Filed 8/31/16 P. v. Sanders CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C078254

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F07555)

         v.

DERECK JERMAINE SANDERS,

                   Defendant and Appellant.




         This case involves the “roaming rapist” who victimized 10 women in Sacramento
between 1998 and 2003. The victims were between 14 and 42 years old. All were raped
outside their homes. Nine were kidnapped. Some were threatened with a gun.




                                                             1
       Defendant Dereck Jermaine Sanders was identified as the rapist when his DNA
(that was taken from McDonalds food wrappers he threw away) matched the DNA
samples taken from nine of the victims after they were raped.1
       A jury found defendant guilty of 28 felony crimes (some with gun enhancements)
related to these assaults on the 10 women, including rape, aggravated kidnapping
(kidnapping to commit rape), sexual penetration by a foreign object, and oral copulation.
The trial court sentenced him to a determinate term of 132 years in prison plus an
indeterminate term of 264 years to life in prison.
       Defendant appeals, raising issues relating to the statute of limitations, his motion
to substitute new counsel, his motion to represent himself, his new trial motion, gun
evidence, and sentencing. We agree with defendant that one of his rape convictions was
time-barred and that the court erred in imposing a sentence with a minimum parole
eligibility term on two of his aggravated kidnapping convictions. We therefore vacate
one of defendant’s rape convictions, modify defendant’s sentence, and affirm the
judgment as modified.
                                      DISCUSSION
                                              I
                 Defendant’s Conviction For Rape In Count Twenty-One
                      Must Be Vacated Because It Was Time-Barred
       Defendant contends (and the People agree) that one of his rape convictions (count
twenty-one) must be vacated as time-barred because the felony complaint was filed more
than 10 years after that crime was committed and there was insufficient evidence to apply
the tolling period. Defendant and the People are correct.




1      There was no DNA of the assailant recovered from one of the victims.

                                             2
       The statute of limitations for forcible rape is 10 years. (In re White (2008) 163
Cal.App.4th 1576, 1578-1580.) The forcible rape alleged in count twenty-one occurred
on March 21, 2002. The prosecution of defendant for this crime commenced when he
was arraigned on the felony complaint on November 13, 2012. (Pen. Code, § 804,
subd. (c).) Thus, the statute of limitations expired unless it was tolled due to a delay in
determining defendant’s identity as the perpetrator through DNA testing.
       Specifically, the statute of limitations may be tolled when a defendant’s identity is
being established by DNA testing. (Pen. Code, § 803, subd. (g).) In such a case, a
“criminal complaint may be filed within one year of the date on which the identity of the
suspect is conclusively established by DNA testing, if both of the following conditions
are met:” “(A) The crime is one that is described in subdivision (c) of Section 290” and
(B) for crimes committed after January 1, 2001, “biological evidence collected in
connection with the offense is analyzed for DNA type no later than two years from the
date of the offense.” (Pen. Code, § 803, subd. (g)(1)(B).)
       Here, the problem is a lack of evidence of when the rape evidence collected from
the victim of count twenty-one was first analyzed for the suspect’s DNA. At trial, the
prosecutor’s DNA expert testified she analyzed defendant’s DNA and the rape evidence
collected from the victim of count twenty-one on December 3, 2012. The criminal
complaint was filed about a month earlier, on November 9, 2012. There was no
testimony or other evidence about when those samples were first analyzed to obtain a
genetic profile of the perpetrator.2 Without such evidence, it could not be determined
whether the samples were first analyzed from two years from the date of the offense, as




2       Notably, in a motion to dismiss this count, defense counsel argued that the DNA
profile was available on November 24, 2004. The prosecutor never challenged this point
in his opposition to the motion.

                                              3
required by Penal Codes section 803. We therefore must vacate defendant’s conviction
of count twenty-one, which reduces his determinate sentence by eight years.
                                              II
  The Trial Court Acted Within Its Discretion In Denying Defendant’s Marsden Motion
 Regarding Substitution Of New Counsel And His Faretta Motion To Represent Himself,
          And In Refusing To Allow Defendant To File A Motion For New Trial
       When the sentencing hearing began, defendant said he wanted a new lawyer to file
a motion for new trial based on ineffective assistance of counsel, but he was willing to
represent himself, if necessary, to file the new trial motion. Defendant added he would
need a continuance to file a new trial motion. The trial court then held an in camera
hearing to determine if substitute counsel should be appointed to file a new trial motion.
At the in camera hearing, defendant explained his dissatisfaction with counsel and
counsel responded. (People v. Marsden (1970) 2 Cal.3d 118.) Finding no grounds for a
new trial, the trial court denied the motion for new counsel (Marsden motion), the motion
for defendant to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d
562]), and refused to allow defendant to file a motion for new trail.
       Defendant now contends the trial court abused its discretion in: (a) denying his
motion for new counsel; (b) denying his request to represent himself; and (c) denying him
the right to file a motion for new trial. We disagree, as explained below.
                                              A
                  The Trial Court Acted Within Its Discretion In Denying
              The Marsden Motion Regarding Substitution Of New Counsel
       “ ‘A defendant “may be entitled to an order substituting appointed counsel if he
shows that, in its absence, his Sixth Amendment right to the assistance of counsel would
be denied or substantially impaired.” ’ ” (People v. Jackson (2009) 45 Cal.4th 662, 682.)
“Where a defendant requests the substitution of new counsel after trial in order to assist
in the preparation of a motion for new trial based on the inadequacy of trial counsel, . . .

                                              4
the trial judge [must] elicit from the defendant . . . the reasons he believes he was
inadequately represented at trial.” (People v. Stewart (1985) 171 Cal.App.3d 388, 395,
disapproved on another point in People v. Smith (1993) 6 Cal.4th 684, 693-694.) “ ‘If the
claim is based upon acts or omissions that occurred at trial or the effect of which may be
evaluated by what occurred at trial the court may rule on the motion for new trial without
substituting new counsel.’ ” (People v. Reed (2010) 183 Cal.App.4th 1137, 1144.)
       The denial of a Marsden motion is reviewed for abuse of discretion. (People v.
Earp (1999) 20 Cal.4th 826, 876.) Here, as we explain below, at the in camera hearing
on whether to appoint substitute counsel to file a motion for new trial based on
ineffective assistance of trial counsel David Bonilla, the trial court made the appropriate
inquiry of defendant and Bonilla and then the appropriate findings, which demonstrate
the court acted within its discretion to deny the motion to substitute counsel.
       Specifically, the court asked defendant how Bonilla had been deficient, and
defendant identified four alleged deficiencies: (1) Bonilla did not admit photographic
evidence of the cars involved in the rapes, which would have shown that the cars were
not defendant’s; (2) Bonilla was not present when the jury returned its verdict, so Bonilla
was unable to talk with jurors to determine if there was any juror misconduct; (3) Bonilla
did not give defendant all the discovery in his case; and (4) Bonilla did not introduce into
evidence all the composite sketches that were generated based on the victims’
descriptions of their assailant.
       The court then asked Bonilla to respond, and he did as follows: (1) the car
evidence would have highlighted to the jury that defendant did have certain cars in his
possession that matched the victims’ descriptions of the cars used by their assailant;
(2) Bonilla was absent when the verdict was read because of a dentist appointment, but he
had his cocounsel sit in his place (who had a lot of experience with life cases) and there
was nothing Bonilla saw, learned or became aware of that would have lead him to believe
there was juror misconduct; (3) Bonilla let defendant look at all the discovery in jail but

                                              5
did not let defendant keep it in jail because his case involved sex offenses and Bonilla
feared inmate retaliation; and (4) as to the sketches that did not look like defendant,
Bonilla pointed that out on cross-examination.
       The court then found Bonilla had “more than met his constitutional and legal
responsibilities,” and denied the Marsden motion to substitute counsel to file a new trial
motion alleging ineffective assistance. The record supports the trial court’s implied
finding that Bonilla’s representation was not deficient: Bonilla gave reasonable, tactical
justifications for his trial strategy and had competent cocounsel available when he was
not present. The trial court was therefore within its discretion to deny defendant’s motion
to appoint substitute counsel to file a new trial motion.
                                              B
                  The Trial Court Acted Within Its Discretion In Denying
                    Defendant’s Faretta Motion To Represent Himself
       A criminal defendant’s request to represent himself (a Faretta motion) made after
he “has chosen to proceed to trial represented by counsel” is “addressed to the sound
discretion of the [trial] court.” (People v. Windham (1977) 19 Cal.3d 121, 128.) A
request is untimely when it is made on the day set for sentencing. (People v. Miller
(2007) 153 Cal.App.4th 1015, 1024.) When confronted with an untimely Faretta motion,
the trial court must inquire into the specific factors underlying the request for self-
representation unless the record clearly reflects the basis for denial of such request.
(People v. Perez (1992) 4 Cal.App.4th 893, 905.)
       Here, the record clearly reflects the basis for denial of defendant’s Faretta motion,
and that denial was well within the court’s discretion. Defendant’s request to represent
himself was made as a fallback to his request for appointment of substitute counsel to file
a motion for new trial based on ineffective assistance. Before asking to represent
himself, defendant told the trial court he would need a continuance to file a motion for
new trial. When the court asked what he would put in a motion for new trial if he were to

                                              6
write it himself, defendant said he did not know what he had in mind as the legal basis for
the motion and he would have to study the transcripts. Thus, the trial court realized that
granting defendant’s Faretta request would require a continuance on top of an earlier
continuance of the sentencing hearing that defendant had previously requested and had
been granted. And given that defendant was unable to point to any viable grounds for a
new trial motion during the Marsden hearing to appoint new counsel, the court also could
have reasonably concluded that there would be no point to continuing the sentencing
hearing for defendant to represent himself to file a new trial motion.
       Where a defendant’s request to represent himself is untimely and he has no factual
basis for his new trial motion or any indication of the specific evidence he expects to find
if granted a continuance to file a motion for new trial, the trial court acts within its
discretion to deny defendant’s Faretta motion for self-representation. (People v. Doolin
(2009) 45 Cal.4th 390, 454-455.)
                                               C
                  The Trial Court Acted Within Its Discretion In Refusing
                   To Allow Defendant To File A Motion For New Trial
        Defendant contends the trial court erred in refusing to allow him to file a motion
for new trial after labeling it untimely. Defendant is wrong for two reasons, which we
will explain in detail below. One, defendant was represented by counsel at the time and
counsel said he did not see any basis for filing such a motion. And two, there was no
prejudice in failing to allow defendant to file such a motion.
       As to the first reason, when a criminal defendant is represented by counsel, all
motions and briefs must be filed by counsel (except matters related to representation,
such as a Marsden motion to appoint new counsel). (People v. Clark (1992) 3 Cal.4th 41,
173.) Defendant was represented by counsel when he said he wanted to file his motion
for new trial. Upon learning that defendant also wanted either new counsel or to



                                               7
represent himself, the court promptly commenced a hearing to determine whether
defendant’s counsel should be replaced. Nothing more was required.
       As to the second reason, there was no prejudice from the court’s refusal to allow
defendant to file a new trial motion. (See People v. Braxton (2004) 34 Cal.4th 798, 816
[a court’s refusal to hear a new trial motion is subject to the harmless error provision of
the California Constitution].) When defendant detailed his dissatisfaction with counsel,
which was the basis for him wanting to file his new trial motion, the trial court fully
considered those reasons and found no deficient performance, as we have explained in
part IIA of the Discussion above.
                                             III
              The Court Was Within Its Discretion To Admit Evidence About
               Defendant’s Possession Of A Black Semiautomatic Handgun
       Over defense objection, the trial court admitted what amounted to one page of
testimony from defendant’s long-time friend about defendant’s possible gun possession.
Specifically, defendant’s friend testified that between 2001 and 2003 in Sacramento, he
thought he saw defendant possess what appeared to be a black semiautomatic handgun,
although it could have been a fake or a BB gun.
       On appeal, defendant contends admission of this evidence was irrelevant and
unduly prejudicial, in violation of state law and also amounted to a federal due process
violation. Not so on all accounts.
       The trial court did not abuse its discretion in allowing defendant’s friend to testify
he saw defendant with what looked like a black semiautomatic handgun in Sacramento
sometime between 2001 and 2003. That timeframe was within a few years of the assault
that took place on two of the victims (in July 1998) in which both of those victims
described their assailant as possessing a black or partially black semiautomatic gun. It
was even closer to the November 2000 assault of another victim here who testified that
when her assailant approached her, he said he had a gun and would shoot her if she

                                              8
screamed. While the testimony from defendant’s friend about defendant’s possession of
a black semiautomatic gun did not conclusively establish that it was the gun used during
these sexual assaults, it had some tendency in reason to do so. (Evid. Code, § 210.)
       Against this backdrop, the evidence was minimally prejudicial. The trial court
prohibited defendant’s friend from describing the circumstances of defendant’s
possession (namely, that he brandished the gun), while also allowing him to testify the
gun may have been a BB gun or even a fake.
       For similar reasons, admission of the gun evidence by defendant’s friend did not
violate defendant’s federal due process right to a fair trial. Defendant contends this
evidence painted him as an “ ‘antisocial individual of generally bad character, an immoral
person unworthy of the jury’s belief or consideration.’ ” Not so. Possessing a
semiautomatic handgun is not illegal, and defendant’s friend did not testify that defendant
possessed it for any illicit purpose. He even testified it might have been a fake or a BB
gun. Given the friend’s limited testimony and the fact the evidence was relevant because
it had some tendency in reason to prove that defendant committed the assaults with the
gun his friend saw him possess and was not prejudicial, admission of the evidence did not
violate defendant’s due process right to a fair trial.
                                              IV
 Defendant’s Punishment For Two Of His Convictions For Kidnapping To Commit Rape
        Is Life With The Possibility Of Parole, Not Seven Years To Life In Prison
       Defendant contends the court should have given him two life terms for two of his
convictions for kidnapping for the purpose of rape in counts twenty-two and twenty-
seven, instead of two terms of seven years to life. Defendant is correct. The punishment
for kidnapping is “imprisonment in the state prison for life.” (Pen. Code, § 209,
subd. (b)(1).) Defendant’s sentence and the abstract of judgment on counts twenty-two
and twenty-seven must be corrected to reflect this.



                                               9
                                      DISPOSITION
       Defendant’s conviction for count twenty-one is vacated along with his resulting
eight-year determinate sentence.
       Defendant’s sentences for counts twenty-two and twenty-seven are modified to
life imprisonment instead of seven years to life.
       As modified, the judgment is affirmed.
       Consistent with these modifications, the trial court is directed to modify the
abstract of judgment and “attachment page” in the following ways: (1) delete count
twenty-one from box 1 on the “attachment page” of the abstract of judgment; (2) reduce
the punishment from 40 years to 32 years in box 4 on the “attachment page” of the
abstract of judgment; (3) delete the “X” on box 6c of page 1 on the indeterminate abstract
of judgment, which is filled in as “7 years to Life on counts 22,27”; (4) put an “X” by
box 5, which states “LIFE WITH THE POSSIBILITY OF PAROLE on counts __” and
fill in “22,27” on the blank line.
       The trial court is also directed to forward a copy of the modified abstract of
judgment and “attachment page” to the California Department of Corrections and
Rehabilitation.


                                                    /s/
                                                    Robie, J.

We concur:



/s/
Hull, Acting P. J.



/s/
Hoch, J.

                                             10
