Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD197515, Leo Valentine, Jr., Judge.
McDONALD, J.
A jury convicted Gary Johnson of oral copulation (Pen. Code, § 288a (c)(2)), and found true the special allegations the crime occurred during the course of a burglary (§ 667.61, subds. (a), (c) & (d)) and the victim was 65 years of age or older (§ 667.9, subd. (a)). In a bifurcated proceeding, the court found true the allegations that Johnson had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), a prior strike conviction within the meaning of section 667, subdivisions (b) through (i), and a prior prison term within the meaning of section 667.5, subdivision (b). Johnson was sentenced to a total term of 56 years to life.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Johnson asserts the trial court erred by not pursuing his Faretta motion, and abused its discretion under Evidence Code section 352 by admitting evidence of his prior sexual assault convictions.
Faretta v. California (1975) 422 U.S. 806.
I
THE EVIDENCE
In February 2001 the victim, Alberta B., was an 88-year-old woman living in San Diego. A man rang her doorbell and, when she answered, asked to borrow a pencil to write a note to the people next door. When she turned to get a pencil, he entered, grabbed her and dragged her to a back bedroom, and forced her to orally copulate him. After he left, she called police, who arrived and collected evidence. The police took her to the hospital where a semen sample was collected. A DNA analysis on the semen was performed, but at that time there was no match; the DNA results were placed in a national database.
In late 2005, a match from the national database led to the identification of Johnson as a possible suspect. In early 2006, police obtained a DNA sample from Johnson. The sample was analyzed and determined to be a DNA match to the semen from the perpetrator of the 2001 assault on Alberta.
Redacted copies of court records showed Johnson was accused of committing three forcible oral copulations in 2002 and was convicted of those offenses in 2005.
II
THE FARETTA CLAIM
Johnson asserts the trial court erred by ignoring his Faretta motion, and that this error is reversible per se.
A. Factual Background
On the day set for trial, the court and counsel discussed a number of in limine motions, including whether and to what extent the jury could be informed of Johnson's prior convictions. The court announced it was inclined to admit evidence of the prior convictions, but it would recess to review the prosecution's proffered exhibit, which contained numerous documents relating to the prior convictions, and would announce its ruling after the recess. Immediately before recessing, Johnson's counsel asked "may I have one second" and, after privately conferring with Johnson, stated Johnson had "made a request to go in pro per," "to represent himself." When the court asked whether he was asking to represent himself, Johnson's counsel responded, "Yes. Perhaps if I can talk to him a little bit, maybe we can address that [after the recess]," and the court indicated it would "review the documents [pertaining to the prior convictions] and take up both matters" after the recess.
After the recess, the parties extensively discussed the issues presented by the proposed exhibit relating to the prior convictions, and how to resolve those issues. After the parties settled on an appropriate accommodation, the court asked whether there was "any reason we can't go ahead and have our [jury] panel sworn in?" Johnson's counsel responded, "No, that's fine," and jury selection proceeded.
B. Legal Framework
A defendant has a federal constitutional right to represent him- or herself in a criminal proceeding (Faretta, supra, 422 U.S. at p. 819), and Faretta applies to California criminal proceedings (People v. Windham (1977) 19 Cal.3d 121, 128 [a trial court must grant a defendant's Faretta motion "upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be"]). Generally, "[a] trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729, italics added.)
The requirement that a Faretta motion be unequivocal "is necessary . . . to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation." (People v. Marshall (1997) 15 Cal.4th 1, 22].) The demand for self-representation must be both articulate and unmistakable (id. at p. 21), and where "it is clear from the record that defendant never made an unequivocal assertion of his right to self-representation, . . . [a] trial court [does] not err in declining to consider such a request." (People v. Valdez (2004) 32 Cal.4th 73, 99.)
C. Evaluation
We conclude the trial court did not err by relying on Johnson's counsel to explore with Johnson whether he wished to represent himself, and to rely on counsel's representation that there was no reason trial could not proceed.
The brief comment by Johnson's counsel suggesting Johnson wanted to represent himself, especially when coupled with the fact that it was apparently the product of an impromptu impulse that prompted Johnson's counsel to suggest she should "talk to [Johnson] a little bit, maybe we can address that [request later]," does not make it "clear from the record that defendant . . . made an unequivocal assertion of his right to self-representation." (People v. Valdez, supra, 32 Cal.4th at p. 99; accord, People v. Barnett (1998) 17 Cal.4th 1044, 1087 [court should draw every reasonable inference against waiver of the right to counsel and a defendant's single reference to making a " 'motion to proceed pro se,' " which was never again mentioned properly viewed as impulsive response to events in court and did not constitute unequivocal assertion of the right to self-representation].) Accordingly, Johnson may not premise error on the brief allusion to Johnson's request.
Moreover, even if these ambiguous comments could be deemed an unequivocal assertion of his or her Faretta rights, a defendant can abandon that demand by words or conduct. (People v. Stanley (2006) 39 Cal.4th 913, 932-933; People v. Dunkle (2005) 36 Cal.4th 861, 907-908; People v. Kenner (1990) 223 Cal.App.3d 56, 60-62.) Here, Johnson's impulsive Faretta request prompted his attorney to suggest she confer with him "a little bit" and to suggest that, after such conference, "maybe" the motion could be thereafter handled. However, following that conference, Johnson did not return to court with a reaffirmation of his wish to represent himself. To the contrary, his counsel continued to represent him (making lengthy arguments on his behalf on a pending in limine motion) and, in response to the court's final inquiry whether there was "any reason we can't go ahead" with trial, stated there was no impediment to proceeding with trial. We conclude that, even if Johnson was deemed to have made a sufficiently clear Faretta request, the record supports the conclusion he conferred with his counsel and subsequently abandoned that motion. In People v. Skaggs (1996) 44 Cal.App.4th 1, the defendant made a single amorphous reference to representing himself, but the court did not address the question and the defendant never pursued the "request." Although the court concluded the defendant's statement was not an unequivocal assertion of his Faretta right, the court also noted that, even if the statement qualified as a sufficiently clear Faretta demand, the motion was abandoned. Skaggs reasoned there are:
"two practical justifications for permitting waiver by conduct in this context. First, it discourages gamesmanship by preventing a defendant who realizes that his Faretta request has not been addressed from saving his 'Faretta ace to play triumphantly on appeal.' ([People v.] Kenner, supra, 223 Cal.App.3d at p. 62.) Second, it recognizes that '[d]efendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, . . . it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion.' (Ibid.) [¶] . . . Kenner . . . clearly supports our holding on this issue. Skaggs made a single ambiguous comment about his desire to represent himself. Even if we were to interpret that comment, made in the context of a Marsden [People v. Marsden (1970) 2 Cal.3d 118] motion, as an unequivocal request (which we do not), it is clear from the record that the request was never ruled upon. Skaggs's failure to request such a ruling or to raise the issue again and his silent acceptance of defense counsel's assistance for the remainder of the proceedings in the trial court constitute a waiver or abandonment of any right to self-representation Skaggs arguably asserted." (People v. Skaggs, supra, 44 Cal.App.4th at p. 8.)
On the facts of this case, we conclude the court did not err in declining sua sponte to resurrect Johnson's abandoned Faretta motion.
III
THE EVIDENTIARY CLAIM
Johnson asserts the trial court abused its discretion by admitting documents proving he had committed other sexual assaults within two years of his assault on Alberta.
A. The Evidence
The court, after extensive discussion with counsel, ruled it would admit limited documentary proof that Johnson had suffered three convictions for sexual assaults committed in 2002.
B. Legal Standards
Prior to the enactment of Evidence Code section 1108, the admission of evidence of prior uncharged sexual misconduct in a criminal trial was governed by Evidence Code section 1101, which barred admission of prior acts to prove a person's conduct on a specified occasion, but permitted evidence to prove some fact other than a disposition to commit the act, including motive, intent, identity, or plan. (See People v. Falsetta (1999) 21 Cal.4th 903, 911.) However, the enactment of Evidence Code section 1108 substantially altered this rule, and now provides that when the defendant is charged with a sex offense, evidence of a prior sexual offense "is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." By removing the restriction on character evidence in section 1101, section 1108 now "permit[s] the jury in sex offense . . . cases to consider evidence of prior offenses for any relevant purpose" (People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7), subject only to exclusion under section 352 if the court decides the prejudicial effect of the evidence outweighs its probative value.
A ruling admitting evidence over a section 352 objection is reviewed on appeal under an abuse of discretion standard. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) A trial court abuses its discretion only when its ruling "falls outside the bounds of reason." (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
C. Evaluation
We conclude the trial court did not abuse its discretion in admitting evidence of Johnson's prior sex offenses under sections 1108 and 352. His prior convictions involved forcible oral copulation, and were of the same class and nature as the charged offense and committed shortly after the charged offense. The court required the evidence to be presented in a redacted document that provided a sanitized method of proving the prior sexual assaults, rather than by proving the assaults with the potentially more inflammatory method of live testimony from another elderly woman victimized by Johnson's sexual assaults, thereby presenting the relevant evidence with a minimum of undue prejudice.
The prosecutor noted that one of the prior victims, a 75-year-old woman, could present live testimony, and the assaults were committed against elderly women.
Johnson appears to assert that the error consisted of the admission of documents to prove the prior assaults. However, the court in People v. Wesson (2006) 138 Cal.App.4th 959 held the conduct admissible under section 1108 may be proved by the type of documentary evidence admitted below. (Wesson, at pp. 965-970.) Johnson argues Wesson permitted such documents only because the conviction there was entered on a guilty plea, rather than after a contested trial, and therefore Wesson does not support admission of the documents here. However, there is no suggestion Wesson's approval of the admission of a court record of the prior conviction turned on the manner by which the conviction was obtained, and Johnson articulates no reasoned basis for concluding section 1108 permits proof of a conviction obtained from a guilty plea but excludes proof of a conviction obtained after a trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.