Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF146509 Robert E. Law, Judge. (Retired judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant and appellant Timothy Becerra was charged in four counts of violating Penal Code section 269, subdivision (a)(1) and in two counts of violating section 288, subdivision (b)(1). The alleged conduct spanned over a two-year period of time and involved four victims. Following a four-day jury trial, defendant was convicted in counts 1 and 2 of raping Doe 1; as to count 3, the jury convicted defendant of committing oral copulation as to Doe 2; and, by way of counts 5 and 6, defendant was convicted of committing lewd and lascivious acts upon Doe 3 and Doe 4. He was sentenced to an indeterminate term of 75 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant makes two arguments. He first argues that as to count 6 there is insufficient evidence to support the conclusion that the lewd act was accomplished by force or duress. Secondly, he contends the trial court erred when it failed to hold a Marsden hearing, after defendant complained about his attorney during the prosecution’s closing argument. We disagree with both arguments.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Initially, we conclude there was substantial evidence that defendant applied force over and above that which was necessary to commit the lewd act. As to defendant’s second argument, we conclude he did not make a Marsden motion. To the extent one could say that a Marsden inquiry was called for, we find that defendant did state his reasons for dissatisfaction with his counsel and that the motion was implicitly denied. We therefore affirm defendant’s convictions.
II. FACTS AND PROCEDURAL HISTORY
Defendant challenges the sufficiency of the evidence only as to Doe 4. Because of this, we truncate our recitation of the facts as to the other victims.
Defendant married Priscilla M., the mother of Doe 1 and Doe 2, in 2003. Shortly thereafter, he moved into her Wells Avenue apartment, which was occupied by Priscilla, both Does, and Priscilla’s son C.M. At this time, Doe 1 was 10 years old, C.M. was eight years old, and Doe 2 was six years old. While living on Wells Avenue, Priscilla worked from approximately 4:00 p.m. to 1:30 a.m.; defendant watched the children. During this time frame, defendant began molesting both Doe 1 and Doe 2. As to Doe 1, defendant initially touched her vagina under her clothing. The conduct progressed wherein they had intercourse on at least five occasions. Doe 1 also orally copulated defendant on at least 10 occasions. After moving from the Wells Avenue apartment to the Poppy Street residence, the conduct continued.
As to Doe 2, the conduct also occurred at both residences and began by defendant touching her on her vagina. Defendant attempted to have intercourse with and sodomize her. On at least five occasions, Doe 2 orally copulated defendant.
Doe 3 was a friend of Doe 1 and Doe 2, when both girls lived at the Poppy Street residence. Doe 3 was 10 years old. On about five occasions defendant touched her vagina; during some of the incidents he would also touch her breasts.
Also testifying was Doe 5. Although she was not an alleged victim in the present criminal prosecution, she testified that when she was about 10 years old defendant, who was then dating her mother, took her fishing. At this time, defendant moved her bathing suit bottom and licked her. As to this incident, the defendant pled guilty to a violation of section 288, subdivision (a).
III. DISCUSSION
A. As to Doe 4, There is Substantial Evidence That Defendant Applied Force Substantially Greater Than That Which Was Necessary to Commit the Lewd Act
Defendant contends there is insufficient evidence to support the element of “force” for purposes of sustaining his section 288, subdivision (b) conviction. We apply the “substantial evidence” test. “It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) Here, there is such evidence.
Doe 4 was about nine or ten when she first met Doe 2. Both were living at the Wells Avenue apartments. They became friends. Doe 4 was a couple of months older than Doe 2. On one occasion, when Doe 4 was still nine or ten, she went to Doe 2’s apartment; defendant was present. Defendant called her into his bedroom. When she went into the room, he closed the door. He told her to take her pants off and lay on her stomach. He took his pants off. He tapped her behind with his penis. Defendant then told her to put her hands on his penis and he began kissing her. He grabbed her hand and put it on his penis. When her hand was on his penis, he grasped her hand with his and he moved her hand up and down on his penis. This occurred for a number of minutes, all the while the victim’s eyes were closed.
Both Doe 1 and Doe 2 were present when Doe 4 went into the bedroom and when she came out. Upon exiting the bedroom, Doe 4 looked upset and scared. Two or three years after the incident, Doe 4 told her cousin about the incident.
There is no dispute between the parties as to the nature of the facts or the relevant law. The sole issue is whether the uncontradicted facts are legally sufficient to support the conclusion that defendant, in having Doe 4 masturbate him, applied force “substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (See In re Asencio (2008) 166 Cal.App.4th 1195, 1200, fn. omitted.)
Section 288, subdivision (b) punishes those who commit a lewd or lascivious act upon a minor by the use of “force.” In defining what is meant by “force, ” the court in People v. Cicero (1984) 157 Cal.App.3d 465, overruled on another point in People v. Soto (2011) 51 Cal.4th 229, at page 248 and footnote 12, distinguished the necessary conduct for a conviction under section 288, subdivision (b) from that necessary for a violation of section 288, subdivision (a), which does not require that the lewd or lascivious act be accomplished by means of force. As stated: “It necessarily follows that if commission of a lewd act itself constitutes the minimum proscribed conduct under subdivision (a), then in cases where ‘force’ is charged under subdivision (b), ... it is incumbent upon the People to prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.” (People v. Cicero, supra, at p. 474, fn. omitted.)
Defendant argues that in having Doe 4 masturbate him, he did nothing substantially different from or substantially greater than that necessary to accomplish the act of masturbation itself. The People submit that defendant, in grabbing Doe 4’s hand, placing it on his penis, and then placing his hand over that of Doe 4’s hand and moving her hand back and forth on his penis was substantially greater than that necessary to accomplish the act of masturbation.
We agree with the People. Here, we are not dealing with a situation in which Doe 4, unaided by defendant, placed her hand on his penis and moved her hand up and down. Rather, we are dealing with a factual setting in which defendant grabbed Doe 4’s hand, placed it on his penis, and then placed his hand over Doe 4’s hand and forcibly moved her hand back and forth on his penis. Because defendant forcibly controlled the movement of Doe 4’s hand, before and during the act of masturbation, he applied force substantially greater than that necessary to accomplish the act.
The present case is not unlike a number of cases in which the application of force, while perhaps minimal, is nonetheless “substantially greater” than that necessary to accomplish the sexual act. In People v. Bolander (1994) 23 Cal.App.4th 155, the defendant pulled the victim’s shorts down, prevented the victim from pulling them back up, and put his penis inside the victim’s anus. The defendant put his hands on the victim’s waist and pulled the victim towards him as he was engaging in the conduct. “Applying the principles set forth in Cicero, we conclude that defendant’s acts of inhibiting [the victim] from pulling his shorts back up, bending [the victim] over and pulling [the victim] towards him constitute force within the meaning of subdivision (b) of section 288....” (Id. at p. 159.) In People v. Neel (1993) 19 Cal.App.4th 1784, the defendant pushed the victim’s head down on his penis, and when there was resistance from the victim the defendant once again pushed the victim’s head down until her mouth touched his penis. In five incidents, the defendant held the victim’s wrist and made her hand go up and down on his penis. The court found that in each of the instances the defendant applied force substantially greater than that necessary to do the act. And, in People v. Pitmon (1985) 170 Cal.App.3d 38, the court, in discussing the facts and applying them to section 288, subdivision (b), stated: “There can be little doubt that defendant’s manipulation of [the victim’s] hand as a tool to rub his genitals was a use of physical force beyond that necessary to accomplish the lewd act. The facts show defendant had hold of [the victim’s] hand throughout this act. Further, the record reveals that in those instances in which [the victim] orally copulated defendant, defendant slightly pushed [the victim’s] back during each performance of that act. Again this displayed a use of physical force that was not necessary for the commission of the lewd acts.” (People v. Pitmon, supra, at p. 48.)
Here, as with each of the foregoing cases, substantial evidence is present that by grabbing Doe 4’s hand and forcibly having her masturbate him, defendant applied force substantially greater than that necessary to do the underlying act.
Because substantial evidence supports the jury’s verdict as it relates to the application of “force, ” we do not address defendant’s argument relative to the sufficiency of the evidence pertaining to “duress.”
B. The Trial Court Did Not Err in Its Handling of Defendant’s Complaints About His Attorney
Defendant contends the trial court erred in not holding a Marsden hearing when, during the prosecution’s closing argument, defendant complained that he was not “getting a proper defense.” In our view, and in considering the record as a whole, defendant did not make a Marsden motion. Further, and to the extent the record supports that defendant did in fact make a Marsden motion, defendant was allowed to state the reasons for his motion and the motion was implicitly denied.
As background to our analysis, it is important that the surrounding circumstances of defendant’s purported Marsden motion be considered. On the fourth day of trial, and in the midst of the prosecutor’s closing argument, the following transpired:
“[DISTRICT ATTORNEY]: Now, they move away. And they move into the Poppy Drive residence. (Jane 4) doesn’t know (Jane 3). But what happens with (Jane 3)? Very similar. (Jane 3) is about nine years old. She’s in the bedroom having fun with (Jane 1) and (Jane 2). She’s [sic] called her into the bedroom. Hey, you come here. Again, nine-year-old child, 30-something-year-old man.
“THE DEFENDANT: When do we argue this?
“[DISTRICT ATTORNEY]: 30-something-year-old man calls her into the bedroom. She goes in the bedroom. He closes and locks the door. Sits on the bed, just like (Jane 4) testified to. Sits there on the bed, unbuttons her pants, puts his hand down
“THE DEFENDANT: Where’s my lawyer?
“[DISTRICT ATTORNEY]: —her pants.
“THE DEFENDANT: Where’s my lawyer.
“[DISTRICT ATTORNEY]: Some people can’t handle the truth, ladies and gentlemen. I think that’s clearly evident.
“THE DEFENDANT: I need a lawyer here to fight this. Where’s my defense?
“I can’t get him off me, man. Where’s my doctor?
“[DISTRICT ATTORNEY]: Ladies and gentlemen, (Jane Doe 3) was brought into that bedroom and sitting on the bed
“THE DEFENDANT: Where’s my attorney in this?
“[DISTRICT ATTORNEY]: —just like (Jane 4). Very similar conduct. Placed his hand down
“THE DEFENDANT: Where’s my case?
“[DISTRICT ATTORNEY]: —underneath her underwear and rubs her vagina. Nine years old. Doesn’t know what he’s doing.
“THE DEFENDANT: I can’t get him off me.
“[DISTRICT ATTORNEY]: Happened around five times.
“Some people can’t accept the truth, ladies and gentlemen.
“Happened around five times with (Jane 3), as she testified.
“THE DEFENDANT: Can’t get him off me.
“THE COURT: Counsel, just be kind enough to ask him to be quiet.
“THE DEFENDANT: Can’t get him off me.
“THE DEPUTY: Sit down.
“THE COURT: Ask him to be quiet
“[DEFENSE COUNSEL]: Yes.
“THE COURT: —and just stay seated.
“THE DEPUTY: Sit in your chair.
“THE COURT: And if he moves again, we’ll locate him where he cannot move.
“THE DEFENDANT: I need an attorney.
“THE COURT: You have an
“THE DEFENDANT: I need an attorney.
“THE COURT: You have an attorney.
“THE DEFENDANT: Doc, I need an attorney. I need a lawyer.
“THE DEPUTY: Scoot your chair up.
“AUDIENCE VOICE: It’s all right, son.
“THE DEFENDANT: I need a lawyer.
“THE COURT: We’re going to take a recess.”
Following discussion between the court and counsel, the jury was excused for the remainder of the day. Paramedics were called and defendant was taken to the hospital. The next morning, and outside the presence of the jury, there was the following colloquy:
“THE COURT: Good morning, [defendant].
“THE DEFENDANT: Good morning.
“THE COURT: How are you doing today?
“THE DEFENDANT: Good.
“THE COURT: Okay.
“You are welcome to be in my courtroom and participate and evaluate and consult with your attorney. There would be certain conditions imposed because of your conduct yesterday. And I’ve been informed by your attorney that you would prefer not to attend.
“Is that correct?
“THE DEFENDANT: Sir, I feel that in this case I haven’t had a proper defense. I feel that I’m getting railroaded by you, by my attorney, by the district attorney. There’s been people—cases—or people even called up there, you know, and asked the lamest of questions. And helped me in no part in my defense. I just feel that I’m being, you know—you guys are conspiring against me. And, you know, whether or not I’m in here or not is not going to make a difference.
“THE COURT: Well, that’s a decision that you’re entitled to make. And all I require is that—if you attend that we don’t have conduct like we had yesterday.
“THE DEFENDANT: I’m—I’m fine.
“THE COURT: And if you want to attend, I’m going to be certain that you can’t get out of that seat.
“THE DEFENDANT: I won’t get out of this seat.
“THE COURT: So if you want to stay, you’re welcome, but you will be restrained substantially. I do not permit defendants to fight with my security deputies.
“THE DEFENDANT: I wasn’t fighting them.
“THE COURT: Okay. That’s just unacceptable. So you tell me if you want to stay.
“You’re welcome to stay. If you don’t want to stay, that’s fine. If you don’t want to stay and change your mind later, let someone know, and we’ll have this conversation. Fair enough?
“On the single issue of whether or not you’re present, your choice.
“THE DEFENDANT: I don’t want no part of this trial as is. I don’t want no part of it. I don’t want to be in here. I don’t feel that I have a proper defense, and
“THE COURT: All right.
“THE DEFENDANT: I don’t want no part of it.
“THE COURT: Okay. Then—I’m not going to require you to be here. You are excused.
“(Defendant exited the courtroom.)
“THE COURT: I understand, [defense counsel], your concern about his position. But I don’t believe for a minute that you’re not representing your client the very best way you can. And you are. And I know what you want out of this case. You don’t get the whole cheese ever in this case, but what you want is a couple of bites; right?”
We acknowledge that a Marsden motion need not take any specific form. It must however indicate in some fashion that defendant wishes a new attorney. As expressed in People v. Lucky (1988) 45 Cal.3d. 259, 281, a trial court’s “duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel.” (Fn. omitted.) As explained in footnote 8: “We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney.” (Id. at p. 281, fn. 8.) Here, it is only by a very strained construction of defendant’s comments, that one could say that he was making a Marsden motion, thus requiring the court to make further inquiry. In viewing the record, at no time prior to defendant’s outburst had he voiced displeasure with his representation. Trial had proceeded through the prosecution’s case-in-chief and through the defense case, in which defendant called four witnesses. Approximately one-third of the way through the prosecutor’s closing argument defendant began making various comments in front of the jury. From our record, his comments appear disoriented and clearly not a request for substitute counsel. On the following morning, the colloquy between the judge and defendant, while more in keeping with a coherent conversation, nonetheless did not communicate that defendant wished new counsel because of his dissatisfaction with his present attorney. The discussion begins with defendant articulating that the system is corrupt and that the judge and all other participants are against him. Thereafter, and in the context of indicating that he does not want to participate in the trial, defendant, for the first and only time, mentions that he is dissatisfied with his attorney.
When considering defendant’s comments during both days and the overall context in which he indicated he was dissatisfied with his trial counsel, we do not believe that it rises to the level of notifying the court that it should conduct a further inquiry pursuant to Marsden.
Nonetheless, in viewing our record, defendant was given an opportunity to voice the reasons for his dissatisfaction with his attorney, and the court did not abuse its discretion in implicitly denying the motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 [“Denials of Marsden motions are reviewed under an abuse of discretion standard.”].)
“‘A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.’ [Citation.] ‘It is well settled that a criminal defendant, at any stage of the trial, must be given the opportunity to state reasons for a request for new counsel.’ [Citation.] The question that arises on the record here is whether [the defendant] had that opportunity.” (People v. Lopez (2008) 168 Cal.App.4th 801, 814.)
As earlier indicated, on the day following defendant’s disruption of the prosecutor’s closing argument, defendant returned to court. In the process of complaining about the fairness of the entire proceeding, defendant indicated: “I feel that I’m getting railroaded by you, by my attorney, by the district attorney. There’s been people—cases—or people even called up there, you know, and asked the lamest of questions. And helped me in no part in my defense. I just feel that I’m being, you know—you guys are conspiring against me.” As is evident from these comments, defendant not only had the opportunity to air his grievance, but did in fact indicate that he was not getting a proper defense in that the witnesses were being asked “the lamest of questions.” While normally a Marsden inquiry is held in camera, “the trial court might have considered the colloquy in open court a Marsden hearing.... Since ‘no single, inflexible procedure exists for conducting a Marsden inquiry, ’ and since case law sometimes shows the prosecutor’s presence during a Marsden hearing, the prosecutor’s presence at the colloquy in open court was possibly of no consequence.” (People v. Lopez, supra, 168 Cal.App.4th at p. 814.)
Thus, to the extent defendant’s interruption of the prosecutor’s closing argument can be interpreted as a request for substitute counsel, the court properly allowed defendant to air his grievance, and in commenting on defense counsel’s performance, implicitly denied the motion; the denial was not an abuse of discretion.
IV. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., McKinster J.