Filed 12/23/19 P. v. Fawcett 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID LEE FAWCETT,

Defendant and Appellant.

C089012

(Super. Ct. No. 18F5121)

A jury found defendant David Lee Fawcett guilty of multiple sexual offenses against multiple children, and sustained an enhancement allegation that there were multiple victims. It could not reach a verdict as to counts 2 and 8, as to which the trial court declared a mistrial and granted the People’s motion to dismiss. The trial court imposed consecutive determinate terms on two counts, and consecutive indeterminate life terms on the remainder with minimum parole eligibilities of either 15 or 25 years.

On appeal, defendant contends trial counsel was ineffective in cross-examining the victims, resulting in a violation of his constitutional right to confrontation. He asserts in addition that trial counsel was ineffective in failing to move to exclude evidence that he said in interviews that he was willing to take a lie-detector test to establish his innocence. He challenges a portion of the prosecutor’s closing argument, to which he did not object at the time. Finally, he argues that a remand is necessary to determine his ability to pay the penal assessments imposed as part of his sentence. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Given the nature of defendant’s arguments on appeal, we do not need to relate any of the circumstances underlying his convictions because we are not called upon to assess prejudice in any respect. We therefore provide only an overview.

Two of the victims referred to defendant as an “uncle.” Their mother had known defendant for 20 years and considered him a best friend. He had a long-term relationship with the mother’s sister-in-law, and a son whom the nieces called “cousin.” The nieces went to school with the cousin and liked to visit him at defendant’s residence. The older niece was born in 2008 and was the victim charged in counts 4 through 7. Her younger sister was born in 2010, and was the victim charged in dismissed count 8. The third victim, also born in 2008, was the child of a woman whom defendant had dated; she and her mother lived with defendant in 2018. She was the victim charged in counts 1 and 3, and dismissed count 2. The fourth victim, born in 2007, lived in defendant’s apartment complex and was also friends with his son. She was the subject of count 9.

At trial, the older niece described incidents of defendant touching her vagina through clothing or directly, beginning when she was four years old and most recently during the summer before the 2018 trial. He also exposed himself to her (masturbating in her presence), and would ask her (unsuccessfully) to perform fellatio. He threatened her about telling anyone about these incidents. The younger niece could not recollect at trial any molestation incidents with defendant. The third victim testified defendant had touched her vagina and “butt” and exposed himself to her, as well as showing her pictures of naked people on his computer. He told her that she would get in trouble if she ever told anyone. The fourth victim testified defendant grabbed her by the vagina when he picked her up, and gave her ice cream if she would expose her vagina for him to photograph. Transcripts of police interviews with the four victims were admitted as court exhibits at trial.

DISCUSSION

1.0 On Direct Appeal, Defendant Cannot Establish Ineffective Assistance of Counsel for Allegedly Inadequate Cross-examination

Appellate counsel contends trial counsel engaged in what is characterized as perfunctory cross-examination of the complaining witnesses, in violation of defendant’s right to confrontation under the federal Constitution. This argument generally, and in light of the particular record, cannot hope to prevail on direct appeal.

A defendant must demonstrate as an initial element of a challenge to trial counsel’s performance that the contested actions or omissions fell below an objective standard of reasonableness according to prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 215-216.) Absent any explanation of trial counsel’s tactics, we affirm on direct appeal unless the conduct is unreasonable as a matter of law and relegate the claim of ineffective assistance to a petition for habeas corpus, at which time trial counsel can explain the tactical basis for it. (People v. Ervin (2000) 22 Cal.4th 48, 94; People v. Pope (1979) 23 Cal.3d 412, 425-426.) As the Supreme Court has noted, cross-examination is not usually a profitable basis for such claims on direct appeal. (People v. Cox (1991) 53 Cal.3d 618, 662.)

Notably, appellate counsel minimizes the nature of a discussion between trial counsel and the trial court regarding the tactics counsel would employ in cross-examining the child witnesses. Rather than risk alienating the jury in an attempt to discredit the child witnesses, trial counsel expressed his intention to reserve for closing argument any conflicts between their statements to law enforcement and their testimony at trial. Appellate counsel laments this commendable approach as an “abandon[ment]” of defendant’s right to confrontation. We disagree. The cross-examination of a child victim of molestation is a delicate matter. We cannot say that any reasonable attorney would have grilled these children on the stand about inconsistencies with their previous accounts. We therefore decline to find this amounted to ineffective assistance of counsel on direct appeal.

2.0 On Direct Appeal, Defendant Cannot Establish Ineffective Assistance of

Counsel for Failing to Object to His Willingness to Take a Polygraph Test

During two interviews with detectives, defendant twice expressed his willingness to take a polygraph test to support his assertion of his innocence of the accusations (the detective, however, expressing doubts that defendant could establish his truthfulness). Trial counsel did not object to this evidence even though he had never formally stipulated to its admission (see Evid. Code, § 351.1). Appellate counsel now contends that this amounted to ineffective legal assistance.

Again, for purposes of direct appeal the decision of whether to object to evidence as inadmissible rarely establishes ineffective legal assistance. (People v. Catlin (2001) 26 Cal.4th 81, 165.) There is an obvious tactical basis for failing to object to this evidence: it would bolster defendant’s claim that he was innocent and willing to cooperate with the detectives to establish it. The failure to object was simply a de facto stipulation toward this object of the defense. Consequently, the argument is without merit.

3.0 Defendant has Forfeited Challenges to the Prosecutor’s Closing Argument

and Cannot Establish Ineffective Assistance of Counsel for Failing to Object

Defendant argues that the prosecutor improperly appealed to the “passion and prejudice” of the jury in requesting sympathy for the young witnesses being forced to face their fears in telling strangers about embarrassing incidents that had happened to them. We are not convinced.

Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a “ritual[ized] incantation” to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant has not established futility on the present record, nor does he particularize the reasons why these statements could not have been the subject of an effective admonition.

Defendant’s attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than a perfunctory analysis of how the failure to object did not meet objective professional standards; “[t]his will not suffice.” (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis].) As a result, we will not countenance this exercise in second-guessing. If in fact trial counsel did not have any strategic basis for failing to object, defendant has a remedy in habeas corpus (if he can establish resulting prejudice).

4.0 Defendant is not Entitled to a Remand to Challenge the Imposed Fines

and Fees

As part of defendant’s sentence, the trial court ordered him to pay a $210 conviction assessment (Gov. Code, § 70373), a $280 court operations assessment (Pen. Code, § 1465.8), an aggregate fine as a sex offender of $1,170 pursuant to various statutes, and a $10,000 restitution fine (Pen. Code, § 1202.4). Although it is defendant’s burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp) review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen), review den. July 17, 2019, S255714), defendant neither objected to these fines generally nor asserted his inability to pay them, instead accepting them as listed in the probation report. The court did determine that given his prison sentence defendant was unable to pay his legal fees. (See Pen. Code, § 987.8, subd. (g)(2)(B) [presumption of inability to pay costs of defense when sentenced to state prison].)

Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210), defendant argues that the imposition of these financial costs without express consideration of his ability to pay is a violation of due process. The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds, unlike defendant. (Id. at pp. 1162-1163.) As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (People v. Johnson (2019) 35 Cal.App.5th 134, 137-138, review den. Aug. 14, 2019, S256281; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits the issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez), review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].) Defendant has thus forfeited our plenary review of this issue.

In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a post-conviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The post-conviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) “For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.” (Hicks, at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.

Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)

Therefore, given the forfeiture of any objection to the restitution fine under consistent authority and the absence of any valid claim under due process in connection with the remaining fees and fines, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay either. We therefore reject this argument.

DISPOSITION

The judgment is affirmed.

/s/

Butz, J.

We concur:

/s/

Raye, P. J.

/s/

Renner, J.