Trial Court: Santa Clara County Superior Court No. CC898890 Trial Judge: Hon. Eugene Michael Hyman
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super.Ct.No. CC898890)
A jury convicted defendant Darian Manuel Powell of raping his young daughter and exposing her to obscene pornographic movies. On appeal, he claims that the trial court improperly refused to let him represent himself at trial, incorrectly ruled that his daughter could testify against him via closed-circuit television, and made mistakes in deciding the length of his sentence. He also claims that the evidence the jury received was too weak to allow it to convict him of exposing his daughter to the pornographic movies.
We find no reason to reverse the judgment and will affirm it.
A jury convicted defendant of unlawful sexual intercourse with a minor 10 years old or younger. (Pen. Code, § 288.7, subd. (a).)*fn1 It also convicted him of exhibiting harmful matter to a minor for purposes of seduction and sexual gratification. (§ 288.2, subd. (a).) Harmful matter, for purposes of section 288.2, essentially means obscene material as defined in Miller v. California (1973) 413 U.S. 15, 24-25 (Miller), but with certain differences, including a gloss that the material must have no redeeming value within the meaning of Miller for the benefit of minors. (See § 313, subd. (a).)
Defendant also challenged his criminal liability on the ground that he was insane at the time of the crimes. A separate jury was impaneled to try this question after the first jury found him guilty. The jury found him to be sane.
The trial court sentenced defendant to 25 years to life imprisonment on the section 288.7 conviction consecutive to an aggravated three-year term on the section 288.2 conviction.
The victim is the daughter of defendant and L. H., and she was born in 1997. After defendant and L. H. ended their non-marital relationship, custody arrangements caused the victim to have unsupervised visits with defendant from 10:00 a.m. to 6:00 p.m. every Sunday.
During some of these visits, and at a time when the victim was 10 years old or younger, defendant would rape her. He forced himself on her for purposes of sexual intercourse about 10 times--sometimes after or while watching pornographic movies.*fn2 She would tell him to desist and invariably would try to escape, but he would ignore her and sometimes would hold down her arms, which she thought he did to block her from escaping.
Another time--but this was uncharged conduct--defendant forced the victim to engage in oral copulation of him. She was 10 years old when this happened.
Defendant presented no evidence, but defense counsel cross-examined prosecution witnesses.
I. Self-representation Claim
Defendant claims that the trial court erred in denying his motion to represent himself as untimely. We do not agree.
On August 27, 2008, the trial court held a Marsden hearing, i.e., a hearing to consider defendant's request to replace his current counsel with new counsel, as authorized by People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court denied the motion. Thereupon defendant declared that he wanted to make a Faretta motion, i.e., a motion to represent himself as authorized by Faretta v. California (1975) 422 U.S. 806 (Faretta).
The trial court questioned defendant. He stated that he had represented himself at a previous trial to its completion. He was taking Geodon (ziprasidone), a drug used to treat schizophrenia and the manic phases of bipolar disorder, and Paxil (paroxetine hydrochloride), an antidepressant drug, because he was hearing voices and was depressed. He stated that the medications were ineffective--he was still hearing voices and his depression was severe. He further stated that he would not object if the court considered an evaluation by Brad Novak, M.D., a psychiatrist, written in connection with a prior competence hearing.
The trial court reviewed Dr. Novak's report. The court questioned defendant to ensure he understood the legal ramifications of representing himself, and defendant stated lucidly that he did. He acknowledged that he had been committed to mental health institutions three times for short-term evaluations, two of which followed suicide attempts.
Defendant continued. He asserted that he heard voices every day and was hearing them as he spoke. The voices told him what to do, including the manner of conducting his defense. The voices were advising him to represent himself.
The prosecutor argued that defendant's goal was to delay the proceedings. "[T]he medical reports indicate that he's malingering and that he's trying to avoid criminal responsibility and he's . . . laid a record for that this morning" by talking about what the prosecutor suspected were spurious auditory hallucinations. The prosecutor asked defendant, "if you were granted the status to represent yourself today, are you prepared to go forward with trial today?" Defendant responded, "No." The prosecutor reminded defendant and the trial court that this was the day trial was set to begin.
The trial court noted that a recent United States Supreme Court decision had announced separate standards for competence to stand trial and to represent oneself during the trial. (See Indiana v. Edwards (2008) 554 U.S. 164, 167, 174, 177-178 [holding that the Sixth Amendment permits states to require mentally impaired defendants to be tried represented by counsel when, though impaired, they are competent to stand trial].) The prosecutor commented that the court could deny the Faretta motion on the procedural ground that defendant was not prepared to proceed to trial that day.
The trial court ruled: "Mr. Powell, the Court denies your request for in pro[.] per[.] or self-representation status, based upon the fact that this is the time and place for trial and that you're not capable of going forward at this time [¶] Further, based upon your answers to my questions, even though Dr. Novak has made some findings, for purposes of the record, it's apparent to me that you are depressed, based upon what I'm observing. [¶] With respect to your mental issues, I'm not capable of responding to those at this particular point in time. I'm not qualified to do so. But the Court's of the opinion that . . . if the Court were to grant your in pro[.] per[.] status, you would need time to proceed, and that this matter has been set for trial at this time."
Trial did not begin that day, however. The trial court's attention was taken up with other important pretrial matters.
Immediately after the trial court denied defendant's Faretta motion, it held a hearing on the prosecutor's motion to have the victim testify via closed-circuit television. The hearing on the closed-circuit-testimony motion continued the next day, August 28, 2008, and still did not reach a resolution. The trial court ordered the hearing to continue on September 2, after an intervening weekend and the Labor Day holiday, when the courthouse would be closed. It appears that the hearing did resume on September 2; it may have continued on September 3, although the record is unclear on that point. The hearing concluded on September 8, after another intervening weekend. Jury selection began on September 10 and continued to the next day, when it concluded and the jury was sworn. The prosecution immediately began to present evidence.
"Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806, to represent themselves. [Citation.] However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. [Citation.] Faretta motions must be both timely and unequivocal. . . . [Citations.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001-1002.) Moreover, a trial court rarely should grant such a motion on the day set for trial. Our Supreme Court has "held on numerous occasions that Faretta motions made on the eve of trial are untimely." (People v. Lynch (2010) 50 Cal.4th 693, 722.) A motion made that close to the day set for trial is "extreme" (id. at p. 723) and now is disfavored (see id. at pp. 722-723 [collecting cases]; but see People v. Windham (1977) 19 Cal.3d 121, 126-128, fn. 5 [a "showing of reasonable cause" made the day before trial may justify granting a Faretta motion and ordering a continuance].)
Because defendant's motion for self-representation was not "a timely, unequivocal Faretta motion" (People v. Lawrence (2009) 46 Cal.4th 186, 191) in that it was made on the day set for trial, the trial court had discretion to decide to grant or deny it. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5 [when a defendant makes a Faretta motion the day before trial, granting or denying it rests within "the sound discretion of the trial court"].) Such discretion, it would seem in light of People v. Lynch, supra, 50 Cal.4th at pages 722-723, should seldom be exercised in favor of granting the motion, notwithstanding any contrary suggestion in the earlier Windham case. The trial court need not have elaborated on its ruling that defendant's motion could not be granted under such inopportune circumstances. A trial court abuses its discretion when its ruling falls outside the bounds of reason (People v. Benavides (2005) 35 Cal.4th 69, 88) and we discern no such possibility that this occurred here. As we have noted, the proceedings continued immediately after the ruling, and proceeded without substantial interruption between the time of the ruling and the time the prosecution began to present its evidence to the jury. The court could reasonably believe that a continuance, which defendant would have needed insofar as he told the court and prosecutor that he was not ready to proceed to trial, would have impaired the orderly administration of justice. Defendant argues on appeal that the delay would not have done so. In his view, the court, the prosecution, and early witnesses would have been inconvenienced only minimally. The question before us, however, is not whether that is a possibility; instead, it is whether there was no contrary possibility, leaving the ruling without support. The record does not suggest that there was no possibility of these forms of inconvenience.
Of course, trial did not begin until some days after the Marsden and Faretta hearings of August 27, 2008. We notice, however, that the trial court's minute order for August 26 stated that August 27 at 8:30 a.m. was the date set for "motions/trial," meaning, in our view, that the court was contemplating the possibility of beginning trial that day. We presume that the court did not realize that the motion to permit the victim to testify via closed-circuit television would take as much time as it did, but we cannot fault it for its inability to predict the unknown, so it makes no difference to our analysis of its ruling.
Defendant asserts that his Faretta motion would have been timely except for circumstances beyond his control. He maintains that he submitted his Marsden motion on August 15 or 16, 2008, and that through no fault of his own the trial court neglected to attend to it until August 27, the day trial was set to begin and the day his Faretta motion was heard and denied. That, however, misinterprets the record. Defendant stated at the Marsden hearing that after experiencing misgivings about his attorney, "I wrote a [Marsden] letter to the Court, but I didn't have the Court's name or the judge's name, who to send it to. I have that here." The court stated, "It's a sealed letter, which I am opening at this time. [¶] It's dated August 16th." After the court read the letter into the record, defendant asked, "Should I give you this motion, the Marsden motion itself? . . . [¶] . . . [¶] I didn't date it or put the department number." The court took the motion, evidently looked at it quickly, and noted, "Most of the Marsden motion the defendant has given me is pro forma." The minutes for August 27 state, "The defendant provides the Court with his Marsden motion. The Court reviews the Marsden motion, orders it filed, . . ." Defendant did not transmit the letter and motion to the court on or about August 15 or 16. He handed them up during the hearing and cannot complain that the court neglected to consider what it had yet to receive.*fn3
Defendant's Faretta claim thus is without merit. There was no violation of defendant's constitutional right to represent himself.
II. Permitting Victim to Testify via Closed-circuit Television
Defendant contends that the trial court violated his right under the Sixth Amendment to the United States Constitution to confront the witnesses against him by permitting the prosecution to let the victim testify via two-way closed-circuit television from a location outside the courtroom without undertaking an adequate inquiry into how the victim would feel about testifying in his presence. He emphasizes that the court did not question the victim before ruling on this issue, but only heard testimony from individuals familiar with the victim and/or defendant.
The question arose because the victim, defendant's daughter, was 11 years old at the time of trial and had expressed unease about testifying against defendant in open court. The prosecution moved to let her testify via closed-circuit television as authorized by section 1347. Defendant opposed this request and accordingly, as noted in our discussion of defendant's Faretta claim, the trial court and parties devoted part or all of several days to the hearing on the motion.
The section 1347 hearing produced testimony that at the preliminary examination on July 10, 2008, a jailer had seen defendant in a "very angry" state; he was "punching the walls inside his holding cell, his knuckles were bloody," and he told jailers "we would have to shoot him to shut him up." Later that day, defendant was cursing in the courtroom, and court personnel confined him in layers of restraints. A court bailiff testified about these incidents in the same vein. The victim was not present for the preliminary examination, but in confirming the foregoing accounts, San Jose Police Detective Gary Buhay testified at the section 1347 hearing that the victim told him she had not wanted to tell the school principal about the abuse because, it may be inferred from Buhay's testimony, she had been afraid that defendant would be angry. The victim's mother had seen defendant's outbursts during court proceedings and testified that the victim did not want to testify in defendant's presence, although further questioning by the court clarified that the victim's main fear might be the content of the testimony she would have to provide, not the setting in which she would have to provide it. Defendant was intimidating and manipulative and on one occasion had attacked his daughter, hitting her in the face. The mother felt that her daughter would suffer emotional distress, possibly of an extreme nature, if forced to testify in defendant's direct presence, unmediated by closed-circuit television.
A licensed clinical social worker employed as a therapist, including for families and children, testified that she conducted counseling sessions with the victim on five occasions, each about 45 or 50 minutes long. The victim was "resilient"; nevertheless, she confirmed that the victim was afraid to testify in open court. She might be capable of being physically present in court but might "shut down" and provide incomplete testimony. Defendant used to beat her with a belt*fn4 and she would find it difficult if he stared at her. "The idea of having her father stare at her would cause her to feel as if she would crumble. She said, 'like a piece of paper.' " The social worker was confident that the victim would suffer serious and severe emotional distress if forced to testify in the courtroom.
The trial court granted the prosecution's motion. It stated that "testifying in front of a jury would . . . cause the alleged victim serious emotional distress, to the extent that she might be unavailable as a witness." "The Court further finds by clear and convincing evidence with respect to [section 1347, subdivision] (b)(2), that [paragraphs] A and C [are satisfied] . . . . ['](A): Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness.['] And, ['C]: The defendant threatened serious bodily injury to the child or [the] child's family,['] etc. The Court finds that there [were] ...