Opinion
E032049.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ALAN PROFFITT, Defendant and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant Lawrence Alan Proffitt guilty on five counts of aggravated sexual assault on a child under 14 (Pen. Code, § 269, subd. (a)(3)), sixteen counts of forcible lewd acts on a child under 14 (Pen. Code, § 288, subd. (b)(1)), one count of nonforcible lewd acts on a child under 14(Pen. Code, § 288, subd. (a)), and one count of nonforcible lewd acts on a child aged 14 or 15 (Pen. Code, § 288, subd. (c)(1)), all committed against one or the other of his two stepsons. A multiple victim allegation for purposes of the one strike law (Pen. Code, § 667.61, subd. (e)(5)) was found true. Defendant was sentenced to a total of 218 years 8 months to life in prison.
I
DENIAL OF A CONTINUANCE OF
THE HEARING ON DEFENDANTS NEW TRIAL MOTION
Defendants sole appellate contention is that the trial court erred by failing to continue the hearing on his motion (made in propria persona) for new trial.
A. Additional Factual and Procedural Background.
The jury returned its verdicts on March 21, 2002. At that time, the trial court set a hearing, both for a motion for new trial and for sentencing, for May 10.
At the hearing on May 10, defense counsel indicated that he would be filing a motion for new trial. He also requested a continuance. The trial court granted a continuance to June 21.
At the hearing on June 21, defendant made an oral Marsden motion.
He argued, among other things, that his counsel had failed to file a new trial motion. The trial court denied the Marsden motion.
A "Marsden motion" is a motion to relieve appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.)
Defendant then made an oral Faretta motion. The trial court granted the motion. Defendant requested a continuance, which the trial court also granted; it continued the hearing on the motion for new trial to July 10 and the sentencing hearing to July 12.
A "Faretta motion" is a motion to relieve appointed counsel and to proceed in propria persona. (Faretta v. California (1975) 422 U.S. 806 [95 S. Ct. 2525, 45 L. Ed. 2d 562].)
On July 10, defendant filed a motion for new trial, in the form of three separate documents — one asserting juror misconduct, one asserting ineffective assistance of counsel, and one asserting a conflict of interest on the part of the trial court.
Defendants juror misconduct claim was based on the following asserted facts: "Juror # 11 should have been disqualified to sit due to his knowledge of the defendant. Specifically, my potential witnesses, Ann and Steve Douglass[,] informed me after trial had ended that Juror # 11 was a member of the same ward of the Church of Jesus Christ of Latter Day Saints in Calimesa that they were. From September of 1989 to November of 1993, I was a member of the same ward but was inactive. I was known in the ward for my vocal and spirited leadership of the teachers union regarding a textbook censorship issue. Many members of that ward were opposed to our position and it became very divisive to the church members. I was unaware that Juror # 11 served in a leadership role in that ward until the Douglasses brought it to my attention. [P] . . . [P]
"It is unknown as to Juror # 11s attitude regarding my inactive status in the church or my standing regarding the textbook controversy. Certainly this knowledge was not known or disclosed to myself or I would have insisted on his dismissal prior to the start of trial."
At the hearing on July 10, the trial court noted that the motion, to the extent that it was based on judicial misconduct, might be deemed a motion to disqualify; in that event, the trial court would have 10 days to respond. (See Code Civ. Proc., § 170.3, subd. (c)(3).) For that reason, it took the July 12 sentencing hearing off calendar. Later that day, however, the trial court, acting ex parte, set a hearing for the following day.
At that hearing, on July 11, the trial court deemed the judicial misconduct aspect of the motion to be a motion to disqualify. It then ordered that motion stricken as untimely and as failing to state grounds for disqualification. (See Code Civ. Proc., § 170.4, subd. (b).)
It proceeded to hear argument on the juror misconduct aspect of the motion. First, it asked defendant if he had anything to add. Defendant responded: "The statements of the Douglasses are willing to be subpoenaed and brought in to speak to that."
The prosecutor argued, among other things: "The defendant has failed to meet his burden in that he has not provided any sworn affidavit as to any actual misconduct. . . . He is speculating on the assumption that Juror Number 11 was not fair and impartial due to his membership of the same ward . . . . [P] . . . Nothing in defendants motion rises to any level of juror misconduct." She concluded: "And lastly, again, there are no affidavits by Juror Number 11 alleging or stating any misconduct."
Defendant responded:
"[DEFENDANT]: . . . That would be unusual[,] to have Juror No. 11 submit an affidavit that he had conducted [sic] misconduct.
"THE COURT: Its not unusual at all. [P] . . . [P]
"[DEFENDANT]: I just want to make sure it stands on the record that both of those people are willing to submit affidavits stating what was mentioned in there . . . ."
After hearing further argument, the trial court denied the new trial motion to the extent that it was based on juror misconduct. It noted that, during voir dire, there had been "an exhausting examination" concerning Juror No. 11s prior knowledge of defendant. It then said: "In any event, this is all speculative. This is not grounds to even launch an inquiry further into Juror No. 11 . . . ." It concluded: "Theres no juror irregularity presented to this court."
Finally, the trial court also denied the new trial motion to the extent that it was based on ineffective assistance of counsel.
B. Analysis.
As the People point out, defendants contention stumbles at the threshold — he never actually requested a continuance. Thus, he forfeited the issue for purposes of appeal. (See People v. Catlin (2001) 26 Cal.4th 81, 162; People v. Pinholster (1992) 1 Cal.4th 865, 931, 824 P.2d 571.)
In his reply brief, defendant places heavy emphasis on the fact that he was representing himself. He points out that, in his new trial motion, he stated that he had only just learned of Juror No. 11s position in the church and that he did not yet know what Juror No. 11s "attitude" toward him was. Also, in the argument on the motion, he noted that the Douglasses were willing to submit affidavits or to testify in person. He concludes: "Regular people of normal intelligence would interpret this entire sequence as clearly reflecting a request by appellant for more time to obtain affidavits.
"We disagree. As the trial court had already warned defendant, "[ a] defendant appearing in propria persona is held to the same standard of knowledge of law and procedure as is an attorney. [Citation.]" (People v. Pinholster, supra, 1 Cal.4th at p. 958, fn. 18, quoting People v. Clark (1990) 50 Cal.3d 583, 625, 268 Cal. Rptr. 399, 789 P.2d 127.) Defendants written motion for new trial made no request, explicit or implicit, for a continuance. Quite the contrary — the almost tautological conclusion from the very fact that defendant filed the motion was that he did not need any more time to prepare it.
We do not construe defendants remarks about the Douglasses as a request for a continuance. Rather, they were an offer of proof. Defendant was asking the trial court not to deny his motion solely because his statement of facts regarding Juror No. 11 had not been not signed, under oath, by the Douglasses. Arguably, if the trial courts ruling were going to turn on the fact that defendants showing was unsworn hearsay, it should have allowed defendant an opportunity to submit the proffered affidavits. Defendant, however, did not offer to prove any facts he had not already stated in his motion. He simply offered to have the Douglasses "submit affidavits stating what was mentioned in there . . . ." (Italics added.) Even assuming we could construe this as a request for a continuance, the continuance requested would be for the limited purpose of obtaining the Douglasses signature on what defendant had already submitted to the court. Defendant definitely did not request a continuance so he could conduct a broader general investigation.
The trial court could and did deny the motion on other grounds. As it noted, on voir dire, Juror No. 11 had been questioned extensively about his prior knowledge of defendant. First, the jurors were asked collectively whether they knew defendant; he said he had met defendant once, but he did not believe this would affect him. Later, when he was examined individually, he had to remind the court and counsel that he knew defendant. He then said he had met defendant once, four or five years earlier, when defendant spoke at an Eagle Scout badge presentation at his church. When asked, "As far as you know is that your only contact with [defendant]?," he answered, "Yes." He concluded: "I dont really know Mr. Proffitt other than that one time that I met him, so I cant say that I could be partial one way or the other."
Defendant never claimed that Juror No. 11 actually concealed any information on voir dire. His motion was based entirely on the alleged fact that, in 2002, Juror No. 11 had "a leadership role" in a church ward of which defendant had been a notorious (though inactive) member from 1989 to 1993. As the trial court noted, it would be pure speculation to conclude that Juror No. 11 had any knowledge of defendant as a result of this connection. Defendant even conceded that he had no idea what Juror No. 11s "attitude" toward him might be. Defendants allegations failed to establish juror misconduct. (People v. Majors (1998) 18 Cal.4th 385, 417-420, 956 P.2d 1137; People v. Duran (1996) 50 Cal.App.4th 103, 114-115.) Getting the Douglasses to swear to those allegations would have added nothing to the motion. Thus, the trial court properly concluded: "Theres no juror irregularity presented to this court."
II
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., WARD, J.