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People v. Kirvin

California Court of Appeals, Second District, Second Division

December 4, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES KIRVIN, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA054851 Kathleen Blanchard, Judge.

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COUNSEL

Caroline R. Hahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOFFSTADT, J.

Does a trial court abuse its discretion in denying a criminal defendant the right to represent himself when he has repeatedly refused to come to court and be interviewed by a court-appointed mental health expert? Is a defendant who makes six separate telephone calls urging a relative to persuade the prosecution’s chief witness not to testify at trial entitled, under People v. Bailey (1961) 55 Cal.2d 514 [11 Cal.Rptr. 543. 360 P.2d 39], to dismissal of all but one of his six convictions for attempting to dissuade a witness? The answer to both questions is no, and we affirm

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defendant Charles Kirvin’s convictions and, with one small correction, the 26-year prison sentence imposed in this case.

FACTS AND PROCEDURAL HISTORY

I. Offense Conduct

Al Jesse Cambell (Cambell) was driving Defendant Charles Kirvin (Defendant) and others from Palmdale to Inglewood, California. Defendant and Cambell were dating. Upset with how Cambell was eating candy, Defendant punched her in the right eye so hard it bled. Defendant told Cambell he would hurt her family if she told anyone who hit her; he subsequently drove her to a nearby police station and hospital where she reported that she was hit by a stranger trying to rob her.

A few days later, Defendant grabbed Cambell’s arm gruffly after she rebuffed his sexual advances; her arm bruised. When the police arrived, they noticed Cambell’s still swollen eye and she told them the truth about the prior incident. Defendant was arrested.

Defendant thereafter made several calls from jail urging his sister and others to get Cambell “not to come to court.” Six of these calls were made to Defendant’s sister on the same day.

II. Procedural History

The People charged Defendant with corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), [1] assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) for Defendant’s actions in the car; with corporal injury to a cohabitant (§ 273.5, subd. (a)) for grabbing Cambell’s arm a few days later; and with 11 counts of attempting to dissuade a witness (§ 136.1, subd. (b)(2)) for the calls from jail. The People also alleged Defendant’s 2002 prior conviction for battery involving serious bodily injury as a “strike” (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and as a prior “serious felony” (§ 667, subd. (a)(1)); the People further alleged three prior prison sentences (§ 667.5, subd. (b)).

Prior to trial, Defendant expressed dissatisfaction with his appointed counsel and the trial court held a hearing with Defendant and his lawyer, pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden). ...


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