State v. Harrison

Decision Date01 October 2001
Docket NumberNo. 513578-5,410784-3,513578-5
Citation340 F.3d 497
CourtCalifornia Court of Appeals Court of Appeals

(Super. Ct. No. 513578-5 & 410784-3)

APPEAL from a judgment of the Superior Court of Fresno County. Lawrence J. O'Neill, Gene Gomes, Ralph Nunez, Harry N. Papadakis and Stephen J. Kane, Judges.

Kyle Gee, under appointment by the Court of Appeal, 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 Tony L. Nunley, Deputy Attorney Generals, for Plaintiff and Respondent.



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 (2) [sic; subd. (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.


The statement of facts is confined to the evidence adduced at trial concerning the criminal charges against Harrison. Other proceedings will be discussed where pertinent to the issues raised on appeal.


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.


Defense Evidence

Harrison presented evidence that Janiva P. had told Alice Perez, a friend of Harrison's, that Harrison had not done anything to her. A medical examination of Andrea G., performed on April 17, 1990, revealed normal physical findings or, at most, findings that were nonspecific and, hence, not clearly indicative of sexual abuse. Similar results were obtained from the examinations of Janiva P., Tony R., Victor R., and Jeffrey R., which were also conducted a number of months after the incidents reportedly occurred. In addition, X-rays taken of Jeffrey did not confirm reported physical abuse. Sylvia G. was examined a few hours after reportedly being abused. Everything was either within normal limits or was nonspecific for sexual abuse. The results did not confirm the reported intercourse, nor was semen found on her body.

Harrison testified that Cindy E. physically and sexually abused her children, and that she told him someone named Carlos had sodomized Tony. Harrison admitted physically abusing the boys, but denied all sexual conduct. He also admitted engaging in mutual combat with Cindy. He testified that he saw Andrea G. and Janiva P. engage in sexually related activity with Cindy's boys on numerous occasions, and that the girls would sneak into the bedroom and watch while he and Cindy had sex. Harrison denied having any sexual contact with Sylvia, but had engaged in oral copulation with an adult the night before the reported molestation of Sylvia.



Marsden Issues

A.Denial of 1991 and 1994 Marsden Motions

During the course of proceedings in superior court, Harrison had at least four different attorneys and submitted, orally or in writing, a minimum of 19 motions to substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He now contends that two of these motions - one heard on May 22, 1991, by Judge Gomes, and the other heard on October 5, 1994, by Judge O'Neill - were erroneously denied because the court failed to read the written motions and to inquire of defense counsel.2

As the California Supreme Court has summarized,

"Marsden motions are subject to the following well-established rules. '"'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' [Citations.]"' (People v. Memro (1995) 11 Cal.4th 786, 857.) Denials of Marsden motions are reviewed under an abuse of discretion standard. (People v. Berryman (1993) 6 Cal.4th 1048, 1070.)3 Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' (People v. Webster (1991) 54 Cal.3d 411, 435.)" (People v. Barnett (1998) 17 Cal.4th 1044, 1085, parallel citations omitted.)

With these principles in mind, we turn to the motions at issue.

1.The motion heard by Judge Gomes

By the time of the motion with...

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