People v. Harrison

• Decision Date: 01 October 2001
• Docket Number: No. F022835.,F022835.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carl Franklin HARRISON, Defendant and Appellant.

112 Cal.Rptr.2d 91

92 Cal.App.4th 780

The PEOPLE, Plaintiff and Respondent, v. Carl Franklin HARRISON, Defendant and Appellant.

No. F022835.

Court of Appeal, Fifth District.

October 1, 2001.

Certified for Partial Publication.^*

Review Denied Jan. 16, 2002.

Kyle Gee, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Bill Lockyer, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Michael J. Weinberger, Thomas Y. Shigemoto and Troy L. Nunley, Deputy Attorney Generals, for Plaintiff and Respondent.

OPINION

ARDAIZ, P.J.

On December 13, 1989, the first of several informations was filed in Fresno County Superior Court against appellant Carl Franklin Harrison. On November 2, 1994, a jury convicted him as follows:

• Count one: Penal Code¹ section 286, subdivision (c) (forcible sodomy with child under age 14 and more than 10 years younger than Harrison; victim Tony R.);

• Counts two through six: Section 288a, subdivision (c) (forcible oral copulation with child under age 14 and more than 10 years younger than Harrison; victim Tony R.);

• Counts seven and eight: Section 288a, subdivision (c) (victim Victor R.);

• Count nine: Section 286, subdivision (c) (victim Victor R.);

• Count ten: Section 288a, subdivision (c) (victim Jeffrey R.);

• Counts eleven and twelve: Section 288a, subdivision (c) (victim Andrea G.);

• Count thirteen: Section 288, subdivision (a) (lewd and lascivious act on child under age 14; victim Andrea G.);

• Count fourteen: Section 261, subdivision (a)(2) (forcible rape; victim Janiva P);

• Count sixteen: Section 242 (battery, a lesser included offense of § 273.5 (infliction of corporal injury on cohabitant); victim Cynthia E.);

• Count seventeen: Section 207, subdivision (b) (kidnapping a child under age 14 for the purpose of committing a violation of § 288; victim Sylvia G.);

• Counts eighteen through twenty-one and twenty-three: Section 288, subdivision (a) (victim Sylvia G.);

• Count twenty-two: Section 243.4 (sexual battery, a lesser included offense of § 288, subd. (a); victim Sylvia G.).

With respect to counts one through fourteen, eighteen through twenty-one, and twenty-three, the jury also found true the special allegation that in committing the offenses, Harrison engaged in substantial sexual conduct with a child under age 14 (§ 1203.066, subd. (a)(8)). The jury acquitted Harrison of count fifteen, which charged a violation of section 288, subdivision (b) (forcible lewd and lascivious act on child under age 14; victim Janiva P.) as an alternative to count fourteen.

Harrison was sentenced to a total unstayed term of 121 years in prison and ordered to pay a $4,000 fine. He filed a timely notice of appeal. He now raises numerous issues, all of which fall into one of three general categories: motions for substitution of appointed counsel, competency proceedings, and trial. For the reasons which follow, we will affirm the judgment in its entirety, with the exception that we will order vacated the vexatious litigant finding and order issued July 17, 1992.

FACTS^**

I Prosecution Evidence

Prior to April 1989, Harrison resided with Cynthia (Cindy) E. and her sons, Tony, Victor, and Jeffrey. All three boys were under the age of five. At first, the relationship was not abusive. In the summer of 1987, Harrison, Cindy, and the children moved to a house on the corner of Temperance and Ashlan. During this time, Harrison had Tony orally copulate him. In approximately March of 1988, the group moved to a residence on South Armstrong in Fresno. There, Harrison forced Tony, Victor, and Jeffrey to orally copulate him on numerous occasions. He also sodomized Tony and Victor. One time, he forced Tony to orally copulate him, then forcibly sodomized the child and made Tony suck the feces off his penis. Cindy was present during many of these events, but initially did not take the children and leave or report the abuse because she was afraid of Harrison, as he had previously beaten her and the children and threatened to kill them all. Finally, near the end of April 1989, Cindy and her sons managed to get away from the house on Armstrong with the help of Cindy's sister and two men.

During this same general time period, Harrison also sexually abused Andrea G., who was four or five years old. The abuse, which occurred on many occasions, took the form of fondling, digital penetration, oral copulation, sodomy, and intercourse. Andrea did not tell her mother because Harrison threatened to hit or do something bad to the mother. In addition, in July of 1989, Harrison raped Janiva P. after threatening to break her legs. At the time, Janiva was eight or nine years old. Shortly thereafter, Janiva reported the incident to Teresa Lopiccolo, Harrison's sister.

On August 4, 1989, Harrison asked Richard N. if he could take Richard's daughter, nine-year-old Rosie, and stepdaughter, ten-year-old Sylvia G., to a drive-in, along with several other girls. Permission was granted after Harrison gave Richard N. his driver's license. Harrison was to bring the girls back by midnight. When they had not returned by 1:30 a.m., the police were summoned. Harrison arrived with the girls while Jenny N., the girls' mother, was still talking to Officer Farmer. Sylvia seemed nervous, so Farmer said to see if anything happened. Jenny went inside to talk to Sylvia, who began crying and said that Harrison had touched her and made her do things to him, and that he had given her a $50 bill so she would not say anything. Sylvia also said Harrison had had a gun. Sylvia then went outside and reported the abuse to Farmer. Sylvia related that the acts consisted of oral copulation, intercourse, and digital penetration of her anus and vagina.

Harrison was arrested on the morning of August 5, 1989. A loaded handgun was seized from the cab of his pickup, and children's clothing was found in the bed of the truck. Possible seminal fluid and saliva were found on the undergarments Harrison was wearing. However, no semen was detected on components of Sylvia G.'s sexual assault evidence kit.

II^***

DISCUSSION^***

B. Vexatious Litigant Finding

On June 19, 1992, Harrison was found to be incompetent in case Nos. 410784-3 and 433352-2, and conservatorship proceedings were instituted. Harrison subsequently submitted a petition for writ of habeas corpus in case No. 410784-3, as well as a "Demand For Hearing on issues of Wei. InstCode 5008 and 5350." (Sic.) On July 17, 1992, Judge Nunez issued the following order in case No. 410784-3, entitled "Order Prohibiting Further Filings In Propria Persona":

"Having read and considered the numerous motions, petitions, and other documents submitted in propria persona by Carl Harrison plus relevant court documents on file in this and related matters, the Court finds that the defendant is represented by an attorney of record, defendant's actions have become vexatious within the meaning of section 391 of the Code of Civil Procedure, and defendant currently is not qualified to represent himself.

"IT IS THEREFORE ORDERED that the County Clerk shall not accept any further documents for filing submitted in propria persona by Carl Harrison unless leave has first been obtained from the Presiding Judge of this Court."

The order was filed on July 20, 1992. Insofar as the record shows, it was issued on the court's own motion, without prior notice to the parties or hearing. Thereafter, Harrison continued to submit various documents and motions (including pursuant to People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 [Marsden]), some of which took the form of letters written to specific judges, and others, which were stamped "received" instead of "filed." Some appear in the clerk's transcript on appeal without any stamp, while others appear in the correct chronological order for the date placed on the motion by Harrison, but are filestamped March 15, 1995, after he was sentenced. Harrison withdrew two Marsden motions, dated February 11 and March 6, 1994, on March 10, 1994, during his hearing on restored competence.

Harrison now contends Judge Nunez exceeded his statutory authority by issuing a vexatious litigant order in a criminal case, and that the error requires reversal because it had the effect of precluding consideration of any of Harrison's Marsden motions that were submitted between the date of the order and the motion of October 4, 1994. We agree there was error, but conclude reversal of the judgment is not required.⁶

The vexatious litigant statutes (Code Civ. Proa, § 391 et seq.) were first codified in 1963. (Camerado Ins. Agency, Inc. v. Superior Court (1993) 12 Cal. App.4th 838, 841, 16 Cal.Rptr.2d 42; Stats. 1963, ch. 1471, § 1, p. 3038.) These statutes, which are constitutional (In re Whitaker (1992) 6 Cal.App.4th 54, 56, 8 Cal. Rptr.2d 249), "were enacted to require a person found to be a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of an obsessive and persistent litigant whose conduct can cause serious financial results to the unfortunate object of his or her attack. The purpose of the statutory scheme is to deal with the problem created by the persistent and obsessive litigant who has constantly pending a number of groundless actions, often against the judges and other court officers who decide or were concerned in the decision of previous actions adversely to him. [Citation.]" (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 993, 35 Cal.Rptr.2d 93.)

The vexatious litigant scheme recently was synopsized in McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1215-1216, 73 Cal.Rptr.2d 288:

"The vexatious litigant statute authorizes a `defendant' to bring a motion to require a `plaintiff to furnish security. Defendant must prove that the plaintiff is a `vexatious litigant' and that there is no reasonable...