P. v. Krause

Filed 4/19/07 P. v. Krause CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury convicted defendant Terry Lee Krause of four counts of felony indecent exposure with a prior (Pen. Code, 314, subd. 1),[1] and one count of sexual battery ( 243.4, subd. (d)).

The trial court sentenced defendant to a total of four years eight months in state prison, calculated as follows: the lower term of two years on the sexual battery count, plus consecutive eight month terms (one-third the midterm) for each of the four exposure counts.

Defendant appeals, claiming:

(1) There was no substantial evidence the victim of the sexual battery was restrained, an element of that crime;

(2) There was no substantial evidence defendant exposed himself under circumstances giving rise to criminal liability;

(3) Section 314, subdivision 1, establishing the crime of indecent exposure, is unconstitutionally vague on its face and as applied to this case; and

(4) The trial court denied defendant his right to counsel when it denied his request to substitute retained counsel for the public defender.

We affirm the judgment in its entirety.

FACTS

In July 2004, Jennifer M. lived in an duplex in Lodi. She advertised for a roommate, and defendant was the only person to reply. Jennifer told defendant they would share the kitchen and the bathroom, but they would have their own bedrooms. She told defendant her bedroom was off limits. She informed him they were to be strictly roommates and friends. She was recently divorced, and he was not to get involved in her personal affairs. Defendant would pay half the rent and common utilities to Jennifer, and he would provide his own phone and groceries.

Occasionally, Jennifer and defendant would have dinner together at the duplex, but they did not socialize outside the residence. Jennifer had a boyfriend at the time, but they broke up shortly after defendant moved in.

Jennifer never went into defendants bedroom, but sometimes she would stand in the doorway of his bedroom while talking to him. She secured her own bedroom door with a rubber band. This allowed the door to open enough for her cats to go in and out of her room, but not enough for a person to get in.

Count 1 Indecent Exposure

On August 3, 2004, Jennifer was watching television in the living room. Defendant called her to his bedroom. She walked over to his bedroom doorway to speak with him. Defendant was wearing baggy shorts. While they were talking, defendant pulled up the leg of his shorts, pulled out his penis, and exposed it to Jennifer. Jennifer turned around and walked away.

Count 2 Indecent Exposure

On August 4, 2004, Jennifer was watching television in her bedroom. Defendant entered her room and stood near the door wearing a flannel robe with nothing on underneath. He had the robe only partially on, and Jennifer could see his erect penis, which he was touching. She asked him what he was doing, and he said he was going to take a shower.

Defendant stood in the doorway trying to talk with Jennifer, but she told him he was not to be in her room. Defendant said, I know, and after two or three minutes, left the room and went into the bathroom. Jennifer got up and shut the door.

Count 3 Sexual Battery

On the night of August 6, 2004, Jennifer was awakened by feeling her bed move and something hitting her feet. Defendant was on her bed, wearing a partially opened robe. He had tied the robe sash around the base of his penis and was using the tie to whip his penis against her feet and legs. Jennifer was under her comforter except for her head and arms. She was afraid and pretended to be asleep hoping defendant would go away. Defendant moved up Jennifers body, rubbing her breasts and vagina through the comforter.

Defendant was kneeling on the bed next to Jennifer. She was unable to move because the covers pinned her down. Jennifer stopped feigning sleep at that point, but she did not say anything.

Defendant pulled Jennifers right hand up from the bed, put it on his penis, and then held it around his penis. Defendant moved his and her hand back and forth. Defendant still had the robe sash tied around his penis, and he was whipping Jennifers hand with his penis in the wrap. The action hurt Jennifer immensely. Jennifer was unable to get her hand free from defendants penis.

Defendant continued kneeling next to Jennifers body, his head facing the foot of the bed and using one hand to prop himself up. He continued hitting her hand with his penis and making her masturbate him for about two to three minutes. After ejaculating, he got up and took a shower. Jennifer got up and ran into the backyard. She did not call anyone that night. She had not said anything to defendant during the act because he was stronger than her and she was afraid he was going to rape her. She thought if she just went along with what he wanted, he would go away. Her bedroom door had been secured with the rubber band, and she noticed the band had been broken.

The next day, defendant asked Jennifer, Are we okay? She initially did not respond, but then told him they were not okay and what had happened was not appropriate. She had not consented to his behavior.

Count 4 Indecent Exposure

After defendant had moved in, Jennifers friend, Sherry H., stayed at the duplex a few times. She had been doing drugs and needed a safe place to get away from the drugs. Except for the first time she was there, when she slept in Jennifers bed, Sherry slept on the couch in the living room. Occasionally, Sherrys friend, Spider, would stay with her.

On September 7, 2004, Sherry and Spider were at the duplex. That night, Jennifer woke up to find defendant sitting on her bed Indian-style and masturbating with his hand. Defendant was wearing boxer shorts and his penis was exposed. Jennifer had not invited defendant into her room. A rubber band securing the door had again been broken.

Jennifer asked him, What the hell are you doing in my room? He said he did not know. Jennifer repeatedly told him to get out of her room. Defendant said, I know, but did not leave. Jennifer grabbed her robe and left the room. Spider agreed to stay up all night guarding her door.

Count 5 Indecent Exposure

One night in September 2004, while Sherry was lying down on the living room couch watching television, defendant came into the room holding a marijuana pipe. He was wearing a short robe that was open, exposing his naked body. Sherry could see defendants penis. Defendant sat down on a love seat, threw one leg over the back of it, and left the other leg down on the floor. Sherry again saw defendants penis.

Defendant asked Sherry if she wanted to get high. She replied no, and defendant began smoking the pipe. After a few minutes, defendant scooted down onto the floor. He gradually worked his way over closer to Sherry until he was leaning next to her on the couch. Sherry told him, Get the fuck away from me. Defendant raised up on his knees and slapped his penis against her leg. Sherry asked him what he was doing. Defendant did not respond but left the room.

At some point, defendant came back into the room with the robe sash tied around his erect penis, and he walked around the room pulling on the other end of the sash.

After he had left the room, Sherry fell asleep on the couch. She was awakened when she felt pressure on her body. Defendant was on top of her. His penis was inside her vagina and he was moving up and down. Sherry pushed defendant off of her, and he left the room.[2]

Prior incident

In 1994, when Tricia Z. was 17 years old, she was with her husband and baby at a Burger King drive-through in Lodi. Her husband was driving the car, and she was seated in the passenger seat. As they were about to order, defendant walked up to their car and asked if they would order some food for him. The restaurant was closed inside and the employees would not allow him to order at the drive-through window on foot. Tricia and her husband agreed and took defendants money. Defendant would meet them at the drive-up window, and they would give him his food.

While at the drive-up window, Tricia heard someone say pssssst. She turned to look out and saw defendant, standing on the passenger side of the car, exposing his penis and touching it. As Tricias husband reached over to give defendant his food, defendant said thank you, grabbed one of Tricias breasts, took the food, and ran off. A certified copy of defendants conviction of indecent exposure for this incident was received into evidence. ( 314, subd. 1.)

DISCUSSION

I

Sufficiency of Evidence of Sexual Battery

Defendant claims there was no substantial evidence he unlawfully restrained Jennifer, an element of the crime of sexual battery, the night he used her hand to masturbate himself. We disagree.

To obtain a conviction of sexual battery under section 243.4, subdivision (d), the prosecution had to establish:
(1) the defendant caused the victim to masturbate or touch an intimate part of either of those persons or a third person;
(2) the defendant specifically intended the act to occur for the purpose of sexual arousal, sexual gratification, or sexual abuse; (3) the masturbation or touching was against the will of the victim; and (4) the masturbation or touching occurred while the victim was unlawfully restrained either by the defendant or an accomplice.

For purposes of section 243.4, a person is unlawfully restrained when his or her liberty is controlled by words, acts or authority of the perpetrator aimed at depriving the persons liberty, and such restriction is against the persons will . . . . (People v. Arnold (1992) 6 Cal.App.4th 18, 28.)

Defendant admits there is substantial evidence to support all of these elements but one, that of unlawful restraint. The evidence, however, shows defendant controlled Jennifers liberty by his acts. His kneeling on the bed next to her pressed the bed covers down and prevented Jennifer from moving. He was facing the foot of the bed, holding her hand onto his penis. She was unable to free her hand from his penis, despite her unwillingness to participate in defendants actions. This was sufficient evidence to support the jurys determination defendant unlawfully restrained Jennifer.

II

Sufficiency of Evidence of Indecent Exposures

Defendant claims there was no substantial evidence supporting his four convictions of indecent exposure because the exposures occurred inside his residence in front of persons with whom he shared the household. He asserts such a location is not a place where the governing statute prohibits exposures. We disagree.

Under section 314, subdivision 1, a person who willfully and lewdly [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby is guilty of indecent exposure. (Italics added.) Defendant admits his exposures were willful and lewd. He argues section 314 cannot be interpreted to prohibit exposing himself in his own home where the person with whom he shares the home is not receptive to the overture.

The clear and unambiguous language of section 314 states indecent exposure can occur any place. It can occur in a public place, or it can occur in any place other than a public place where there are others to be offended by the exposure. Nothing in the statute excludes from any place a home where the perpetrator rents a room from another person.

We have already held the phrase any place means something other than a public place and includes a private home where the owner exposes himself to a visiting Avon sales representative. (People v. Tolliver (1980) 108 Cal.App.3d 171, 173-174.) Indeed, the Legislature contemplated indecent exposure could occur in a private dwelling, as it expressly increased the penalty for an exposure by one who enters an inhabited dwelling without consent. ( 314.)

In the incidents charged here, defendant willfully and lewdly exposed himself to other persons who had given him no indication they would ever consent to such an act, whether it was for sexual or romantic purposes, or even done as a prank. Jennifer had made clear at the beginning their relationship was not to be personal. Neither Jennifer nor Sherry ever showed or expressed sexual or romantic interest in defendant. Both made clear his behavior was unacceptable. Substantial evidence thus established defendant lewdly exposed himself in a place where there were other persons to be offended or annoyed by his actions. That the place of exposure was also his residence was irrelevant under the facts of this case, especially as to counts 2, 3, and 4, where defendant exposed himself in Jennifers bedroom. Indeed as to counts 3 and 4, defendant broke into her bedroom. It is of no consequence whether he broke rubber bands or deadbolt locks. His forcible entries on these two accusations betray his intent to have his way in all the charged crimes.

III

Constitutionality of Section 314, subdivision 1

Defendant challenges the constitutionality of section 314, subdivision 1, on its face for vagueness and as applied in this instance. We address each argument.

A. Vagueness

Defendant argues the statute is unconstitutionally vague on its face because, when read literally, it criminalizes otherwise acceptable conduct that occurs within private homes between housemates, including spouses or persons involved in a romantic relationship. We disagree with defendant.

A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the acts provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions. [Citations.] (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, italics in original.)

[T]he vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. [Citations.] (United States v. Lanier (1997) 520 U.S. 259, 266 [137 L.Ed.2d 432, 442].)

The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of life, liberty, or property without due process of law, as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. (Walker v. Superior Court (1988) 47 Cal.3d 112, 141; see also Kolender v. Lawson (1983) 461 U.S. 352, 357 [75 L.Ed.2d 903, 908-909].) (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.)

The starting point of our analysis is the strong presumption that legislative enactments must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language. (Walker v. Superior Court, supra, 47 Cal.3d at p. 143.) (Williams v. Garcetti, supra, 5 Cal.4th at p. 568.)

Here, there is no doubt section 314 survives a facial attack on the ground of vagueness. The statutes language is not so vague as to pose a present and fatal conflict with constitutional prohibitions. The statute clearly proscribes a standard of conduct in language people of common intelligence can understand and peace officers can uniformly enforce. Indeed, the statute does not apply to the situation defendant foresees. No police officer would use section 314 to prosecute a person for indecent exposure occurring in the persons own home between consenting adults.

Defendant argues the statute fails because it does not provide him with a standard to determine whether he is exposing himself in a place with people to be offended or annoyed. This claim is ludicrous. If he is exposing himself to people whom have not consented to his behavior, he is by definition exposing himself in a place where there are persons to be offended or annoyed. The statute informs him when such conduct is not allowed. It need not do more to survive a facial attack.

B. As-applied challenge

Defendant also asserts the statute as it was applied to him violated his constitutional right to seek sexual activity with others in his home by means of lewd displays so long as the exposures, although potentially offensive, do not involve the use or threatened use of force. We know of no such constitutional right, and defendant directs us to no case holding such a right exists.

His assertion in this case is trifling. He was instructed by Jennifer to stay out of her bedroom and told their contacts were to be strictly platonic. He was a paying tenant of but one bedroom and co-tenant of the duplexs common areas. His claim under these circumstances that he had a constitutional right to expose himself outside of his bedroom in order to initiate sex is preposterous.

Although he tries to construe their holdings to his ends, Supreme Court precedents on privacy rights of individuals in reproductive and sexual matters are inapposite. None of the cases concerned sexual activity occurring without the participants mutual consent. (Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510] [state law prohibiting sale and use of contraceptives violated right of marital privacy]; Eisenstadt v. Baird (1972) 405 U.S. 438 [31 L.Ed.2d 349] [state law prohibiting sale of contraceptives to unmarried persons violated equal protection clause]; Lawrence v. Texas (2003) 539 U.S. 558 [156 L.Ed.2d 508] [state law prohibiting consensual sexual activities between persons of the same sex violated substantive due process].)

Here, defendant had no romantic or sexual relationship with Jennifer or Sherry. Neither had given defendant any indication they were interested in such a relationship with him. Neither had given any indication they consented to seeing defendant naked, let alone seeing him expose himself and masturbate in front of them as an enticement to having sex with him. As explained ad nauseam, Jennifer had told defendant to stay out of her bedroom and to keep their relationship platonic. We agree with the Attorney General: Section 314 does not prohibit common mutually consensual sexual conduct, but rather prohibits wilful and lewd conduct that offends or annoys. That the conduct occurred in [defendants] shared [duplex] does not render such conduct constitutionally protected. Section 314 was not unconstitutionally applied to defendant.

IV

Denial of Request to Substitute Counsel

Defendant claims the trial court erred when it refused to allow him to substitute retained counsel for his appointed counsel. He claims the trial court wrongly applied the standard applicable to Marsden[3] motions to his motion to substitute, and, in any event, abused its discretion. We disagree with both arguments.

A. Additional background information

The original complaint against defendant was filed on October 29, 2004. The first information was filed on December 6, 2004, and the third and final information was filed on April 18, 2005. The case went to trial, but on June 10, 2005, the trial court declared a mistrial because the jury was unable to reach a verdict.

On July 28, 2005, the new jury had been sworn and trial was ready to proceed. Defendant asked for an in camera hearing to discharge his appointed counsel and retain private counsel. The trial court cleared the court room and convened a Marsden hearing. Defendant complained his counsel was not aggressive enough. The court told defendant he had two problems; his timing was very very late, and he lacked grounds for discharging his attorney. Defendant and counsel stated they had disagreed over whether potential alibi witnesses should have been presented at trial. The court determined there were no grounds to grant a Marsden motion. It also noted the motions timing suggested the motion was brought to manipulate the process.

The court then heard in open court a request by defendants retained counsel to be substituted in as defendants attorney. Retained counsel asked for a two-week continuance. He explained defendants family first contacted him on June 21, 2005, and had discussions with him over the next week. Counsel heard nothing from the family until 3:00 p.m. July 27, the day before trial and the day the jury was impaneled.

The prosecutor opposed the motion as untimely. She argued there had been ample time to substitute counsel since the mistrial and before the jury was impaneled, her office had received no notice of a possible substitution, and she was prepared to proceed that day. Retained counsel replied he was willing to keep the impaneled jury.

The court denied the motion as untimely. The court stated: Im going to deny the motion for the reasons I stated in chambers. But briefly, its the time is very bad. Not only is this a retrial of a case thats been tried before, but I know the family has been involved in this and followed this, weve had the jury selections this week and impaneled and swore the jury yesterday. So everyone is ready to proceed and we really need to do that.

The court stated it had assured the jurors the case would not go beyond August 5, and an extension would break that assurance. It also noted it was uncomfortable permitting retained counsel to proceed without impaneling a new jury. But really, the court concluded, the dispositive issue is the timing.

B. Standard for denying motion to substitute

Defendant complains the court erroneously applied the Marsden standard for dismissing appointed counsel to his motion to substitute. We disagree. Under that standard, a court may dismiss appointed counsel if counsel is not providing adequate representation or when counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)

Although the court stated it was denying the motion for the reasons stated in chambers, nowhere did it actually deny the motion on Marsden grounds. Its analysis centered on the motions timeliness. That was the dispositive issue. Indeed, it would have been illogical for the court to apply the Marsden standard on the motion to substitute. Had the court granted the Marsden motion, a continuance would have been automatic and the issue of timeliness would not have been raised.

The court mentioned timeliness when it considered the Marsden motion, and its comment in open court about the reasons expressed in chambers likely referred to that discussion. The court did not apply the Marsden standard to deny defendants motion to substitute.

C. Abuse of discretion

Defendant claims the court abused its discretion in denying the motion to substitute. He asserts the mere delay of trial was not a legitimate basis for denying him his right to counsel of his choice. We conclude the court did not abuse its discretion under the circumstances of this case.

The right to counsel of ones own choosing . . . can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. [Citations.] The right to such counsel must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case. [Citation.] [(People v. Courts (1985) 37 Cal.3d 784, 790.)]

Generally the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. (People v. Courts, supra, 37 Cal.3d at p. 790.) The right of a defendant to appear and defend with counsel of his own choice is not absolute. (People v. Rhines (1982) 131 Cal.App.3d 498, 506; People v. Blake [(1980) 105 Cal.App.3d [619,] 624.) A continuance may be denied if the accused is unjustifiably dilatory in obtaining counsel, or if he arbitrarily chooses to substitute counsel at the time of trial. [Citation.] (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) In deciding whether the trial courts denying a continuance was so arbitrary as to deny due process, this court looks to the circumstances of each case, particularly in the reasons presented to the trial judge at the time the request [was] denied. [Citations.] (Id. at p. 791.) [] . . . []

Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. (People v. Courts, supra, 37 Cal.3d at p. 792, fn. 4.) (People v. Jeffers (1987) 188 Cal.App.3d 840, 849-850, italics in original.)

It is no mere delay to continue a trial in the context of this case. The matter had already been mistried, in limine motions for the new trial had been argued, a new jury had been impaneled, and the request to continue was made on the day of trial. Seven weeks had passed since the mistrial, giving defendant ample time to retain new counsel to replace his appointed counsel. Also, the court had committed to the jury that trial would finish in a reasonable time. The inconvenience and sacrifice entailed in jury duty, and the trial courts attempt to minimize those burdens on the jurors, were appropriate additional factors for the court to consider. Thus, at the time of the motion, the court could easily determine defendant had been unjustifiably dilatory in seeking new counsel, and it could favor its strong interest in ensuring the expeditious administration of justice. On this record, we see no abuse of discretion in denying defendants motion to substitute.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P.J.

We concur:

MORRISON , J.

HULL, J.

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[1] All undesignated references to sections are to the Penal Code.

[2] The information charged defendant with one count of rape while the victim was unconscious. ( 261, subd. (a)(4).) The jury acquitted defendant of this charge.

[3]People v. Marsden (1970) 2 Cal.3d 118, 123.