P. v. JOHN

Filed 4/6/06; pub. & mod. order 4/28/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant John Willoughby Fraser appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1]

Defendant contends that the trial court erred in (1) denying his motion for self-representation under Faretta v. California (1975) 422 U.S. 806; and (2) failing to sua sponte instruct the jury that they have a duty to assess the credibility of victim hearsay statements contained in police reports.

For reasons that we will explain, we find no error and therefore we will affirm the recommitment order.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Defendant's History of Sex Offenses

Defendant's history of sex offenses includes pleading guilty to five counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) involving three victims under the age of 14: Cherie, Richard, and Mark D. The police reports pertaining to the incidents of molestation also include evidence of sexual conduct involving three other children under the age of 14, Wendy, James, and Mark P., as briefly summarized below.

1. The 1979 Convictions: Victim Cherie

In 1979, the Milpitas Police Department investigated the suspected molestation of 12-year-old Cherie. When she was interviewed, Cherie told the investigating officer that she was molested by defendant several times in January 1979. The first molestation occurred when she visited her friend Wendy, also age 12, at Wendy's house. Defendant was Wendy's stepfather. During Cherie's visit, defendant asked her and Wendy to play strip poker with him. He took off his own clothes and paid the girls $2 for each piece of clothing they removed. After they were all naked, defendant told Cherie and Wendy to touch each other and to rub his penis. Defendant rubbed Cherie's vaginal area with his hand, and he also rubbed his penis up and down to keep it hard.

About one week later, Cherie went to Wendy's house to return a pair of shoes. Wendy was not home, but defendant invited Cherie to come in. While trying to convince Cherie to go into the bedroom with him, defendant put his hand down her underpants and rubbed her vaginal area. Defendant also sat Cherie on his lap and fondled her breasts and vaginal area. On another occasion, Cherie went to Wendy's house so they could walk to school together. Wendy had already left, but defendant answered the door. Defendant told Cherie to wait a minute then returned with his bathrobe open, his legs bare, and his penis exposed. He asked Cherie to come in but she said she had to leave for school.

When Wendy was interviewed, she told the investigating officer that defendant, her stepfather, had been making her undress in front of him and touching her private parts for the past two months. On the most recent occasion, defendant touched her breasts and rubbed her vaginal area while she touched his penis.

On June 25, 1979, defendant pleaded guilty to one count of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) upon Cherie, a child under the age of 14. Defendant was also charged with committing lewd and lascivious conduct upon Wendy, but that count was dismissed as part of defendant's plea agreement. Defendant was sentenced to 12 months in county jail, suspended, and placed on probation.

2. The 1989 Convictions: Victims Richard and Mark D.

In September 1988, the Modesto Police Department began investigating the suspected molestation of Richard, age 11. Richard told the investigating officer that he was the son of defendant's employer in San Jose. The first incident occurred in May 1988 after defendant, at the request of Richard's father, picked Richard up at his mother's home Modesto and took him to San Jose to visit his father for the weekend. During the weekend, Richard and his half-brother, Mark D., then age 13, visited defendant's apartment. Defendant showed them a pornographic movie and began masturbating. He also asked Richard to masturbate him, but Richard refused.

Another incident occurred in July 1988. Richard told the officer that after defendant picked him up in Modesto and they were en route to San Jose in defendant's van, defendant unzipped his pants and started masturbating. Defendant then talked Richard into pulling his own pants down and masturbating. Defendant also asked Richard to masturbate him, which Richard did. When Richard stopped, defendant reached over and rubbed Richard's penis. Later during the same trip, defendant pulled the van to the side of the road and orally copulated Richard. Richard felt afraid because defendant is a big man and because he was away from home and not in a position to get away from defendant.

Richard's stepbrother, Mark D., was also interviewed by a police officer. He recalled three incidents involving defendant in 1987 and 1988, when he was 11 or 12 years old. At that time, defendant was living in a mobile home in San Jose. The first incident occurred when Mark D.'s parents allowed him to spend the night with defendant. Mark D.'s friend James came along. Defendant showed the boys a pornographic film in his bedroom while he masturbated himself. When they refused his request to take off their pants, defendant pulled both boys onto the bed, took their pants down, and masturbated them. The boys left when the film broke and defendant was occupied in trying to fix it.

On another occasion, Mark D. and his friend Mark P., age 11 or 12, went to the apartment in San Jose where defendant was then living. A pornographic movie was playing in defendant's bedroom. Defendant pulled the boys into the bedroom by the arms and threw them on the bed. He began to masturbate himself while holding Mark P. down with his legs. At the same time, defendant unzipped Mark D.'s pants and began to masturbate him. When defendant let go of Mark P., the boy ran out of the apartment. Mark D. saw defendant ejaculate. Mark P. returned to the apartment to aid Mark D. Defendant told the boys that he would hurt their fathers if they told anyone what had occurred.

A third incident took place in the summer of 1988 when Mark D. and Richard went to defendant's apartment. Defendant locked the door and began chasing the boys around the living room. He cornered them by the refrigerator, grabbed their shirts and pulled them into the bedroom. Defendant then pulled Richard's pants down, started a pornographic movie, and began masturbating himself and Richard. Defendant also grabbed Richard's hand to make Richard masturbate him. Defendant did not do anything to Mark that time.

After defendant was arrested, police officers questioned him about the incidents involving Richard, Mark D., and James. According to the January 1989 police report, defendant waived his Miranda rights.[2] Defendant then acknowledged touching Richard's penis during the trips from Modesto to San Jose and admitted that he had been aroused once. Defendant also told the officer that he had masturbated Mark D. on three or four occasions in 1987 and 1988. Although defendant recalled playing pornographic movies for Mark D. and Richard, he denied touching them during those incidents. Defendant also denied holding the boys down on the bed and forcing them to do anything. However, defendant admitted to masturbating James five or six times when defendant lived in the mobile home in San Jose.

On February 10, 1989, defendant pleaded guilty to four counts of violating Penal Code section 288, subdivision (a), including two counts of lewd and lascivious conduct upon Richard, a child under the age of 14, and two counts of lewd and lascivious upon Mark D., a child under the age of 14. Defendant was sentenced to a total term of 15 years.

B. Commitment and Recommitment Proceedings

In 1997, the Santa Clara County District Attorney filed a petition to commit defendant as a sexually violent predator pursuant to the SVPA. On July 29, 1997, defendant was committed to the Department of Mental Health for a two-year period. In 1999, the district attorney filed a second petition to extend defendant's commitment for a two-year period. The district attorney filed a third petition in 2001 to extend defendant's commitment for another two-year period. Both petitions to extend commitment were granted.[3]

Defendant's commitment on the third petition was due to expire on July 29, 2003. On May 14, 2003, the district attorney filed a fourth petition to extend defendant's commitment as a sexually violent predator for a two-year period. The petition alleged that defendant continued to meet the criteria for commitment as a sexually violent predator because he continued to have a currently diagnosed mental disorder and due to that disorder he was likely to engage in sexually violent criminal conduct in the future.

After a hearing, the trial court found that there was probable cause to believe that defendant had been convicted of two qualifying sexually violent offenses against at least two victims, that he had a diagnosable mental disorder that made it likely that he would engage in sexually violent criminal conduct if released, and that the sexually violent criminal conduct would be violent in nature. A jury trial on the fourth recommitment petition was set in November 2004.

C. The Jury Trial

Defendant brought a motion for self-representation pursuant to Faretta v. California, supra, 422 U.S. 806 (Faretta) that was heard August 20, 2004, over two months before the jury trial commenced on November 3, 2004. At the hearing, defendant explained that he sought to represent himself because he was experienced in sales and he believed that he would be better able to sell himself to the jury.

The trial court denied the motion and explained its reasoning on the record, as follows: â€