People v. Baylis

Decision Date24 May 2006
Docket NumberNo. A106217.,A106217.
Citation43 Cal.Rptr.3d 559,139 Cal.App.4th 1054
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Patrick BAYLIS, Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General, for Plaintiff and Respondent.

Gordon S. Brownell, St. Helena, under appointment by the Court of Appeal, for Defendant and Appellant.

GEMELLO, J.

Defendant Patrick Baylis appeals from a judgment entered following his conviction of four counts of rape and four other charges. He contends that the trial court erred in denying his motion to substitute retained counsel Richard Hove for his appointed counsel. The trial court denied the motion because attorney Hove had an actual conflict of interest in that Hove had previously represented defendant's brother Rodney Baylis, in prosecutions for two other sexual assaults. Rodney Baylis had also previously been charged with the very offenses involved in defendant's case. Defendant's anticipated trial strategy was to implicate his brother in the offenses. In the published portion of the decision, we hold that in these unusual circumstances the trial court did not abuse its discretion or violate defendant's right to counsel by denying the motion to substitute attorneys. In the unpublished portion of the decision, we reject defendant's instructional claims and his claims under Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

PROCEDURAL BACKGROUND

In October 2003, the District Attorney for the County of Alameda filed a second amended information alleging that defendant Patrick Baylis committed four counts of rape (Pen.Code, § 261, subd. (a)(2); counts 1-4),1 one count of penetration with a foreign object (§ 289; count 5), one count of forcible oral copulation (§ 288a, subd. (c); count 6), one count of kidnapping with the intent to commit rape or oral copulation (§ 208, subd. (d); count 7), and one count of robbery (§ 211; count 8). As to counts one through six, it was alleged that defendant kidnapped the victim and that the movement of the victim substantially increased the risk to her (§ 667.61, subds. (d)(2) and (e)(1)) and that defendant personally used a firearm (§§ 667.61, subd. (e)(4), 12022.3). As to counts seven and eight, it was alleged that defendant personally used a firearm. (§ 12022.5.) Defendant was represented at trial by an attorney other than Hove. A jury found defendant guilty on all counts and found that all the alleged enhancements were true. In April 2004, the trial court imposed a total prison term of 44 years to life.

FACTUAL BACKGROUND
The Prosecution Case

On the morning of February 23, 1997, as the victim was walking to work, a man she described as Black and heavyset walked toward her. He grabbed her arm, put his hand over her mouth, and put a gun to her cheek. He told her not to scream or he would kill her, and he told her to keep walking.

They walked through a parking lot and he covered her face with her jacket. The assailant forced her into a car and drove her to an apartment in Hayward. He led her to a walk-in closet, covered her eyes with a t-shirt, and told her to take off her clothes. He forced her to have intercourse in the closet and on a mattress in another room, and, holding a gun to her head, made her orally copulate him. As the assailant handed the victim her clothes, she heard him go through her pockets. She later discovered that approximately seventeen dollars were missing. The assailant told the victim that he should just kill her, led her back to the mattress, and forced her to have intercourse again.

They left the apartment. The assailant drove for a while and told the victim to get out of the car. She contacted the police, describing her assailant as a Black male in his early thirties, five feet five inches tall, about 200 pounds, with a full beard and closely cut hair.

In a photo lineup, the victim picked out defendant's brother, Rodney Baylis, as her assailant. She was not confident of the identification, although she did not say so that day to the detective in charge of the investigation, Frank Daley. She did tell Audrey Pinkney, who accompanied her to the police station, that the photo she picked out resembled her assailant but that she did not really think it was him.

One night about a month later, the victim saw the car her assailant had driven parked across the street from her house. She saw three men approach the car and told Pinkney, with whom she was living, that one of the men was her assailant. They called the police, who arrived soon afterwards and drove the victim and Pinkney to where the car had been stopped by other officers. The victim identified defendant as her assailant. One of the officers said she was confusing defendant with his brother, but the victim never changed her mind.

Because Detective Daley had identified Rodney as the primary suspect in the rape, defendant was not taken into custody. Another officer who was present during the identification admitted that he falsely wrote in his report that the victim did not make an identification. He testified that Daley asked him to write a supplemental report falsely stating that the victim reported that the person the police had detained looked like the assailant but that the assailant was actually shorter (defendant is over six feet tall and Rodney is approximately five and a half feet tall). A couple of days later the victim told Daley that defendant was her assailant; he corrected her, admonishing that her assailant was actually the defendant's brother, whom she had identified in the photo line-up.

Rodney was charged with the rape, along with separate sexual assaults in Alameda and Oakland. At the preliminary hearing in August 1997, the victim identified Rodney as the person who had raped her. However, she had concerns about the accuracy of her identification. After the hearing, she told Pinkney that the man she identified was not her assailant. When she made the identification during the hearing, she trusted Daley's judgment more than her own.

In June 1999, DNA analysis of a semen sample on the victim's underpants excluded Rodney. Defendant and the victim's boyfriend, Robert Pinkney, could not be excluded as sources of the semen. Assuming Robert Pinkney was one source of the semen, the odds of a person taken at random being another contributor were approximately one in 690 billion Caucasian males and one in 10 billion African-American males. Not assuming that Robert Pinkney was a source of the semen, the odds of a person taken at random being one of the contributors was one in 8,200 Caucasian males and one in 890 African-American males.

Based on information obtained from a car dealership, the police determined that the car the assailant drove matched the description of a 1996 Hyundai registered to a Cathrell Golston. The investigation also led the police to an apartment on Vermont Street in Hayward, which the victim subsequently identified as the location where she was raped. The victim's and defendant's fingerprints were found in the Vermont Street apartment; Rodney's were not. Golston lived in the Vermont Street apartment but moved out before February 23, 1997. Golston previously was in a romantic relationship with defendant. The romantic relationship ended in December 1996, but she continued to allow defendant to drive her car and defendant had keys to the Vermont Street apartment. Rodney had never been to the apartment.

The Defense Case

Defendant challenged the victim's identification. The parties stipulated that a victim-witness assistance counselor would testify that the victim never told her that Rodney was not her assailant and did not express any doubt about the identification of Rodney. Similarly, defendant's sister testified that she saw the victim at Rodney's preliminary hearing, and the victim saw defendant and did not say anything about him.

Defendant testified. He denied raping, kidnapping, or having any contact with the victim. He did admit that he had a key to Golston's apartment on Vermont Street and that he drove her car with her permission. The night before the victim was kidnapped and raped, the defendant picked up Rodney from a BART station and gave him Golston's car, as well as the keys to the apartment on Vermont Street. Later that night, defendant and two friends, Mike and Tanya, went to a bowling alley in Hayward. Afterwards, they went to the Vermont Street apartment, and defendant had sex with Tanya. Defendant left the apartment early the next morning.

In February 1997, defendant's hair was about three or four inches long, not closely cut. He had a goatee but not a full beard. He went to the police department voluntarily after he heard the police were looking for Rodney. He was interviewed by two detectives but was not arrested.

DISCUSSION
I. Denial of Defendant's Motion to Substitute Attorneys

Defendant contends that denial of his motion to substitute retained counsel Hove for his appointed counsel violated his right to counsel under the federal and state Constitutions. In particular, defendant contends that because the trial court found that he freely and voluntarily waived Hove's conflict of interest arising from Hove's former representation of Rodney, he was entitled under the federal and state Constitutions to substitute Hove for his appointed counsel. He also contends that the trial court erred both in concluding that Rodney was required to waive the conflict and that Rodney's waiver was inadequate. We hold that the trial court properly concluded that Rodney did not adequately waive the conflict raised by representation of defendant by Hove and that denial of the substitution motion was not an abuse of discretion...

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