Opinion
B164255.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. HAROLD DOUGLAS SINGLETON, JR., Defendant and Appellant.
Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Harold Singleton appeals from a judgment after a jury trial in which he was convicted of six counts of annoying or molesting a child with a prior (Pen. Code, § 647.6, subd. (c)), one count of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)), one count of failure to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(A)), and allegations he had suffered a prior conviction within the meaning of Penal Code sections 1170.12 and 667.61, subdivision (c) were found to be true. Defendant contends the trial court exhibited bias against him during the trial. We note defendants sentence was erroneously calculated. We modify defendants sentence and otherwise affirm.
PROCEDURAL BACKGROUND
Defendant represented himself. His case proceeded to trial, in which he was convicted as charged. Defendant was sentenced to 50 years to life in prison, consecutive to 10 years. Defendant filed a timely notice of appeal.
FACTS
Defendant was convicted in 1994 of lewd acts on a child under 14. (Pen. Code, § 288, subd. (a).) He received a sentence of probation. Although he initially registered as a sex offender, he did not update his registration as required.
In late 2001, defendant resided at the Huntington Hotel, a transient hotel. Defendant frequently walked through the hotel with the zipper on his pants open. He did not wear underwear, and his genitals could be seen. Children who lived in the hotel could see defendant in this condition.
Adrian G. and Dorian G. are brothers. Adrian G. was 13 at the time of the offenses; Dorian G. was 12. Xavier P. is their friend; he was 11. They all lived in the Huntington Hotel.
The ages are approximate as the offenses took place during a two-month period of time in which two of the boys had birthdays.
On several occasions, defendant approached the boys, either alone or together, and asked them if they would answer some questions for money. The boys agreed. During these sessions, defendant would ask the boys questions regarding their sexual maturity, experience, and interests, while defendant sat in bed and masturbated under the covers.
Defendant asked Adrian G. if he was a virgin, if he ever slept with a virgin, if he had ever been in a pool with a gay man, and if he would sleep with a man for money. Defendant asked Dorian G. if he had ever seen a Playgirl magazine, ever been in a pool with a naked man, and if he was a virgin. Defendant asked Xavier P. if he had ever been in a pool with a naked man, ever taken a bath with a naked man, ever had sex with a naked man, and if he had pubic hair.
Defendant also offered to show, and showed, pornography to the boys. Defendant asked Adrian G. if he wanted to watch a videotape involving gay people. Defendant showed Xavier P. a book with a picture of a naked man. He showed Xavier P. pictures of naked children; some of them were younger than Xavier P. He also asked Xavier P. to watch videotapes. Once, defendant offered to pay the three boys to clean his room. They agreed. While they cleaned defendants room, defendant was present and showed them pornographic pictures of gay men. While cleaning the room, the boys found more pornography on the floor, as well as pornographic videotapes.
Adrian Q. also lived in the Huntington Hotel. He was 8 years old. Defendant once tried to pull Adrian Q. into his room; Adrian Q. kicked him and escaped. On another occasion, Adrian Q. was alone in defendants room with defendant. Defendant pulled his own pants down. Adrian Q. turned away, but saw defendant naked briefly. Defendant then tried to pull down Adrian Q.s pants. Adrian Q. tried to keep his pants up. A neighbor knocked on defendants door; when the neighbor saw Adrian Q. in defendants room, he told Adrian Q. to leave. Defendant also asked Adrian Q. sexual questions similar to those he asked the other boys.
Defendant asked Adrian Q. if he had ever seen his mother naked, and if he ever had sex with someone.
When Xavier P.s mother learned what defendant had done to the boys, she contacted police. When the police came to arrest defendant, officers knocked on his door without announcing who they were. Defendant said to "come in." Police opened the door and found defendant sitting on his bed, masturbating while watching a videotape of two young men engaging in sexual conduct. Defendant was taken into custody. The police seized several pornographic videotapes.
The day after his arrest, defendant was interviewed by police. During the course of the interview, when the subject turned to one of the videotapes, defendants manner changed. He began panting and leaned forward with his hands under the table. The investigating officer intentionally dropped her pen; when she reached down to retrieve it, she saw that defendant had two fingers inside his pants and appeared to be masturbating.
Subsequently, a search warrant was executed in defendants room. Police recovered a substantial amount of pornography, most of it involving young men. While one book contained stories of sexual encounters of men both more than and less than 18 years of age, the age of the subjects of the bulk of defendants pornography could not be clearly determined.
DISCUSSION
Defendant contends the trial court committed misconduct in its treatment of defendant during the trial, both in the courts rulings and in the courts comments in front of the jury. Specifically, defendant contends the court committed misconduct in: (1) admitting his collection of pornography into evidence; (2) its rulings and comments relating to his cross-examination of witnesses; and (3) admitting into evidence testimony regarding a January 4, 2002 incident regarding Adrian Q., which was later stricken.
I. Law of Judicial Misconduct
"A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution." (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.)
Repeated direction to defense counsel not to follow an inadmissible line of questioning is "innocuous." (Id. at pp. 1201, 1207.) Even "[a] possibly erroneous ruling on evidence does not establish prejudice of the trial judge." (Scott v. Family Ministries (1976) 65 Cal.App.3d 492, 510.) Substantially more is required to constitute prejudicial misconduct requiring reversal. "For example, in People v. Zammora (1944) 66 Cal.App.2d 166, the trial court systematically belittled defense counsel in front of the jury. Among other things, the trial court accused counsel of being asleep and sarcastically suggested someone was using ventriloquism to make counsels statements. Similarly, in People v. Fatone (1985) 165 Cal.App.3d 1164, the trial court repeatedly displayed a `demeaning, patronizing attitude toward defense counsel in front of the jury. (Id. at p. 1176.) Among other things, the trial court admonished counsel to stay awake, called counsels questions `[m]uch ado about minutia, characterized one of counsels comments as `a little old ladys comment, and cynically referred to counsel as `"[y]our lordship." (Id. at pp. 1177-1180.) In People v. Long (1944) 63 Cal.App.2d 679, a statutory rape prosecution, the trial court sua sponte ordered nude photographs of the victim purportedly taken by the defendant to be exhibited to a defense character witness and compelled the witness to answer the prosecutions questions on whether the photographs changed his opinion of the defendants character reputation." (People v. Harbolt (1988) 206 Cal.App.3d 140, 158.)
The contention the trial court disparaged a defendants counsel is waived when the defendant did not object or request the jury be admonished. (People v. Fudge (1994) 7 Cal.4th 1075, 1107-1108.) This is particularly true where an objection would have permitted the court to clarify any misunderstanding resulting from the comments. (People v. Mitcham (1992) 1 Cal.4th 1027, 1053.) Moreover, the giving of CALJIC No. 17.30, instructing the jury not to take its cue from the judge, dispels any such prejudice. (People v. Harbolt, supra, 206 Cal.App.3d at p. 158.)
II. Admission of Pornography
Defendant contends the trial court reflected bias in admitting into evidence the pornography found in his room. Defendant also contends the trial courts ruling was erroneous. The trial courts ruling was correct; there was therefore no bias.
Defendant objected to the pornography at trial on the basis that any pornography that did not pertain to males under the age of 18 was irrelevant. This is not correct. The boys testified that defendant showed them pornography, and offered to show them pornography, of adult men. That defendant actually possessed such pornography is relevant. It tends to prove that defendant showed these young boys pornography and supports their credibility. (Evid. Code, § 210.) The admission of some of the adult pornography was therefore appropriate.
Defendant contends on appeal that the volume of pornography admitted was cumulative and more prejudicial than probative. This contention has been waived in that defendant did not object on this basis at trial. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014.) Moreover, after the prosecution had elicited testimony from a witness regarding eleven items of pornography, defendant, in cross-examination, questioned the witness on two further items.
There was no error in the admission of the pornography, and the trial courts rulings regarding the pornography do not reflect judicial bias.
III. Cross-Examination
Defendant contends the trial courts treatment of his cross-examination reflected bias both in the trial courts comments in front of the jury and in the trial courts rulings outside the presence of the jury.
A. Relevant Procedure
The Los Angeles County Sheriffs Department informed the trial court that, during defendants preliminary hearing, he "might have been engaging in lewd conduct . . . while child victims were testifying." Because of this, defendant was directed, outside the presence of the jury, to keep his hands on the table at all times while the children were testifying.
The first victim to testify at trial was Xavier P. During defendants cross-examination of Xavier P., defendant frequently argued with Xavier P., and his questioning included crude language. Moreover, despite the admonition to the contrary, defendants hands dropped below the table and the trial judge noticed defendant rubbing his thighs while questioning Xavier P. Ultimately, defendant reduced Xavier P. to tears. The trial court called a short recess.
Defendant was admonished, outside the presence of the jury, that if his hands did not remain on the table, his pro. per. status would be revoked. Defendant was also instructed to avoid further lewd and lascivious questions.
In order to avoid further traumatizing the witness, the trial court asked defendant the other areas in which he intended to cross-examine Xavier P. As defendant itemized the questions he wanted to ask, the trial court indicated those areas proper for cross-examination and told defendant he could question Xavier P. in those areas. There were other areas in which the trial court indicated defendant could not question Xavier P. Defendant also had several sections of Xavier P.s preliminary hearing testimony he wanted to read as part of his cross-examination. Defendant identified these areas to the trial court to "make sure Im . . . not in dangerous territory." This took some time. Defendant had not determined in advance the sections he wished to read, so the trial court waited while defendant read Xavier P.s preliminary hearing testimony line by line in order to find the excerpts he wished to use. The trial court authorized defendant to read large sections of Xavier P.s preliminary hearing testimony during his cross-examination.
Defendant does not contend any of these rulings were error.
Defendant continued his cross-examination of Xavier P. Defendant attempted to use the preliminary hearing testimony as a sort of quiz for Xavier P. He would read part of the preliminary hearing testimony, then ask Xavier P. the next question from the transcript in order to see if Xavier P.s answer matched the testimony he gave earlier. When Xavier P.s trial testimony matched his preliminary hearing testimony on one question, defendant stated, "You answered that one right." The following exchange then occurred:
"The Court: Jury is to disregard. [¶] Mr. Singleton, dont make compliments.
"The Defendant: Okay.
"The Court: Mr. Singleton.
"The Defendant: Im sorry.
"The Court: Mr. Singleton, dont try to be cute. [¶] Jury is to disregard that remark. [¶] Just read the testimony.
"The Defendant: Okay.
"The Court: And then you will be permitted the questions that we talked about for 20 minutes outside the jurys presence. Okay.
"The Defendant: Okay."
Defendant read a few more lines of the preliminary hearing transcript. He again read a question from the preliminary hearing transcript and, rather than read the answer, he asked Xavier P. to answer it. The following occurred:
"The Court: Dont — Complete the reading of the transcript as I indicated. [¶] All right.
"The Defendant: Well, I didnt want to give the answer `cause then hell know the answer to my question.
"The Court: Mr. Singleton, again dont try to be cute.
"The Defendant: Im not trying to be cute. Im just trying to get the truth out.
"The Court: Mr. Singleton, dont quarrel with the court and dont make editorial remarks. We spent 20 minutes of valuable jury time with me listening to what you wanted to question him about. Ive authorized you to read these portions of the transcript. Do so and do not stray from it unless I give you permission otherwise. [¶] Now go ahead."
Shortly thereafter, defendant again attempted to question Xavier P. in an area that had not been discussed. The following occurred:
"The Court: Thats not what you asked permission to do when we kept the jury waiting for 20 minutes; so finish the reading of the transcript and then Ill hear from you outside the jurys presence.
"The Defendant: Oh, thats right. I forgot."
Defendant then completed his cross-examination of Xavier P.
Thereafter, prior to defendants cross-examination of each of the remaining witnesses, defendant was asked, outside the presence of the jury, to set forth the areas in which he wished to cross-examine. Based on defendants proffers, the trial court ruled on whether the questions were permissible. When defendants cross-examination of the witnesses subsequently departed from the areas previously ruled upon, and became repetitive, irrelevant, and argumentative, the trial court directed defendant to move on to relevant questioning.
B. In Limine Rulings
Defendant contends the trial courts rulings outside the jurys presence reflected bias. Specifically, defendant contends the trial court was biased in that it ruled on the admissibility of defendants cross-examination questions without the necessity of an objection by the prosecution, while all of the prosecutions evidence was considered admissible unless defendant raised a proper objection. The contention is not persuasive.
"The trial court has a clear duty to supervise the conduct of the trial to the end that it may not be unduly protracted. The control of cross-examination is not only within the discretion of the trial court, but, in the exercise of that discretion, the court may confine cross-examination within reasonable limits and may curtail cross-examination which relates to matters already covered or which are irrelevant." (People v. Beach (1983) 147 Cal.App.3d 612, 628.) Defendants cross-examination questions were pre-screened by the trial court only because defendants unrestrained cross-examination of the first child witness was so egregious. The prosecution was not subject to a similar restriction because the prosecutor did not reduce witnesses to tears with lewd and harassing questions. That the trial court ruled on defendants proposed questions without the necessity of an objection by the prosecutor was simply the proper exercise of the trial courts duty to supervise the conduct of the trial.
Defendant further argues the prosecution was treated more favorably in that the trial court did not sua sponte prevent the prosecution from introducing evidence of the circumstances of his arrest, and his masturbation during the interview with police. Defendant concedes that he did not interpose appropriate objections to this evidence. He argues, however, that since the trial court sua sponte controlled his cross-examination of witnesses, it was unfair of the trial court to not also preclude this evidence on its own motion. We disagree. The two situations are not comparable. The trial court did not control defendants cross-examination in an effort to make necessary objections on the prosecutions behalf, but intervened to prevent defendant from further traumatizing child victim witnesses.
C. Statements in Front of the Jury
Defendant next contends the trial courts statements in front of the jury, particularly those referring to "20 minutes of valuable jury time," disparaged defendant. Defendant did not object to any of the trial courts comments, and therefore the contention has been waived. In any event, the comments did not constitute prejudicial misconduct. The jury, which had already seen defendant attempt cross-examination, was well aware that defendant was a person with little command of the rules of evidence, who frequently needed reminding to stay on track. The trial courts comments did not persistently disparage defendant or indicate the trial court allied itself with the prosecution. Instead, the court repeatedly directed defendant to follow the agreed-upon plan for his cross-examination. Moreover, the jury was instructed in the language of CALJIC No. 17.30, which dispelled any prejudice which might have arisen.
III. The January 4, 2002 Adrian Q. Incident
Defendant contends the trial court was biased against him in that it did not immediately interpose its own objection to evidence of a January 4, 2002 incident regarding Adrian Q.
On January 4, 2002, after defendant had already been arrested, Adrian Q. was found in a bathroom with a younger boy. Both boys were naked and Adrian Q. was urinating in the mouth of the other boy. When Adrian Q.s mother asked him about it, he said this is what he had seen defendant do.
The police report documenting the incident blacked out the names of the participants, and when the charging document was drafted, it was misinterpreted as meaning defendant perpetrated the act against Adrian Q., rather than Adrian Q. acting against another boy. Counts 9 and 10 of the complaint charged defendant had committed lewd acts on a child and oral copulation on a child (Pen. Code, § 288a, subd. (c)(1)), on victim Adrian Q. on January 4, 2002. At the preliminary hearing, the prosecutor introduced no evidence on those counts and indicated her belief that those counts had been withdrawn by the prosecution. Defendant was not held to answer on those counts.
Nonetheless, the information filed erroneously contained the additional counts. At the arraignment, the prosecution again moved to dismiss the additional two counts. The prosecutor explained that the counts were included by mistake. The trial court dismissed the two counts in the furtherance of justice.
Defendant never fully understood that the counts came to be included in the information by mistake. He instead assumed Adrian Q. had accused him of committing the acts charged in these counts. Because defendant had a defense to these charges, having been in custody at the time, he believed this accusation was a lie. He therefore wanted to use the fact of the dismissed charges to impeach Adrian Q.s credibility.
Thus, when Adrian Q.s mother testified as to what she had been told about the incident on January 4, 2002, defendant interposed no objection. Instead, defendant sought to cross-examine Adrian Q.s mother on the fact counts 9 and 10 were dismissed. He was precluded from doing so on the grounds of relevance. Outside the presence of the jury, defendant argued he should be permitted to show the dismissal of counts 9 and 10 proved Adrian Q. was lying. In the course of the discussion that followed, defendant asked that the jury be admonished to disregard the testimony because defendant could not have done the acts on January 4, 2002. The trial court decided to take the matter up at the next hearing. At the next hearing, the trial court chose to admonish the jury to disregard the testimony on the basis it was hearsay. The jury was so admonished.
Defendant contends the trial court erred in allowing this prejudicial hearsay testimony to be heard by the jury without interposing its own objection on defendants behalf. We disagree. Defendant did not object to the testimony because he apparently felt it tended to impeach Adrian Q. and requested the jury be admonished only when his planned impeachment failed. The trial court was not required to object to testimony on defendants behalf when defendant, for strategic reasons of his own, chose not to object to it. In any event, when defendant finally asked the jury be admonished to disregard the testimony, he did so on an improper basis. The trial court ultimately acted on its own motion to strike the testimony. Far from failing to protect defendant, the trial court acted to protect defendant once it became clear defendant no longer wanted the testimony in the record.
IV. Conclusion
We have reviewed the entire record. It reveals a trial court conscientiously exercising its duty to control proceedings—for the benefit of the jury, the child victims, and the defendant. There is evidence of neither bias nor the appearance of bias; instead, the trial court prevented defendant from committing further improper conduct in front of the jury.
V. Sentencing
Penal Code section 647.6 prohibits annoying or molesting a child. Subdivision (a) provides a penalty of jail or a fine for a first offense. Subdivision (c) provides for harsher penalties for a second offense. Subdivision (c)(1) provides for "imprisonment in the state prison" for a second or subsequent offense. Subdivision (c)(2) provides for imprisonment of two, four, or six years when the defendant has a previous "conviction under Section 288." Defendant has no prior conviction for violating Penal Code section 647.6; he has a prior conviction for violating Penal Code section 288. Defendant therefore should have been charged, convicted, and sentenced under subdivision (c)(2) of Penal Code section 647.6. He was instead charged, convicted, and sentenced under subdivision (c)(1). We have given the parties the opportunity to brief the issue and now correct the judgment and sentence.
The jury was instructed that a prior conviction under Penal Code section 288 was necessary to find defendant guilty of Penal Code section 647.6.
Defendant was sentenced to an indeterminate term of 50 years to life on count 7, lewd acts on a child, calculated as a term of 25 years to life (Pen. Code, § 667.61) doubled (Pen. Code, § 1170.12). Defendant received a determinate term of 6 years, calculated as the upper term doubled, for the first count of child molestation (count 1). Defendant received consecutive terms of 16 months each, calculated as one-third the middle term doubled, for two further counts of child molestation (counts 3 and 5). The sentences on the remaining three counts of child molestation were stayed under Penal Code section 654 (counts 2, 4, and 6). Defendant received a consecutive term of 16 months, calculated as one-third the middle term doubled, for the failure to register as a sex offender (count 8). Defendant was sentenced to a total sentence of 50 years to life, consecutive to 10 years.
The sentence imposed on each count of child molestation was miscalculated under Penal Code section 647.6 subdivision (c)(1) and must be recalculated under subdivision (c)(2). For count 1, defendant received the upper term doubled. Under subdivision (c)(2), that is calculated as 6 years doubled, or 12 years. For counts 3 and 5, defendant was sentenced to one-third the middle term doubled. Under subdivision (c)(2), that is calculated as 32 months for each count. Defendants revised total sentence is 50 years to life, consecutive to 18 years, 8 months in prison. We modify the judgment accordingly.
Defendant requests we remand the matter to allow the trial court to exercise its discretion to strike the prior serious felony conviction with respect to one or more counts of child molestation. It is apparent the trial court would decline to do so. In sentencing defendant to the maximum sentence, the trial court stated defendant was "as dangerous a sexual predator as I have ever seen in 25 years in the criminal justice system." The trial court concluded defendant was "an acutely serious and extreme danger to the community and there is really no reason for any leniency or compassion by this court."
DISPOSITION
The judgment is modified to reflect conviction under Penal Code section 647.6, subdivision (c)(2) in counts 1 through 6. Defendants sentence on count 1 is modified to reflect a term of 12 years. Defendants sentence on counts 3 and 5 is modified to reflect a term of 2 years 8 months each. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare a modified abstract of judgment reflecting these changes and forward it to the Department of Corrections.
We concur: TURNER, P. J. and ARMSTRONG, J.