Trial Court: Alameda County Superior Court Trial Judge: Honorable Joan S. Cartwright Super. Ct. No. C164477
The opinion of the court was delivered by: Humes, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Jamaal Rex Harrison of sex offenses in connection with attacks on four women over a period of two years, and he was sentenced to 100 years to life in prison. On appeal, Harrison argues that his convictions must be reversed because the trial court declined to substitute his second appointed counsel, advised him improperly during the brief time when he was allowed to represent himself, failed to adequately continue the trial date, and prohibited him from questioning the victims about whether they had engaged in prostitution. He also argues that his defense counsel was ineffective and that the prosecutor engaged in misconduct. We reject each of these claims and affirm.
In the published portion of this opinion, we conclude that the trial court had no duty to inform Harrison of his option to request advisory counsel after it granted his request to represent himself.
I. FACTUAL AND PROCEDURAL BACKGROUND
About 10 p.m. on April 4, 2006, 14-year-old Jane Doe No. 1 was waiting for a bus at 104th Avenue and International Boulevard in Oakland as she was returning home from her boyfriend's house. Harrison attacked her by pulling her by her hair into his van and forcing her to copulate him orally as he drove away. He then drove to a secluded area and forced her to copulate him orally again, this time outside the vehicle. Harrison then raped Jane Doe No. 1, penetrating her about three times, and he tried to sodomize her. Harrison's DNA was found on a vaginal swab taken from the victim.
As a result of the attacks on Jane Doe No. 1, the jury convicted Harrison of one count of forcible rape (§ 261, subd. (a)(2)--count 1), two counts of forcible oral copulation (§ 288a, subd. (c)(2)--counts 2, 3), and one count of attempted forcible sodomy (§§ 286, subd. (c)(2), 664--count 4). As to each count, the jury also found true allegations under section 667.61 (commonly known as the one-strike law) that Harrison kidnapped Jane Doe No. 1, which substantially increased her risk of harm (§ 661.61, subd. (d)(2)); kidnapped her in violation of various provisions of the Penal Code (§ 667.61, subd. (e)(1)); and committed a sex offense against multiple victims (former § 667.61, subd. (e)(5), now subd. (e)(4)).
Around 8 p.m. on November 1, 2006, 18-year-old Jane Doe No. 2 was walking on Foothill Boulevard in the eastern part of Oakland to visit a girlfriend, when Harrison attacked her from behind and dragged her into his van. He drove for 10 to 15 minutes, and then forced her to copulate him orally. He also digitally penetrated her, put his mouth on her chest, raped her twice, and hit her in the face and chest. Jane Doe No. 2 eventually was able to fight her way out of the vehicle. Employees of a nearby organic tea plant heard her screams and opened a garage door to let her in. Harrison's DNA was found on a vaginal swab taken from the victim.
The jury convicted Harrison of two counts of forcible rape (§ 261, subd. (a)(2)--counts 5, 6), one count of forcible oral copulation (§ 288a, subd. (c)(2)--count 7), and one count of sexual penetration (§ 289, subd. (a)(1)--count 8). As to each count, the jury also found true one-strike allegations that Harrison kidnapped Jane Doe No. 2, which substantially increased her risk of harm (§ 667.61, subd. (d)(2)); kidnapped her in violation of various provisions of the Penal Code (§ 667.61, subd. (e)(1)); and committed a sex offense against multiple victims (former § 667.61, subd. (e)(5)).
In the early morning hours of September 29, 2007, 18-year-old Jane Doe No. 3 was near 12th and Market Streets in Oakland after attending a club where her cousin worked as a disc jockey. As she walked alone to her brother's house, Harrison grabbed her and pushed her up the steps of a church and through a walkway. He then yanked her hair, forced her to copulate him orally three times, and raped her twice. Afterward, Harrison tied her up using her bra and shoelaces, and he ran away. Harrison's DNA was found on a vaginal swab taken from the victim.
The jury convicted Harrison of three counts of forcible oral copulation (§ 288a, subd. (c)(2)--counts 9 through 11) and two counts of forcible rape (§ 261, subd. (a)(2)--counts 12, 13). As to each count, the jury also found true one-strike allegations that Harrison kidnapped Jane Doe No. 3, which substantially increased her risk of harm (§ 667.61, subd. (d)(2)); kidnapped her in violation of various provisions of the Penal Code (§ 667.61, subd. (e)(1)); committed a sex offense against multiple victims (former § 667.61, subd. (e)(5)); and tied or bound the victim in the commission of the crimes (former § 667.61, subd. (e)(6), now subd. (e)(5)).
In the early morning hours of April 6, 2008, 20-year-old Jane Doe No. 4 was near 14th Street and Broadway in Oakland after getting off a bus and walking alone toward her mother's house. Harrison forced her into his van and made her orally copulate him as he drove. He then parked his car in a dark, deserted area of San Pablo, where he digitally penetrated her, sodomized her, and forced her to copulate him orally two more times. He then drove away, and Jane Doe No. 4 called 911. Harrison's DNA was found on the victim's underwear and on a rectal swab taken from her.
The jury convicted Harrison of three counts of forcible oral copulation (§ 288a, subd. (c)(2)--counts 14, 15, 17) and one count of forcible sodomy (§ 286, subd. (c)(2)--count 16). As to each count, the jury also found true one-strike allegations that Harrison kidnapped Jane Doe No. 4, which substantially increased her risk of harm (§ 667.61, subd. (d)(2)); kidnapped her in violation of various provisions of the Penal Code (§ 667.61, subd. (e)(1)); and committed a sex offense against multiple victims (former § 667.61, subd. (e)(5)).
The trial court sentenced Harrison to four consecutive terms of 25 years to life (one term for each victim), for a total indeterminate term of 100 years to life, with concurrent terms of 25 years to life on all remaining counts. This timely appeal followed.
A. Pretrial Representation
1. Appointment of trial counsel
Harrison was represented at the preliminary hearing by an attorney who withdrew after the information was filed because Harrison could not afford to continue paying him. The trial court then appointed a new attorney for Harrison, but that attorney filed a motion to withdraw in less than two months, citing an irremediable breakdown in the relationship that made effective representation "impossible." The court granted the motion and, on the day before Thanksgiving 2010, selected a second court-appointed attorney, Deborah Levy, an experienced criminal defense lawyer, who represented Harrison through trial and sentencing.
2. January 24, 2011 Marsden hearing
Two months after Levy was appointed, Harrison sought to replace her. On January 24, 2011, the court held a hearing in accordance with People v. Marsden (1970) 2 Cal.3d 118 (Marsden), where Harrison complained that Levy had met with him about three weeks after she was appointed, but she was not prepared. He accused Levy of "hiding evidence" from him, and he further complained that the investigator assigned to his case had not yet looked at what Harrison believed was "key evidence." Levy acknowledged that she had taken time off during the holidays, and that the investigation was delayed because the investigator had been ill for more than two weeks. Still, Levy stated that she had read all three volumes of the preliminary hearing transcript and was familiar with the case. The trial court assured Harrison that Levy was "a competent and skilled trial lawyer."
Although he had previously waived his right to a speedy trial, Harrison indicated that he wanted to withdraw the waiver to expedite the trial. He stated that he was frustrated that he had been in custody for two years and that continuing to waive time was "a bad idea for [his] case." He explained that he "didn't want to waste a lot of time" and "wanted to push [his] case," but he was "still missing a lot of [his] reports" as well as a transcript of the preliminary hearing. Levy told the court that she wished to withdraw as counsel because Harrison was insisting on a speedy trial, and she could not be prepared for a trial in 60 days where there was "major discovery" and "the exposure [was] gigantic." She was concerned because extensive discovery needed to be addressed, the case involved multiple victims, and Harrison faced several life counts. When Harrison confirmed that he wanted to withdraw his speedy-trial waiver, the trial court warned him that any lawyer would have difficulty preparing for trial in such a complicated case within 60 days of appointment, and it would be "virtually impossible" to ensure effective representation in that time. The trial court denied the Marsden motion. The court did not address Levy's request to withdraw as counsel. Harrison withdrew his speedy-trial waiver at a disposition and setting hearing on January 31, and the trial court then set a trial date of March 21.
3. February 10, 2011 Marsden hearing
Fewer than three weeks after the first Marsden motion was denied, Harrison again sought to replace Levy. At a second Marsden hearing held on February 10, 2011, Harrison again complained that Levy had not provided him with various reports, transcripts, and recorded interviews, and that she had met with him only briefly. He also complained that he and Levy did not get along and that "[a]ll we do is argue on the phone and argue in the courtroom."
Levy told the trial court that she had repeatedly explained to Harrison that her most important task was to review discovery carefully and that she had told him that they would have a long meeting after she had completed her review. Levy acknowledged that she was busy working on other matters, including a capital case, but made clear that she would meet with him when she could. She expressed concern that the trial was then scheduled for March 21 and that Harrison had refused to further waive time. Harrison said he was aware that he could again waive his speedy trial right, but that "waiving time [wa]s not the problem," because he and Levy would "continue to argue and bump heads" even if he received more time. Levy promised that she "would do absolutely everything" she could to be prepared for trial on the scheduled date and that Harrison's case would be "absolutely [on] the top of my list of things to do" after completing a motion in her capital case.
The trial court denied the Marsden motion, stating that "under the particular circumstances of this case taking into consideration that a Marsden motion has been made and denied fairly recently, and that Mr. Harrison has had multiple attorneys in the past and in comparison Ms. Levy has not had as much time to get with the case as the other attorneys have, I feel that she is acting as a reasonably competent attorney under the circumstances."
The trial court maintained the scheduled trial date of March 21, and scheduled an interim disposition and setting hearing for February 23. At the unreported February 23 hearing, the trial court again maintained a trial date of March 21.
4. March 22, 2011 Faretta hearing
On March 21, the matter was continued to the following day, when Harrison filed a petition to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). At the March 22 hearing on the petition, the trial court told Harrison that his attorney was a skilled lawyer and that the court had concerns about Harrison representing himself in such a serious case. Harrison again complained that Levy had not visited him in jail to discuss strategy and had not given him information that he had requested.
The trial court noted that if Harrison continued to insist on his right to a speedy trial, the deadline to try him was April 1, 2011. When the court asked Harrison whether he would be ready in time, Harrison responded, "I'm more than most likely going to have [to] end up waiving time because I don't have all the information that I need and I been seeking to try to get, and then I'll take it from them [sic]. I already know I pretty much aren't [sic] going to be ready in a week."
The prosecutor objected to Harrison once again waiving his right to a speedy trial. At one point, the hearing judge called the judge who was then assigned to try the case to ask what might happen regarding the timing of the trial if Harrison waived his right to a speedy trial. The hearing judge then stated, "I think [the judge set to try the case] is going to make you go to trial within your 60 day period. So you are welcome to waive time and see how successful you are at that point. But you are not the only one involved in this trial, and that's sort of the bottom line. Because you've gone no time waiver, which is absolutely your right, you have forced the prosecutor to get ready. Now the prosecutor has got kind of a dog in this fight." The hearing judge also told Harrison: "I just asked [the judge assigned to try the case] about what her general policy is, and you'll be able to make whatever specific requests you have and whatever your reasons are, but I need you to understand really clearly at this point if I grant your motion to represent yourself it's with the understanding that you can go to trial within this 60 day period. Are you ready to do that?" Harrison confirmed that he was.
After advising Harrison at length about the pitfalls of self-representation and that he would be better off having Levy represent him, the trial court granted the Faretta motion. The court did not specifically address scheduling issues, but it is clear from the hearing transcript and the minute order that the parties were to return the following day for a disposition and setting hearing. Although Levy had been relieved as counsel, the court nonetheless ordered her to appear the next day, in the event that the trial judge wanted to "take up the issue of standby counsel." The court then explained to Harrison the role of standby counsel: "If you get into too much water where you are starting to drown, Ms. Levy would be prepared to step right back and she's already sort of tuned up on the case."
5. March 23, 2011 hearing
The following day, the trial judge stated that she was not sure whether Harrison intended to seek a continuance of the trial, but that it was her understanding that the case would go forward as previously scheduled. When Harrison protested that he needed more time to prepare, the court stated, "Well, you can go ahead and waive time. Perhaps that gives you an extra few days to look at things. I think there's case law indicating that there was--that it was improper for a Court to grant less than five days for a continuance when there's been a situation like that so you may get an extra week, but the trial is going forward." Harrison asked, "So if I go pro per, I can't get time to study my case?" The court responded, "You cannot choose to go pro per to delay a trial; that's improper."
Harrison thereafter waived his right to a speedy trial. The trial court then told him: "What I am considering doing is appointing Ms. Levy as standby counsel. What I don't want to happen is this [to] go to a trial department and at the beginning, a third of the way or half the way and you decide that you can't represent yourself any longer, we talked about how serious this case is, and what you're facing in this case a bit, we touched on it a bit. I assume [the judge who handled the Faretta hearing] went through all of that with you yesterday. I see Ms. Levy is nodding her head in agreement, so I don't need to reiterate everything he said to you yesterday. But because of the nature of the charges here and the consequences of what you're facing, I am inclined to go ahead and appoint Ms. Levy as standby counsel. [¶] What that would mean is she's simply in the courtroom listening to the procedures, sir. She's not taking part in any way of doing anything up here like you'll be doing as an attorney for yourself. But she will be present in the courtroom observing everything so that, like I said, there wouldn't be any continuance granted during the trial, because you suddenly decide you can't represent yourself any longer. But you won't be consulting with her during trial. She won't be telling you what to do. You will solely be representing yourself as you wish to do." Levy accepted the appointment.
Harrison again asked if he could have additional time to "look over [his] stuff." The court responded, "I'm sure you were advised by [the judge hearing the Faretta motion] that you will be given the same time, the same rights as anyone else at Santa Rita [Jail] that's representing himself or herself. I am not going to give you any additional time . . . ." The trial court denied Harrison's request for a continuance, and the matter was set for a jury trial five days later, on March 28.
6. March 28, 2011 request for counsel
The matter was called on the trial calendar on March 28, and the prosecutor immediately raised scheduling issues, explaining that "two critical witnesses" who had been available when trial had been set for the previous week now had planned vacations. The prosecutor expressed concern that Harrison was entitled to "some kind of continuance in order for him to prepare if he's continuing pro per," but that a one-week continuance "would put me right in the middle of my witness scheduling problems." The following exchange then took place:
"THE COURT: Okay. Let me just ask you, Mr. Harrison, you still want to continue representing yourself in this matter?
"THE DEFENDANT: I didn't know it was going to be like this.
"THE COURT: I can't hear you.
"THE DEFENDANT: I said I didn't know it was going to be like this. I can't do this on my own.
"THE COURT: Yeah, as I'm sure you will remember, I expressed serious misgivings about you representing yourself in a matter of this nature where it's my understanding I believe there's DNA evidence and obviously you're ...