California Court of Appeal Jun 30, 2015 No. D066968Unpublished
Filed 6/30/15 P. v. Long CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066968
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1208859)
CHARLES RUSSELL LONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Thomas
Kelly, Judge. Reversed in part and affirmed in part with directions.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Alana C. Butler, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury found Charles Russell Long guilty of committing a forcible lewd act on a
minor (Pen. Code, § 288, subd. (b)(1); count 1),1 attempting a lewd act on a minor
(§§ 288, subd. (a), 664; count 2), showing harmful material to a minor (§ 288.2, subd. (a);
counts 3 & 4), contacting a minor with the intent to commit a lewd act (§ 288.3, subd. (a);
distributing child pornography (§ 311.1, subd. (a); counts 10 & 11). Long pled guilty to
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 12). The
court sentenced Long to an aggregate term of 20 years, which included the upper term of
four years for count 2 as the principal count, and a consecutive upper term of 10 years for
count 1 (§ 667.6, subd. (c)).
On appeal, Long contends: (1) there was insufficient evidence to support his
conviction for committing a forcible lewd act on a minor (count 1); (2) he was wrongly
convicted of multiple counts of possession of pornographic images under section 311.11
because they were found in one location even though they were contained on multiple
electronic devices; (3) he was denied his constitutional right to self-representation at the
sentencing hearing; (4) the court erred in imposing a full consecutive upper term sentence
for count 1 without stating reasons for the full consecutive term under section 667.6
separately from those reasons articulated for the upper term; and (5) clerical errors in the
abstract of judgment should be corrected. The People concede the second and fifth
1 All further statutory references are to the Penal Code unless otherwise indicated. 2
contentions. Accordingly, we reverse the convictions for counts 8 and 9 and direct the
trial court to amend the abstract of judgment to correct clerical errors. We affirm the
judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A
When Long moved into a recreational vehicle (RV) park at the end of September
2012 he chose a spot across the street from the pools and adjacent to the public restroom.
He said it was a perfect spot because it had everything he needed. Long almost
immediately befriended nine-year-old, Jane Doe,2 who lived with her family in a RV
about 40 feet away from Long's RV, on the other side of the public restroom. Long
bought Jane candy, a diary, and a makeup kit. He also gave her an iPod to use. Jane's
parents made her return the iPod, but Long gave it back to her. Her parents became
concerned and instructed Jane not to go into Long's trailer.
Long took Jane to the store to buy candy and to the community pool to swim.
Long filmed Jane with an underwater camera while she was swimming. He would place
the camera underneath her or throw it under her so she would land on it. It took pictures
of her crotch area.
The first day at the pool, Jane became uncomfortable because Long got too close
to her. When she scooted back, he moved forward. On another occasion in the pool,
2 The minor's name was redacted in the record and replaced with "Jane Doe" to protect her identity. Therefore we refer to the minor as Jane. 3
Long tried to jump on Jane and grab her with his arms, but she was able to swim away
and get out to go to another pool. He followed her to the other pool and stared at her.
Long showed Jane pictures of a naked nine-year-old girl who he said was his
daughter. He also said his daughter was his girlfriend. When Long gave Jane the iPod,
he showed her a picture of his penis and suggested she take a picture of her crotch area.
He also showed her a video of an adult man having sex with a six-year-old girl.
Several times Long asked Jane to touch him or to have sex with him. Twice while
she was showering in the community bathroom adjacent to his RV, he called her name
and said, "Do you want to have it with me?" Once, Long followed Jane as she walked to
the park and asked if he could videotape them "doing it" and asked if she wanted to have
sex with him. Another time, as they walked to the store in the RV park, Long told her
she could have anything she wanted if she would have sex with him. When she said
"no," he bought her candy anyway. When they were outside the store, however, Long
asked, "Do you want to touch my dick?" Jane said "no" and ran to the park.
One day, Long met Jane as she exited the community bathroom and asked her if
she wanted some money. When she said yes, he placed the money in his waistband near
his belt buckle. He told her he wanted her to take the money. In her initial interview
with a social worker, Jane stated Long grabbed her hand and pushed it into his pants
before she ran away. Jane also told her parents Long grabbed her hand and put it down
his pants. In a second interview with the social worker, Jane did not state Long grabbed
her arm, but she did not say he did not do so either. When asked what he said, she
reported he said he wanted to push her hand down there. At trial, Jane said she could not
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remember whether or not he touched her. On cross-examination, she said he did not grab
her hand, but she was afraid he would do so. Jane also testified this was a disturbing
incident, which she tried to forget.
B
After the event with the money, Jane gave her parents a letter describing what
Long had been doing. She also talked with her parents about what happened. Jane's
father immediately went to the RV park's office to call the police. The following day,
Jane was interviewed by a social worker while a detective was in the next room watching
the interview.
Long approached Jane's father in a nervous and agitated state, which caused the
father to fear for his safety. Long asked if the family complained about him and also
asked if Jane had been looking up inappropriate things on the Internet. Long asked the
father if they could come to some sort of arrangement, but did not explain what he meant.
Long appeared erratic and fidgety.
When a detective went to Long's trailer, he noticed a laptop computer on the
countertop with a screensaver consisting entirely of child pornography. In an interview,
Long stated he downloaded child pornography and looks at both child and adult
pornography. He said he likes children dressed in bathing suits. Long also stated, "I like
children but I didn't let any of them know." Long admitted he gave Jane an iPod and took
pictures and videos of her swimming in the pool, but said he had her parents' permission.
Long also said he tried to sell images and videos he had made of Jane at the pool.
Regarding the money incident, Long said Jane asked him for money for food at school.
5
He had it in his pocket and told her to grab it. When she did not do so, he said he gave it
to her and she left. Long demonstrated by placing his hand in his waistband toward the
center of his pants.
A detective with the Riverside County Sheriff's Department analyzed Long's
laptop computer, video camera and a camera, iPod and cellular telephone. There were
over a thousand pornographic images and videos of children on Long's computer. Long's
computer contained a folder entitled "my daughter (Jane)" with several subfolders. The
detective described the titles of the subfolders as follows: "At the pool with my daughter
friend Brianna; Bri, …, hot pussy shot; the girl from across the street; my daughter (Jane)
in the pool; (Jane) 8 y-o, … 'NN' … legal videos; (Jane's) cute, [little] butt, …; first day
with camera; her dance; the (Jane) kiss; the many faces of (Jane); tight fat pussy shots;
show (Jane) pics and vid; … does she know; is she showing; [and] the sexiest poses from
all models." Other folders were entitled: "Jailbait amateurs;" "4 to 12 y-o jailbait"; and
"Jen-Jen … ist … [the] … first child I fell for."
The jury was shown a sampling of images from the computer. Among these were:
(1) a photo taken between a child's legs, which was labeled "my (Jane) 79" and was
located in the folder entitled "tight fat pussy shots"; (2) a photo depicting a child's bottom
in a swimming pool, which was labeled "sexy (Jane) in the pool" from the folder entitled
" '(Jane) cute little' … 'butt' "; (3) a photo of a girl with a pink bathing suit in the pool,
which was labeled "sexy Brianna and (Jane)"; (4) a photo of Long with a bathing suit in
his mouth entitled "look at me (Jane) 009" from a folder entitled "Russell pictures me."
6
There were also videos located on the computer, some of which were shown to the
jury. These included videos entitled "(Jane's) smoking hot fat pussy up close," "Letting
me shoot close-up and is helping," and "The girl with the fine ass 11 yo."
The detective located Facebook chat messages between Long and another
individual in which Long stated, "I a pedophile" and "I can get millions of pictures of
naked girls her age, and think there are more than a few on this P.C." After a string of
messages in which Long described his state of arousal related to viewing pictures, there
was a reference to an exchange of money.
There was evidence Long uploaded photos to Yahoo messenger including a photo
taken between a female child's legs, a photo of a child's buttocks in a pool, a photo of a
nude female backside, a photo of a penis near white underwear, and a photo of a penis on
top of a bathing suit. He also uploaded numerous images to a peer-to-peer file sharing
network called GigaTribe, including photos of Jane's bottom in the pool and a photo
taken between Jane's legs.
The detective also retrieved photos from Long's cellular phone depicting a child's
bottom area, including one showing a girl's legs beneath a picnic table. There were
photos on his camera of a child performing oral sex on another child as well as a photo of
two children performing sexual acts on an adult male.
C
During trial, Kimberly M. testified about her interaction with Long in 1999, when
she was 10 or 11 years old and was living in a RV park in another part of California. She
was introduced to Long by a neighbor girl, who was nine or 10 years old. The neighbor
7
girl and Kimberly's younger sister said Long was nice. Long would approach Kimberly
to greet her when she walked past his trailer on her way home from school. Every time
he approached, his penis was exposed through his unzipped pants. He would ask her to
come inside his trailer to hang out. He also gave her money. She went inside his trailer
about 10 times and they would sit around and talk. She testified he once asked her to
"suck his dick." When she tried to leave, he pushed her down onto the couch, but she
was able to get away. On another occasion, he grabbed her buttocks when he was
walking her out the door.
D
As part of Long's defense, the parties stipulated that Jane's friend told a social
worker she never heard Long say anything bad to Jane, but she was not always around
them. She also stated she thought Long was weird and she saw Long give Jane money
for candy.
In closing arguments, Long's attorney focused on counts 1 and 2 stating the
remaining charges were not in dispute. Long's attorney argued there was reasonable
doubt as to whether Long grabbed Jane's hand or if he wanted to grab it, as Jane said at
trial.
On May 17, 2013, the jury returned guilty verdicts on all counts with less than two
hours of deliberation. Two months later, at the scheduled sentencing hearing, Long
requested to represent himself for purposes of sentencing. The court denied the request
as untimely. It sentenced Long to an aggregate term of 20 years as follows: the upper
term of 4 years for count 2 as the principal count; a full consecutive upper term of 10
8
years for count 1; consecutive 8-month terms for counts 3 and 4; consecutive 1-year
terms for counts 5 and 6; a consecutive 8-month term for count 7; concurrent 2-year
terms for counts 8 and 9; consecutive 8-month terms for counts 10 and 11; and a
consecutive 8-month term for count 12.
DISCUSSION
I
Substantial Evidence
As he did at trial, Long contends there was insufficient evidence to support his
conviction for committing a lewd act upon Jane by force in violation of section 288,
subdivision (b)(1), because Jane gave inconsistent testimony about whether or not Long
grabbed her hand and pushed it down his pants. The jury was not convinced and neither
are we.
In evaluating a sufficiency of the evidence claim, " 'we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime … beyond a reasonable doubt. [Citation.] The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
9
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for
insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever
is there sufficient substantial evidence to support' " the jury's verdict.' " (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
During her initial interview, Jane reported Long grabbed her hand and pushed it
down his pants. She told her parents the same thing. In a second interview with the
social worker, she did not expressly disavow this version of events, but, when asked what
he said, she reported Long told her he wanted to push her hand down his pants. Jane also
reported Long told her not to tell anyone about this event because he would get into
trouble and he would be mad at her. At trial, Jane stated the money incident was the most
disturbing event and she tried to forget it. Jane stated she could not remember one way or
the other if he touched her, before later telling the defense attorney, he did not grab her
hand. The jury had the opportunity to determine the credibility of each of these
statements after viewing not only Jane's trial testimony, but also her videotaped interview
with the social worker. Viewing the evidence most favorably to the judgment, we
conclude there is substantial evidence to support the jury's verdict.
II
Possession of Child Pornography
The People concede, as a matter of law, possession of multiple images in one
location, which were found on one date, constitutes one violation of section 311.11, even
10
though the images are found on different media devices. (People v. Mahoney (2013) 220
Cal.App.4th 781, 796; People v. Manfredi (2008) 169 Cal.App.4th 622, 624-625, 634;
People v. Hertzig (2007) 156 Cal.App.4th 398, 403.) Accordingly, we reverse Long's
convictions for counts 8 and 9 for possession of child pornography.3
III
Denial of Self-Representation Request at Sentencing Hearing
A
The jury returned their verdicts on May 17, 2013, finding Long guilty on all
counts. The court set the sentencing hearing for eight weeks later, July 12, to allow for
preparation of a probation report.
When the sentencing hearing commenced, Long's defense attorney advised the
court Long wished to represent himself at the sentencing hearing pursuant to Faretta v.
California (1975) 422 U.S. 806.) The prosecutor noted Long had previously represented
himself. However, just before the scheduled trial date, Long asked for reappointment of
counsel indicating he was unable to go forward with trial or to handle the gravity of the
circumstances facing him or to marshal the evidence to present his defense in court. The
court granted the request to reappoint counsel and continued the trial. Long stated he
previously could not represent himself because the jail did not provide him with law
3 The People do not advance an argument the facts could have supported independent counts of possession based on evidence Long showed Jane pornographic images at different locations, both at the pool and outside his trailer, and took pornographic images of Jane at locations outside of his trailer, such as the pool and the park. The People admit this theory was not advanced to the jury and the jury was not instructed in this regard. Therefore, we do not consider this issue. 11
library time. He stated he now wanted to represent himself "so I get due process and
finish updo some post trial motions." He requested a continuance of two or three
weeks to prepare the motions and obtain letters from family. He also requested the
appointment of an investigator to help him file motions and "to do some things."
After taking a break to review the record and the case of People v. Miller (2007)
153 Cal.App.4th 1015, 1023 (Miller), the court denied the motion. It stated, "you were
convicted . . . on the 17th of May. So it's almost two months ago. And this is now the
day set for sentencing. And this is simply not timely."
B
Long contends the trial court erred in finding the motion for self-representation
untimely and, even if it was untimely, the court abused its discretion in denying the
motion. We do not agree.
"A criminal defendant has a constitutional right to counsel at all critical stages of a
criminal prosecution, including sentencing. [Citations.] The right to counsel may be
waived by a criminal defendant who elects to represent himself at trial. [Citation.] 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. Otherwise,
requests for self-representation are addressed to the trial court's sound discretion."
(People v. Doolin (2009) 45 Cal.4th 390, 453 (Doolin).)
Courts have held requests to waive counsel made on the day of trial, or even
several days before trial, are untimely. (People v. Carlisle (2001) 86 Cal.App.4th 1382,
1390; People v. Scott (2001) 91 Cal.App.4th 1197, 1203.) Denial of such tardy requests 12
is necessary "to avoid unjustifiable delay or disruption of orderly court proceedings."
(People v. Ruiz (1983) 142 Cal.App.3d 780, 791.) Similar concerns apply to motions
made at posttrial proceedings, such as sentencing. The Supreme Court in Doolin, supra,
45 Cal.4th at page 454 held a defendant's request to represent himself on the day of the
sentencing hearing was "manifestly untimely." The Doolin court concluded the trial
court was well within its scope of discretion to deny the motion because the defendant
"was not prepared to proceed and could not provide a reasonable estimate of when he
would be ready." (Id. at p. 455.)
The case Long relies upon, Miller, supra, 153 Cal.App.4th 1015, is
distinguishable. In Miller, the defendant made his request for self-representation after a
verdict was rendered and after a motion for new trial, but more than two months before
the sentencing hearing was scheduled. He indicated he wanted to do additional
investigation, but would be ready on the day set for hearing. The Court of Appeal
concluded such a request was timely and the defendant had an absolute right to represent
himself. (Id. at pp. 1020, 1024; see Doolin, supra, 45 Cal.4th at p. 455, fn. 39.)
In contrast, here, two months passed between the conviction and the sentencing
hearing. Long did not file posttrial motions in the interim or file a motion to represent
himself. Instead, he waited until the day of the sentencing hearing to request self-
representation and announced he wanted a continuance to file unspecified posttrial
motions and to obtain letters from family. The request in this case was untimely.
An untimely request for self-representation "is addressed to the sound discretion of
the trial court, which should consider such factors as the quality of counsel's
13
representation of the defendant, the defendant's prior proclivity to substitute counsel, the
reasons for the request, the length and stage of the proceedings, and the disruption or
delay that might reasonably be expected to follow the granting of such a motion."
(People v. Marshall (1996) 13 Cal.4th 799, 827, citing People v. Windham (1977) 19
Cal.3d 121, 128; see People v. Ruiz, supra, 142 Cal.App.3d at p. 792.) A reviewing court
may uphold an order denying a motion for self-representation even though the trial court
did not explicitly address the foregoing factors, if the record supports such a conclusion.
(People v. Marshall, supra, at p. 828; People v. Perez (1992) 4 Cal.App.4th 893, 904.)
In this case, although the court did not specifically inquire about the factors set
forth above, the record supports the conclusion the trial court did not abuse its discretion
in denying the tardy request for self-representation. The court had the opportunity to
observe the quality of Long's representation throughout the trial. In addition, there is
evidence of a proclivity to seek substitute counsel to delay proceedings. Long had
previously been granted a request for self-representation in January 2013. Long
represented he would be ready for trial on the date set. However, when the trial date
arrived, Long announced he was not ready and made an oral motion for the public
defender's office to be reappointed. The court granted the request to reappoint the public
defender based on Long's representation he was unable to go forward with trial or to
handle his defense. The court then granted a trial continuance over the People's
objection. When trial finally commenced in May 2013, Long made a motion to relieve
his current attorney, who had represented him since the inception of the case, and to have
an alternate public defender appointed to represent him. After conducting a confidential
14
hearing, pursuant to People v.Marsden (1970) 2 Cal.3d 118, the court denied the request
and trial proceeded.
When Long sought to represent himself on the day of the sentencing hearing, Long
indicated he wanted to file posttrial motions and obtain letters from family. He also
wanted an investigator appointed to assist him. The court took a break to consider the
request during which it reviewed case authority and the record. The court considered the
fact Long wished to file a motion to strike a strike pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, but since he had no prior strike convictions, a Romero
motion would not be applicable. The court also considered the People's opposition to the
request indicating the need for closure for the minor victim rather than further delay of
the proceedings. Under these circumstances, we cannot conclude the trial court abused
its discretion in denying Long's request to represent himself.
IV
Sentencing Regarding Count 1
A
In sentencing Long for count 1, the court noted a conviction under section 288,
subdivision (b)(1), allowed for imposition of a full consecutive term pursuant to section
667.6, subdivision (c), which it indicated it was choosing. The court also noted it was
choosing the upper term of 10 years "with the same factors in aggravation as I've just
enumerated for [the upper term for count 2]. They are also present on this occasion."
The court previously cited three independent aggravating factors. First, as to the
vulnerability of the victim (Cal. Rules of Court, rule 4.421(a)(3)), the court stated, "[s]he
15
was young. Of course this involves a child. But she's isolated; she's not with peers,
friends, family. She's one on one with [Long]." Second, as to planning (Cal. Rules of