People v. Powell

• Decision Date: 17 August 2011
• Docket Number: No. H034349.,H034349.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darian Manuel POWELL, Defendant and Appellant.

194 Cal.App.4th 1268

124 Cal.Rptr.3d 214

11 Cal. Daily Op. Serv. 5181

2011 Daily Journal D.A.R. 6121

The PEOPLE, Plaintiff and Respondent,

v.Darian Manuel POWELL, Defendant and Appellant.

No. H034349.

Court of Appeal, Sixth District, California.

April 29, 2011.

Review Denied Aug. 17, 2011.

J. Frank McCabe, Law Offices of J. Frank McCabe, San Francisco, CA, for Defendant and Appellant (Under appointment by the Court of Appeal).

Edmund G. Brown Jr., Attorney General, Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, David M. Baskind, Deputy Attorney General, for Plaintiff and Respondent.

DUFFY, J.

A jury convicted defendant Darian Manuel Powell of raping his young daughter and exposing her to obscene pornographic movies. On appeal, he claims that the trial court improperly refused to let him represent himself at trial, incorrectly ruled that his daughter could testify against him via closed-circuit television, and made mistakes in deciding the length of his sentence. He also claims that the evidence the jury received was too weak to allow it to convict him of exposing his daughter to the pornographic movies.

We find no reason to reverse the judgment and will affirm it.

PROCEDURAL BACKGROUND

A jury convicted defendant of unlawful sexual intercourse with a minor 10 years old or younger. (Pen.Code, § 288.7, subd. (a).) ¹ It also convicted him of exhibiting harmful matter to a minor for purposes of seduction and sexual gratification. ( § 288.2, subd. (a).) Harmful matter, for purposes of section 288.2, essentially means obscene material as defined in Miller v. California (1973) 413 U.S. 15, 24–25, 93 S.Ct. 2607, 37 L.Ed.2d 419( Miller ), but with certain differences, including a gloss that the material must have no redeeming value within the meaning of Miller for the benefit of minors. (See § 313, subd. (a).)

Defendant also challenged his criminal liability on the ground that he was insane at the time of the crimes. A separate jury was impaneled to try this question after the first jury found him guilty. The jury found him to be sane.

The trial court sentenced defendant to 25 years to life imprisonment on the section 288.7 conviction consecutive to an aggravated three-year term on the section 288.2 conviction.

FACTS

I. Prosecution Case

The victim is the daughter of defendant and L.H., and she was born in 1997. After defendant and L.H. ended their nonmarital relationship, custody arrangements caused the victim to have unsupervised visits with defendant from 10:00 a.m. to 6:00 p.m. every Sunday.

During some of these visits, and at a time when the victim was 10 years old or younger, defendant would rape her. He forced himself on her for purposes of sexual intercourse about 10 times—sometimes after or while watching pornographic movies.² She would tell him to desist and invariably would try to escape, but he would ignore her and sometimes would hold down her arms, which she thought he did to block her from escaping.

Another time—but this was uncharged conduct—defendant forced the victim to engage in oral copulation of him. She was 10 years old when this happened.

II. Defense Case

Defendant presented no evidence, but defense counsel cross-examined prosecution witnesses.

DISCUSSION

I. Self-representation Claim

Defendant claims that the trial court erred in denying his motion to represent himself as untimely. We do not agree.

A. Procedural Background

On August 27, 2008, the trial court held a Marsden hearing, i.e., a hearing to consider defendant's request to replace his current counsel with new counsel, as authorized by People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44( Marsden ). The court denied the motion. Thereupon defendant declared that he wanted to make a Faretta motion, i.e., a motion to represent himself as authorized by Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562( Faretta ).

The trial court questioned defendant. He stated that he had represented himself at a previous trial to its completion. He was taking Geodon (ziprasidone), a drug used to treat schizophrenia and the manic phases of bipolar disorder, and Paxil (paroxetine hydrochloride), an antidepressant drug, because he was hearing voices and was depressed. He stated that the medications were ineffective—he was still hearing voices and his depression was severe. He further stated that he would not object if the court considered an evaluation by Brad Novak, M.D., a psychiatrist, written in connection with a prior competence hearing.

The trial court reviewed Dr. Novak's report. The court questioned defendant to ensure he understood the legal ramifications of representing himself, and defendant stated lucidly that he did. He acknowledged that he had been committed to mental health institutions three times for short-term evaluations, two of which followed suicide attempts.

Defendant continued. He asserted that he heard voices every day and was hearing them as he spoke. The voices told him what to do, including the manner of conducting his defense. The voices were advising him to represent himself.

The prosecutor argued that defendant's goal was to delay the proceedings. “[T]he medical reports indicate that he's malingering and that he's trying to avoid criminal responsibility and he's ... laid a record for that this morning” by talking about what the prosecutor suspected were spurious auditory hallucinations. The prosecutor asked defendant, “if you were granted the status to represent yourself today, are you prepared to go forward with trial today?” Defendant responded, “No.” The prosecutor reminded defendant and the trial court that this was the day trial was set to begin.

The trial court noted that a recent United States Supreme Court decision had announced separate standards for competence to stand trial and to represent oneself during the trial. (See Indiana v. Edwards (2008) 554 U.S. 164, 167, 174, 177–178, 128 S.Ct. 2379, 171 L.Ed.2d 345 [holding that the Sixth Amendment permits states to require mentally impaired defendants to be tried represented by counsel when, though impaired, they are competent to stand trial].) The prosecutor commented that the court could deny the Faretta motion on the procedural ground that defendant was not prepared to proceed to trial that day.

The trial court ruled: “Mr. Powell, the Court denies your request for in pro [.] per[.] or self-representation status, based upon the fact that this is the time and place for trial and that you're not capable of going forward at this time [¶] Further, based upon your answers to my questions, even though Dr. Novak has made some findings, for purposes of the record, it's apparent to me that you are depressed, based upon what I'm observing. [¶] With respect to your mental issues, I'm not capable of responding to those at this particular point in time. I'm not qualified to do so. But the Court's of the opinion that ... if the Court were to grant your in pro[.] per[.] status, you would need time to proceed, and that this matter has been set for trial at this time.”

Trial did not begin that day, however. The trial court's attention was taken up with other important pretrial matters.

Immediately after the trial court denied defendant's Faretta motion, it held a hearing on the prosecutor's motion to have the victim testify via closed-circuit television. The hearing on the closed-circuit-testimony motion continued the next day, August 28, 2008, and still did not reach a resolution. The trial court ordered the hearing to continue on September 2, after an intervening weekend and the Labor Day holiday, when the courthouse would be closed. It appears that the hearing did resume on September 2; it may have continued on September 3, although the record is unclear on that point. The hearing concluded on September 8, after another intervening weekend. Jury selection began on September 10 and continued to the next day, when it concluded and the jury was sworn. The prosecution immediately began to present evidence.

B. Applicable Law

“Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806 , to represent themselves. [Citation.] However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. [Citation.] Faretta motions must be both timely and unequivocal.... [Citations.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.” ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001–1002, 47 Cal.Rptr.3d 467, 140 P.3d 775.) Moreover, a trial court rarely should grant such a motion on the day set for trial. Our Supreme Court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely.” ( People v. Lynch (2010) 50 Cal.4th 693, 722, 114 Cal.Rptr.3d 63, 237 P.3d 416.) A motion made that close to the day set for trial is “extreme” ( id. at p. 723, 114 Cal.Rptr.3d 63, 237 P.3d 416) and now is disfavored (see id. at pp. 722–723, 114 Cal.Rptr.3d 63, 237 P.3d 416[collecting cases]; but see People v. Windham (1977) 19 Cal.3d 121, 126–128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187 [a “showing of reasonable cause” made the day before trial may justify granting a Faretta motion and ordering a continuance].)

C. Analysis

Because defendant's motion for self-representation was not “a timely, unequivocal Faretta motion” ( People v. Lawrence (2009) 46 Cal.4th 186, 191, 92 Cal.Rptr.3d 613, 205 P.3d 1062) in that it was made on the day set for trial, the trial court had discretion to decide to grant or deny it. (...