P. v. Romero

Filed 8/5/09 P. v. Romero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Salvio Romero appeals the judgment entered after a jury convicted him on two counts of indecent exposure with a prior (Pen. Code,[1] 314, subd. (1)). The jury also found true allegations that Romero had served three prior prison terms ( 667. 5, subd. (b)). The trial court sentenced him to a total state prison term of six years eight months. He contends (1) the court abused its discretion in admitting evidence of his prior convictions for violations of sections 288 and 288a pursuant to Evidence Code section 1108, and (2) the court erred in denying his request to represent himself at the sentencing hearing and in refusing to consider his motion for a new trial. Although we agree the court erred in admitting the prior convictions, the error was harmless. We affirm.

STATEMENT OF FACTS

The Charged Offenses

Leslie Diaz lived in an apartment building across the street from Romero's house. The first two times she saw Romero, he simply said, "Hello." On the third occasion, he looked at her and pointed to the zipper on his pants, which was unzipped. On June 29, 2007, Leslie[2] was walking from her apartment to her sister-in-law Jacqueline Diaz's car when she saw Romero in his house through the open front door. As Jacqueline was putting her children in the car, Leslie saw Romero sitting on a sofa near the front door masturbating his erect penis. Jacqueline was afraid that her children would see, so she covered their eyes. Leslie went to get a friend. By the time the two of them returned, Romero was no longer sitting on the sofa, although his front door was still open. Leslie did not call the police because she was afraid and did not speak English. Her husband Daniel called the police the following day.

Jacqueline and her husband Marvin lived in the same building as Leslie and Daniel. Prior to the incident on June 30, Jacqueline had seen Romero in front of his house four or five times. Each time she saw him, he motioned with his finger for her to come over and put her hand in his pants. On numerous occasions, she saw him standing in the doorway of his house with his hand in his pants. During another incident in June, Jacqueline was holding her 18-month-old child as she stood in the street with Marvin and a friend when she saw Romero standing outside his house masturbating his erect penis. Jacqueline was upset because several children were outside and may have seen what Romero was doing. When Jacqueline told Marvin what she had seen, Romero quickly went inside his house and closed the door. Jacqueline did not immediately call the police because she was afraid something bad might happen to her family. On July 12, 2007, Jacqueline reported the incident during an interview with Long Beach Police Detective Norma Delgado. Jacqueline identified Romero from a photographic lineup and noted that he always wore a white "du rag."

Prior Offenses

On January 20, 2005, Domitila Rivera was outside her house in Wilmington with her children when she saw Romero, who lived across the street, pull down his pants and begin to masturbate as he looked in her direction. Rivera went inside and immediately reported the incident to the police.

On September 26, 2006, Nancy Oropeza was at work with Erica Encisco and Stephanie Tapia when she saw Romero masturbating while his pants were all the way down. Oropeza immediately reported the incident to the police.

Certified documents showed that Romero had five prior convictions for indecent exposure under former section 314.1, two of which were for the incidents involving Rivera and Oropeza. On March 15, 2002, Romero was convicted of committing a lewd act on a 14- or 15-year-old child ( 288, subd. (c)(1)). On May 2, 2002, he was convicted of oral copulation with a child under 16 ( 288a, subd. (b)(2)).

DISCUSSION

I.

Evidence Code Section 1108

Romero contends the court erred in admitting his prior convictions for

committing a lewd act on a 14- or 15-year-old child ( 288, subd. (c)(1)) and oral copulation with a child under 16 ( 288a, subd. (b)(2)) as evidence of his propensity to commit the charged crimes of indecent exposure. We agree that the evidence was erroneously admitted because the record does not reflect that the court engaged in the careful weighing process under Evidence Code section 352 that is a prerequisite to the admission of prior sex offenses under Evidence Code section 1108. We also conclude, however, that the error was harmless in light of the other evidence of Romero's guilt on the charged crimes.

Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evid. Code] Section 1101, if the evidence is not inadmissible pursuant to [Evid. Code] Section 352."[3] Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

"By reason of [Evid. Code] section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evid. Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) A trial court's exercise of discretion under Evidence Code section 352 "'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

In moving to admit evidence of appellant's prior convictions for violating sections 288, subdivision (c)(1), and 288a, subdivision (b)(2) under Evidence Code section 1108, the prosecutor simply lumped those convictions together with Romero's five prior convictions for indecent exposure under section 314, subdivision (1). The prosecutor argued that the offenses were admissible under Evidence Code section 1108 "whether or not they are sufficiently similar in nature. Moreover, the defendant's prior conviction[s] for violation[s] of Penal Code sections 288 and 288a are sufficiently similar in nature since they involve sexual conduct as defined by Evidence Code section 1108."

After excluding one of the prior indecent exposure offenses, the court purported to analyze the remaining evidence under Evidence Code section 352 as follows: "The court believes that these are sexual offenses--I mean, just going through the factors--they are relevant as to whether or not there is a propensity to commit other sexual crimes. They are not remote. . . . [] As a matter of fact, less than two months from the date of the alleged offense -- the allegation in this case as to the last one. [] The court further believes that it is not confusing or misleading or distracting the jurors from the main inquiry. They are similar offenses, at least the 314's. And the court doesn't believe it will cause an undue burden on the defendant. []  The court would allow the People, as to the 314, to use one -- one victim only. I am not going to allow the People to put three witnesses on one of the cases. []  As to the 288 convictions, the court -- using the guidelines under 352, the court is not going to allow you to use the specific victims in those charges, only the actual conviction."

The court's analysis under Evidence Code section 352 is insufficient to comport with due process. In determining the admissibility of prior sex offenses under Evidence Code section 1108, "[a] careful weighing of prejudice against probative value under [Evid. Code,  352] is essential to protect a defendant's due process right to a fundamentally fair trial. [Citations.]" (People v. Jennings(2000) 81 Cal.App.4th 1301, 1314.) Trial courts conducting such an analysis in accordance with Evidence Code section 352 "must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other . . . offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The court must also determine whether the evidence of the uncharged acts "'. . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.'" (People v. Harris (1998) 60 Cal.App.4th 727, 737-738.)

While the court here referred to the Evidence Code section 352 factors, its application of those factors to Romero's prior convictions under sections 288 and 288a was either cursory or nonexistent. Indeed, the analysis is lacking in the most fundamental sense in that there is no discussion as to how Romero's commission of sex crimes involving physical contact with children has any tendency to prove that he is predisposed to engage in indecent exposure. Also absent is any discussion of the fact that the prior crimes are substantially more inflammatory than the charged offenses.

People v. Earle (2009) 172 Cal.App.4th 372, cited in Romero's reply brief, is instructive. In Earle, the court concluded that for purposes of the defendant's motion to sever an indecent exposure charge from a sexual assault charge, evidence of the indecent exposure was not cross-admissible to show the defendant had a propensity to commit sexual assault as contemplated by Evidence Code section 1108. The court determined that only expert testimony could establish such a connection. (Id. at pp. 397-398.) The court reasoned: "On the evidence actually before the jury, defendant's commission of indecent exposure was simply irrelevant to the assault charge, i.e., it had no tendency in reason to show that he committed the latter offense. As we have said, Evidence Code section 1108 does not purport to make irrelevant evidence relevant. It therefore furnished no justification to admit the indecent exposure in a separate trial of the assault." (Id. at p. 400.)

Here, the court made no meaningful effort to determine how Romero's prior crimes were probative of any contested issue at trial, much less whether the probative value was substantially outweighed by the potential for prejudice. While the People assert that the inflammatory nature of the evidence was diminished because the court did not allow any inquiry into the details of the prior convictions, the mere fact of the convictions is inherently inflammatory.

The People also fail to persuade us that the prior convictions are rendered substantially similar to the charged crimes for purposes of Evidence Code section 1108 by the mere fact that the crimes of which he was committed are identified in the statute as sex offenses. The authority they cite for this proposition is contrary to the same Supreme Court authority it relies on, at least to the extent it suggests that factual similarities between uncharged and charged offenses (or the lack thereof) are not an essential part of the "careful weighing process" under Evidence Code section 352. (Compare People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, with People v. Falsetta, supra, 21 Cal.4th at pp. 916-917.)

Because the court failed to conduct a proper Evidence Code section 352 hearing with regard to Romero's convictions under sections 288 and 288a, it cannot be said the court properly exercised its discretion in admitting evidence of those convictions. We conclude, however, that the error was harmless. In addition to the eyewitness testimony establishing Romero's guilt, the jury also heard about his five prior convictions for indecent exposure. The court admitted these prior offenses to prove Romero's propensity to commit the charged crimes under Evidence Code section 1108, and Romero does not challenge that ruling. Because it is not reasonably probable that Romero would have achieved a more favorable result had the evidence been excluded, any error is harmless and would not compel reversal of the conviction. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 60 Cal.App.4th at p. 741 [applying Watson standard of review to the erroneous admission of a prior sexual offense under Evid. Code,  1108].)

II.

Request for Self-Representation and Motion for New Trial

Romero asserts that the court erred in denying his request to represent himself at the sentencing hearing and in refusing to consider his motion for a new trial. We agree with the People that the request for self-representation was properly denied. We also conclude that Romero suffered no prejudice as a result of the court's failure to expressly rule on his oral request for a new trial because it lacked merit.

A.

Background

Prior to trial, the court granted Romero's request to proceed in pro per and appointed Alexander Griggs as stand-by counsel. During the testimony of the first witness, Romero informed the court, "I don't want to go any further by myself" and "would like to give up my pro per." Romero agreed with the court's statement "that you cannot perform the job that you requested to do and that I strongly advised you [sic] against it" and that he now wished to be represented by an attorney. The court granted the request, and appointed Griggs to represent Romero.

At the sentencing hearing, Griggs stated that Romero wanted a continuance because "[h]e wants to have a further opportunity to look into the priors." Griggs added, "I've been through the priors. It is the 969 packet. I'm satisfied." The court noted that the priors had already been found true in a bifurcated trial, and indicated it had made clear to the parties as to how the trial on the priors would proceed. Appellant then stated, "I would like to go pro per in these proceedings. I would like to file a notice of retrial." Griggs responded, "In good faith, I don't see any grounds for a motion for retrial on this matter." Romero reiterated, "I would like to go pro per, your honor."

When the court began to state that Romero's "motion to fire your lawyer" was denied, Romero responded, "I'm not trying to fire him. I want to go pro per for the sentencing proceedings." The court denied the request and stated, "You told this court that you could not handle it." Romero replied, "That was for the trial, not for the sentencing . . . . I want to go pro per for the sentencing stage." The court denied the request, reasoning as follows: "Mr. Romero exercised [his] right [to represent himself]. Mr. Romero told the court he couldn't handle it. That he couldn't do it. That's why we appointed you standby counsel . . . . [W]hen the defendant told the court that he couldn't handle the proceedings any more, the court took his statement at face value. And it is a critical stage of the proceedings, and therefore the court is going to deny his request at this time."

B.

Analysis

1.

Request for Self-Representation at Sentencing

A defendant in a criminal proceeding has a constitutional right to represent himself if he knowingly, voluntarily, and intelligently waives his right to counsel. (Faretta v. California (1975) 422 U.S. 806, 815-816, 835.) The right to self-representation extends to the sentencing hearing. (People v. Doolin (2009) 45 Cal.4th 390, 453.) However, "[m]uch as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing. [Citation.]" (People v. Miller (2007) 153 Cal.App.4th 1015, 1024.) Moreover, the request must be unequivocal and must be made under circumstances demonstrating that the waiver of counsel is knowing, voluntary, and intelligent. (Ibid.)

Romero's request to represent himself at the sentencing hearing was properly denied as equivocal. Romero purported to invoke his right to self-representation at sentencing, yet he also stated he did not want to "fire" his attorney. The court could infer from this that Romero did not actually want to represent himself, but rather wanted Griggs to act as cocounsel or standby counsel. Moreover, when Romero revoked his right to represent himself during trial, he agreed he could not "perform the job" of representing himself. While Romero subsequently claimed that his concession referred only to the trial and not sentencing, under the circumstances it was not unreasonable for the court to conclude otherwise.

2.

New Trial Motion

Romero also contends the court erred in denying his motion for a new trial. The People respond that there was no such motion, and that Romero cannot show he suffered prejudice as the result of the court's failure to address any new trial motion that was actually brought. Assuming for the sake of argument that Romero's remark, "I would like to file a notice of retrial," was sufficient to constitute a request for a new trial, the court's refusal to expressly rule on the request was harmless. (People v. Braxton (2004) 34 Cal.4th 798, 817.) The record reflects that Romero's request was based on his belief that the proof of his priors was infirm. His attorney informed the court that he was "satisfied" with the proof that had been submitted, and also stated he was unaware of any valid grounds for bringing a new trial motion. Romero has made no effort to undermine these assertions. Moreover, nothing in the record indicates that Romero believed he was entitled to a new trial on the ground of ineffective assistance of counsel. (See, e.g., People v. Smith (1993) 6 Cal.4th 684, 692-693; People v. Gay (1990) 221 Cal.App.3d 1065, 1067-1068, 1070-1071.) On the contrary, Romero expressly disavowed any desire to "fire" his attorney. Because Romero was not entitled to a new trial on the prior conviction allegations, the court's failure to expressly consider whether to order a new trial on that ground was harmless. (Braxton, supra, at p. 818.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Jesse I. Rodriguez, Judge

Superior Court County of Los Angeles

______________________________

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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

[2] For ease of reference, we refer to parties with the same surname by their first name. We intend no disrespect.

[3] Evidence Code section 1101, subdivision (a), provides that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion."