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Name: People v. Powell
Case #: H034349
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/29/2011

(1) Denial of a Faretta motion for self-representation that is not timely and unequivocal is not a violation of the Sixth Amendment; (2) There is no abuse of discretion in permitting the minor victim to testify outside the presence of defendant, where substantial evidence exists that the minor victim otherwise will suffer great emotional distress (Pen. Code, sec. 1347); (3) a minor victim’s description of material may provide sufficient evidence to support a conviction for violation of Penal Code section 288.2, subdivision (a) (exhibiting any harmful matter, as defined in sec. 313, to a minor). Appellant was charged with and convicted of raping his young daughter and exposing her to obscene pornographic movies.
(1) On the day set for trial, he made a motion for new counsel (People v. Marsden (1970) 2 Cal.3d 118), which was denied, and then stated that he wished to represent himself. He advised the court that he had previously represented himself. He added that he was taking medication for various mental conditions but that it was not working and his voices were telling him to represent himself. In conjunction with his request to represent himself, appellant stated he was not prepared to proceed with the trial, implying a need for a continuance. As interpreted by Faretta v. California (1975) 422 U.S. 806, a defendant has a Sixth Amendment right to represent himself. However, the right is not absolute and a motion for self-representation must be timely and unequivocal. Here, because appellant’s motion was neither, granting or denying the motion rested within the discretion of the court. Because the court could reasonably believe that appellant’s need for a continuance would have impaired the orderly administration of justice, the denial of the Faretta motion was not an abuse of discretion.
(2) Under the Sixth Amendment, a defendant has a right to be confronted by and confront witnesses against him, but this Confrontation Clause right does not always require the accuser and accused to be in the same room. Penal Code section 1347 authorizes testimony of a minor witness via closed-circuit televison to prevent the witness from suffering serious emotional distress that would result from face-to-face confrontation with the defendant. The statute provides a list of findings the court must make before granting a request for section 1347 testimony. Appellant argued that the court abused its discretion in granting the prosecutor’s section 1347 request because the victim did not testify at the section 1347 hearing. The appellate court disagreed. Although the trial court could have done more to question the victim, there was no abuse. Evidence presented by the 11-year-old victim’s mother, a police officer, and a licensed clinical social worker was sufficient to establish that the victim would suffer great emotional distress if forced to testify in front of appellant.
(3) The victim told an investigating police officer that appellant forced her to watch DVDs of pornography and then have sex with him. During the interview with the officer, she gave a limited description of the contents of the DVDs. The DVDs were not seized and the trial evidence for the Penal Code section 288.2, subdivision (a) offense consisted of the victim’s characterizations of the DVDs. Appellant contended that if the jury knows essentially nothing about the content of the DVDs, a conviction based only on the victim’s description does not satisfy Due Process. In a lengthy discussion, the court analyzed what constituted improper material within the scope of section 313, subdivision (a), so as not to warrant First Amendment protection. Merely describing a movie as “bad,” “nasty,” or “pornographic,” as the victim did, is insufficient. However, the victim’s description of seeing a movie in which actors engaged in simulated or unsimulated sexual activity while displaying the enumerated body parts was sufficient to uphold the guilty verdict. Finally, the court found that there was no Penal Code section 654 violation resulting from imposition of separate sentences for the rape conviction (Pen. Code, sec. 288.7, subd. (a)) and the exhibiting harmful matter to a minor (Pen. Code section 288.2, subd. (a)) conviction. There were separate intents. Although appellant showed the harmful material to the victim immediately prior to the rape, there was substantial evidence of separate intents — the intent in the playing of the DVDs was an attempt to arouse the victim and the intent for the rape was appellant’s intent to have sex with her.