COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 1, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANTERIA LAVAR WESLEY, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed. (Super. Ct. No. SCD206692)
The opinion of the court was delivered by: O'rourke, J.
P. v. Wesley CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Danteria Lavar Wesley of assault with intent to commit rape (Penal Code,*fn1 § 220, subd. (a); counts 1 and 3); attempted forcible rape (§§ 261, subd. (a)(2) and 664; count 2); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); counts 4 and 5); and indecent exposure (§ 314, subd. (1); count 6). The jury also found true the allegations that he personally inflicted great bodily injury (§ 12022.8; count 2; § 12022.7, subd. (a); counts 3, 4 and 5; and § 1192.7, subd. (c)(8); counts 4 and 5); and personally used a deadly weapon (1192.7, subd. (c)(23); count 5).
The court sentenced Wesley to 22 years in prison as follows: the upper term of 6 years each on counts 1 and 3; plus the upper term of 4 years on count 5; plus 3 years each on two of the section 12022.7, subd. (a) enhancements. The sentences on count 2 and enhancements under sections 12022.8 and 12022.7, subdivision (a) were stayed pursuant to section 654. The court sentenced him to 6 months local time for the count 6 misdemeanor conviction, for which he received credit for time served.
Wesley contends the trial court prejudicially erred in denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806, 819 (Faretta) and in admitting a statement as a spontaneous declaration under Evidence Code section 1240; and, insufficient evidence supported his indecent exposure conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2007, at approximately 4:30 p.m., Wesley entered the lobby of a downtown San Diego hotel, where C.R. and N.A. worked as receptionists, and made a reservation with C.R. Afterwards, C.R. entered the office of E.S., the general manager. A video surveillance camera shown to the jury captured Wesley jumping over the counter and entering the office. C.R. and E.S. screamed and E.S. ran out of the office. Wesley cornered C.R., asking, "You want some," which C.R. interpreted as a sexual comment. C.R. begged him not to do anything to her and escaped to the laundry room with E.S., but he followed them.
E.S. told C.R. to call 911 and say Wesley had a gun, because she wanted a quicker police response. C.R. threw a fan at Wesley and went to a next door deli to call 911. C.R. was scared and told the 911 operator E.S. was being raped, and Wesley had a gun. Meantime, Wesley fought with E.S., exposed his penis to her and put it close to her face. He hit her on the face and between her legs and tried to pull her pants down.
N.A. got sticks from Magsaysay Holper, the deli owner. She hit Wesley, who was laughing and forcing open the laundry room door while C.R. and E.S. pushed to close it. Wesley managed to enter the laundry room. Wesley dragged E.S.'s foot while N.A. tried to pull her out of the room.
Holper went to the laundry room and saw Wesley on top of E.S. Holper hit him with a stick and jumped on top of him, freeing E.S. to leave with N.A. E.S.'s face, tongue and lip were bleeding, and she was treated at the hospital for her injuries, including a broken nose. Holper and his wife struggled with Wesley, who injured them both with the sticks.
Shortly after 4:45 p.m., San Diego Police Department Officer Brian Keaton responded to the hotel and saw Wesley hitting Holper in the laundry room. Officer Keaton subdued Wesley, whose penis was visible through his unbuttoned and unzipped pants.
At approximately 4:40 p.m., San Diego Police Department Officer Tristan Schmottlach was called to report to the hotel and arrived there shortly afterwards. He interviewed E.S., who was crying and said many times, "He tried to put his penis in, he tried to put his penis in." C.R. confirmed that Wesley tried to pull down E.S.'s pants in the laundry room.
Wesley contends the court committed reversible error in denying his Faretta motion.
The day scheduled for Wesley's arraignment, he refused representation by Attorney Albert Arena. The court asked Wesley about his ability to represent himself and his educational background. Wesley replied, "Well, I was told that I was going to be sentenced today." The court replied, "I have you down for an arraignment. You want to be your own lawyer, shouldn't you know the difference between an arraignment and sentencing?" Wesley stated, "Your honor, I've been in jail for six months. Six months. I was under the impression under the constitution of America that I was to have a quick and speedy and competent trial." The court acknowledged that constitutional right but, noting that Wesley faced a possible 15-year sentence, asked why he wanted to represent himself. Wesley replied, "Because this is taking too long." The court rejoined, "Well, that's not a reason to represent yourself," adding, "The only thing you're going to do is get yourself convicted of more time than you'll probably otherwise do." Wesley insisted on self-representation and trial that day.
The court instructed Wesley to fill out an "Acknowledgement Concerning Right of Self-Representation" pursuant to People v. Lopez (1977) 71 Cal.App.3d 568 (a Lopez waiver), and ruled, "I don't think that Mr. Wesley is making a knowing, intelligent waiver. That may happen later. I'm declining to allow him to proceed pro per at this time." The court entered a plea of not guilty on Wesley's behalf, relieved the public defender and appointed attorney Arena to represent Wesley. Wesley next asked, "Your honor, I got enough money. Can I buy a lawyer?" The court replied, "Sure. Any time you hire a lawyer, you come in, they'll take Mr. Arena's place, and we'll -- we'll go. You can hire anybody any time."
"A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself." (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall), citing Faretta, supra, 422 U.S. at p. 819.)
A trial court must grant a defendant's request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently. (People v. Welch (1999) 20 Cal.4th 701, 729; People v. Windham (1977) 19 Cal.3d 121, 127-128.)
"The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (Marshall, supra, 15 Cal.4th at p. 23.)
To assess a Faretta claim, we review the entire record de novo to determine whether the defendant's invocation of the right to self-representation was knowing and voluntary. (Marshall, supra, 15 Cal.4th at p. 24.) The standard of review applicable to the court's determination that defendant's request was equivocal is not clear. (Ibid.) However, we conclude that under either de novo review or the deferential substantial evidence standard, the court properly rejected Wesley's motion for self-representation. (Id. at p. 23.)
In light of the totality of the circumstances, Wesley's Faretta motion was not unequivocal; rather, he requested immediate trial on arraignment day and when his request was denied he impulsively sought self-representation. Wesley's emotional response " 'did not demonstrate to a reasonable certainty that he in fact wished to represent himself.' " (Marshall, supra, 15 Cal.4th at p. 22.) To the contrary, Wesley was ambivalent and he told the court that he had money to hire an attorney, asking if he could "buy a lawyer" to represent him. Further, the trial court ruled tentatively on the Faretta motion, stating that Wesley's waiver was not knowing and intelligent, although the court allowed that such a waiver "may happen later," and accordingly it denied the motion "at this time." It directed Wesley to fill out a Lopez waiver. Wesley does not contend he renewed his Faretta motion, and he has not shown it would have been futile to do so. (See People v. Hines (1997) 15 Cal.4th 997, 1028, [noting that under Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888, a "self-representation request that was an 'impulsive response' to the trial court's denial of the defendant's motion for substitute counsel and was not renewed at a later court date was not unequivocal."].)
Wesley contends based on the trial court's questions at the hearing that it denied his Faretta motion because he lacked academic credentials. If true, such would not be a permissible basis to deny his motion. The California Supreme Court has ruled, "Following United States Supreme Court precedent in Godinez v. Moran (1993) 509 U.S. 389, 399-400, we have held that a trial court may not measure a defendant's competence to waive his right to counsel by evaluating the defendant's 'technical legal knowledge' [citation] or his ability to represent himself [citation]. The right to self-representation may be invoked by any defendant competent to stand trial." (People v. Doolin (2009) 45 Cal.4th 390, 454.)
However, based on our review of the entire record, we reiterate that the court denied Wesley's Faretta motion because his spur of the moment decision to seek self-representation resulted from his "passing anger or frustration," that he would not be tried immediately. (People v. Butler (2009) 47 Cal.4th 814, 825.) Separately, as noted, Wesley subsequently accepted appointed counsel to represent him and in the approximately two years between his arraignment and trial, he never renewed his request for self-representation. We conclude he must further be found to have ultimately abandoned his desire to invoke his Faretta rights. (See People v. Stanley (2006) 39 Cal.4th 913, 933.)
Wesley contends that under Evidence Code section 1240, the trial court abused its discretion in admitting C.R.'s statements made to Officer Schmottlach that Wesley cornered her in the office and tried to pull down her pants. He contends she was no longer under the influence of nervous excitement, as demonstrated by her lack of physical injuries, and her "two significant fabrications" to the 911 operator that E.S. was being raped, and Wesley had a gun. He argues he was prejudiced because Officer Schmottlach provided the sole testimony that Wesley had tried to pull down C.R.'s pants in the office, thus transforming Wesley's simple assault of C.R. to the more serious crime of assault with intent to commit rape.
Before trial, the People moved in limine to introduce statements that C.R. and E.S. made to Officer Schmottlach as spontaneous declarations, an exception to the hearsay rule. The trial court deferred ruling until trial. The court subsequently admitted Officer Schmottlach's testimony regarding C.R.'s statements over Wesley's hearsay objection. Officer Schmottlach testified that during the interview C.R. was visibly upset, shaking, crying, and clearly frightened. He several times had to ask her to calm down. C.R. told him that Wesley grabbed her in the office, pushed her up against the wall, held her with one arm, and used his other arm to pull on her pants.
Evidence Code section 1240 codified the common law exception for spontaneous statements. "The foundation for this exception [in the common law] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury." (Showalter v. Western Pac. R. Co. (1940) 16 Cal.2d 460, 468.) "The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " (Id. at p. 468.) " 'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' " (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)
Evidence Code section 1240's codification of the hearsay exception for spontaneous statements provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act condition, or event perceived by the declarant; and [¶] (b) was made spontaneously while the declarant was under the stress of excitement caused by such perception."
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury." (Poggi, supra, 45 Cal.3d at p. 318.) The trial court's determination of preliminary facts will be upheld if supported by substantial evidence. (People v. Brown (2003) 31 Cal.4th 518, 541.) However, "[w]e review for abuse of discretion the ultimate decision whether to admit the evidence." (People v. Phillips (2000) 22 Cal.4th 226, 236.) In performing the task of determining whether the requirements of the spontaneous statement exception are satisfied, the court " 'necessarily [exercises] some element of discretion. . . . ' [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met." (Poggi, supra, at pp. 318-319.)
"A spontaneous statement is one made without deliberation or reflection. [Citation.] 'The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance -- how long it was made after the startling incident and whether the speaker blurted it out, for example -- may be important, but solely as an indicator of the mental state of the declarant.' " (People v. Raley (1992) 2 Cal.4th 870, 892-893.)
Wesley attacked C.R. in the office and followed her and E.S. in the laundry room,
despite their protests and resistance. Shortly afterwards C.R. spoke to Officer Schmottlach about the attacks, which produced in C.R. "nervous excitement" sufficient to "render the utterance spontaneous and unreflecting." (Poggi, supra, 45 Cal.3d at p. 318.) Thus the first element of a spontaneous declaration was met. Officer Schmottlach testified that C.R. was upset and frightened, and he had to calm her down. We conclude the second element was met because her mind was still under the influence of the event during the interview and her "reflective powers were yet in abeyance." (Id.) Finally, the challenged statement related to the preceding incident in which Wesley cornered her in the office and tried to pull down her pants. Accordingly, we conclude substantial evidence supported the trial court's determination that C.R.'s statement qualified as a spontaneous declaration.
Wesley contends C.R. told the 911 operator the falsehoods that E.S was being raped and Wesley had a gun; therefore, she fabricated and her statements to officer Schmottlach were not spontaneous declarations. We conclude the trial court reasonably determined that Wesley's attacks on her and on E.S. produced in her nervous excitement that spurred her to make the specific statements to the 911 operator. Because she was still under the stress of the incident during the interview with officer Schmottlach, that mental state was determinative for the conclusion she made spontaneous declarations, and therefore they were admissible. (Poggi, supra, 45 Cal.3d at p. 318.) The statements' veracity was a separate issue for the jury to decide. We conclude based on the record that the trial court did not abuse its broad discretion in admitting C.R.'s statements as spontaneous declarations.
Wesley contends his conviction for indecent exposure must be reversed because no evidence showed that when he masturbated in the hospital bed he was aware of the presence of other people and he intended to direct their attention to his genitals; specifically, "he did not leave his bed, approach anyone, call out a name or even make eye contact."
On May 19, 2007, registered nurse Brenna Jupin treated Wesley at UCSD Medical Center. He was in "a direct observation room," which she described as "a six-bed unit where we have two nurses and there's six patients. [Wesley] was in bed A on the side of the room. There's only two patients there." Each bed has a curtain that can be drawn for the patient's privacy, but the curtains are kept open for the nurses to check on the patients' safety. Jupin was approximately five feet away from Wesley when she noticed he had pulled up his gown, removed his covers and was masturbating in his bed. He continued for several minutes, long enough for her to feel uncomfortable. She testified that she did not know if he was looking at her while he masturbated. As part of her job she frequently saw patients' exposed genitals, and that alone would not have offended her. She reported this incident to the police, who handcuffed both his hands to the bed sides.
Section 314, subdivision 1 criminalizes the conduct of every person who willfully and lewdly "[e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby."
"The separate requirement that the intent of the actor be 'lewd' is an essential element of the offense." (In re Smith (1972) 7 Cal.3d 362, 365.) And a conviction for this offense " 'requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purpose of sexual arousal, gratification or affront.' " (People v. Archer (2002) 98 Cal.App.4th 402, 404.)
"[A] conviction for indecent exposure under Penal Code section 314, subdivision 1 requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant's genitals. Thus, we will uphold defendant's conviction for indecent exposure in the absence of evidence of any direct visual observation of his genitals so long as there is sufficient circumstantial evidence to show that actual exposure occurred." (People v. Carbajal (2003) 114 Cal.App.4th 978, 986.)*fn2
This court's role in reviewing evidence to determine whether it is sufficient to sustain a conviction is "a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Wader (1993) 5 Cal.4th 610, 640.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) And, it is not within our province to reweigh the evidence or redetermine the issues of credibility. (Ochoa, at p. 1206.)
Contrary to Wesley's contention, the lack of evidence that he actively directed others' attention to his exposed genitals does not mean that insufficient evidence supported his conviction for indecent exposure. Based on Jupin's testimony, the jury reasonably could conclude beyond a reasonable doubt that Wesley intended to lewdly expose himself for purpose of sexual arousal, gratification or affront to others. His intent is inferable from the fact that despite being with another patient in an observation room that was readily accessible to nurses and hospital personnel, Wesley elected to masturbate with his gown opened, the bed covers down, and the curtains open. Jupin readily saw him masturbate for several minutes, to the point that she became discomfited. Although she was accustomed to seeing patients naked, Wesley's sexual self-gratification was an affront to her.
The judgment is affirmed.
McCONNELL, P. J.