People v. Pena

• Citation: 7 Cal.App.4th 1294,9 Cal.Rptr.2d 550
• Court: California Court of Appeals Court of Appeals
• Decision Date: 06 July 1992
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur PENA, Defendant and Appellant. B041907.

Page 550

9 Cal.Rptr.2d 550

7 Cal.App.4th 1294

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur PENA, Defendant and Appellant.

B041907.

Court of Appeal, Second District, Division 7, California.

July 6, 1992.

Review Denied Sept. 24, 1992.

[7 Cal.App.4th 1298] William E. Moore, Sierra Madre, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Keith H. Borjon, Supervising Deputy Atty. Gen., and Donald J. Oeser, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Arthur Samuel Pena ("Appellant") appeals from a judgment of conviction, following a jury trial, for burglary, forcible rape and forcible oral copulation. We affirm the judgment.

FACTS AND PROCEEDINGS BELOW

The victim, Ms. Helen B., is a woman in her late fifties who is hearing impaired. She testified with the help of a sign-language interpreter. Ms. B. testified she had seen appellant twice before the rape, once at a neighbor's yard sale, and again a week or month before the incident when appellant drove by her home and told her, "I'm gonna get you. I'm gonna fuck you."

On June 27, 1988, at about 2:30 p.m. Ms. B. was unlocking the door of her home when appellant approached her from behind carrying a cup. He said something about "water" and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, appellant got off of her, twisted her by the legs violently, and orally copulated her.

After the incident, Ms. B. drove to her sister's home and told her she had been raped. She then went to see her regular physician, Dr. Singer. Ms. B. first testified the doctor was in a hurry and she did not have a chance to tell him what happened. Later, she testified she was examined by Doctor Singer and told him she was raped. She could not remember many details about the examination.

When she returned home that day, she took a shower and douched. She told her son, an ordained minister, her neighbor, Denise Stratton, and Detective Lee of the Culver City police department she was attacked but not raped. She was too embarrassed to tell them she had been raped. Detective Lee showed Ms. B. a photographic line-up. She identified appellant immediately.

The next day, Ms. B. admitted to Ms. Stratton she was actually raped by the appellant. Ms. Stratton contacted Detective Lee, who suggested Ms. B. be seen by a doctor. Ms. B. saw Dr. Robinson that day.

Dr. Robinson examined her with a "rape kit" the day after the incident. He testified the victim had bruises and vaginal redness consistent with a rape. He found no evidence of semen during his examination, but testified none would be found if the victim showered and douched before the examination.

Detective Lee reinterviewed Ms. B. after her visit with Dr. Robinson. He also noticed several bruises on her arms and legs, and ordered photographs to be taken. During the investigation, a cup was recovered from the premises. No useful fingerprints were recovered from the cup or from Ms. B.'s home which would have placed appellant at the scene.

Connie Faught and Denise Stratton took the stand and corroborated those aspects of Ms. B.'s encounter in which they were involved. Ms. Stratton further testified she knew appellant for 9 months prior to the incident. She witnessed the appellant drive by Ms. B.'s home shouting "I'm gonna fuck you." On the morning of the rape, appellant went to Ms. Stratton's home seeking repayment of $20.00 he had loaned her.

Ms. Faught added she saw bruises on Ms. B.'s body the day after the rape.

Appellant testified on his own behalf. He claimed he had met Ms. B. a few months before the incident, through her boyfriend "Jerry." He went to Ms. Stratton's home on the morning of June 27th to get $20.00 she owed him. Appellant went to Ms. B.'s home later that afternoon to discuss renting a room in her home. He admitted having sex with Ms. B., but contended the act was consensual. He testified the victim became angry with him after the sexual act because he refused to move in and pay the rent she was asking. Appellant also insinuated Ms. B. was asking for money in return for the sex they just had.

The defense also offered the testimony of Dr. Singer, Ms. B.'s regular physician. Dr. Singer testified he examined Ms. B. on the day of the incident. Ms. B. indicated she had been raped, but did not tell him when it occurred. Dr. Singer conducted a vaginal examination, and diagnosed redness and irritation. He prescribed medication for a vaginal infection. He did not use a rape kit, nor did he check Ms. B.'s body for bruises.

On March 7, 1989, the jury returned a verdict of guilty on all three counts. The court imposed sentence of eight years for the rape count and eight years for the forcible oral copulation count, ordering the two terms to run consecutively. Appellant was also sentenced to the high base term of six years on the burglary count, to run concurrently with the sentence imposed on the sex crimes.

Appellant appeals from the judgment of conviction.

DISCUSSION

I. THE TRIAL COURT DID NOT ERR IN REFUSING APPELLANT'S REQUEST FOR COCOUNSEL STATUS.

On the morning of trial appellant requested cocounsel status, stating: "Your honor, I thought this over, and I feel it's my best interest, possibly [defense counsel's], that I ask the court for co-counsel status. I believe the court was aware I was Pro Per at one time." The court denied appellant's request stating appellant's prior pro. per. status "would not be the basis for co-counsel status." Appellant asserts the trial court erred in denying his request.

As long as a defendant is represented by counsel at trial, he has no absolute right to participate personally in his own defense. (People v. Mattson (1959) 51 Cal.2d 777, 789, 336 P.2d 937.) While the Sixth Amendment guarantees both the right to self-representation and the right to counsel, a defendant who elects representation by counsel does not have a constitutionally protected right to appear as cocounsel. (People v. Bloom (1989) 48 Cal.3d 1194, 1218, 259 Cal.Rptr. 669, 774 P.2d 698; People v. Hamilton (1989) 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730.) The court may exercise its discretion and permit a defendant to actively participate in the presentation of his case. But it grants that request on a substantial showing the cause of justice would be served and the "orderly and expeditious conduct of the court's business" would not be substantially hindered. (Mattson, supra, 51 Cal.2d at p. 797, 336 P.2d 937.)

Appellant contends the trial court applied an erroneous legal standard when exercising its discretion to grant or deny his request. The argument is convoluted but it appears he is arguing the following: to properly exercise its discretion, a trial court must determine whether the defendant has made a substantial showing of the need for and effect of acting as cocounsel. By stating simply pro. per. status was not a basis for cocounsel status, the court failed to make the required determination, thereby applying the wrong legal standard in its ruling.

Appellant relies on People v. Davis (1984) 161 Cal.App.3d 796, 207 Cal.Rptr. 846, for the proposition a trial court abuses its discretion in ruling on a cocounsel request when it labors under a misunderstanding of law. In Davis, defendant made an extensive showing of his need for cocounsel status. He was an attorney with The Court of Appeal held the magistrate misunderstood his discretion to rule on the matter, and thereby erred in refusing defendant's request to cross-examine the witness. The magistrate, in Davis, was "either unaware he had the discretion to allow the respondent to cross-examine the witness, [citations] or even if aware, was misguided as to the appropriate legal standard to guide the exercise of this discretion." (Davis, supra, at p. 802, 207 Cal.Rptr. 846.) The magistrate based his denial solely on the fact defense counsel was adequate. The record did not reveal the magistrate understood he should consider the interests of justice or the lack of delay when reviewing the request. Thus, the court held the magistrate failed to give "the necessary consideration to all the material facts and evidence of this particular case as is required for a proper exercise of discretion." (Id. at p. 804, 207 Cal.Rptr. 846.)

extensive experience in civil and criminal practice. He had particular expertise with respect to the case which counsel did not possess. He had a close understanding of the facts of the case and had prepared for the cross-examination of a key prosecution witness since the inception of the case. Furthermore, there was nothing in the record to indicate any disruption or delay would have occurred.

Appellant's reliance on Davis is misplaced. In Davis the defendant had made a substantial showing the interests of justice would be served by granting him cocounsel status. Thus, Davis concerns the proper exercise of discretion where a defendant has made the required substantial showing in support of his request.

Where, as here, a defendant fails to show cocounsel status would serve the interests of justice and would not result in substantial disruption, there is no basis for the exercise of the court's discretion, and the motion is properly denied. (People v. Hamilton, supra, 48 Cal.3d at p. 1162, 259 Cal.Rptr. 701, 774 P.2d 730.) The burden is on the defendant to make the requisite showing. A trial court is not required to inquire further into the matter where the defendant has not first offered the "substantial showing." (See e.g. Hamilton, supra, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730; People v. Andrews (1989) 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285; People v. Miranda (1988) 44 Cal.3d 57, 241 Cal.Rptr. 594, 744 P.2d 1127; People v. Moore (1988) 47 Cal.3d 63, 252...