People v. Whitmore

80 Cal.App.5th 116

295 Cal.Rptr.3d 461

The PEOPLE, Plaintiff and Respondent,

v.Christopher Lee WHITMORE, Defendant and Appellant.

G059779

Court of Appeal, Fourth District, Division 3, California.

Filed June 22, 2022

Robert V. Vallandigham, Jr., Sausalito, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOETHALS, J.

A jury convicted appellant Christopher Whitmore of rape, false imprisonment, and other crimes. After trial, Whitmore made a motion under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 ( Marsden ) to replace his appointed counsel; he also moved for a new trial. Because of circumstances related to the ongoing COVID-19 pandemic, Whitmore was not physically present in the courtroom when the trial court heard those motions in late December 2020; instead, Whitmore reluctantly appeared via video for the hearing and at sentencing. The court denied Whitmore's motions and sentenced him to 10 years in prison.

Whitmore contends the trial court erred in overruling his demand to be personally present in the courtroom for the hearing on his posttrial motions and at sentencing. He also contends that the court abused its discretion in denying his Marsden motion, and that insufficient evidence supports his conviction for false imprisonment. In our original opinion, filed on April 29, 2022, we found no reversible error and therefore affirmed the judgment.

Whitmore filed a petition for rehearing. Among other things, he argued that while his appeal was pending, the Legislature amended Penal Code ¹ section 1170, subdivision (b), to make the middle term the presumptive sentence unless certain circumstances exist. Whitmore contended those amendments apply retroactively to him and require remand for resentencing.

We granted rehearing, which vacated our opinion by operation of law. After considering the matter, we agree with Whitmore that the recent amendments to section 1170, subdivision (b), apply here. Accordingly, we vacate the imposed sentence and remand the matter for resentencing. In all other respects, the judgment is affirmed.

FACTS

Whitmore and P.S. began having sex when P.S. was about 15 years old. Whitmore rented a room in P.S.’s mother's house. He told P.S. he was 28 years old, when he was instead closer to 40. During their relationship, Whitmore verbally abused P.S. and berated her if she talked to other men. P.S. wanted to end things with Whitmore, but she was afraid to do so because they lived under the same roof.

After P.S. turned 18, she asked that her mother order Whitmore to leave their house; her mother did, and Whitmore moved out. P.S. and her mother then reported Whitmore to law enforcement. Whitmore was arrested and ultimately convicted of having unlawful sexual intercourse with a minor.

After reporting Whitmore to the police, P.S. learned he had impregnated her. When P.S. decided to have the baby, her mother forced her to leave their house. Feeling as though she had nowhere else to go, P.S. returned to Whitmore, who then persuaded P.S. to have his restraining order modified to allow for peaceful contact.

Their relationship soon became violent. On one occasion in December 2018, Whitmore punched P.S. in the face, twisted her arm as if to break it, and then disappeared with their infant son for a week. The following month, after having a disagreement about custody, Whitmore punched P.S. in the stomach and on her legs.

P.S. eventually broke up with Whitmore and refused to talk with him about her personal life. He nevertheless continued to make repeated unwanted sexual advances toward her and tried to find out who she was dating.

In early 2020, Whitmore invited P.S. on a family trip to Disneyland to celebrate their son's second birthday. P.S. accepted the invitation but rejected Whitmore's suggestion that they act as if they were still a couple.

Whitmore drove P.S. and their son from Northern California to Anaheim, where Whitmore and his other family members had rented hotel rooms. P.S. felt uncomfortable sleeping in the same room with Whitmore, so she made plans to spend the night with a male friend.

Later that evening when they were in the hotel room with their son, P.S. told Whitmore that she would not stay in the hotel room with him. Whitmore tried to convince her to stay. P.S. was afraid Whitmore might hurt her, given that he had assaulted her in the past. His size and strength also intimidated her. Whitmore weighed over 200 pounds, was stronger than P.S., and was about six inches taller than her. When P.S. tried to leave, Whitmore stood between her and the hotel room door, forcefully snatched her cellphone from her hand, and pushed her away from the door. All the while, their son was sleeping in one of the beds in the room.

P.S. convinced Whitmore to return her phone so she could cancel an Uber. She then texted the man she had planned to spend the night with, " ‘I'm sorry but I can't go. My BD [baby daddy] is going to put his hands on me if I leave.’ "

As P.S. was sending another text, Whitmore approached her from behind; he hovered over her shoulder and snatched the phone away from her again, commenting, " ‘It didn't [look] like you were cancelling an Uber.’ " Whitmore then took P.S.’s phone out of its case, threw the phone case at P.S., and hid the phone in his suitcase.

When Whitmore took a shower, P.S. did not try to leave the hotel room because Whitmore could see her from the bathroom. At one point, Whitmore stepped out to check on her. After his shower, Whitmore started yelling at P.S., calling her a bitch, a prostitute, and disgusting. He told her to stop playing the victim and added that she would have to "fuck" him to get her phone back. This went on for about 20 minutes. P.S. did not try to leave, as she was afraid Whitmore would either prevent her from leaving, or from seeing their son if she left.

After Whitmore fell asleep, P.S. tried to use the hotel phone to call for help, but the phone made a loud dial tone, so she hung up. She also tried to unlatch the door, but that made a loud noise as well. P.S. searched Whitmore's belongings for her phone without success. She eventually got into bed with their son and fell asleep.

Later that night, Whitmore woke P.S., pulled her into his bed, and repeatedly raped, sodomized, and orally copulated her, despite her verbal and physical resistance. At one point, he raised his hand as if to hit her, but then said, "You know what, I'm not going to leave any bruises on you for you to show anyone else."

The next morning, P.S. dressed and told Whitmore she was going downstairs to smoke marijuana. While in the hotel lobby, P.S. gave a note to a hotel employee that read, "Can you please, please call the police to room 326. I am in there with my son and his father, Christopher Whitmore, who took my phone and raped me. Please tell them to hurry. It's an emergency."

When the police arrived, they found P.S.’s phone in Whitmore's briefcase, and they discovered condoms containing Whitmore's and P.S.’s DNA in a trashcan in the hotel ice machine room. A sexual assault exam also uncovered Whitmore's DNA on P.S.’s vulva.

A jury convicted Whitmore of rape, sodomy by force, forcible oral copulation, false imprisonment, and violation of a protective order. After trial, Whitmore made a Marsden motion to replace his appointed counsel, and he moved for a new trial. Because of circumstances related to the COVID-19 pandemic, Whitmore was not physically present in the courtroom when the trial court heard those motions, but rather appeared virtually for those hearings and at sentencing.

The trial court denied Whitmore's motions and sentenced him to 10 years in prison. Whitmore timely appealed.

DISCUSSION

1. Whitmore's Virtual Appearance at the Hearings and Sentencing

Whitmore first contends the trial court erred in overruling his demand to be personally present in the courtroom for the hearings on his posttrial Marsden motion, his motion for new trial, and sentencing. Before addressing his arguments, we summarize the proceedings below.

a. Background

After trial, Whitmore made a Marsden motion to replace his appointed counsel; he also moved for a new trial, asserting P.S.’s testimony was unreliable and inconsistent. The hearing was set for December 17, 2020, but the trial court did not conduct the hearing that day as planned because Whitmore was neither present in the courtroom nor available for an electronic appearance. The court noted the jail where Whitmore was being held was on total lockdown until December 27 due to a spike in COVID-19 cases, and the jail staff were unable to move Whitmore to a private room in the jail to allow him to argue his Marsden motion in a confidential setting.

Because Whitmore could not be present, either in person or virtually, the trial court suggested postponing the hearing to December 29, by which time the lockdown was expected to be lifted. Defense counsel conveyed to the court that Whitmore wanted to be present for the proceedings. The court replied it was not sure a virtual appearance would violate Whitmore's rights but agreed to revisit the issue. The judge reminded counsel he was retiring on December 31. He expressed concern that if they did not conduct the hearing before then, the new judge would be at an "extreme disadvantage" in ruling on Whitmore's motions, especially on the new trial motion dealing with credibility issues.

When the case was called again on December 29, the jail lockdown due to COVID-19 had been extended through January 14, 2021, so Whitmore appeared by videoconference from a private room in the jail. Defense counsel reminded the trial court that Whitmore did not consent to appear by video, that he specifically requested to be physically present in the courtroom, and that...