Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA289967. Sam Ohta, Judge.
Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Luis E. Rodriguez, appeals from his convictions for: three counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)); four counts of forcible lewd act upon a child (§ 288, subd. (b)(1)); and failure to register as a sex offender. (§ 290, subd. (a)(1)(A).) The jury also found that defendant was previously convicted of a violation of section 288, subdivision (a), a serious felony. (§§ 667, subds. (a)(1), (b)-(i), 667.61, subd. (c).) Defendant argues the trial court improperly: admitted evidence of prior sexual offenses; denied his self-representation motion; imposed consecutive sentences in counts 1 and 3 through 7; and imposed a cruel and unusual sentence of 309 years. The Attorney General argues six additional court security fees should be imposed. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
A. Registration Evidence
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Defendant was convicted of lewd acts with a child, a violation of section 288, subdivision (a) on October 28, 1993. In November 2000, defendant registered as a sex offender before Los Angeles Police Officer Mark Hubert. Officer Hubert: verified defendant’s identification; noted tattoos on defendant’s shoulder; verified defendant’s automobile information; verified defendant’s next of kin; and obtained a thumbprint and photograph of defendant. Officer Hubert routinely discussed the restrictions and requirements with the sex offender registrants. Officer Hubert emphasized the requirement that a sex offender must register within five days of moving and reregister annually. Defendant’s written registration included his initials next to each of the foregoing requirements, including the notation that he must register for the duration of his lifetime.
Montebello Police Officer Julio Calleros had responsibility for registering sex offenders between approximately 2003 and 2006. Officer Calleros maintained the records for those sex offenders who registered with the Montebello Police Department. The records were also transmitted to the California Department of Justice. Officer Calleros’s review of the records revealed that defendant had never registered with the Montebello Police Department as a sex offender. Officer Calleros saw defendant at apartment nineteen, 1241 South Greenwood Street, in the City of Montebello on September 8, 2005. Defendant rented an apartment at that address on May 12, 2005. Defendant lived with his wife and children at that address.
B. Defendant’s Niece (Counts 3-7)
Defendant’s 12-year old niece lived at his Montebello apartment during the summer of 2005. Defendant’s niece shared an upstairs bedroom with her cousin, Rene. Defendant’s bedroom was next door. On one occasion, defendant came into the bedroom, removed her shirt, and touched her breast over her bra. Defendant touched her breasts and nipple area. Defendant rubbed her breasts, despite her request that he stop. Defendant left the bedroom when a baby began crying. On another day, defendant’s niece went to his bedroom. Defendant’s niece went into the bedroom to get a diaper for a baby. Defendant pushed his niece on the bed. Defendant then grabbed her hands and held them above her head. Defendant got on top of his niece. Defendant took down his pants. Defendant forced his penis into her vagina. When defendant put his penis in her vagina, she testified, “It hurted.” She told defendant, “Stop.” She began crying and screaming. Defendant began moving his penis inside of her vagina. No one else was in the apartment at the time except for the baby.
On another occasion, defendant placed his niece on the living room floor. She was crying. Defendant put her hands over her head. Defendant placed his knees on her thighs, preventing her from getting up. Defendant took off her pants and underwear. Defendant put his penis in her vagina. Only her cousin Rene, who was three or four years old, and the baby were home at the time this incident occurred. Rene was in the bathtub.
An incident that occurred prior to the three molestations in Montebello took place at a residence El Monte. When his niece was 11 years old, defendant walked up from behind her. Defendant placed his hand inside her shirt, rubbing her over her bra. After defendant pulled his hand out of her blouse she testified, “I told him I was going to tell my mom. . . .” Defendant told his niece, ‘“Don’t say anything.”’ When asked why she failed to reveal defendant’s molestation as she threatened, his niece testified, “Because my Mom trusted him and I didn’t want her to like feel that way because she trusted him and he helped her.” After the incidents that occurred in Montebello, defendant told his niece, “‘Don’t say nothing because I’ll go to jail.’”
When defendant lived on Elliot Street, he also attempted to touch his niece and force her to have sex with him. Defendant attempted to touch her vagina with his hands. Defendant got on top of her. She ran out of the room and left the apartment with a friend.
Defendant later told her to falsely accuse a person identified as Teddy of raping her. Defendant did not want to be blamed for the rape. “Teddy” was defendant’s older niece’s boyfriend. Defendant’s niece moved out of his apartment in Montebello after her thirteenth birthday in July. Defendant’s niece’s mother argued with defendant. At one point defendant accused his niece’s mother of stealing a check. Defendant’s niece then revealed what he had done to her approximately three months later. Defendant’s niece spoke to the police sometime after that.
C. L.H. (Count 2)
L.H. was nine years old when she lived in the same apartment complex as defendant in September 2005. On September 1, 2005, L.H. was selling candy with a younger sister, X.H. L.H. knocked on defendant’s door. When defendant opened the door L.H. asked if he wanted to buy some candy which would help her soccer team. Defendant asked the two girls to come inside his apartment. L.H. and X.H. sat on defendant’s couch. L.H. and X.H. knew defendant’s young son. X.H. had visited defendant’s son at the apartment previously. Defendant’s son had also come to the apartment where X.H. resided in the past. When defendant went upstairs to get money, L.H. took off one of her shoes because her foot was itching. Defendant bent down and took her foot in her hand. Defendant began rubbing her leg up to her knee. Defendant told L.H., “‘You feel smooth and nice.’” Defendant also rubbed her foot and kissed it. Defendant then put her big toe in his mouth and began swirling his tongue around it for approximately 10 seconds. Only defendant’s son and baby were present in the apartment. L.H. testified what happened then: “My sister said, ‘Let’s go.’ And I said, ‘Okay.’ I said, ‘I have to go now.’ And when we were about to leave, we went at the door. And he said, ‘Promise don’t tell anybody.’ And I said, ‘Okay.’ And we went to my house, and my sister told my Mom.” L.H. felt disgusted and afraid when defendant was sucking on her toe.
D. Katrina G.
Katrina was 24 years old at the time of trial. When she was seven years old defendant began molesting her. Defendant was married to Katrina’s aunt who was identified only as Karen. Katrina and several other relatives resided with him. Defendant would “play wrestle” with Katrina. Defendant would pin Katrina down, and fondle her vaginal area over her clothing. Defendant moved his fingers around on Katrina’s vaginal area. Katrina was afraid. Defendant touched Katrina’s vaginal area on more than 20 occasions. On one occasion, defendant was sitting on a stool in an empty room. Defendant called Katrina to sit on his lap. Defendant placed Katrina in a straddling position facing him. Defendant rubbed Katrina’s vaginal area with his fingers. Katrina was afraid because no one else was present.
Defendant and Karen later moved to their own apartment in Montebello. Katrina stayed with them temporarily. Defendant came into Katrina’s room at night. Katrina was eight or nine years old. Defendant would attempt to unbuckle Katrina’s belt. Katrina told defendant to “‘stop’” and “‘go away’” but he continued to rub her vaginal area and attempt to unbuckle her belt. Defendant would eventually leave the room because Katrina’s brother and cousin were asleep there. Katrina was afraid to tell anyone about these incidents. However, on March 18, 1991, Katrina first revealed what defendant had done.
Soon thereafter, Katrina spoke to police officers about defendant’s acts of molestation. Police Officer John Saez investigated the incidents on March 18, 1991. Katrina told Officer Saez that defendant had done things to her. Katrina told Officer Saez that defendant would kiss her toes and lick her feet. Katrina also told Officer Saez that defendant would touch her “‘special thing.’” Katrina told Officer Saez that her “special thing” was her vagina.
III. DISCUSSION
A. Evidence of Prior Molestations
Defendant argues the trial court improperly admitted evidence of his 1993 conviction for violating section 288, subdivision (a), lewd acts upon a child, as well as testimony from Katrina. Defendant further argues that the admission of this evidence violated his federal due process rights. We disagree.
The prosecutor filed a pre-trial motion to admit as evidence prior alleged sex offenses and defendant’s 1993 section 288, subdivision (a) conviction pursuant to sections 1101, subdivision (b) and 1108. At the time the hearing on the motion took place, the prosecutor expressed an intent to introduce only evidence of defendant’s 1993 conviction and the uncharged 1991 molestations of Katrina. The prosecutor argued that the Evidence Code section 1108 evidence was admissible to support the credibility of defendant’s niece and L.H. The prosecutor further argued that pursuant to Evidence Code section 352 the evidence was more probative than prejudicial. The prosecutor further explained that the victim of defendant’s 1993 conviction was his nine-year-old daughter. In that case, defendant forcibly held the victim down, pulled her pants off, and forced his penis into her vagina. These circumstances were similar to defendant’s acts against defendant’s niece. In addition, Katrina was expected to testify that she was nine or ten years old when defendant touched her vagina and kissed and licked her toes. These facts were similar to the charges involving defendant kissing and licking the foot of L.H.
Evidence Code section 1101 provides in pertinent part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Evidence Code section 1108 subsection (a) provides in pertinent part: “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Citing Evidence Code sections 352 and 1108, the trial court found the aforementioned evidence admissible and granted the prosecutor’s motion. The trial court ruled that the proof of defendant’s prior 1993 conviction by use of court documents would “limit the prejudicial impact” of the incident. Regarding the evidence related to Katrina, the trial court ruled: “That does not appear to me to be inflammatory. I mean, obviously, it’s bad information anytime someone is - - someone is alleged to have done that. But in terms of the kind of 288s that a person might be able to commit, that, to me, is not one that is inflammatory in nature. Then looking at the relevance in the trial, we have, again, two victims - - alleged victims - - who are young children. . . . [¶] . . . [¶] So they’re definitely - - I mean, if the People have the evidence that they’re kids under the age of 14, and the prior incidents relate to the defendant’s conduct against kids under the age of 14, which shows that - - and I’m not saying any of this is true. But if it is true, it establishes a certain propensity on the part of the defendant to commit certain types of offenses against a certain class of people. So it appears to me to be highly relevant.”
The trial court also addressed defendant’s claim that the prior incidents were remote in time: “If you have an established pattern - - I’m not saying any of this is true, again, but if there is conduct happening in ’89 to ’91, then you have another one that happens in ’93, allegedly, then it’s not just one isolated incident that happened. [¶] And when it’s not isolated, then it appears to me that while there is time that elapsed in between the last incident - - 1993 conviction and now, that pattern, in my mind, is the factor that mitigates the issue of remoteness - - against remoteness. In other words, while it’s not a bridge, an absolute bridge making it not remote, I’m not saying it isn’t remote. In my mind, that pattern establishes relevance on the part of the defendant as to - - as it relates to his thought process, conduct, as it relates to children.” The trial court also ruled that Katrina’s testimony would not consume excessive time.
We review the trial court’s decision on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Alvarez (1996) 14 Cal.4th 155, 201.) In People v. Falsetta (1999) 21 Cal.4th 903, 911, the California Supreme Court held: “Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense.” (See also People v. Branch (2001) 91 Cal.App.4th 274, 281; People v. Frazier (2001) 89 Cal.App.4th 30, 40.) In People v. Abilez (2007) 41 Cal.4th 472, 501-502, the California Supreme Court reiterated: “‘Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.]” (People v. Abilez, supra, 41 Cal.4th at pp. 501-502, original italics, quoting People v. Falsetta, supra, 21 Cal.4th at p. 911.) In Falsetta, our Supreme Court clarified: “Under [Evidence Code] section 1108, courts will retain broad discretion to exclude disposition evidence if its prejudicial effect, including the impact that learning about defendant’s other sex offense makes on the jury, outweighs its probative value. (See, e.g., [People v.] Harris [(1998)] 60 Cal.App.4th [727,] 740-741 [reversing conviction]; [People v.] Fitch [(1997)] 55 Cal.App.4th [172,] 183.) We have no reason to assume . . . that ‘the prejudicial effect of a sex prior will rarely if ever outweigh its probative value to show disposition.’” (People v. Falsetta, supra, 21 Cal.4th at p. 919; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Lopez (Nov. 14, 2007, F050831) ___ Cal.App.4th ___, ___; People v. Walker (2006) 139 Cal.App.4th 782, 800.)
In this case, the trial court initially found that defendant’s prior sexual misconduct fell within the parameters of Evidence Code section 1108, subdivision (a). Thereafter, the trial court carefully examined: the nature of the prior offenses; their relevance to the instant charges; the remoteness in time to the present charges; the similarity of the offenses; the possible prejudicial impact on the jury; and other alternatives to the admission of the evidence. As noted, the trial court found the offenses and ages of victims similar, thereby establishing a propensity to engage in similar sexual acts with young girls. The trial court further found that although some time had elapsed between the last incident and the current offenses, the remoteness was mitigated by the pattern established regarding defendant’s thought processes and conduct toward children. The trial court ultimately ruled the probative value of the evidence substantially outweighed any prejudice. The evidence was admissible under both Evidence Code sections 1101, subdivision (b) and 1108. No abuse of discretion occurred.
Defendant argues the prior and present offenses were insufficiently similar to be admissible. However, as our colleagues in Division Seven of this appellate district held: “The . . . crimes need not be sufficiently similar that evidence of the [prior sex offenses] would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.” (People v. Frazier, supra, 89 Cal.App.4th at p. 41; see People v. Mullens (2004) 119 Cal.App.4th 648, 659.) The trial court could reasonably conclude: the circumstances of the crimes against defendant’s niece and his daughter were similar in nature, as were those against Katrina and L.H; this evidence established defendant’s pattern of conduct in his interaction with young girls; the evidence would not confuse the jury or involve an inordinate amount of time; and the prior offenses were not remote in time. The trial court could reasonably conclude the evidence was admissible.
Finally, defendant’s constitutional rights to due process and a fair trial were not violated by the admission of the prior sex offense evidence. In People v. Falsetta, supra, 21 Cal.4th at pages 912-922, our Supreme Court held that the admission of evidence regarding the defendant’s propensity to commit a sex offense under Evidence Code section 1108 does not violate his right to due process of law. (See People v. Reliford, supra, 29 Cal.4th at p. 1009.) Defendant argues that the trial court’s alleged abuse of discretion in determining pursuant to Evidence Code section 352 that the challenged evidence was admissible, is an ipso facto due process violation. In light of our determination that the trial court did not abuse its discretion, no due process violation resulted.
B. Defendant’s Self-representation Motion
Defendant argues that the trial court improperly denied his request to represent himself on the eve of trial. Defendant was initially represented by private counsel at the preliminary hearing. A deputy public defender was appointed to represent defendant at the arraignment after the preliminary hearing. On April 18, 2006, the deputy public defender declared a conflict of interest. An alternate deputy public defender was appointed to represent defendant. Thereafter, on June 7, 2006, the alternate deputy public defender stated a conflict of interest existed. Sandra Stillwater was then appointed to represent defendant. On September 20, 2006, defendant’s continuance motion was granted and September 25, 2006, was deemed to be day 8 of 10. On October 3, 2006, all parties announced ready for trial. The matter was transferred to Department 120, where defendant’s pretrial motions were heard. A jury panel of 65 prospective jurors were admonished and ordered to return on October 4, 2006.
On October 4, 2006, defendant made a substitution of counsel motion. Outside the presence of the prosecutor, defendant indicated that he wanted to change lawyers: “I just don’t feel I’ve been given a fair commitment from my attorney as far as working on my case. I was lied yesterday twice when I was out there. And I had the feeling yesterday - - like I said, I had a second thought last night - - I apologize to the court and to everybody that is working on this case, but I just feel that I’m not going to get a fair trial when it comes to investigating on my side. So far there is only one witness who’s going to come on my behalf. As far as that, I - - none of the people that I have given her to be interviewed has been done. I spoke to several people last night, and no one has even called them even to tell them that we’re going to go to trial.” Defendant also complained: the settlement offer was uncertain and confusing; he could not reach Ms. Stillwater by phone; and he had not spoken to her on the “19th” of an undisclosed motion. Defendant then acknowledged he spoke with Ms. Stillwater on October 3, 2006. Thereafter, Ms. Stillwater explained: she had contacted defendant’s proffered witnesses; the witnesses’ testimony was either irrelevant or they refused to testify; two of those witnesses had allegedly been accused of molesting a victim and would not testify; and the witnesses regarding defendant’s employment might serve to refute any alibi defense.
The trial court informed defendant that Ms. Stillwater was not “in charge of” the settlement offer. Moreover, the trial court participated in the settlement discussions regarding defendant’s possible guilty plea to the failure to register charge so as to prevent the jurors from hearing about his prior conviction. The trial court explained that the other “nuance” to such a plea is that the prior conviction might come before the jury pursuant to Evidence Code sections 1101, subdivision (b) and 1108. The trial court further found: “Concerning the investigation, based on what you’ve told me, I understand it appears that your investigator has investigated the case and that you have a strategy of defending the defendant. So I do not find substantial, impairment, which is your burden, [defendant]. You have to show me substantial impairment; it’s the law. . . [¶] And so, therefore, based on all of the foregoing, the Marsden request by the defense is respectfully denied.”
Thereafter, jury selection continued. Twelve jurors were selected. The matter was continued to the following day, October 5, 2006, for selection of alternate jurors. On October 5, 2006, defendant indicated that he wanted to represent himself. The trial court responded: “All right. Well, I’ll consider your request. It is no longer a matter of right. You have a right to represent yourself prior to trial. It’s an absolute right before trial but once trial has commenced, and we’ve selected a jury, then it is no longer a matter of right. But the Court has discretion to either deny or grant your request. Now, I’ll pull the case that applies to this so that I will have the right standards to apply. . . . [¶] People vs. Hamilton, this is 45 Cal.3d 351. It cites People vs. Quentin at 19 Cal.3d 121, which says, ‘We held that in order to invoke the constitutionally mandated unconditional right of self-representation, a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. [¶] ‘Accordingly, when a motion to go pro se timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so irrespective of how unwise such a choice might appear to be. [¶] Furthermore, the defendant’s technical legal knowledge is irrelevant to the court’s assessment of the defendant’s knowing exercise of a right to defend himself. [¶] ‘However, once a defendant has chosen to proceed to trial represented by counsel, the demands by such defendant that he be permitted to discharge his attorney, assume the defense himself, shall be addressed to the sound discretion of the court. [¶] ‘When such a mid-trial request for self-representation is presented, the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring the meaningful record in the event that appellate review is later required. [¶] ‘Among other factors to be considered by the court in assessing such request made after the commencement of trial are quality of counsel’s 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, which might reasonably be expected to follow the granting of such a motion.’”
The trial court then inquired why defendant made the self-representation request. Defendant responded: “[T]here is no appropriate communication between my attorney and I. There’s always been a dispute of who’s right and who’s wrong. There has been no time to sit down and really discuss about the case. There’s always ‘your fault,’ ‘my fault.’ ‘You’re not listening,’ ‘I’m not listening,’ just stuff like that. I mean, it’s interfering with our communication as far as the case. [¶] And as I quoted yesterday before that, I feel that I’m not given enough information in the support - - and the support that I need to get from the attorney. I’m not getting enough information of what the outcome of things are to be that were mentioned, motions to be done through the court, which has not been. And I’m talking about three months to go.” Defendant further stated: Ms. Stillwater had not filed a “Romero” motion as promised; his wife had gathered various documents that Ms. Stillwater had not verified; and he did not trust Ms. Stillwater to represent him well. Defendant indicated that he was not prepared to go forward with the trial. Defendant stated he needed “at least three days” to prepare.
The trial court indicated that defendant’s reasons for requesting pro se status related to the same issues that he raised at the substitution of counsel hearing the previous day. The trial court stated, “I do not believe that there is an issue of quality of counsel’s representations of the defendant.” The trial court further found that defendant’s changes in representation were not due to his actions. The trial court continued: “The length and stage of the proceedings is that we’re now in trial. A jury has been sworn. We’ve gone through now two days of jury selection. We are attempting to select the alternates. The trial is estimated to last an additional four or five days. We are well into the trial. The defendant indicates that he needs 30 days to be ready for trial. That would be disruptive of what we are doing at this time. We’ve spent time selecting a jury. A jury has been selected. And the delay, which might reasonably be expected to follow the making of such a motion by the defendant, appears to me at this time to be unreasonable. And for those reasons, the defendant’s request to represent himself in this trial is respectfully denied.”
3. Without abusing its discretion the trial court could properly deny defendant’s self-representation motion
A defendant has a federal constitutional self-representation right. (Faretta v. California (1975)422 U.S. 806, 835-836; People v. Koontz (2002) 27 Cal.4th 1041, 1069.) The California Supreme Court has held, “[I]n order to invoke the right he must assert it within a reasonable time before the commencement of trial.” (People v. Marshall (1996) 13 Cal.4th 799, 827; People v. Clark (1992) 3 Cal.4th 41, 98; People v. Burton (1989) 48 Cal.3d 843, 852; see also People v. Rudd (1998) 63 Cal.App.4th 620, 625.) Here defendant waited until 2 days of jury selection had occurred and 12 jurors had been selected to indicate he wanted to represent himself. In People v. Jenkins (2000) 22 Cal.4th 900, 959, our Supreme Court described a trial judge’s duties in assessing a belated self-representation request as follows: “In exercising this discretion, the trial court should consider factors such as ‘“the quality of counsel’s 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 which might reasonably be expected to follow the granting of such a motion.”’ (People v. Burton[, supra, ] 48 Cal.3d [at p.] 853 [], quoting People v. Windham (1977) 19 Cal.3d 121, 128 [].)” (See Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264-265; People v. Rudd, supra, 63 Cal.App.4th at pp. 627-268.) If it appears that the defendant’s self-representation request is merely a tactic designed to cause delay, the trial court has the discretion to deny the motion to proceed pro se. (Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888; United States v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674-675.) We review self-representation timeliness issues for an abuse of discretion. (People v. Clark, supra, 3 Cal.4th at p. 98; People v. Windham, supra, 19 Cal.3d at p. 128.)
The trial court did not abuse its discretion in denying defendant’s belated self-representation request. Defendant’s dilatory request came after the jury was selected and trial was due to commence as soon as alternate jurors were selected. The trial court found that the reasons for defendant’s tardy request were the same as voiced in connection with the substitution of counsel hearing the previous day. The reasons related to a disagreement between defendant and Ms. Stillwater as to how to best defend him. The trial court considered the time it would take for defendant to prepare for trial. Although the record reflects that defendant said he needed 3 days and the trial court indicated 30 days, either continuance would have been unreasonable in light of the hardship it would place on jurors and witnesses which included children. The trial court found that there was no issue as to the quality of representation by Ms. Stillwater. The trial court found that defendant’s self-representation would cause unreasonable disruption and delay. If granted, the trial court could reasonably conclude defendant’s pro se status would cause significant delays and thereby obstruct the fair and effective administration of justice. (United States v. Mackovich (10th Cir. 2000) 209 F.3d 1227, 1237; People v. Clark, supra, 3 Cal.4th at pp. 100-101.) No abuse of discretion occurred.
C. Sentencing
1. The trial court properly imposed consecutive sentences as to counts 1 and 3 to 7
Citing Blakely v. Washington (2004) 542 U.S. 296, 300, Apprendi v. New Jersey (2000) 530 U.S. 466, 490, United States v. Booker (2005) 543 U.S. 220, 230, and Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 860], defendant argues that the trial court improperly imposed consecutive sentences as to counts 1 and 3 through 7 because a jury did not find the aggravating factors relied upon to impose consecutive sentencing. In People v. Black (2007) 41 Cal.4th 799, 822-823, our Supreme Court held: “In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal.Rules of Court, rule 4.425(a), (b).) Factual findings are not required. . . . [¶] The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” We are bound by that decision. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, as the trial court explained, the consecutive sentencing scheme is mandated by section 667.6, subdivision (d).
2. The sentences imposed are neither cruel nor unusual
Defendant argues that his sentence is so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) More specifically, defendant argues that the 300-year-to-life indeterminate sentence plus a 9-year determinate term constitutes cruel and unusual punishment. Preliminarily, defendant’s failure to object on these grounds in the trial court constitutes a waiver of the issue on appeal. In the case of In re Seaton (2004) 34 Cal.4th 193, 197-198, our Supreme Court held: “Penal Code section 1259 provides: ‘Upon an appeal taken by the defendant, the appellate court may . . . review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.’ (Italics added.) Thus, as a general rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.]” (Ibid.; People v. Barnum (2003) 29 Cal.4th 1210, 1224, fn. 2; People v. Saunders (1993) 5 Cal.4th 580, 590.) The courts have long held that a defendant’s failure to object to a sentencing decision is not a jurisdictional error. (People v. Scott (1994) 9 Cal.4th 331, 355 [defendant’s claim that reasons used for sentencing were “inapplicable, duplicative, and improperly weighed” was waived]; People v. De Soto (1997) 54 Cal.App.4th 1, 7-8 [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing]; People v. Kelley (1997) 52 Cal.App.4th 568, 581-582 [failure to consider mitigating factors]; People v. Middleton (1997) 52 Cal.App.4th 19, 36-38, overruled on another point in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn 3 [defendant cannot object to enhancement for first time on appeal].)
Notwithstanding that waiver, we find the trial court could properly impose the 300-years to life plus 9 years sentence in compliance with state law. Defendant was sentenced in accordance with former section 667.61, subdivision (a), which provided in pertinent part: “Any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).” (Stats. 1998, ch. 936, §9.) A violation of section 288, subdivision (b) is specifically listed in section 667.61, subdivision (c)(4). In addition, the jury found true one of the circumstances listed in section 667.61, subdivision (d)(1) that defendant had previously been convicted of an offense specified in section 667.61, subdivision (a), namely, a violation of section 288, subdivision (a) as to counts 1, and 3 through 7. As a result, defendant was subject to a 25-year to life term as to those counts. In addition, the jurors found that defendant was previously convicted of a serious felony pursuant sections 667 and 1170.12. Sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1) provide in pertinent part, “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” Defendant does not argue that the trial court failed to sentence him according to the statutory demands. Rather, he contends the sentence, as applied to him, constitutes cruel “and/or” unusual punishment.
In the recent case of People v. Retanan (2007) 154 Cal.App.4th 1219, 1230, our colleagues in the Court of Appeal for the Third Appellate District ruled: “California courts repeatedly have upheld such lengthy prison sentences. (See, e.g. People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years and eight months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [upholding sentence of 129 years].)” (People v. Retanan, supra, 154 Cal.App.4th at p. 1231; see also People v. Estrada (1997) 57 Cal.App.4th 1270, 1277; People v. Crooks (1997)55 Cal.App.4th 797, 803-808.) Here, defendant was convicted of numerous sex crimes against his niece. Defendant repeatedly fondled his niece and raped her. Defendant told his niece not to tell anyone about the sexual misconduct. Defendant suggested a sister’s boyfriend be accused of the sexual activity if it were discovered. In addition, defendant sucked the toes of a visiting nine-year-old neighbor, L.H., and stroked her legs. This conduct was similar to his lewd acts with his niece, Katrina, some 16 years earlier. Most importantly, defendant had previously been convicted of lewd and lascivious conduct in charges involving his own daughter. Defendant’s sentence is not disproportionate to the offenses or as applied to him.
3. Court security fees
Following our request for further briefing, the Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the seven counts. We agree. Moreover, there is no merit to defendant’s ex post facto claim. (See People v. Alford (Dec. 3, 2007, S142508) ___ Cal.4th ___, ___; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one court security fee. As a result, six additional section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to impose the six additional Penal Code section 1465.8, subdivision (a) court security fees. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., MOSK, J.