendant could be found guilty of non-forcible lewd and lascivious conduct. (§ 288, subd. (a); see Trotter, supra, at p. 370.) There is nothing in the record to reflect that the jury did not find defendant guilty of violating section 288, subdivision (a), except for the erroneous preprinted verdict form. Thus, correction of the verdict form will conform the jury finding on count 2 to the charged offense, arguments, instructions, and proof, and will not result in any prejudice to defendant. (Trotter, supra, at p. 370.) Accordingly, we will direct the trial court to interlineate or otherwise amend the jury verdict form to correctly reflect the jury's finding that defendant was guilty of a violation of section 288, subdivision (a), as charged under count 2 of the information.
E. Defendant's Faretta Motion Was Properly Denied.
Defendant contends the trial court erred in denying his Faretta motion. Conceding that this court "is unlikely under state law to find the request to be timely and thus requir[e] a per se grant rather than a discretionary decision," he raises the issue to preserve it for future federal review.
1. Additional Factual and Procedural Background.
Defendant's Faretta motion was made after more than one year of pretrial proceedings and several days into pretrial motions in the actual trial. On May 5, 2015, prior to being sent to the trial department, defense counsel moved for a continuance on the grounds that he had more investigation to undertake. The trial court denied the motion, noting that defendant had been "steadfast" in his refusal to waive time. Upon being assigned to the trial department, the parties spent several days fighting over discovery, with defense counsel repeatedly complaining that he had not been able to complete investigation. During the parties continual fighting, the trial court heard some limine motions. Defendant rejected a disposition that would have resulted in his immediate release. The court began jury voir dire.
Defendant moved for appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The motion was denied and defendant moved for self-representation. The trial court heard that motion in several stages. In the course of those hearings, defense counsel noted that it was now five days into the trial, and that the parties had been very busy doing pretrial motions and jury selection. Defendant complained that he was being forced to go to trial with an "unprepared" attorney who "refuses to investigate and subpoena certain issues that are pertinent to the preparation and the presentation to an adequate defense." Defendant complained that counsel did not like him.
Defendant agreed with the trial court that the case was very complex; the People had subpoenaed a large number of witnesses and there were still "numerous complex" motions to cover before evidence began. He told the court he would not be ready to proceed; that he had to conduct his own investigation. The trial court denied the motion, noting there would be a "tremendous" delay if it granted the motion, and that counsel was "doing a great job" for defendant. It observed that defendant's counsel was bringing "very complex" pretrial motions, for which a lot of testimony and argument was required. It explicitly found the motion untimely.
2. Applicable Law.
A defendant has a constitutional right under the Sixth Amendment to represent himself. (Faretta, supra, 422 U.S. at pp. 819-820.) The trial court must permit him to do so if he makes his request (1) "'knowingly and intelligently'" (id. at p. 835), (2) unequivocally (ibid.), and (3) "within a reasonable time prior to the commencement of trial" (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham)). If the request is not timely made, the defendant has no absolute right to self-representation, and his or her motion is left to the sound discretion of the trial court. (People v. Frierson (1991) 53 Cal.3d 730, 742; Windham, supra, at p. 128, fn. 5.)
Defendant asserts that under the standards employed by the United States Court of Appeals for the Ninth Circuit, his request for self-representation was timely. He urges us to apply the federal law bright-line test in determining whether his request was timely. (See, e.g., Avila v. Roe (9th Cir. 2002) 298 F.3d 750, 753 ["a Faretta request is timely if made before jury impanelment, 'unless it is shown to be a tactic to secure delay'" (italics added)].) The California Supreme Court, however, has specifically rejected application of the federal bright-line test in state courts. (People v. Clark (1992) 3 Cal.4th 41, 99; People v. Burton (1989) 48 Cal.3d 843, 853-854; see People v. Avena (1996) 13 Cal.4th 394, 431 [even on federal questions, California courts are not bound by decisions of federal appellate courts].) This court is bound by our state high court's holding. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
Under California law, a motion to represent oneself must be made within a reasonable time before commencement of trial in order to be timely. (People v. Clark, supra, 3 Cal.4th at p. 98.) While there is no hard and fast rule delineating timeliness, in general, Faretta motions "made long before trial [are] timely" and those "made on the eve of trial are untimely." (People v. Lynch (2010) 50 Cal.4th 693, 722-723 (Lynch), abrogated in part as stated in People v. McKinnon (2011) 52 Cal.4th 610, 637.) A timeliness determination requires more than "a mere counting of the days between the motion and the scheduled trial date." (Lynch, supra, at p. 723.) Faretta motions made as late as the morning of trial have been deemed timely (see, e.g., People v. Herrera (1980) 104 Cal.App.3d 167, 174-175; People v. Tyner (1977) 76 Cal.App.3d 352, 355), while motions made two, six, or even 35 days before trial have been deemed untimely (see, e.g., Lynch, supra, at p. 726 [35 days]; People v. Frierson, supra, 53 Cal.3d at p. 742, [two days]; People v. Ruiz (1983) 142 Cal.App.3d 780, 791, [six days]).
To determine whether a Faretta motion is timely, the trial court must consider the totality of the circumstances known at the time the defendant moves for self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 24, fn. 2.) These factors include "whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Lynch, supra, 50 Cal.4th at p. 726.) The court may also consider whether the defendant would need a continuance if it granted the motion. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
3. Analysis.
In the instant case, the trial court applied the Lynch factors and denied defendant's motion as untimely. This case had been ongoing for more than one year. Trial had been continued two times, over defendant's personal objection, to allow counsel time to prepare. At the third request for a continuance, defendant refused to waive time, and trial had started. The case presented complex legal and factual issues, as shown in the various in limine motions. Many of such motions had been heard by the time defendant made his Faretta request. Witnesses had been subpoenaed; jury selection had begun. Defendant had had sufficient time to decide that he was unhappy with the pace of the proceedings, and with his counsel's representation. In fact, the Faretta motion came after the trial court denied defendant's Marsden motion.
Having found that the Lynch factors weigh against defendant, we find no abuse of discretion in the trial court's determination that defendant's Faretta motion was untimely.
III. DISPOSITION
The trial court is directed to amend the verdict form with regard to count 2, to reflect that defendant was found guilty of a violation of section 288, subdivision (a). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. SLOUGH
J.