P. v. Russell

Filed 3/22/07 P. v. Russell CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Modified and affirmed in part, reversed in part, and remanded with directions.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, Lawrence M. Daniels, and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

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James Marcus Russell was convicted of four counts of kidnapping to commit a sex offense (counts 1, 3, 4 and 6), one count of attempted sodomy by force (count 2), one count of robbery (count 5), two counts of forcible oral copulation enhanced by kidnapping allegations (counts 7 and 8), one count of sodomy by force enhanced by a kidnapping allegation (count 9), and two counts of sexual penetration by a foreign object enhanced by kidnapping allegations (counts 10 and 11), with true findings on allegations that he had suffered one prior strike conviction that also qualified as a serious felony, and had served one prior prison term. (Pen. Code, 209, subd. (b)(1), 664, 286, subd. (c)(2), 211, 288a, subd. (c)(2), 289, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a)(1), 667.5, subd. (b).)[1] He was sentenced to state prison for a term of 185 years to life. Russell appeals, contending the trial court should have permitted him to discharge retained counsel, his motion for a new trial should have been granted on the ground of juror misconduct, and claiming there were instructional, sentencing, and Cunningham errors. We agree with Russell that the trial court should have granted his post-verdict motion to discharge retained counsel. For this reason, we vacate the findings on the prior conviction allegations, the order denying his motion for new trial, and his sentence of 185 years to life, but otherwise affirm and remand for further proceedings.

FACTS

Counts 1, 2, and 3 (two counts of kidnapping to commit a sex act and one count of attempted sodomy). On July 11, 2004, Russell (who is tall, muscular and strong) accosted two boys (17-year-old John Doe 1 and 15-year-old John Doe 2) in a parking lot, grabbing John 2 and telling both boys that he would strangle John 2 unless they followed him to some nearby trailers. At the trailers, Russell ordered the boys to disrobe, bending John 2s arm until he screamed in pain. Russell forced the boys to masturbate, then forced John 1 to orally copulate John 2, then forced John 1 to orally copulate him. After forcing the boys to walk two miles and repeatedly threatening them, Russell forced them to enter a bathroom at a gas station where he forced them to wash, then attempted to anally rape John 1. Still naked, the boys fled.

Count 4 (one count of kidnapping to commit a sex act). Two weeks later (on July 26), Russell accosted 17-year-old John Doe 3 and another boy at a bus station and, as a bus stopped, walked up behind John 3, grabbed him around the neck, and ordered the other boy to get onto the bus. After the bus drove off, Russell forced John 3 to walk toward some nearby bushes, telling him, Now were gonna . . . act like were faggot lovers. John 3 broke free and escaped.

Counts 5 and 6 (one count of robbery and one count of kidnapping to commit a sex act). Two weeks later (on August 12), Russell followed 17-year-old John Doe 4 down an alley and accosted him at his garage, grabbing him by the neck. Russell took John 4s backpack, wallet and other items, dragged him down the alley, and forced him into the passenger seat of his car. Russell started the car and drove down the alley, onto a street and ultimately stopped at a signal. When John 4 tried to unlock the door to escape, Russell started choking him. There was a struggle and John 4 escaped.

Counts 7, 8, 9, 10 and 11 (all sex crimes). Later the same day (August 12), Russell grabbed 15-year-old John Doe 5 in an alley, forced him into the passenger seat of the stolen car, and drove to a deserted alley where he parked, then ordered John 5 to disrobe. Still in the car, John 5 complied, and Russell then covered the boys head with a shirt and drove off, then stopped in another alley and ordered John 5 to get out of the car. Russell committed the five sex acts, then asked John 5 for his address. John 5 gave him a fake address, and Russell then drove him to that area, dropped him off, and drove off.[2]

Based on descriptions provided by the boys, Russell was arrested on August 17 and charged with the 11 offenses. At trial, the People presented detailed evidence of the crimes, and also matched Russells DNA to DNA found on some of the boys and their clothing. John 1, John 2, John 3, the boy who was with John 3, and John 5 all identified Russell from photo lineups and at trial. John 4 could not identify Russell but did identify several items in the car. Russell did not present a defense and was convicted as charged.

DISCUSSION

I.

Russell contends the trial court should have allowed him to discharge retained counsel. We agree.

A.

Retained counsel, Austin R. Dove, represented Russell at his preliminary hearing, through all the pretrial proceedings, and at trial through the jurys verdicts (from November 2004 to October 2005). On January 6, 2006, the date set for the bifurcated trial of the priors and sentencing, Mr. Dove filed a motion for a new trial on the ground of juror misconduct, then (along with the prosecutor) announced he was ready to proceed. Russell interrupted and there was the following exchange:

[RUSSELL]: Your honor, I dont think this is fair. I think this is bias. Im asking that I have a continuance, because Im firing this attorney because theres a conflict of interest. I have also noticed that . . . there has also been a corruption of my jury. I have an investigation going on right now, where Ive hired investigators. Ive spoken to this attorney numerous of times. During the last hearing he was supposed to file motions for me that he has not done. I am asking for a continuance on that -- in that -- regarding that behalf, and hes also fired. He cannot be my counsel if I am firing him.

THE COURT: Thats denied.

[RUSSELL]: So now theres not time --

THE COURT: Its denied. [] Call your first witness. [] . . . [] [After an apparent outburst from the audience.] Maam, youre entitled to be here, because I know youre his mother, but if you blurt anything else again, youre going to be escorted out of the courtroom.

[RUSSELL]: May I have a Marsden hearing?

THE COURT: Be quiet. No. This is retained counsel. Marsden does not apply. [] So, maam, youre to be quiet. [] And you, sir, are also to be quiet.

[RUSSELL]: Im asking for a Marsden hearing.

THE COURT: Be quiet. Its denied. It doesnt apply in this case. This is retained counsel and hes counsel of record and he will remain. As youve said, you are not ready to proceed today. [] . . . []

[RUSSELL]: If Im paying him, your honor, I dont see how that worked out. [] . . . [] If Im paying for him to be my counsel and I am firing him, but you are forcing me to keep this man as counsel.

THE COURT: If you blurt out --

[RUSSELL]: I dont understand that, sir.

THE COURT: If you blurt out anything further, youll be removed from the courtroom and we will proceed in your absence. You have a right to be here. My preference is that you are here, but you are not to speak again. If you wish to speak, speak to Mr. Dove. Hes your attorney. Do not speak out loud again.

[RUSSELL]: My attorneys not cooperating with me.

THE COURT: Be quiet. Be quiet. You are not to blurt anything further.

[RUSSELL]: You are not cooperating with me. Who am I to talk to? You have not done anything that I wanted to do.

THE COURT: Remove the defendant.

[RUSSELL]: Fucking sick bastard. [Russell left the courtroom.] (Emphasis added.)

The court had Russell brought back into the courtroom after the noon recess to ascertain whether he wanted to be present for the remaining proceedings, and to offer Russell an opportunity to air any problems he had with Mr. Dove. Outside the presence of the prosecutor, there was the following exchange:

THE COURT: All right. The prosecutors have left. [] Whats on your mind, sir.

[RUSSELL]: I didnt mean to have that outburst earlier. Im a little frustrated with everything thats happening. The only correspondence I have most of the time with my lawyer is through my mother, of course. And I dont know if this is her being a little frantic and everything, but theres specific things that Ive asked to be done in trial, in this case, that havent been done. I dont know very much about the law. . . . So the only thing I have is to have somebody speak for me, which is why I paid for a lawyer to talk for me, a considerable amount. And these things in the trial, in the case, that I wanted done, things that I wanted researched and evidence I wanted picked up, it was never done.

THE COURT: Like what?

[RUSSELL]: He gave -- Well, for like the scene. I wanted him to go have the scene looked at. I wanted the . . . witnesses talked to. I wanted statements taken. Theres a lot of things that werent corroborated with the stories and everything else. Its just a lot of research and everything that wasnt done, investigated. I wanted them to ask the court for certain . . . funds to help me further my investigations . . . . Its a lot of different evidence, just a lot of different problems . . . . [] . . . []

I have spoken to another lawyer and hes told me different things that I need to do. He told me I need to hire an investigator, that I should hire another lawyer, that I should appeal to the judge for a motion for retrial . . . on the basis of the jury being corrupted . . . . [] And I just want to -- you have to understand, sir, Im dealing with a lot here, not just -- this is not a small case. Im doing the best I can with what knowledge I do have and with the people I am talking [to]. However, . . . my means are very small . . . . [] So this is what I was appealing to the court for . . . . I wanted all of this to be brought to the courts attention before sentencing.

The court asked Mr. Dove to respond to Russells contentions, which Mr. Dove did at length, describing his numerous jail visits, his efforts to enlist Russells assistance in the discovery process, his visits to the scenes and the rest of his investigation (his comments fill almost four pages of the transcript). The court then ruled as follows:

THE COURT: I told you at the end of the case that, despite the result, I was very impressed with your representation. Evidentiarywise the case was overwhelming against your client, yet I thought you were a zealous advocate. What you described today is what I would have expected any highly competent and zealous advocate to do.

I do not find that this defendants Sixth Amendment right is in any way compromised. You do have an obligation to discuss trial tactics with the defendant, but, counsel, you, Mr. Dove, you are in control as to the strategy that you intend to take and the way youre going to defend the case. You do not have any obligation ethical or otherwise to do whatever a defendant wants you to do. Youve done a good job. You will continue to remain in this case, and this is all for appellate purposes, should there be more grounds on appeal, the defendant was not entitled to a continuance for the reasons stated. The defendants Sixth Amendment rights have been in no way denigrated or compromised in any way. (Emphasis added.)

B.

We agree with Russells contention that he should have been allowed to discharge Mr. Dove, and reject the Attorney Generals claim that a continuance would have unduly disrupt[ed] the orderly administration of justice. (People v. Ortiz (1990) 51 Cal.3d 975, 982-983.) Although the trial court may have been correct had it made such a finding, there is nothing in the record to suggest any such inquiry was made. (People v. Munoz (2006) 138 Cal.App.4th 860, 869-870.) Had the court inquired, the record might show there was some problem justifying the order denying Russells request to discharge Mr. Dove. Whatever merit there is to the claim that the right to discharge retained counsel is not absolute (People v. Ramirez (2006) 39 Cal.4th 398, 422-423), we do not believe that the accompanying request for a continuance at this post-trial stage of the proceedings was by itself sufficient to deprive Russell of his Sixth Amendment right to counsel of his choice.

It follows that Russell is entitled to a new trial on the prior conviction enhancement allegations, a new hearing on his motion for a new trial, and a new sentencing hearing.

II.

Russell contends his new trial motion should have been granted. Although we are reversing the order denying the motion (Part I, ante), we address this issue and conclude, for the benefit of the trial court on remand, that on the record before us the motion was properly denied.

A.

When voir dire began, the trial court identified the defendant and the lawyers and described the charges but offered no details about the crimes. When defense counsel asked the prospective jurors whether they had heard anything about the case, those who responded affirmatively were excused. After the jury was selected and sworn, the prosecutor began her opening statement by describing in detail the crimes involving John Doe 1 and John Doe 2. During the next recess, Juror No. 9 told the clerk she now recall[ed] reading a newspaper article about this case.

In a hearing held outside the presence of the other jurors, Juror No. 9 testified that she remembered just reading the article[] at the time that it came out. She said she did not remember the details or anything, just that she had read the article. She assured the court she felt good about her ability to be fair to both sides, and that she only brought up the article because she wasnt sure if she was supposed to mention something she had just remembered (or whether she was being nit-picky or not). She said she was completely open-minded and doubted that she would remember anything more about the article. Based on the jurors answers, the trial court denied Russells motion to excuse Juror No. 9.

B.

In support of his new trial motion, Russell presented several substantially similar handwritten letters sent to the victims by Juror No. 9 and signed by A Juror.[3] Based on these letters, on Juror No. 9s visits to the District Attorneys Office, and on the fact the juror had read an article about the case, the motion for a new trial claimed the jury was biased against him. Everyone agrees the notes were not sent until after the verdicts were rendered and after the jurors had been told they were free to talk to whomever they wanted about the case.

The trial court denied the new trial motion, noting that Juror No. 9s decision to tell the court about the article spoke volumes as to her understanding her obligation to be fair. With regard to the notes and the visits, the court commented that this was an emotionally charged case. Young innocent boys came into this courtroom and talked about things that it was obvious they felt very, very uncomfortable about . . . . And the jurors are human beings and . . . have feelings. And its apparent that this particular juror, who . . . wrote to the victims, has grave empathy for these young men. There is no showing that she engaged in any misconduct. The court said there was no showing whatsoever that there [was] any juror misconduct or that [Russells] right to a fair trial [was] compromised by any juror misconduct.

C.

Russell was entitled to have his case heard by impartial jurors (Williams v. Florida (1970) 399 U.S. 78, 102-103). He did. Not only did he fail to establish a substantial likelihood that Juror No. 9 was actually biased (People v. Ault (2004) 33 Cal.4th 1250, 1255-1256) but he failed to present any evidence to support that assertion. To the contrary, substantial evidence supports the trial courts finding that Juror No. 9 knew nothing about the case before it started, that she did not conceal anything during voir dire, that she was able to be fair to both sides, and that her post-verdict communications with the District Attorneys office and the victims were nothing more than expressions of concern provoked by the egregious nature of the crimes. (People v. Majors (1998) 18 Cal.4th 385, 417; People v. Jablonski (2006) 37 Cal.4th 774, 807.) No more was required. (People v. Williams (1997) 16 Cal.4th 635, 686; People v. Navarette (2003) 30 Cal.4th 458, 526.)

III.

Russell contends the trial court should have sua sponte instructed the jury, with regard to counts 10 and 11 involving John 5, that simple battery (any willful and unlawful use of force or violence upon the person of another) is a lesser included offense of sexual penetration by a foreign object. We disagree.

The jury was instructed according to CALJIC No. 10.30 that [e]very person who commits an act of sexual penetration when the act is accomplished against the victims will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim of another person is guilty of a violation of . . . section 289, subdivision (a)(1), a crime. Sexual penetration is the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object. [] . . . [] [S]pecific intent to cause sexual abuse, as used in this instruction, means a purpose to injure, hurt, cause pain or cause discomfort. It does not mean that the perpetrator must be motivated by sexual gratification or arousal or have a lewd intent. Russell does not challenge the accuracy of this instruction.

Assuming battery could be a lesser included offense of the crime charged (but see People v. Santos (1990) 222 Cal.App.3d 723, 739; People v. Hughes (2002) 27 Cal.4th 287, 366), the court was not required to instruct on battery because there was absolutely no evidence to support it. Uncontroverted evidence establishes that Russell inserted the tip of a water bottle into John 5s anus, injected water, then told the boy to expel it. After John 5 complied, Russell inserted another water bottle into the boys anus, injected water, then told John 5 to crap it out. If the jurors believed the boy and the forensic evidence, which they did, the crimes were sexual penetration with a foreign object, not simple battery. There was no instructional error. (People v. Hardy (1992) 2 Cal.4th 86, 184; People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Holt (1997) 15 Cal.4th 619, 673-674; People v. Hughes, supra, 27 Cal.4th at pp. 365-367.)

IV.

Russell challenges his count 7 sentence (for the forcible oral copulation of John 5, enhanced by the jurors true findings on allegations that Russell kidnapped John 5, that the movement substantially increased the risk of harm, and that the kidnapping was for the purposes covered by section 207) -- 25 years to life under the one-strike law ( 667.61, subds. (a), (d)), doubled because this was Russells second strike, plus five years pursuant to section 667, subdivision (a)(1), plus a second indeterminate term of 15 years to life pursuant to subdivisions (b) and (e) of section 667.61, with the latter term stayed. Russells claim is that the 15-year-to-life sentence must be stricken. Although the point is moot in light of our order for a new sentencing hearing, we offer the following discussion for the benefit of the trial court on remand (but do not address Russells other sentencing issues).

A.

As relevant, subdivision (a) of section 667.61 provides that [a]ny person who is convicted of an offense specified in subdivision (c) [which includes forcible sodomy] under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) [which include kidnapping in violation of section 207 (subd. (e)(1)) and forcible sodomy and forcible oral copulation (subd. (e)(5))] shall be punished by imprisonment in the state prison for 25 years to life. The circumstances specified in subdivision (d) of section 667.61 include [t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . . ( 667.61, subd. (d)(2).) Subdivision (b) of section 667.61 provides for a term of 15 years to life under specified circumstances, [e]xcept as provided in subdivision (a).

At the times relevant to this case, subdivision (g) of section 667.61 provided as relevant that [t]he term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. (Emphasis added.) In 2006, the section was amended to provide that, [n]otwithstanding section 1385 or any other provision of law, the court shall not strike any allegation, admission or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section. (Stats. 2006, ch. 337,  33; Prop. 83, approved gen. elect. Nov. 7, 2006, emphasis added.)

B.

The Attorney General concedes there was only a single victim on the single occasion charged in count 7, and contends that was the trial courts reason for imposing only one sentence of 25 years to life for count 7 (and not for counts 8, 9, 10 or 11). According to the Attorney General, the court then imposed the sentence permitted by subdivision (b) of section 667.61 only once, then stayed it (and again did not apply it for counts 8, 9, 10 or 11). The essence of this argument is that the trial court was entitled to impose both sentences so long as it stayed the second one. We disagree.

Although there is no case where the trial court imposed sentences under both subdivisions (a) and (b) involving a single victim on a single occasion, the law is clear that the trial court may not impose multiple one-strike sentences (subd. (a)) when there are multiple sex crimes against a single victim on a single occasion. (People v. Jones (2001) 25 Cal.4th 98, 100-101, 107; People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.) We agree with Russell that this is an a fortiori situation -- because here the trial court imposed two life sentences for the same crime against the same victim on the same occasion.

But for our order for a new sentencing hearing, the stayed sentence of 15 years to life on count 7 would have been stricken.

DISPOSITION

The true findings on the allegations that Russell had suffered one prior strike conviction that also qualified as a serious felony and had served one prior prison term, and the order denying his motion for a new trial are reversed; the sentence is vacated, and the cause is remanded for a new trial on the priors, a new hearing on the new trial motion and resentencing. In all other respects, the judgment is affirmed. When the further proceedings are completed, the trial court shall issue a new abstract of judgment and forward it to the Department of Corrections.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] All section references are to the Penal Code.

[2] These counts were enhanced by the jurors true findings on allegations that Russell kidnapped John 5, that the movement substantially increased the risk of harm, and that the kidnapping was for the purposes covered by section 207.

[3] The letter to John Doe 1 states: Thank you for testing [sic] in court. It took a lot of courage to testify. You did a great job. [] I believed you! [] You helped take a bad person off the street. [] John Doe 2, his family, your family, and everybody that knows you should be very proud of you for all you did. Who knows what could have happen [sic] to John Doe 2 if you had done anything different. [] You are a true friend to John Doe 2. I would be very proud to have a friend like you. [] Remember the things that happen [sic] were NOT your fault. [] You are still a great guy. [] I want to wish you a happy, healthy and successful life. [] Take care, God Bless you. [] A Juror. Each note was accompanied by a bookmark with the statement, Always know in your heart that you are far bigger than anything that can happen to you. Juror No. 9 also visited the District Attorneys Office after the trial was over (and presumably gave the deputy the letters for delivery to the victims).