People v. Leonard

• Decision Date: 28 February 2000
• Docket Number: No. C027404.,C027404.
• Citation: 93 Cal.Rptr.2d 180,78 Cal.App.4th 776
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harvey Mack LEONARD, Defendant and Appellant.

93 Cal.Rptr.2d 180

78 Cal.App.4th 776

The PEOPLE, Plaintiff and Respondent, v. Harvey Mack LEONARD, Defendant and Appellant.

No. C027404.

Court of Appeal, Third District.

February 28, 2000.

Certified for Partial Publication.^* Review Denied June 21, 2000.^**

Kenneth H. Nordin, Santa Clara, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, and Janet E. Neeley, Deputy Attorney General, for Plaintiff and Respondent.

CALLAHAN, J.

Defendant Harvey Mack Leonard appeals from an order committing him to Atascadero State Hospital after a jury found true the allegation he is a sexually violent predator within the meaning of Welfare and Institutions Code sections 6600-6609.3, the Sexually Violent Predators Act (the SVPA).¹

Defendant raises a broad constitutional challenge to the SVPA, claiming it violates guarantees of due process, equal protection, fair trial, right to counsel, the privilege not to testify against himself, and protections against double jeopardy and ex post facto laws. Most of defendant's constitutional arguments were rejected by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584 (hereafter Hubbart), and by this court in People v. Buffington (1999) 74 Cal.App.4th 1149, 88 Cal.Rptr.2d 696. One claim of instructional error calls into question the 1977 qualifying conviction. We affirm the commitment order.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1997, the Placer County District Attorney filed a petition for defendant's involuntary treatment as a sexually violent predator (SVP). The petition alleged defendant had been convicted of a sexually violent offense against two victims: (1) a February 1987 Placer County conviction of forcible rape and penetration with a foreign object (Pen.Code, §§ 261, former subd. (2), now subd. (a)(2), & 289); and (2) an August 1977 Sacramento County conviction of forcible rape by force or fear (Pen.Code, § 261, former subd. (2), now subd. (a)(2)).

The court overruled defendant's demurrer challenging the constitutionality of the SVPA. Jury trial commenced on August 6, 1997. The district attorney called as expert witnesses four licensed clinical psychologists: Elaine Finnberg, David Stubbins, Melvin Macomber, and Philip Trompetter. All four testified that defendant met the criteria for designation as a SVP. Each described him as exhibiting two mental disorders: (1) paraphilia, rape, or sexual sadism; and (2) antisocial personality disorder. At trial, Finnberg and Stubbins described facts which led to their diagnoses.

The 1987 qualifying conviction involved a 17-year-old girl who had a friend living in the house rented by defendant. Defendant gave the victim a ride to a party. At some point during the evening, defendant drove her to a rural area, and told her he wanted "some pussy." The victim tried to run from defendant's car, but he chased her, grabbed her by the hair, and threw her onto the grass by the roadside. Threatening to harm the victim, defendant retrieved a wooden club from his car. He forced her into the cargo section of the car, pulled down her jeans and underwear, inserted his finger into her vagina, attempted oral sex, then raped her. He said he would hurt her if she told anyone what had happened. After the victim reported the rape, defendant stated the victim was a "loose girl," and that the sex was consensual. Later he said it was "date rape." At the hearing to determine whether he was a SVP, defendant claimed the 17year-old was a "bag whore" who was prostituting herself to obtain money for drugs. Defendant was paroled after serving nine years of a sixteen-year sentence. Upon release, he failed to register as a convicted sex offender, and moved without informing his parole officer. Defendant was arrested for driving under the influence, and returned to prison after the court revoked parole in August 1996.

The 1977 qualifying conviction involved the rape of a 16-year-old girl defendant kidnapped from a bus stop in Sacramento County. He drove the victim to a rural location, choked her, hit her, ripped off her panties, and forced his penis into her face in an attempt at oral copulation. Then defendant raped her. Although he pleaded guilty in the resulting prosecution, defendant later claimed the victim was a prostitute who was angry at him because he did not pay what she demanded. He repeated this claim at the section 6600 hearing. Defendant served 40 months for these offenses, and was paroled in September 1980. In August 1981, defendant was charged with attempted rape. The court revoked parole in lieu of trial on that charge.

Defendant's brief omits reference to the two psychologists' description of other crimes committed by defendant between 1976 and 1985 which also provided the basis for their expert opinions. In November 1976, a 19-year-old woman accepted a ride from defendant, whom she had met through a friend. Defendant followed the woman into her apartment, threw her on a bed, choked her, and hit her in the face with his fist. Friends responded to the victim's screams, and ordered defendant to leave. Defendant was charged with robbery and assault to commit rape. Those charges were subsequently dismissed, and he was convicted of assault with a deadly weapon.

An incident in March 1977 involving a 22-year-old woman resulted in charges of attempted rape. The victim claimed defendant had raped many women, but they refused to come forward or dropped charges when he threatened to kill them. She said defendant told her specifically that he would kill her if she testified against him. The record suggested the case was dismissed in 1977 at a time other charges were pending.

In December 1980, in an uncharged case, defendant gave the female victim a ride. He parked in a remote area and said he was going to rape her. The victim managed to flee the car after stabbing defendant on the hand. He dragged her back, and forced her to orally copulate him.

Another incident occurred in June 1983, when defendant kidnapped a 26-year-old woman from a Reno parking lot at knife-point. He drove her to a rural area, digitally penetrated her anus and vagina, attempted to sodomize her, and forced her to orally copulate him after he was unable to obtain an erection. At a subsequent trial, the victim testified defendant said he would kill her. He told her he had already killed a girl in California, and could not return there.

In a second 1983 incident, defendant gave a ride to a 20-year-old woman, and drove her to his house. After forcing the victim inside, he rammed her against the wall, ripped her clothes, raped her, and threatened harm if she told her mother about the rape.

In October 1985, defendant was convicted of assault with a deadly weapon and kidnapping in a case involving an Alameda County woman. The court dismissed a charge of assault with intent to rape in the course of the criminal proceedings. The victim had known defendant for about a year, having bought a car from him. She accepted a ride in defendant's van, where he forced her to orally copulate him. The victim then picked up defendant's pocket knife, and attempted to escape. An altercation ensued in which she bit him on the leg. Defendant forced her back into the van with a claw hammer. When he raised the claw hammer to hit the victim, she stabbed him with the pocket knife. Defendant drove himself to a hospital, where he initially claimed to have been attacked during a robbery. In the course of the medical evaluation, he admitted to being stabbed by the victim, but claimed her attack was motivated by jealousy.

DISCUSSION

I-II^***

III Defendant's Representation at Trial

Defendant raises two constitutional issues involving his representation at trial. The SVPA specifically provides that a person subject to commitment is entitled to the assistance of counsel. "In the case of a person who is indigent, the court shall appoint counsel to assist him...." (§ 6603, subd. (a).)

Given the liberty interests involved, we assume for purposes of argument that individuals subject to the SVPA deserve the same constitutional protections accorded criminal defendants. (Cf. Specht v. Patterson (1967) 386 U.S. 605, 609-610, 87 S.Ct. 1209, 1212-1213, 18 L.Ed.2d 326, 329-330; People v. Burnick (1975) 14 Cal.3d 306, 324-325, 121 Cal.Rptr. 488, 535 P.2d 352; & Estate of Bodger (1954) 128 Cal.App.2d 710, 714, 276 P.2d 83.) A criminal defendant is entitled to assistance of counsel at all critical stages of the proceeding. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Pen.Code, §§ 686, 859 & 987; Gideon v. Wainmight (1963) 372 U.S. 335, 344-345, 83 S.Ct. 792, 797-797, 9 L.Ed.2d 799, 805-806.) He or she may discharge appointed counsel and substitute another attorney by successfully demonstrating inadequate representation. (People v. Marsden (1970) 2 Cal.3d 118, 124-125, 84 Cal.Rptr. 156, 465 P.2d 44 (hereafter Marsden).) Due process also secures the right of a criminal defendant to appear and defend with retained counsel of his or her own choice. However, this right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is "unjustifiably dilatory or ... arbitrarily desires to substitute counsel at the time of trial." (People v. Blake (1980) 105 Cal. App.3d 619, 623-624, 164 Cal.Rptr. 480.) A criminal defendant also has an unconditional constitutional right to represent himself or herself if, on timely motion, the trial court determines defendant has voluntarily and intelligently elected to do so. (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187, citing Faretta v. California (1975) 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, 45...