Opinion
A097684. A102736.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER A. CUYUGAN, Defendant and Appellant. In re ALEXANDER A. CUYUGAN, on Habeas Corpus.
Defendant Alexander Cuyugan appeals from a judgment convicting him of 23 sex offenses committed against his daughter and stepdaughter, as well as two drug offenses. He contends the trial court erred in determining that he was competent to stand trial and in denying his requests to represent himself or to have a new attorney appointed to represent him. He also challenges the evidence in support of a number of counts, and contends the court improperly admitted prejudicial character evidence and made numerous sentencing errors. While defendant likely was suffering from a paranoid delusion, we conclude the trial court did not err in finding him competent to stand trial. We also find no merit in defendants argument that the court erred in denying his request for alternate representation. As to the remainder of defendants contentions, we find no error that requires reversal of his conviction. There are, however, several sentencing errors that must be corrected. Accordingly, we remand for resentencing, but affirm the judgment in all other respects.
STATEMENT OF FACTS
Substantial evidence of the following facts was presented at trial.
In November 2000, defendant lived in Alameda with his wife, their two children (Jane Doe 2, age 11, and her 7-year-old sister), his two stepchildren (Jane Doe, age 18, and her 17-year-old brother), Jane Does child (age 2 months), and one or two elderly female relatives. Defendant also had a long-term relationship with another woman, Mylen Galang, with whom he had four children.
In early November 2000, defendant was arrested. He called Mylen from jail and told her that they were all in danger because the government was after him. Previously, defendant had told her the government was trying to blame him for something that had happened in the Navy, and that they were trying to track him down because "they thought he was a terrorist" and "he learned a lot of stuff in the Navy." While defendant was still in custody, he had his wife move Mylen and her children into his house in Alameda. They continued to live there on and off for a week or two after defendant was released from jail.
Mylen testified that on the morning of approximately November 25, 2000, she went into the living room and saw defendant asleep on a sofa, with his head resting on Jane Does lap. Defendant was holding Jane Does hand on top of his groin. Mylen became upset and woke defendant. They argued and she told him she was leaving him, then ran out the back door. Later that day, Mylen called the house and falsely stated that she had been raped. When she returned to the house, she discovered that defendant had called the police to report the rape.
The rape case was assigned to Detective Sean Lynch. When he and another officer went to the Alameda house to speak with defendant concerning Mylens story, defendant responded to the officers question of whether he knew why they were there with something like, "take me to jail now," putting out his hands as if to be handcuffed. The detectives told defendant they simply wanted to talk about Mylens reported rape. During the discussion, the detectives noticed signs that defendant was under the influence of a stimulant: he was disheveled, sweating, acting nervous, rubbing his hands, and licking his lips. Defendant admitted he smoked methamphetamine on occasion. Ultimately, the officers arrested defendant for being under the influence of narcotics. Defendant consented to a search of the house, and a small amount of methamphetamine and three glass pipes were found in his bedroom. A sample of defendants urine was taken, and it was later found to contain both methamphetamine and amphetamine.
Counts 1-14: The Charges Involving Jane Doe
While questioning defendant at his home about Mylens reported rape, Detectives Lynch and Jones noticed a small child (Jane Does two-month-old son). When they questioned defendant about the boy, he said that a stranger had raped Jane Doe and that to protect her reputation, he and she had agreed to tell people that the baby was his. The officers suspected that defendant was the childs father.
After arresting defendant for being under the influence, Detective Lynch spoke with Jane Doe at her high school. At first, she claimed that she had become pregnant as the result of a rape, but later admitted that defendant was the childs father. Subsequent DNA tests indicated there was a 99.8 percent probability that defendant was the father. In her initial interview with Detective Lynch, Jane Doe said that the childs conception was the result of a one-time consensual sexual encounter with defendant. Later, however, Jane Doe acknowledged having had a long-term consensual sexual relationship with defendant. She eventually explained that initially defendant had forced her to orally copulate him, but that she developed strong feelings for him and then participated willingly in sexual encounters for the next year or two.
Jane Doe testified that not long after she turned 16, defendant came into her bedroom and repeatedly forced her to orally copulate him. He told her not to say anything to anyone, and then left. Thereafter, defendant came into her room on at least two more occasions and forced her to orally copulate him. When asked whether she was in love with defendant at the time, she answered, "No . . . I dont think so." Shortly thereafter, however, she developed romantic feelings for defendant, and she willingly orally copulated him on more than 10 occasions before turning 17. Defendant also orally copulated her, and inserted his fingers into her vagina on more than one occasion. She and the defendant had sexual intercourse for the first time shortly after she turned 17. During the next year, they had intercourse more than ten times, and also orally copulated each other. Defendant slept in Jane Does room almost every night. In January 2000, Jane Doe became pregnant, and her child was born before she turned 18. Defendant continued to engage in sexual conduct with Jane Doe after being charged in this case.
Counts 15-23: The Charges Involving Jane Doe 2
When authorities began investigating Jane Does story about her sexual relationship with defendant, Officer Paul Erny talked to defendants 11-year-old daughter, Jane Doe 2, who said that defendant had never touched her. In March 2001, however, after being reprimanded for stealing her grandmothers purse, Jane Doe 2 called Officer Erny and told him that defendant had raped her once in the past. She testified that one night between September and November 2000, defendant began touching her breasts and inserted his finger into her vagina while she was lying in bed with Jane Doe. Defendant forced Jane Doe 2 to orally copulate him four times. He also raped her twice.
PROCEDURAL HISTORY
On April 25, 2001, an information was filed in the Alameda County Superior Court accusing defendant of having committed 20 offenses with 12 enhancements from November 1998 through November 2000. Defendant pled not guilty to all charges and denied the enhancements. The information was subsequently amended to charge defendant with 23 offenses against the two victims and two Health and Safety Code violations. The charges with respect to Jane Doe were as follows: counts 1-3 (Pen. Code, § 288a, subd. (c)(2), forcible oral copulation) between November 1, 1998 and November 30, 1999; counts 4-6 (§ 288a, subd. (b)(1), oral copulation with a minor) between November 1, 1998 and November 30, 1999; counts 7-8 (§ 289, subd. (h), sexual penetration of minor with foreign object) between November 1, 1998 and November 30, 1999; counts 9-12 (§ 261.5, subd. (c), unlawful sexual intercourse with minor more than three years younger than defendant) between November 1, 1999 and November 29, 2000; count 13 (§ 288a, subd. (b)(1), oral copulation with a minor) between November 1, 1999 and November 29, 2000; and count 14 (§ 289, subd. (h), sexual penetration of minor by foreign object) between November 1, 1999 and November 29, 2000. The charges with respect to Jane Doe 2 were as follows: counts 15-16 (§ 288, subd. (a), lewd and lascivious act with child under 14) between September 2000 and November 29, 2000; count 17 (§ 289, subd. (a)(1), forcible sexual penetration by foreign object) between September 2000 and November 29, 2000; counts 18-21 (§ 288a, subd. (c)(2) (forcible oral copulation) between September 2000 and November 29, 2000; and counts 22-23 (§ 261, subd. (a)(2), forcible rape) between September 2000 and November 29, 2000. Count 24 alleged a violation of Health and Safety Code section 11377, subdivision (a) (felony possession of methamphetamine) on November 29, 2000, and count 25 alleged a violation of Health and Safety Code section 11550, subdivision (a) (misdemeanor under the influence of methamphetamine) on November 29, 2000. Enhancements under sections 667.6, subdivision (d), 667.61, subdivision (c), 1203.065, subdivision (a), and 1203.066, subdivision (a)(8) were also alleged throughout the amended information.
All statutory references are to the Penal Code unless otherwise noted.
On June 21, 2001, defendants attorney declared a doubt as to defendants competency to stand trial. Criminal proceedings were suspended, and two psychologists (Dr. Robert Wagner and Dr. John Shields) were appointed to examine defendant under section 1368 et seq. Both psychologists found that while defendant held delusional beliefs that the charges against him were concocted by the government to discredit and silence him because the government thought he had secret information about the Navy, he was nonetheless competent to stand trial. Wagner concluded that despite suffering from a "circumscribed delusional disorder of a persecutory nature," defendant was able to understand the nature and purpose of the proceedings against him and to cooperate in a rational manner with counsel in presenting a defense. Similarly, Shields found minimal or no impairment with respect to defendants understanding of the nature of the case and his ability to engage in reasonable consultation with his attorney. On September 21, the question of competency was submitted on the psychologists reports to the trial judge, who found defendant to be competent and criminal proceedings were reinstated.
During the hearing on pretrial motions and jury selection, defendant sought unsuccessfully to replace his appointed counsel on an almost daily basis. On one of these occasions, defendant had an outburst and, after the court denied the request to discharge his attorney, he was removed from the courtroom at his own request.
While defendant originally retained Todd Bequette as his defense attorney, on November 13, 2001, the court appointed him to represent defendant when, in conjunction with a request for new counsel, defendant indicated that he could no longer afford to pay Bequette.
On the first day of trial, defendant again moved unsuccessfully to replace his attorney. Three days later, defendant interrupted the trial and demanded a new attorney. When defendant refused to answer questions about his behavior, the trial court again ordered him removed from the courtroom. Defendants attorney then requested that defendant be referred for a psychiatric examination under section 4011.6. The trial court agreed and made the referral. The psychologist who evaluated defendant advised the court, however, that there was no basis for commitment, and he reported that while defendants courtroom behavior-standing in court and yelling that his constitutional rights were being violated-could be paranoia, his presentation at the evaluation was "calm, cautious, and controlled."
Five days later, when defendant in midtrial stood and poured milk on his attorneys head, the court again ordered him removed from the courtroom. Defendants attorney made a motion for a mistrial that was denied. After the prosecution rested, defendant was called to testify over his attorneys objection. He did not testify, however, because he did not respond when repeatedly asked to take the oath. Once again, he was removed from the courtroom.
Defendant did not return to the courtroom for the remainder of the trial. He was not present for closing arguments or the courts jury instructions. On December 14, with defendant still absent, the jury returned its verdicts, finding defendant guilty of each of the substantive crimes charged against him. The jury was not asked to make any findings as to any of the enhancements.
On January 23, 2002, the trial court sentenced defendant to state prison for a term of 111 years to life. At that time the court remarked with respect to defendants mental condition, "I have seen Mr. Cuyugan throughout the entire trial. . . . I am not convinced at all that Mr. Cuyugan is delusional because of drug use or that he is mentally ill in any way. [P] And there have been instances where clearly Mr. Cuyugan has calculated what he needs to do in order to disrupt this courtroom, in order to get the court to do what he wants the court to do. Most of those moves were clearly calculated, clearly thought about, and I did not see any delusional behavior or mental illness." Thereafter, defendant filed a timely notice of appeal.
DISCUSSION
1. Pretrial Competency Determination
Defendant contends he was not competent to stand trial. "A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) A defendant is presumed to be mentally competent to stand trial unless he proves by a preponderance of the evidence that the he is mentally incompetent. (§ 1369, subd. (f); People v. Medina (1990) 51 Cal.3d 870, 881-886, 274 Cal. Rptr. 849, 799 P.2d 1282.) When determining competency, it is not enough for the judge to find that " the defendant [is] oriented to time and place and [has] some recollection of events, but . . . the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him. " (Dusky v. United States (1960) 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788.) In reviewing the trial courts determination that defendant is competent to stand trial, we consider the record in the light most favorable to the finding of the trier of fact and we will uphold the finding if it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 31, 931 P.2d 262.) Evidence is substantial if it is reasonable, credible, and of solid value. (Ibid.)
Here, the issue of competency was submitted on the basis of two psychologists reports. Defendant contends the psychological evaluations were insufficient to establish that he was competent to stand trial. Defendant challenges Wagners opinion that his delusions pertained to his belief system about the underlying motives of the prosecution but not to how to defend himself. He also argues that Shieldss report is insufficient to support the courts competency finding because Shields stated that he was unable to reach a definitive opinion on defendants ability to assist in his defense without further information from defense counsel, which was never provided.
Wagners report describes defendants paranoid belief that the government brought the present charges against him to keep him from disclosing Navy secrets, and concludes that defendant suffers from a "circumscribed delusional disorder of a persecutory nature." Nonetheless, Wagner concluded that defendant was able to understand the nature and purpose of the proceedings and to cooperate in a rational manner with counsel in presenting a defense. Wagners report states that defendant "understood the charges against him. . . . He understood that a felony was more serious than a misdemeanor. He was uncertain of the sentence for the crimes, if found guilty, but believed that his lawyer had told him he could get life in prison for them. . . . He understood the roles of the various court officials and the procedures in court. He certainly hopes to be acquitted of the current charges. He understood what evidence was but questioned the evidence for the current charges against him. He understood that he would work with his attorney and said his attorney was Mr. Todd Bekett [sic]. He believed that he could work with him in the preparation of his defense although he would like to have more contact with him than he has so far received." During the course of a 45-minute interview, Wagner reported, defendant was "able to stay focused upon the interview tasks at hand and answer questions fairly well. . . . He brought up his delusional belief about the governments intent to silence him with these charges at the very end of the interview. He was apparently able to contain the delusional content until then before having to reveal his beliefs about the real reasons for his arrest." Further, according to Wagner, "[defendant] is able to think and act in a rational way despite this delusional disorder and it does not affect his every day functioning." Finally, in the section entitled Diagnostic Impressions, Wagner stated that defendants "delusion does not appear to interfere with his competency to stand trial as it pertains to his belief system about the underlying motives in the case and not with how to defend himself against the actual charges."
Defendant argues that Wagners opinion is incorrect as a matter of law, and that the findings provided in the report required the court to reach the contrary conclusion, i.e., that defendants delusions necessarily compromised his ability to rationally assist in his defense. He suggests that "a belief that one is being framed by the government goes to the very heart of the question of how to defend oneself, and if that belief is delusional, then it necessarily follows that one cannot assist counsel in the conduct of a defense in a rational manner. " While defendants delusions were highly relevant to the analysis of his competency, we cannot agree with defendants assertion that these delusions necessarily rendered him incompetent. The trial judges task in "competency to stand trial" proceedings is to weigh the evidence and determine whether a given individual is competent for the laws purposes, not merely to decide whether in some sense he is "mentally ill." (People v. Kurbegovic (1982) 138 Cal.App.3d. 731, 749, 188 Cal. Rptr. 268.) In People v. Samuel (1981) 29 Cal.3d 489, 500, 174 Cal. Rptr. 684, 629 P.2d 485, the Supreme Court held that the evidence of defendants lengthy history of mental illness rendered him incompetent, but acknowledged that a "long history of aberrant behavior could be consistent with present competence to stand trial: more is required to raise a doubt [about competence] than mere bizarre actions [citation] or bizarre statements [citation] or . . . psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense. [Citation.]" The court advised that expert testimony should "focus specifically on how [the defendants] mental infirmities affected his ability to understand the proceedings and to assist his attorney." (Ibid.)
The present situation admittedly is troublesome. As detailed further below, the refusal of defendants attorney to pursue defendants delusional theory that he was being persecuted by the Navy lay at the root of defendants insistent demands that the attorney be replaced, and of defendants refusal to work with the attorney. Nonetheless, Wagners report provides credible evidence that as of September 2001, defendant understood the nature of the charges against him and was able (even if unwilling) to assist in his defense. He was able to focus on and answer the psychologists questions. He understood the role of his attorney, questioned the evidence against him, and stated that he thought he could work with his attorney but would like to spend more time with him. It was Wagners opinion that despite defendants delusions, he was competent to stand trial, and this view is consistent with the trial courts subsequent observation that defendants lack of cooperation did not stem from any inability on his part to work with his attorney, but from a calculated attempt to disrupt the proceedings.
In re McManus (1944) 63 Cal. App. 2d 318, 146 P.2d 948, relied upon by defendant, is factually and procedurally distinguishable. In McManus, the court held that substantial evidence supported the trial courts finding that the defendant was incompetent to stand trial. The court did not conclude that the defendants paranoid delusions necessarily precluded a finding of competency, but only that the testimony of the psychologists in that case supported a finding of incompetency. (Id. at p. 324.) Moreover, McManus suffered from far more severe and pervasive delusions than the defendant here. The evidence showed that McManus believed that he was being persecuted and opposed by the conspiracies of groups of persons variously referred to as the `peace officers, the `homicide squad, `gangsters, the `Hibernians, the `Odd Fellows, and the `Ku Klux Klan." (Id. at p. 321.) All of the doctors who testified agreed that his mental condition prevented him from consulting with his attorney. (Id. at p. 320.) When asked how many lawyers he had, he said, "I dont know how many there was there, but I counted six." (Id. at p. 321.)
Defendants reliance upon Lafferty v. Cook (10th Cir. 1991) 949 F.2d 1546, is similarly misplaced. In Lafferty, the court held that the trial court and the medical expert applied an improper test for competency by considering whether defendant had a factual understanding of the proceedings without also considering whether defendants paranoid delusions precluded a rational understanding of the proceedings. (Id. at pp. 1550-1553.) Unlike the psychologist in Lafferty, Wagner specifically considered whether defendants paranoid delusions interfered with his rational ability to assist in his defense and concluded that they did not.
Defendant fares no better in his challenge to Dr. Shieldss report. Shields employed a structured interview format to evaluate defendants competency. Based upon the evaluation tools he used, Shields found minimal or no impairment with respect to defendants understanding of the nature of the case and his ability to engage in reasonable consultation with his attorney. He found that defendant was only mildly impaired in his ability to appreciate his legal predicament. He found no impairment in defendants capacity to communicate facts, to plan legal strategy, to engage in his defense, to challenge witnesses, to testify relevantly, and no impairment in his willingness to relate to his lawyer. Shields did, however, conclude that there was a high probability that delusional ideation was present based upon defendants claim that he was being prosecuted because of a scandal in the Navy. Shields concludes, "It is this evaluators opinion that Mr. Cuyugan is capable of assisting counsel in his defense and that he can do so in a rational manner. However, it is noted that since this evaluator was not given any information by defense counsel, the nature of counsels doubt or difficulty with progress is not entirely known to this evaluator. Thus, a definitive opinion cannot be given on this issue without further information. Nonetheless, at present, it does appear that Mr. Cuyugan is at least capable of assisting his attorney."
Defendant argues that Shieldss tentative opinion is not reliable because his attorney failed to supply the information that Shields indicated was necessary to render a final opinion. He also argues that his trial counsel provided ineffective assistance by failing to respond to Shieldss request for information and by failing to present the requested information at the hearing, and that the trial court erred by failing to elicit this information from defense counsel at the hearing. He suggests that "if [defense] counsel had discussed the nature of his relationship with [defendant] when the court adjudicated the question of competency on September 21, it is clear that counsels information would have pointed directly and ineluctably to a finding of incompetence."
Initially, while Shieldss opinion was qualified based upon the lack of information from defendants attorney, his report nonetheless provided reliable evidence of defendants competency. The tools used by Shields demonstrated little or no impairment in defendants ability to assist in his defense. This evidence in conjunction with Wagners unqualified opinion more than adequately supports the competency finding.
Moreover, the failure of defendants attorney to provide additional elaboration on the nature of his concerns about defendants competency did not result in ineffective assistance of counsel. Even if we assume that Shieldss ultimate opinion would have been different had defendants attorney reported to him that their meetings and communications thus far had not been productive, it is not likely that this change of opinion would have led the court to find defendant incompetent. First, contrary to defendants assertion, it does not appear that as of the date of the competency hearing defendants attorney-client relationship had degenerated to the point that it later did. Second, in light of the other evidence demonstrating defendants competence, the fact that the defendant was not cooperating with his attorney is not particularly strong evidence of incompetency. While defendants actual relationship with his attorney is relevant (Medina v. California (1992) 505 U.S. 437, 450, 120 L. Ed. 2d 353, 112 S. Ct. 2572), it is the defendants ability to assist rationally in his defense, not his actual assistance, that must be evaluated. As discussed above, both psychologists provided credible evidence demonstrating defendants capacity to assist rationally in his defense. Accordingly, any asserted deficiency in Bequettes representation in this respect did not result in prejudice to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Scott (1997) 15 Cal.4th 1188, 1212, 939 P.2d 354.)
Defendant has filed a petition for a writ of habeas corpus, which has been consolidated with this appeal. The petition is supported by a declaration from Dr. Shields, which suggests that if he had been aware of defendants subsequent courtroom behavior, the history of paranoid behavior testified to at trial, and Bequettes opinion that his meetings and communications with defendant had not been productive, he would have reported to the court that he did not believe defendant was competent to stand trial. Initially we note that Shieldss reliance on defendants subsequent behavior and the trial testimony is misplaced since such conduct could not possibly have been considered in forming his opinion that was rendered prior to trial. More importantly, assuming that Shieldss opinion would have been different if he had known defendant was not cooperating with his attorney, this modification in the opinion of one of the two experts based upon the newly discovered evidence does not cast such a fundamental doubt on the trial courts original determination of competency to justify habeas corpus relief. (Cf. People v. Gonzalez (1990) 51 Cal.3d 1179, 1246, 275 Cal. Rptr. 729, 800 P.2d 1159; In re Weber (1974) 11 Cal.3d 703, 724, 114 Cal. Rptr. 429, 523 P.2d 229; In re Wright (1978) 78 Cal. App. 3d 788, 802, 144 Cal. Rptr. 535.) Dr. Shieldss initial opinion was based primarily on the results of psychological tests that he administered. It is not readily apparent why the fact that defendant was not cooperating with his attorney would cause him to modify an opinion, developed from psychological tests, that defendant was capable of cooperating. In all events, it remained the opinion of Dr. Wagner that defendant was capable of cooperating. Accordingly, the petition for writ of habeas corpus is denied.
Finally, the trial court did not err by failing to obtain a statement from defendants attorney regarding his impressions of his working relationship with defendant. The trial court satisfied its obligation to inquire into defendants capacity by ordering that defendant be evaluated by two psychologists and by suspending proceedings to hold the competency hearing. Contrary to defendants assertion, the court was not obligated to probe defense counsel for an opinion about his clients competency.
2. Midtrial Competency Determination
Defendant contends his conduct during trial required the court to suspend proceedings and hold a second competency hearing. He argues that the complete breakdown in the attorney-client relationship, which was caused by his desire to present a delusional defense, and his increasingly outrageous conduct provided sufficient cause to doubt the prior finding that he was competent to stand trial, and that the trial judge essentially expressed just such a doubt when he referred the defendant for evaluation under section 4011.6.
Section 4011.6 authorizes the court to refer a criminal defendant who appears to be mentally disordered to a treatment facility for an evaluation to determine whether, as a result of a mental disorder, the defendant is a danger to himself or others. (See also Welf. & Inst. Code, § 5150.)
The courts duty to conduct a competency hearing arises when the accused presents substantial evidence of incompetence at any time "prior to judgment." (§ 1368; People v. Kelly (1992) 1 Cal.4th 495, 543, 822 P.2d 385.) " When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding. " (People v. Kelly, supra, at p. 542.) Ordinarily, when defense counsel has presented substantial evidence that a defendant is incompetent to stand trial, the trial court must declare a doubt as to the defendants competence and suspend proceedings even if the courts own observations lead it to believe the defendant is competent. (People v. Pennington (1967) 66 Cal.2d 508, 518, 58 Cal. Rptr. 374, 426 P.2d 942.) "But when, as in this case, a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendants mental state. This is particularly true when, as here, the defendant has actively participated in the trial." (People v. Jones (1991) 53 Cal.3d 1115, 1153, 282 Cal. Rptr. 465, 811 P.2d 757.) "The trial judges ruling regarding whether a competency hearing is required should be given great deference. An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. " (People v. Danielson (1992) 3 Cal.4th 691, 727, 838 P.2d 729, overruled on a different ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The decision to hold a renewed competency hearing is reviewed for an abuse of discretion. (People v. Marshall, supra, 15 Cal.4th at p. 33.)
As the trial progressed, defendant interrupted the proceedings no less than seven times, and demanded a new attorney on at least eight occasions. Although defendant raised other issues with respect to his representation, the primary complaint was his attorneys unwillingness to investigate and present witnesses related to the asserted government conspiracy behind the charges against him. Because of his disruptions, defendant was removed from the courtroom on four occasions. The first removal occurred during jury selection when defendant, after being advised three times not to interrupt and speak in front of the jury, stood and asked why he was not being allowed to fire his attorney. When defendant would not stop talking, the jury was excused and defendant was placed in leg and waist chains. The court gave defendant three choices: to remain in the courtroom and behave, to remain in chains or to be removed from the courtroom. Defendant chose to be removed and jury selection proceeded in his absence. Later, on the third day of trial, defendant stood and announced, "I have enough. I been forced by this court to have Mr. Bequette represent me. . . . Mr. Bequette has not been truthful to me. Im not having a fair trial. I refuse to be represented by Mr. Bequette." Defendant was removed from the courtroom and a recess declared. While defendant did briefly return to the courtroom, he was removed again when he refused to answer any of the courts questions. After this incident the defendants attorney requested that the court refer defendant for a section 4011.6 evaluation. The courts referral reads, "The defendant is under the impression that a governmental conspiracy is afoot. This delusion has become increasingly obvious. Today, he stood up in court in the middle of trial and began yelling about his constitutional rights being violated due to what he perceives to be the atty.s incompetence or unwillingness to help him. He has specifically complained to atty. about his lack of attention to the conspiracy. After being brought back into court, he has refused to speak to [his attorney] or respond to [my] questions, while staring down at the counsel table." The section 4011.6 evaluator reported that defendants "courtroom behavior could be paranoid and unreasonable but his presentation tonight was calm, cautious and controlled. There were no openly paranoid delusional statements. He claims there are difference of opinion between himself and his attorney and that was the basis for his demonstration." A few days later, defendant again interrupted the proceedings and stated, "With all due respect, Your Honor, I do not trust my lawyer. "Then defendant poured a carton of milk over his attorney. Defendant was again removed from the courtroom. He would later explain that he poured the milk over his attorney to prove that a conflict existed: "I already spilled milk on him yesterday. [P] . . . [P] Thats not enough that I poured the milk on his head, Your Honor? To show you? [P] . . . [P] Are you trying to make me a violent person, just to show you were having a conflict in here?" Defendant returned to the courtroom the next day to testify but was removed when he refused to take the oath. Defendant remained absent for the balance of the proceedings.
The referral order appears to have been filled out by defendants attorney but prior to being signed by the judge, edited to read as though it were written by the judge. The editing is incomplete, however, and for the sake of clarity, the referral has been edited consistent with the apparent intent of the court.
While defendants conduct was certainly troubling, the trial court did not abuse its discretion by failing to hold a second competency hearing. To the contrary, the record reflects the trial courts care and patience to ensure that defendant was both competent to stand trial and receiving effective assistance of counsel. After each outburst by the defendant the trial judge stopped the proceedings and listened fully to defendants concerns. The judge was neither curt nor dismissive of defendant. Hence, the trial judges opinion that defendant poured milk on his attorney to intentionally disrupt the proceedings, and that defendants conduct was calculated rather than delusional behavior or the product of mental illness, is entitled to considerable deference.
The section 4011.6 referral reflects the care exercised by the trial judge in assessing defendants competency. Contrary to the interpretation that defendant places on the referral, the section 4011.6 referral was not an expression of doubt as to defendants competency sufficient to require a renewed competency hearing. The concerns addressed by a section 4011.6 evaluation are significantly different from the issues addressed in a competency hearing. While the section 4011.6 referral seeks an evaluation of whether a defendant suffers from a mental disorder which makes him a danger to himself or others, the competency hearing requires an evaluation of whether defendant understands the nature of the proceedings and is able to rationally assist in his defense. (See People v. Lawley (2002) 27 Cal.4th 102, 139 [request that defendant be examined for signs of being under the influence of controlled substances is not the equivalent of a declaration of doubt as to defendants competency within the meaning of section 1367].) The trial judge has broad discretion in determining the need for a renewed competency hearing. The courts use of a less disruptive section 4011.6 evaluation to help assess defendants current mental state was entirely reasonable under the circumstances. Had the report raised any real concerns, the trial judge presumably would have responded appropriately. The report, however, stated defendant did not present in a delusional manner but was calm, cautious and controlled, and only served to reinforce the courts opinion.
In People v. Medina (1995) 11 Cal.4th 694, 734-735, 906 P.2d 2, the court held that defendants refusal to communicate with his attorney and his disruptive conduct during the trial proceedings, resulting in defendants removal from the courtroom, did not require a second competency hearing. The court reasoned that defendants conduct displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so, or reflect a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of defendants competence. (Ibid.) Likewise, we see no basis to reject the trial courts finding here that defendants increasingly obstreperous attempts to secure a new attorney did not constitute a change in circumstances or signify a change in mental capacity sufficient to require a new competency hearing.
3. Faretta Motion
"A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.] Faretta error is reversible per se." (People v. Welch (1999) 20 Cal.4th 701, 729, 976 P.2d 754, citing Faretta v. California (1975) 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (Faretta).) Defendant contends he twice requested to represent himself and that the trial court erred in denying his requests. The Attorney General argues that defendants failure to obtain a ruling upon his requests precludes consideration of his claim on appeal.
On November 15, 2001, the court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden), in which defendant was given an opportunity to explain the conflict with his attorney. Defendant explained that he did not trust his attorney and that his attorney did not meet with him in jail sufficiently. The court explained to defendant some of the dangers of replacing his attorney two weeks before trial and offered defendant some additional time to think about his decision. Defendant told the court, however, that he would like to "get rid of his lawyer." The court responded, "That means you are going to represent yourself." Defendant reiterated that he did not want to be represented by his attorney, and that he was willing to take his chances representing himself. The court replied, "I understand you want to take your chances, but the Court is not willing to do that." Thereafter, the court questioned defendant about his educational background and his ability to understand the proceedings with and without his interpreter. The court also expressed a concern that based upon the psychologists reports prepared for the competency hearing defendant was not qualified to represent himself. Nonetheless, the court concluded, "You are going to be representing yourself, and I dont think you are competent to represent yourself." Defendant responded, "I would rather seek counsel from a different person, Your Honor. I would like to have court-appointed counsel." The court replied, "I think thats smart. At least you are thinking about having someone represent you. I think thats smart." The court concluded, however, that it had not heard any reason to dismiss defendants present attorney and denied defendants request for a new attorney. The following day, defendant announced, "I would like to fire my lawyer. . . . I dont feel like Im ready for trial, jury selection, and I dont feel like I have what I need. And most importantly, I dont trust my lawyer. And that right there is a conflict of interest." When the court asked defendant whether he was going to represent himself or get another attorney, defendant replied, "If the court can grant me with another-with a court-appointed lawyer that would be helpful." The court denied the motion, but permitted defendant to make a standing objection to his attorneys representation. The court held two subsequent Marsden hearings in December, but defendant did not raise self-representation again at either of those hearings.
Although self-representation was discussed in the course of the first two Marsden hearings, defendants remarks during those discussions were too equivocal to be considered a proper motion by defendant for permission to represent himself. In any event, any such request was withdrawn when the court explained to defendant the dangers of self-representation, and defendant did not thereafter renew his request. Defendants abandonment of the request to represent himself forecloses his claim on appeal. (People v. Skaggs (1996) 44 Cal.App.4th 1, 8.)
4. Marsden Motion for Substitute Counsel
While the court is under an absolute duty to appoint counsel to represent an indigent defendant, " [a] defendants right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. . . . " (Marsden, supra, 2 Cal.3d at p. 123.) An indigent defendant "may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired." (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 864 P.2d 40, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673.) The defendant must demonstrate either that his appointed defense counsel is providing inadequate representation, or that he is embroiled in an irreconcilable conflict with defense counsel. (Marsden, supra, at pp. 124-125.)
As discussed above, the court held three Marsden hearings over the course of the trial. At the first hearing, defendant complained that his attorney had not visited him as much as he would have liked. Defendant also complained that he had not been provided with copies of witness statements and that his attorney had not discussed which motions he had filed. At the December 3, 2001 hearing defendant stated, "I didnt have any communication with my attorney, your honor, in regards to my trial all this time. I dont know for sure, Your Honor, if he did some investigation in regards to my case up to this point. That I dont know for sure." Defendant explained that his attorney had not investigated the governments conspiracy to frame him with these charges, including why jail personnel reclassified him as mentally insane. Defendant also complained that his attorney had not coordinated with the Philippine Consulate. Defendants attorney explained, "With regard to my communication with the defendant, I believe that because of Mr. Cuyugans delusion that is documented in the court file, my visits and my communications with him have not been productive. [P] However, when I began my representation of Mr. Cuyugan, he was out of custody. He met with me in my office at least two times, maybe three times. [P] . . . [P] Since he has been incarcerated, I have visited him twice at the Santa Rita jail, either once or twice at the jail in north Oakland. [P] Ive also attempted to visit Mr. Cuyugan at the jail, the North County Jail, on two other occasions, but have been informed by the jail staff that Mr. Cuyugan was not interested in speaking to me. . . . [P] Just in the way of investigation, Ive had my investigator, Steve James, investigate this case the way I think it should be investigated. He hasnt investigated Mr. Cuyugans theory of the case, that this all stems from a conspiracy regarding his knowledge of United States . . . . [P] . . . [P] So I have not investigated and tried to determine through investigation how this-how these allegations are somehow related to a conspiracy that stems from allegations that he stole nuclear parts when he was in the Navy." Defendants attorney also advised the court that he had spoken with the Philippine Consulate and he was keeping them advised of defendants immigration status. After defendant poured milk on his attorneys head and demanded a new attorney, the court held a third Marsden hearing. At that hearing, defendant explained there was someone living in his house who knows he has been set up and that he needed a new attorney to investigate that person. Defendant refused, however, to explain how this witness would provide relevant testimony. Instead, defendant repeated, "Give me another attorney. I will talk to the attorney and then my attorney will tell you."
Defendant contends that the difference of opinion with his attorney about defense tactics, including his attorneys refusal to investigate his theory of the case and his objection to defendants taking the stand to testify, led to a complete breakdown in their attorney-client relationship. A disagreement as to tactics and strategy, however, is not sufficient reason to require a substitution of counsel, unless it signals "a breakdown in the attorney-client relationship of such a magnitude as to jeopardize defendants right to effective assistance of counsel." (People v. Robles (1970) 2 Cal.3d 205, 215, 85 Cal. Rptr. 166, 466 P.2d 710; People v. Barnes (1983) 146 Cal. App. 3d 663, 666-667, 194 Cal. Rptr. 317, disapproved on other grounds in People v. Ortiz (1990) 51 Cal.3d 975, 981-983, 275 Cal. Rptr. 191, 800 P.2d 547.)
The record contains nothing suggesting that defendant did not receive effective assistance of counsel. His attorney was an experienced criminal defense attorney, and had adequately prepared for trial. He had conducted the investigation in a reasonable manner and was putting on a reasonable defense despite defendants disagreeable behavior and unwillingness to cooperate. Under the circumstances, Bequettes refusal to investigate defendants conspiracy defense was entirely reasonable. Besides being the apparent product of a delusion, the evidence that defendant wanted his attorney to pursue regarding the governments motive for prosecuting the case was completely irrelevant and would not have provided a defense to the charges against the defendant. At no time during the Marsden hearings, during any other proceedings in the record, or on appeal has defendant suggested that there was any evidence tending to disprove or even mitigate the offenses with which defendant was charged that his attorney overlooked of failed to develop. Accordingly, the disagreement between defendant and his attorney did not in any way deprive defendant of the opportunity to present a meritorious defense.
Finally, "A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (People v. Crandell (1988) 46 Cal.3d 833, 860, 251 Cal. Rptr. 227, 760 P.2d 423, overruled on other grounds in People v. Crayton (2002) 28 Cal. 4th 326, 364-365.) Defendants assertion that he was not prepared for trial combined with his refusal to speak with his attorney supports the trial courts view that the conflict between defendant and his attorney was contrived as a means to delay the trial. The trial court did not err in refusing to appoint a new attorney to represent defendant.
5. De Facto Guilty Pleas
Defendant contends he was deprived of his constitutional rights to a jury trial and to confront the witnesses against him, and was denied his privilege against self-incrimination, by his attorneys argument to the jury conceding defendants guilt on certain counts. Defendant acknowledges, as he must, that in light of his confession that he was the father of Jane Does baby, his attorney made a reasonable tactical decision to concede guilt as to those charges relating to his sexual misconduct with a minor (Jane Doe) that did not require the use of force. Nonetheless, he argues that his constitutional rights were violated by the concessions because he did not knowingly and intelligently waive his rights with respect to those counts.
Defendants reliance upon Brookhart v. Janis (1966) 384 U.S. 1, 16 L. Ed. 2d 314, 86 S. Ct. 1245, is misplaced. More importantly, his argument fails to cite controlling California Supreme Court authority.
In Brookhart, the court held that defense counsel may not agree to a "prima facie trial" against defendants express objections where the structure of the proceedings was the practical equivalent of a guilty plea. The court reasoned that "counsel for defendant cannot override his clients desire expressed in open court to plead not guilty [fn. omitted] and enter in the name of his client another plea-whatever the label-which would shut off the defendants constitutional right to confront and cross-examine the witnesses against him which he would have had an opportunity to do under a plea of not guilty." (384 U.S. at pp. 7-8.) Here, however, defendant was provided a jury trial with the ability to cross-examine witnesses. The concessions made by defendants attorney were not tantamount to a guilty plea, but simply reflected the facts that the defendant had admitted. (People v. Samayoa (1997) 15 Cal.4th 795, 847, 938 P.2d 2; People v. Jones (1991) 53 Cal.3d 1115, 1139, 282 Cal. Rptr. 465, 811 P.2d 757;People v. Griffin (1988) 46 Cal.3d 1011, 1029, 251 Cal. Rptr. 643, 761 P.2d 103.)
In Griffin, the court rejected an argument remarkably similar to that made by defendant in this case. The court stated, "Counsels decision not to contest guilt on one or more charges at the guilt phase of a capital trial is not tantamount to a guilty plea. [Citation.] We rejected the same argument in People v. Murphy (1972) 8 Cal.3d 349, 365-366, 105 Cal. Rptr. 138, 503 P.2d 594, on the ground that in this situation, the defendant has not surrendered his rights since he has a jury trial with the opportunity to cross-examine, call witnesses, and testify." (People v. Griffin, supra, 46 Cal.3d at p. 1029.) The court recognized, however, that while the court need not obtain an express waiver from defendant under these circumstances, a defense attorney does not have the authority to override his clients express objection to conceding guilt. (Ibid.) Nonetheless, in People v. Jones, supra, the court held that defense counsel could partially concede guilt over a defendants objection where the record does not show that any defense defendant wished to present had credible evidentiary support and counsels tactic was the only strategy with a chance of success. The court concluded that under these circumstances, the attorneys concession did not violate defendants right to make fundamental decisions about his defense. (53 Cal.3d at p. 1139; see also People v. Samayoa, supra, 15 Cal.4th at p. 847 ["The record reflects that defense counsel conceded only those charges for which there was no viable defense, and therefore did not deprive defendant of any meritorious defense without his clients consent"].)
Defendant has not demonstrated that there was any viable defense to the charges to which his attorney conceded guilt. The undisputed evidence demonstrated that defendant engaged in illegal sexual conduct with his stepdaughter. Defendants proposed conspiracy defense was simply not a viable defense against these crimes. Accordingly, the tactical decision to focus on the issue of force did not deny defendant the right to make fundamental decisions about his defense.
6. Counts 7 and 8
Counts 7 and 8 both charged defendant with sexual penetration of a minor (Jane Doe) by a foreign object between November 1, 1998 and November 30, 1999. The only evidence of penetration came from the victim. On direct examination, the victim was asked whether before she turned 18 years old, defendant "ever put anything into [her] vagina?" She answered, "Yes . . . His fingers." The prosecutor then asked, "I assume you cant tell us the exact number of times that he would have done that?" The victim agreed that she could not. After taking a recess, the prosecutor confirmed, "before the break, I think I was asking you about-you had said that there were a couple of times, or at least more than one occasion, where [defendant] would put his fingers inside of you, inside your vagina." The victim agreed with this characterization of her prior testimony. Later, the victim testified that all of the sexual acts took place in her bedroom and that defendant came into her room, "Like some nights-almost like most of the time."
Defendant contends this testimony was insufficient to support two separate counts of penetration. He asserts that the victims inability to remember the exact number of times necessarily created a reasonable doubt that the defendant penetrated her more than once. He also argues that the prosecutors reference after the recess to the victims testimony before the break mischaracterized her testimony because she had not said that defendant penetrated her on more than one occasion; because the victim was generally inattentive in her testimony, he argues, her agreement with that mischaracterization does not provide sufficient evidence of his guilt. We disagree. These were all matters for the jury to weigh. The victims testimony can most reasonably be understood to say that defendant penetrated her on multiple occasions, although the victim could not state the exact number of times. If this conduct had occurred only once, the victim presumably would have been able to say so. The victims testimony provides ample evidence that defendant committed the offense on at least two, and likely many more, occasions.
7. Improper Character Evidence
Defendants girlfriend, Mylen Galang, testified without objection that she and defendant had watched a pornographic videotape that depicted incest on three or four occasions prior to having sex. She explained that at first, defendant suggested they watch the video, but later she wanted to see it. Defendant made a relevancy objection to the prosecutors follow up question, "Was there anything unique in your background that made it difficult for you to watch that?" In response to the objection, the prosecutor argued that the testimony was "corroborative of what other witnesses have said and it corroborates the level of perversion that was involved in this case." After a brief unreported discussion, the trial court overruled the objection. Mylen testified that her brother had molested her many years before. She also said that while she had told defendant about the molestation on other occasions, she never complained to him that the video made her uncomfortable. On cross-examination, Mylen confirmed that she had not told defendant that she was uncomfortable watching the video. She did, however, report that while she and defendant were engaged in sexual activity unrelated to the videotape, defendant would ask her about what her brother had done to her. She told him she did not want to talk about it, but he would keep bringing it up, so she "would just get it over with and just tell him, because it [was] not going to stop." On re-direct, Mylen explained that defendant became sexually excited when she talked about her brothers molestation. She also confirmed that she told him she did not want to talk about it, but that he would become angry if she said no.
Defendant contends the trial court erred in admitting this testimony. He argues that the testimony was irrelevant, and inadmissible character evidence under Evidence Code section 1101, subdivision (a). Both parties devote a good deal of the briefing on this issue to whether defendants relevance objection preserved the character evidence issue on appeal. It is, however, unnecessary to resolve that question because even if the testimony was improperly admitted, the error undoubtedly was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Evidence Code section 1101, subdivision (a) reads in relevant part: "Evidence of a persons character or a trait of his or her character is inadmissible when offered to prove his or her conduct on a specified occasion."
The standard of prejudice for erroneously admitted evidence is whether "the error complained of resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (a).) That is, whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant did not object to the admission of the incest videotape or to Galangs initial testimony that they watched the tape prior to having sex. Moreover, defense counsel on cross-examination elicited the testimony that she complained to defendant about discussing her molestation experience. The prosecutors redirect examination, which elicited further testimony that defendant was aroused by the video tape, was within the scope of the cross-examination and defendant did not object to that testimony. Thus, the only portion of Galangs testimony to which defendants objection applied was her statement that she had been molested by her brother and that defendant knew this information at the time he asked her to watch the videotape. Defendant contends this evidence was crucial because the only contested issue was consent and the prosecutor argued that the evidence demonstrated that defendant had an interest in nonconsensual incest. The portion of Galangs testimony to which the defendant objected, however, does not tend to negate defendants claim of consent. Indeed, Galang testified that she never told defendant the tape made her uncomfortable and admitted that, in fact, she had asked the defendant to play the tape on one or two occasions. Accordingly, the admission of this testimony involved no prejudicial error.
8. Jury Instruction on Alcohol Consumption
Defendant contends the following instruction improperly authorized the jurors to drink alcoholic beverages at lunch: "Now, ladies and gentlemen, with respect to lunch, some judges order that jurors not have any alcoholic beverages. I dont. I leave it up to your best judgment as to what you do and what you eat during the lunch hour. And I will do that with this jury as well." This instruction undoubtedly ran afoul of the Supreme Courts advisement that "the consumption of alcoholic beverages by jurors, whether during the presentation of evidence or during deliberations, is clearly to be discouraged" (People v. Allen (1986) 42 Cal.3d 1222, 1265, 232 Cal. Rptr. 849, 729 P.2d 115), and should be avoided in the future. Defendant admits, however, that there is no evidence that any of the jurors actually consumed an alcoholic beverage during the trial proceedings, so that the error in giving this advise was harmless in this case. (Id. at pp. 1265-1266 ["the rule is now fairly well established that a verdict will not be set aside in the absence of some showing or some reasonable ground to suspect that the consumption of alcohol actually affected the jurors capacity to competently perform their duties]".)
9. Count 13: Oral Copulation with a Minor
Defendant was charged in count 13 with having participated in an act of oral copulation with a person under the age of 18 (Jane Doe) between November 1, 1999, and November 29, 2000. The victim, however, turned 18 on November 8, 2000. Defendant contends the instructions given to the jury improperly permitted defendant to be convicted of this offense if the act of oral copulation occurred between November 8 and November 29, 2000, when the victim was no longer a minor.
The evidence of defendants acts of oral copulation with the victim was contained in the victims testimony and in defendants confession. The victim testified that while she was still 17 years old she and defendant engaged in acts of oral copulation. Although she could not give an exact number of times, she testified that she had orally copulated defendant in her closet and when he was sitting in a chair. She also testified that she orally copulated defendant on November 25, 2000, before she went to school, as she had done on other occasions. Defendant admitted that the victim orally copulated him between two and three times a week while the victim was still 17 years old.
Defendant relies upon People v. Green (1980) 27 Cal.3d 1, 69-70, 164 Cal. Rptr. 1, 609 P.2d 468, in which the court held that "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." In People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129, 847 P.2d 45, the court clarified that the Green rule applies only where one of the alternate theories is legally insufficient, rather than subject to a failure in proof: "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground."
Contrary to defendants assertion, the error in this case is factual, not legal. The victim testified to her birth date, so that the jury was capable of discerning that the victim was 18 on November 25 when defendant had her orally copulate him before she went to school. More importantly, the prosecutors closing argument directs the jury to find defendant guilty based upon acts other than the November 25th incident: "Now we know that while [Jane Doe] was 18, that there were additional acts of oral copulation. We know of one act that actually took place after Mylen had reported this false allegation to the police and before the police showed up on November 29th. That is, he orally copulates [Jane Doe] before shes going to school, even while this investigation is proceeding. [P] Again, you just see one act, but we know when she was 17 years old there were numerous counts of oral copulation. But again, its charged a minimum number of times. And Ive already defined what oral copulation is and here we know it was a person under the age of eighteen. Here were talking about count 13, [Jane Does] 17th year." Accordingly, defendants conviction under count 13 must be upheld because substantial evidence demonstrates that multiple acts of oral copulation occurred when the victim was still 17 years old.
10. Cumulative Error
Defendant also asserts that the cumulative effect of the various errors requires reversal of his conviction. We discern no cumulative errors requiring reversal of any aspect of the judgment as to defendants guilt.
11. One Strike Sentence
Defendant contends the trial court erred by sentencing him on count 1 to a term of 15 years to life pursuant to the "One Strike" law, section 667.61. Section 667.61 "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, . . . including rape, foreign object penetration, sodomy, and oral copulation. . . . The section applies if the defendant has previously been convicted of one of seven specified offenses, or if the current offense was committed under one or more specified circumstances." (People v. Mancebo (2002) 27 Cal.4th 735, 741-742, fns. omitted.) In order to invoke the provisions of section 667.61, the qualifying facts must be "alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (i).) Defendant contends the enhancement allegation was neither admitted by the defendant nor found true by the trier of fact, so that application of the enhancement is precluded.
Section 667.61 provides in relevant part, "(b) . . . [A] person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j). [P] (c) This section shall apply to any of the following offenses: (1) A violation of paragraph (2) of subdivision (a) of Section 261. [P] (2) A violation of paragraph (1) of subdivision (a) of Section 262. [P] (3) A violation of Section 264.1. [P] (4) A violation of subdivision (b) of Section 288. [P] (5) A violation of subdivision (a) of Section 289. [P] (6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [P] (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066. [P] . . . [P] (e) The following circumstances shall apply to the offenses specified in subdivision (c): [P] . . . [P] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
Defendant is correct that the jurys failure to make a factual finding as to the enhancement allegations was erroneous. Nonetheless, this error did not render his sentence unauthorized. In People v. Jones (1997) 58 Cal.App.4th 693, the court found that a similar error had occurred, but that the error was harmless. In Jones, the information alleged four separate One Strike circumstances, including a multiple victim circumstance, but the jury was never asked to make a finding on the multiple victim circumstance. (Id. at pp. 708, 710.) Instead, the jury merely made a finding that the defendant committed each sexual offense against the victim. The court held that in light of the verdict finding the defendant guilty of the charged sexual offenses against two victims, it necessarily followed that the multiple victim circumstance applied. (Id . at pp. 710-711.) Once the jury found the defendant guilty of sexual offenses against both victims, it logically would have been required to find the multiple victim circumstance true, and any error in failing to obtain a separate verdict on the special circumstance was harmless. (Id. at p. 712.) Likewise, in the present case, while the jury should have made a separate finding on the multiple victim allegations, any error was harmless in light of the jurys findings that defendant had committed the charged sex offenses against both of the victims.
Defendants reliance on the Supreme Courts recent decision in People v. Mancebo, supra, 27 Cal.4th 735, for the proposition that the prosecutor waived the enhancement by failing to secure a jury verdict, is misplaced. In Mancebo, the jury convicted the defendant of sex offenses against two victims and found true two special circumstances as to each victim. After conviction, the trial court substituted a multiple victim special circumstance (§ 667.61, subd. (e)(5)), which had not been pleaded, for the gun-use circumstance that was alleged in the pleading. The court then used the gun-use finding to further enhance the sentence under another code section. (Mancebo, supra, at p. 740.) The Supreme Court rejected the trial courts attempt to use an uncharged circumstance to satisfy the number of circumstances required for one-strike sentencing. The court reasoned that the substitution was improper because the defendant had no notice that the facts alleged in the information would be used to provide a harsher sentence than that which appeared from the pleading. (Id . at p. 753.) The court concluded that the prosecutions decision not to allege the multiple victim circumstance "must be deemed a discretionary charging decision," and as such, "the doctrines of waiver and estoppel, rather than harmless error, apply." (Id. at p. 749.) Here, however, as in Jones, supra, there is no notice issue because the multiple victim circumstance was alleged in the information. Defendant was placed on notice that the prosecution was seeking to impose the enhancements, and the jury made the findings necessary to warrant imposition of the enhancements. The mere fact that the jury was not asked to complete a redundant verdict form does not preclude their imposition.
The information alleged in counts 1 through 3 and counts 15 through 23, that an enhanced prison term was applicable because defendant was charged with "committing an offense specified in subdivision (c) of Penal Code § 667.61 against more than one victim."
12. Full Consecutive Sentences: Counts 15 and 16
Defendant was sentenced on counts 15 and 16 to full consecutive terms pursuant to section 667.6, subdivision (d). Section 667.6, subdivision (d) requires the court to impose a "full, separate, and consecutive term" on a defendant convicted of enumerated offenses. Defendant, however, was convicted in counts 15 and 16 of violating section 288, subdivision (a) (lewd and lascivious act with a child under 14 years of age), which is not an offense enumerated under this subdivision. Defendant argues, and the Attorney General concedes, that this sentence was unauthorized. Accordingly, the matter will be remanded to the trial court for resentencing pursuant to section 1170.1.
Although the trial court indicated with respect to count 16 that he was sentencing defendant to full consecutive terms pursuant to both section 667.61 subdivisions (c) and (d), the subdivision (c) enhancement was not alleged in the Information, and for reasons discussed post, it therefore cannot provide a basis for imposing the consecutive term sentence. In any event, the distinction between subdivision (c) and (d) is not relevant to this particular error asserted by defendant.
Subdivision (d) of section 667.6 reads in relevant part, "A full, separate, and consecutive term shall be served for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions."
13. Full Consecutive Sentences: Counts 17 Through 23
Defendant contends the trial court improperly sentenced him to seven full consecutive prison terms for his crimes against Jane Doe 2. As quoted above, section 667.6, subdivision (d), requires the court to impose full consecutive sentences where "the crimes involve separate victims or involve the same victim on separate occasions." The information alleges, however, in counts 17 through 23 only that "the defendant comes within the purview of Penal Code section 667.6 (d) because the above offense is one of several/many involving separate victims." Accordingly, defendant suggests that the court was authorized to impose full consecutive sentences only on the ground that the crimes involved multiple victims, not that the crimes involved the same victim on separate occasions. Defendant acknowledges that the court was authorized to impose one full consecutive sentence with respect to one of the counts relating to crimes against Jane Doe 2 because of the additional crimes involving Jane Doe. He argues, however, that this justification does not apply to the remaining six counts related to crimes against Jane Doe 2.
This argument is consistent with the trial courts apparent understanding of the justification for the full consecutive terms. In sentencing defendant, the trial court explained that the prison terms imposed on counts 15 through 23 were required to run consecutively because they involved a different victim from counts 1 through 14.
The Attorney Generals brief fails to respond to defendants argument, and suggests instead that the full consecutive sentences were proper because the evidence shows that defendant had an opportunity to reflect between each crime, so that the crimes occurred on separate occasions. This argument, however, is unavailing in light of the prosecutors failure to allege that the crimes occurred on separate occasions. As in People v. Mancebo, supra, 27 Cal.4th 735, the prosecutors failure to properly allege the alternative basis for imposing full consecutive sentences denied defendant necessary notice of the basis on which his sentence might be increased. Just as section 667.61, subdivision (i), requires that the enhancement circumstances be alleged in the accusatory pleading, the enhancements found in section 667.6 also must be alleged in the accusatory pleading, as required by section 1170.1, subdivisions (e) and (h).
Section 667.6, subdivision (d) provides in relevant part that "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."
In People v. Williams (1986) 180 Cal. App. 3d 57, 225 Cal. Rptr. 498, the court held that full consecutive terms were improper under indistinguishable circumstances. In Williams, the defendant was convicted of two predicate sex offenses against one victim and a third predicate offense against another victim on another day. Defendant was sentenced to three consecutive terms under section 667.6, subdivision (d). The Court of Appeal remanded for resentencing because while section 667.6, subdivision (d), mandated a full consecutive sentence with respect to each victim, it did not mandate a full consecutive term for the offenses that involved the same victim. (180 Cal.App.3d. at p. 61.) Similarly, in the present case, a full consecutive term was required for each victim, but was not mandated for the remaining six counts relating to crimes against the same victim. Accordingly, defendants case must be remanded for resentencing on counts 17 through 23.
Because this matter must be remanded for resentencing on these counts, we need not address defendants argument that the trial court failed to state its reasons for choosing the aggravated term on counts 16, 19, and 23. It is sufficient to note the asserted error, and to remind the court of its obligation to state its reasons on the record. Likewise, the court is directed to pronounce its sentence on count 21, which appears to have been inadvertently overlooked.
DISPOSITION
The matter is remanded for resentencing on counts 15 through 23. The judgment is affirmed in all other respects.
We concur: McGuiness, P. J., Corrigan, J.