DAWSON, J.
Following a jury trial, Joel Alonzo Bennett, appellant, was convicted of two felony counts of indecent exposure (Pen. Code, § 314, subd. 1.)
Appellant contends on appeal that the trial court erred when it gave a pinpoint instruction requested by the prosecution; when it denied his request to represent himself; and when it imposed an incorrect sentence. He also contends his sentence constitutes cruel and/or unusual punishment. We disagree and affirm.
Appellant was an inmate at the Wasco State Prison at the time of the offenses.
On April 19, 2009, Senorina Viana, a nursing assistant at the prison's administrative segregation unit, was watching a prisoner on suicide watch when she saw appellant, completely naked, masturbating in a cell across the dayroom floor. Appellant was looking at Viana as he masturbated. Viana was annoyed or offended by appellant's actions.
On May 12, 2009, Latisha Shyne-Dixon, a nursing assistant at the prison, was on suicide watch for appellant. It was early morning and appellant asked if he could give himself a "birdbath," meaning to wash himself in the sink in the cell. Shyne-Dixon said that he could.
Appellant began to wash himself. He washed his penis, first in a circular motion, but then began stroking it up and down. Shyne-Dixon looked away and then back several times. She told appellant to stop numerous times. Appellant was only a couple of feet from Shyne-Dixon, who was seated at the door of the cell, and he was "glaring" directly at her. When he would not stop, Shyne-Dixon called the nearest correctional officer.
On October 28, 2009, prison correctional officer Bernadette Mata was conducting a count of inmates in their cells when she noticed appellant nude and masturbating in front of the toilet in his cell. Appellant claimed he was taking a shower or bath. Mata told appellant to turn around, but he did not respond. Two hours later, Mata was conducting another count and noticed appellant doing the same thing.
Two months later, on December 26, 2009, prison correctional officer Rebekkah Nickell was working as the control booth officer in the administrative segregation unit when she saw appellant standing in front of his cell door, masturbating. Appellant was completely nude and facing Nickell. Nickell contacted a floor officer who spoke with appellant. Appellant then put on his boxer shorts. Twenty minutes later appellant was again nude and masturbating in his cell. Nickell found appellant's conduct "offensive."
Appellant contends that the trial court erred when it gave the People's proffered "Special Instruction #1," which instructed the jury that employees of a penal institution can be offended or annoyed by incidents of indecent exposure. We disagree with appellant's contention.
A claim of instructional error is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court `fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving or not giving jury instructions, an appellate court must consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all instructions that are given. (Ibid.) "Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.) Unless there is a reasonable likelihood the jury misunderstood the challenged instruction, an appellate court must uphold the court's charge to the jury. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. McPeters (1992) 2 Cal.4th 1148, 1191, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
Section 314, subdivision 1 makes it a crime for a person to willfully and lewdly expose "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." A violation of section 314 requires a lewd intent. (§ 314.) In In re Smith (1972) 7 Cal.3d 362, 366, the California Supreme Court held that conduct is not lewd within the meaning of section 314 unless the conduct is sexually motivated. In that case, the defendant was convicted of indecent exposure when he was found sunbathing in the nude on an isolated beach. The court vacated the defendant's conviction, finding that the statute required a finding that the defendant must act for the purpose of "sexual arousal, gratification, or affront." (Ibid., fn. omitted.) Subsequently, in In re Dallas W. (2000) 85 Cal.App.4th 937, 939-940, the appellate court held a conviction for indecent exposure could not stand where the trier of fact, in that case the court, found that the perpetrator, who "mooned" oncoming traffic on a public street, acted only with the intent to annoy or affront others and not with any sexual intent. The court reviewed the Smith decision and explained that "the word `sexual' modifies `arousal,' `gratification,' and `affront,' not just `arousal' and `gratification.' [Citation.] `Affront' must be read as `sexual affront.'" (Id. at p. 939.)
The trial court here instructed the jury, pursuant to CALJIC No. 10.38, that the offense of indecent exposure consists of two elements: (1) a person intentionally exposed his genitals in any place where there were present other persons to be offended or annoyed; and (2) the person did so with the specific intent to direct public attention to his genitals for his own sexual arousal or gratification, or that of another, or to sexually insult or offend others. (CALJIC NO. 10.38; People v. Swearington (1977) 71 Cal.App.3d 935, 943.) Immediately after giving this instruction, the trial court instructed the jury, pursuant to a request by the People, that:
At trial, the prosecution argued that appellant knew the nursing assistants were present and that he specifically engaged in exhibitionist behavior by positioning himself where he could be seen. Defense counsel argued that appellant did not hold a subjective intent to draw attention to himself and offend the two nursing assistants: nursing assistant Viana was supposed to be watching someone else when she turned toward appellant, who was already in the process of masturbating in his cell; and nursing assistant Shyne-Dixon had given appellant permission to wash himself and that he was forced to do so in public due to the suicide watch.
Appellant contends that the trial court's instruction interfered with the jury's factfinding function, "but more importantly it ... improperly focused on whether the victim is or is not actually annoyed." As stated previously, to be convicted of a section 314, subdivision 1 offense, the factfinder must decide whether appellant had the necessary lewd specific intent and whether the prison was a place where other persons were present to be offended or annoyed by exposure of his private area. Appellant contends that his defense, that he had no lewd specific intent, was "destroyed" by the instruction's "focus on irrelevant factors and by its meaning that [appellant] as a matter of law, could not have a reasonable belief that he would not offend the professionals who watched all of his other bodily activities, including those performed with his private parts." As argued by appellant, "[s]aying to the jurors that, as a matter of law, they may not consider that the others were prison employees in terms of the specific intent of [appellant] to offend or annoy, was prejudicial error under any standard."
It is true that whether a prison is a place where there are other persons present to be offended or annoyed presents a question of fact for the jury to decide. (See In re Anders (1979) 25 Cal.3d 414, 416-417 [whether defendant knew or should have known of presence of persons offended by his conduct in determining whether act constituted lewd and dissolute conduct was a question of fact]; People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 409-410 ["[K]nowledge of possible offense to third persons is a question of fact and cannot be answered solely by reference to the location in which the conduct occurred"].) But the instruction here did not specifically state that a prison is a place where there are other persons present to be offended or annoyed; it merely attempted to convey the message that anyone, irrespective of occupation, might be offended or annoyed by another person's intentional exposure of his or her genitals in a lewd manner. The instruction is a true statement of the law—section 314, subdivision 1 does not have an exception eliminating jail or prison personnel as potential victims of indecent exposure. Whether giving the instruction was necessary is questionable.
Even assuming for the sake of argument that the special instruction rose to the level of federal constitutional error as appellant claims, it was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-307; Chapman v. California (1967) 386 U.S. 18, 24.) As respondent points out, the evidence was clear and uncontradicted that, on several occasions, appellant, while completely nude and visible to various female staff at Wasco State Prison, engaged in acts of masturbation, offending the staff in the process. He did so despite being asked to stop. Appellant offered no evidence to suggest that his conduct was routinely tolerated by prison staff or that his actions were not annoying or offensive to those who witnessed it. There is no indication the special instruction prejudiced appellant and we will not speculate that it did. Any error was therefore harmless beyond a reasonable doubt.
Appellant contends the trial court abused its discretion when it denied his request to represent himself because it was both timely and unequivocal. We disagree.
On February 26, 2010, appellant appeared with appointed counsel for the purpose of a trial status conference. At this time, appellant declined the prosecutor's offer of a 25-year-to-life sentence. Appellant made no mention that he wished to represent himself.
On March 8, 2010, just before the jury venire was to be summoned to the courtroom, the trial court stated that it had been informed that appellant wanted to represent himself.
The court attempted to clarify with appellant whether he understood defense counsel was his attorney. Appellant replied, "That's what he is telling me." The court repeated that defense counsel was appellant's attorney and told appellant that if he was asking the court to relieve defense counsel and allow appellant to represent himself, appellant needed to make that clear to the court. Appellant again said he did not know what was going on. The court again asked appellant if he wished to relieve defense counsel and represent himself. This time appellant said "my doctor told me to have him come to court for me." After some additional questions by the court, to which appellant did not respond directly, the court stated it was informed that, earlier that day, appellant had had a discussion with Judge Lewis in Department 1 about whether he wished to represent himself. Appellant said he did not really remember that conversation and that he had not talked to Judge Lewis "about this." The following colloquy then occurred:
The trial court then stated that it would give defense counsel a chance to talk to appellant off the record. Defense counsel, who had represented appellant since October of 2009, stated that he was concerned with what "level of competency [appellant] might have in general" after hearing him indicate that he did not understand the proceedings. Defense counsel noted that appellant's "change in demeanor has been strikingly fast in not seeming to understand what's going on." The trial court noted that this was the "first [it] had any reason to have [its] attention drawn toward a 1368 issue," and asked that counsel talk with appellant during a recess.
Back on the record, defense counsel stated that "[d]uring the break I had an opportunity to assess the threshold indicators for defense counsel to advise the Court of a doubt of competence with [appellant]. And I don't find those to be present." The trial court agreed that it need not take any further action under section 1368 because it "never had a doubt arise ... as to [appellant]'s mental competence." Defense counsel agreed.
The trial court then addressed appellant:
When the trial court asked appellant if he had any witnesses to call in his defense, he said he wanted to call the inmate on suicide watch during one of the charged incidents, but he did not know his name. He also wished to call a correctional officer, but did not know her full name. Appellant had not made any arrangements to have the witnesses at trial. Appellant stated that he needed to get "the paperwork" and he was then "ready to go forward."
The trial court then denied appellant's request to represent himself, reasoning as follows:
A defendant has a constitutional right to self-representation if he or she knowingly and voluntarily waives the right to counsel. (Faretta v. California (1975) 422 U.S. 806, 819; People v. Marshall (1997) 15 Cal.4th 1, 20, 24.) "The right of self-representation is absolute, but only if a request to do so is knowingly and voluntarily made and if asserted a reasonable time before trial begins." (People v. Doolin (2009) 45 Cal.4th 390, 453.) Absent timely assertion of the right, the trial court has discretion to deny the request, considering such factors as the quality of counsel's representation, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and state of the proceedings, and the disruption or delay that might result. (People v. Marshall (1996) 13 Cal.4th 799, 827.) Our Supreme Court has not "fix[ed] any particular time at which a motion for self-representation is considered untimely, other than that it must be [made] a reasonable time before trial. [Citations.] Nor, despite invitations to do so, [has our Supreme Court] adopted a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely. [Citation.]" (People v. Clark (1992) 3 Cal.4th 41, 99.) "Moreover, whether timely or untimely, a request for self-representation must be unequivocal." (People v. Doolin, supra, at p. 453.)
Here, appellant's request for self-representation was untimely. It was made on the day trial was set to start; the parties had already met and conferred with regard to motions in limine and jury selection was about to begin.
Further, the record shows the request was not unequivocal. In People v. Marshall, the California Supreme Court discussed the requirement that a request be unequivocal. It noted the United States Supreme Court's emphasis that a request be knowing, voluntary, unequivocal, and competent "suggests that an insincere request or one made under the cloud of emotion may be denied." (People v. Marshall, supra, 15 Cal.4th at p. 21.) In reviewing decisions by lower courts, the Marshall court noted that some "have declared that a motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. [Citations.] As one court expressed it, a court `properly may deny a request for self-representation that is a "momentary caprice or the result of thinking out loud."' [Citation.]" (Ibid.) To protect the fundamental right to counsel, the court "must draw every inference against supposing that the defendant wishes to waive the right to counsel. [Citation.] [The court must] determine whether the defendant truly desires to represent himself or herself." (Id. at p. 23.)
The record shows that appellant's request for self-representation, which occurred soon after the trial court denied his Marsden motion, was largely insincere. Appellant's responses to the trial court's questioning were evasive, confusing, and ambivalent. While he claimed to want to represent himself, he also stated several times that he did not know what was going on, including that he didn't know "what a jury trial is." His answers appear to be given for purposes of delay rather than being a genuine request for self-representation. The trial court properly denied his request for self-representation.
Appellant contends that the trial court acted in excess of its jurisdiction when, on May 13, 2010, it recalled the sentence it had imposed on April 12, 2010, and instead imposed a new and different sentence. Respondent contends the original sentence, under the three strikes law, was unauthorized, and it was proper for the trial court to correct it. We agree with respondent.
Appellant was convicted of felony counts of indecent exposure (§ 314, subd. 1) and the trial court found true the allegation that appellant had seven prior strikes and two prior prison terms. At sentencing on April 12, 2010, the trial court denied appellant's request to strike any of the prior strike convictions, but granted the prosecution's motion to dismiss one of the two prior prison term enhancements.
The trial court then found no factors in mitigation and a number of factors in aggravation, justifying imposition of the upper term. The court stated that the analysis in the probation report was "appropriate," and it intended to follow it. The court reasoned:
The court denied probation and sentenced appellant to 25 years to life on both counts 1 and 2, but then stated, "[y]ou know, just as I am passing sentence here, reflecting upon the circumstances of the instant offense, I have reconsidered my ruling with regard to consecutive sentencing. And considering all the circumstances, I do find it's in the interest of justice to impose these sentences concurrently." The court then struck its prior sentence on count 2, making it consecutive to the prison term appellant was currently serving and concurrent to the sentence imposed in count 1. The new sentence was described as "25-years-to-life plus a determinate term of 24 years." The determinate term of 24 years referred to the sentence previously imposed: 21 years on one case; two years on the other, plus a one-year prison prior in the current case.
On April 14, 2010, the probation officer sent the trial court a letter, citing section 667, subdivision (c)(6), and stating "there is an issue related to concurrent sentencing in this matter." On April 23, 2010, the trial court issued a minute order setting appellant's case on calendar for further proceedings on May 13, 2010.
On May 13, 2010, the trial court stated that it recalled appellant's case because the sentence earlier imposed was "not authorized by law" pursuant to section 667, subdivision (c)(6), which required the court to impose consecutive sentences on counts 1 and 2. After incorporating "all the findings that I have made at the prior hearing on the probation officer's report and sentencing on April 12, 2010," the trial court resentenced appellant to consecutive terms on counts 1 and 2, finding it had no discretion to impose concurrent sentences.
"Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. [Citation.]" (People v. Karaman (1992) 4 Cal.4th 335, 344.) But, it is also long settled law that an unauthorized sentence is subject to judicial correction whenever the error comes to the attention of a trial court or reviewing court. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) When an unauthorized sentence has been imposed "[s]uch a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (Serrato, supra, at p. 764, fn. omitted.)
The trial court originally imposed concurrent sentences on counts 1 and 2, but subsequently imposed consecutive sentences, finding them mandatory. The court was correct in its resentencing. Where, as here, the defendant is found to have a prior conviction of one or more "serious" or "violent" felony offenses (§ 667, subds. (b), (c)), the defendant is sentenced under the three strikes law (§ 667, subds. (b)-(i)). Section 667, subdivision (c)(6) requires the imposition of consecutive sentences "[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts." As explained in People v. Lawrence (2000) 24 Cal.4th 219, consecutive sentences are mandatory under section 667, subdivision (c):
Here, as specifically stated by the trial court at sentencing, the crimes alleged in counts 1 and 2 were not committed on the same occasion and did not "indicate a single period of aberrant behavior." According to the evidence, the crimes involved different victims and were committed almost a month apart. For this reason, consecutive sentences on each count were mandatory under section 667, subdivision (c), and we reject appellant's argument to the contrary.
Finally, appellant contends that the imposition of 50 years to life for his current convictions is grossly disproportionate, constituting cruel and/or unusual punishment in violation of the United States and California Constitutions. We will affirm.
The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense or offenses. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of disproportionate sentencing. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, disapproved on other grounds in People v. Deloza, supra, 18 Cal.4th at pp. 593-595, 600, fn. 10.)
Appellant relies on In re Lynch (1972) 8 Cal.3d 410 for the proposition that a 50-year sentence for offensive but not "particularly violent, unusual, [or] cruel" behavior committed within a person's own prison cell is grossly disproportionate. In Lynch, the sole trigger for the life sentence was an indecent exposure prior. (Id. at p. 414.)
But appellant is not being punished merely for the current offenses, but also because of his recidivism. (People v. Romero (2002) 99 Cal.App.4th 1418, 1432.) Appellant has a lengthy criminal history dating back to April of 1982 when he was adjudged a ward of the juvenile court for committing a burglary. He committed another burglary in May of 1985. In March of 1991, he was committed to the California Rehabilitation Center for two narcotics-related convictions and a robbery conviction. In May of 1993, he was sentenced to prison for two years for a conviction of possession of a firearm by a felon. In January of 1994, he was sentenced to prison for 16 years for a kidnapping conviction. In April of 2004, he received a jail term for indecent exposure. Finally, he was serving a 23-year prison term for robbery at the time he committed the current offenses. An overview of appellant's criminal record illustrates that neither increased penalties nor age has deterred him from committing more crimes. Appellant's sentence is not so disproportionate to the crime that it shocks the conscience, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
Neither can appellant demonstrate that his sentence violates the prohibition against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 77 (Andrade); Ewing v. California (2003) 538 U.S. 11, 29-31 (Ewing); People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. (Ewing, supra, at p. 23.) The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 17-18, 29-31; see also Andrade, supra, at pp. 66-68, 77 [two consecutive terms of 25 years to life under three strikes law for thefts of videotapes not grossly disproportionate].)
Appellant acknowledges the holdings in Ewing and Andrade, but contends that they are distinguishable in light of the Supreme Court's recent decision in Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011]. We disagree. In Graham, a divided Court held that a sentence of life without the possibility of parole for any juvenile offender who did not commit a homicide is unconstitutional as cruel and unusual under the Eighth Amendment. (Graham v. Florida, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2034].) Appellant is neither a juvenile nor was he sentenced to life without the possibility of parole. And nothing in Graham suggests the Supreme Court retracted or limited its prior holdings in Ewing and Andrade with regard to California's three strikes law.
We find appellant's sentence neither cruel nor unusual and reject his contention to the contrary.
The judgment is affirmed.
WE CONCUR.
CORNELL, Acting P.J.
POOCHIGIAN, J.
