Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA331518 Patricia J. Titus, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Rodney Lee Wilson was convicted, following a jury trial, of one count of committing a lewd act on a child under 14 in violation of Penal Code section 288, subdivision (a). The trial court found true the allegations that appellant suffered three prior serious felony convictions within the meaning of section 667 and section 1170.12 and served prior prison terms for those convictions within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a term of 25 years to life pursuant to the "Three Strikes" law, plus two five-year enhancement terms pursuant to section 667, subdivision (a). The trial court stayed the prior prison term enhancements pursuant to section 654. Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in denying his motions for self-representation and to strike his prior convictions. We requested the parties to brief the issue of whether the trial court should have stricken rather than stayed the section 667.5 enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
We order the section 667.5 enhancements stricken, and affirm the judgment of conviction in all other respects.
Facts
On Sunday, October 21, 2007, about 4:00 a.m., 13-year-old S.C. was reading his Bible on the front porch of his house. Appellant came to the front gate of the house. S.C. knew appellant from the neighborhood. S.C. went with appellant to an alley a few blocks away. There, appellant pulled down S.C.'s pants from behind and penetrated S.C. Appellant did not ask S.C. if he wanted to have sex, but S.C. did want to, "out of curiosity."
When S.C. got home, his mother asked him where he had been. He started to cry. S.C. then wrote down what had happened with appellant, but because he was embarrassed, he falsely wrote that appellant had used force. The police were called. S.C. told them the same story.
Police took S.C. to a hospital, where a nurse performed a sexual assault examination. Sperm and skin cells were recovered from S.C.'s anus and rectal area.
S.C. next went to a detective's office, where he identified appellant from a photographic line-up. S.C. initially told the detective that appellant used force, but admitted a few days later that appellant did not use force.
The DNA from the sperm and skin cells were later tested. Both were found to match appellant's DNA.
Discussion
1. Motion for self-representation
Appellant contends that the trial court erred in denying his motion for self-representation made on April 16, after jury selection had begun. We see no error.
Under the Sixth Amendment to the U.S. Constitution, a criminal defendant has a right to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806, 834-835.) However, a defendant has an unconditional right to represent himself only if he invokes that right within a reasonable time before trial begins. (People v. Marshall (1996) 13 Cal.4th 799, 827.) An untimely motion for self-representation is addressed to the sound discretion of the trial court.
A Faretta motion made on the eve of trial is not timely. (People v. Clark (1992) 3 Cal.4th 41, 98-100; see People v. Burton (1989) 48 Cal.3d 843, 852; People v. Ruiz (1983) 142 Cal.App.3d 780, 791.) That was the case here, where appellant's motion was made after the jury panel had been sworn in.
When a defendant makes an untimely request for self-representation, the trial court "should consider such factors as the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion." (People v. Barnett (1998) 17 Cal.4th 1044, 1049.)
Here, appellant made his fourth Marsden motion seeking new counsel on April 15, before prospective jurors arrived in the courtroom. After the trial court denied that motion, appellant moved to represent himself. He asked to have co-counsel appointed. The court explained that no co-counsel would be appointed. Appellant then repeatedly stated that he wanted to represent himself because it was "the only way [he] could get rid of this attorney." At that point, the court explained that if appellant was granted self-representation but then later changed his mind, his current counsel would be re-appointed. The court asked appellant if he would be ready for trial if he represented himself, but appellant did not answer. Instead, appellant argued to the court that he should not have to have his current attorney re-appointed if he later gave up representing himself. The trial court directed the clerk to give appellant the paperwork for self-representation, so that appellant could read the papers and decide if he wanted to represent himself.
The trial court gave appellant 90 minutes to read and consider the forms. Appellant then indicated to the court that he was withdrawing his motion for self-representation. The "prevoir dire conference" then proceeded. The court then swore in the prospective jurors and continued the matter until the next afternoon.
The next afternoon, immediately before jury questioning began, the trial court noted that it had received an advisement and waiver of rights to counsel, and found it to be untimely. Appellant claimed that he had filled out the paperwork the day before and left it in the courtroom as instructed, and that the delay in it reaching the judge was due to courtroom personnel. Appellant also claimed that he had only a few seconds to consider and fill out the paperwork. The court stated that it had given appellant 90 minutes to review the paperwork, and that he had not asked for more time.
We see no abuse of discretion in the trial court's decision to deny the April 16 motion. The court was entitled to consider the history of appellant's previous motions in deciding his current motion. It is more than reasonable to infer from this history that appellant was seeking self-representation in an indirect attempt to obtain a new attorney. Appellant had attempted to obtain substitute counsel four times before making his first request for self-representation. His stated reason for seeking self-representation was to get rid of his current attorney. He sought co-counsel and devoted a large portion of his self-representation argument trying to convince the court that his current attorney should not be re-appointed if he later gave up self-representation.
The trial court treated the papers received on April 16 as a separate self-representation motion. On appeal, appellant does the same.
It is also reasonable to infer that delay was likely to occur if the motion was granted. In making his Marsden motion, appellant stated that he had a discovery motion that he wanted to have heard. He also stated that he wanted to see copies of the police report, the DNA evidence and the preliminary hearing transcript. His purpose in seeking the reports and transcript was to show during trial that the police were lying. He also wanted to attack the DNA evidence, believing that it was contaminated. Clearly, it would take time for appellant to file his motion and review all the documents. Thus, although appellant did not explicitly request a continuance, it was reasonable to infer that he would need one. (See People v. Clark, supra, 3 Cal.4th at p. 101 [defendant first made Marsden motion on ground that attorney did not file discovery-related motions; when that motion was denied, defendant sought self-representation but did not indicate that continuance would be necessary; it was reasonable to infer that delay would be required].)
2. Motion to strike prior conviction
Appellant contends that the trial court abused its discretion in refusing to strike his robbery convictions from 1986 and 1991. We see no abuse of discretion.
In ruling on a motion to strike prior convictions, a trial court should consider the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and determine whether the defendant falls outside the spirit of the Three Strikes law, in whole or in part, and should therefore be treated as if he had not previously been convicted of one or more serious felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling. (People v. Carmony (2004) 33 Cal.4th 367, 373.)
Appellant contends he fell outside the spirit of the Three Strikes law because his prior robbery convictions were remote, his intervening criminal conduct involved less serious offenses, he was 50 years old and had no history of violence, and the encounter in this case was a consensual one.
A child under 14 is not deemed able to consent to sexual activity by law. (See, e.g., Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 261.)
The trial court acknowledged that no force was used in the commission of the current offense, but did not find that fact sufficient to offset appellant's extensive criminal history. Appellant had a total of five felony convictions and had not led a law abiding life outside custody for a period longer than five years in his adult life. He was on probation (for a drug offense) when he committed the current offense.
The trial court's comments indicate that it properly considered the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and reached an impartial decision. (People v. Williams, supra, 17 Cal.4th at pp. 161-164.) Thus, the trial court did not abuse its discretion.
3. Section 667.5 enhancements
The trial court found true the allegations "pursuant to... Penal Code section 667.5(b) to be true." The allegations showed convictions in two prior cases. The trial court stayed the section 667.5 enhancements pursuant to section 654 because the same underlying convictions were used to support section 667, subdivision (a), enhancements. Under such circumstances, section 667.5 enhancements should be stricken rather than stayed pursuant to section 654. (See People v. Jones (1993) 5 Cal.4th 1142, 1150.) Accordingly, we order the section 667.5 enhancements stricken.
The information alleged that appellant had been convicted of two felonies in case SA005873 and one felony in case number A091858.
Disposition
The section 667.5 enhancements found true in this matter are ordered stricken. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this action and to deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur, TURNER, P. J. MOSK, J.