People v. Thompson CA2/5 ( 2021 )

Filed 2/22/21 P. v. Thompson CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300425
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459703)
v.
GERALD PIERRE THOMPSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and David E.
Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted Gerald Thompson of sexually abusing his
stepdaughter, T.G., and his friend’s daughter, Z.W. On appeal,
he contends (1) the trial court erred in denying his request to
represent himself, (2) the evidence was insufficient to support his
convictions on counts 2 and 3 for committing lewd acts on a child,
(3) the court prejudicially erred in instructing the jury that the
continuous sexual abuse of a child is a general intent crime,
(4) the court prejudicially erred in failing to orally instruct the
jury with CALCRIM No. 252, (5) the court prejudicially erred in
misreading CALCRIM No. 351 to the jury and failing to provide
the written instruction, and (6) the court violated appellant’s
constitutional rights in imposing fines and fees without holding a
hearing on his ability to pay. We reject these contentions and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Appellant was charged with the continuous sexual abuse of
stepdaughter when she was under 14 years old (Pen. Code,
§ 288.5, subd. (a) (288.5(a)); count 1),1 a lewd act upon
stepdaughter when she was 14 years old (§ 288, subd. (c)(1);
count 2), a lewd act upon stepdaughter when she was 15 years
old (§ 288, subd. (c)(1); count 3), and the continuous sexual abuse
of Z.W. when she was under 14 years old (§ 288.5(a); count 4). In
counts 1, 2 and 4, the information alleged the special
circumstance that appellant committed a qualifying sexual
offense against more than one victim (§ 667.61, subd. (a)). The
prosecution also alleged as to all counts that appellant suffered a
1 All further statutory references are to the Penal Code.
2
prior robbery conviction that operated as a second strike (§§ 667,
subds. (b)–(j)/1170.12, subds. (b)–(e)(1)).
2. Stepdaughter’s Testimony
Stepdaughter testified at trial that appellant was her
mother’s boyfriend and she regarded him as her stepfather. In
2007, when stepdaughter turned 11 years old, appellant began
sexually molesting her. The first incident occurred when
appellant got into bed with her one morning and rubbed her
breasts, vagina and buttocks over her clothes. He touched
stepdaughter again in the same way one more time during her
11th year.
At some point appellant began touching stepdaughter
under her clothing, and touched her breasts, vagina and buttocks
with his hands and mouth. She recalled one incident when she
was 11 or 12 years old. Appellant paid her to massage his feet
then guided her hand under his clothes to his penis.
Stepdaughter testified that appellant made her rub his penis
more than 10 times, and that he ejaculated three or four times.
Once he ejaculated on the staircase in their apartment, and
another time in the living room.
Stepdaughter testified that he touched her in a “sexual
way” approximately every other day from age 11 through age 14.
When she was 15 years old, the frequency of the molestation was
“probably like the same.” He stopped touching her when she was
“around 16” and she avoided coming home. In 2017, when
stepdaughter was in college, she told her mother about
appellant’s sexual abuse.
Stepdaughter and her mother decided to secretly record
conversations between stepdaughter and appellant in order to
obtain incriminating statements from him. Two recordings were
3
played for the jury in which stepdaughter confronted appellant
with the sexual abuse, and he apologized and blamed his
behavior on his own childhood sexual abuse. The day after the
second recording, she gave both recordings to the police.
Even though their fathers were friends, stepdaughter and
Z.W. did not know each other.
3. Z.W.’s Testimony
Z.W. also testified at trial. Appellant’s best friend was
Z.W.’s father. In 2011, when Z.W. was 12 years old, appellant
came to her home and, while she was washing dishes, grabbed
her breasts and tried to put his hands in her pants. She pushed
him away. Several months later, Z.W.’s family was evicted from
their apartment, and appellant allowed them to move into his
apartment.
Appellant molested Z.W. a second time when she was living
in his apartment. He came into her bedroom and touched her
vagina, penetrating it with his fingers. He digitally penetrated
her on two other occasions. Another time, appellant put Z.W.’s
hands on his penis. Appellant tried to sexually abuse her on
other occasions but she fought back, hitting him and pushing him
away. In 2012, Z.W. told her mother about the abuse, and her
mother reported appellant to the police.
Appellant was arrested but released a few days later.
4. Appellant’s Statements While in Custody
Defendant was arrested again in 2017, this time in
connection with sexually abusing stepdaughter. He waived his
rights and agreed to speak with the police officers. The recording
and transcript of the interrogation was entered into evidence. In
his interrogation, appellant denied touching stepdaughter in a
sexual way, but claimed she had rubbed her body against him
4
and indicated that she wanted to have sex with him.
Stepdaughter put appellant’s hands on her body. She sometimes
massaged his feet while he was asleep and in doing so may have
touched his penis.
Later that day, and while still in custody, appellant spoke
to his mother on the phone. The call was recorded. He told his
mother he was going to get blamed for “something bad [he] did
not initiate.” He said stepdaughter was “kind of foul . . . but
being that I’m the adult I did it.” Stepdaughter “was growing
up[,] sexually active, whatever. Doing – trying – just coming in
my room.” “I did fuck up, but – and I should have known better.”
5. Verdict and Sentence
The jury found appellant guilty of all charges and the
special circumstances true. Appellant admitted the prior strike
allegation. The court imposed 25-year-to-life terms on each of
counts 1 (stepdaughter) and 4 (Z.W.), the two continuous sexual
abuse charges, plus a three-year term on count 2, and the
midterm of eight months on count 3, for individual lewd acts on
stepdaughter. All terms were doubled under the Three Strikes
law, and imposed consecutively. Appellant’s total sentence was
100 years to life plus seven years and four months. He timely
appealed.
DISCUSSION
1. The Trial Court Did Not Err in Denying Appellant’s
Request to Represent Himself
Appellant contends the trial court abused its discretion
when, just as voir dire was to begin, the court denied his request
for self-representation. He acknowledges the request was
untimely, but argues the court abused its discretion in denying
5
the request without making an adequate inquiry. We find no
abuse of discretion.
At the outset of jury selection, defense counsel stated that
appellant wanted to address the court about self-representation.
The court responded that the request was untimely, and asked
appellant if he wanted to “go pro[.] per[.], right now.” Defense
counsel responded that appellant did not want to “start right
now.” The court stated “there’s no other option . . . there’s no
continuance,” and that appellant had “a very good attorney.”
Appellant agreed, but asserted there were “still some things” he
needed to “take care of and explore.” The court asked appellant if
he understood that the court would not continue the matter, and
appellant responded, “yes.” The court then proceeded to call in a
prospective jury panel.
A criminal defendant has a Sixth Amendment right to
represent himself at trial. (People v. Williams (2013) 58 Cal.4th
197, 252.) “ ‘A trial court must grant a defendant’s request for
self-representation if the defendant knowingly and intelligently
makes an unequivocal and timely request after having been
apprised of its dangers.’ [Citations.]” (Id. at pp. 252–253.) “[A]
Faretta[2] motion is timely if it is made ‘within a reasonable time
prior to the commencement of trial.’ [Citation.]” (People v.
Johnson (2019) 8 Cal.5th 475, 499.)
If a Faretta motion is not timely, “self-representation no
longer is a matter of right but is subject to the trial court’s
discretion.” (People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
“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,
2 Faretta v. California (1975) 422 U.S. 806.
6
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.” ’
[Citations.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959.)
Appellant’s request was untimely. (See People v. Johnson,
supra, 8 Cal. 5th at p. 499 [“ ‘[W]e have held on numerous
occasions that Faretta motions made on the eve of trial are
untimely’ ”]; People v. Valdez (2004) 32 Cal.4th 73, 102 [a Faretta
motion made “moments before jury selection was set to begin”
deemed untimely].) Appellant sought self-representation
immediately before voir dire, after the case had been pending for
18 months.3 Appellant also acknowledged that he was not ready
to proceed that day, and the trial court declined to grant a
continuance. Appellant provided no reasonable cause for the
lateness of his request. (See People v. Horton (1995) 11 Cal.4th
1068, 1110 [“If the motion is untimely . . . the defendant has the
burden of justifying the delay”].)
Appellant argues that even if the request appeared
untimely, the trial court failed to make an adequate inquiry.
“When such a midtrial request for self-representation is
presented the trial court shall inquire sua sponte into the specific
factors underlying the request thereby ensuring a meaningful
record in the event that appellate review is later required.”
(People v. Windham (1977) 19 Cal.3d 121, 128–129.) Here, the
trial court inquired as to whether appellant was ready to proceed
3 On appeal, appellant mentions that his counsel told the
court at the Faretta hearing that appellant had previously tried
to make a Faretta request in Department 100. The prior request
is not in the record, and we cannot evaluate it merely on counsel’s
assertion.
7
immediately without counsel, and appellant indicated he was not.
The trial court then asked appellant if he understood he would
not be granted a continuance. Appellant said he understood the
court’s comments, indicated that he had no quarrels with
counsel’s representation, and then said only that he needed to
“explore” “things.” The court stated that appellant had “a very
good attorney.”
“Among other factors to be considered by the court in
assessing such requests made after the commencement of trial
are the quality of counsel’s representation of the appellant . . . 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.” (Windham, supra,
19 Cal.3d at p. 129; see also People v. Lynch (2010) 50 Cal.4th
693, 722, 726 abrogated on another ground by People v.
McKinnon (2011) 52 Cal.4th 610 [describing additional factors].)
In addition to the factors the court described on the record,
other considerations were self-evident: the case had been
pending for 18 months, jury selection was imminent and
prospective jurors had been called, and appellant did not provide
a meaningful explanation for why he needed a continuance.4 The
record we have just described shows the court did not abuse its
discretion in denying the Faretta request.
4 Appellant did tell the trial court that there were “still some
things” he needed to “take care of and explore.” He did not make
an offer of proof in the trial court; nor does he tell us on appeal
what those things were.
8
2. Substantial Evidence Supports the Convictions for
Lewd Acts Upon a Child in Counts 2 and 3
Appellant contends there was insufficient evidence to
support his convictions for lewd or lascivious acts (§ 288,
subd. (c)(1)) against stepdaughter when she was 14 and 15 years
old respectively (counts 2 and 3).5 He argues that stepdaughter’s
testimony did not adequately support these convictions because
she did not testify in sufficient detail about specific acts that
occurred when she was 14 and 15 years old. Instead,
stepdaughter only testified that the frequency of the abuse when
she was age 14 was “the same” as when she was 12 and 13 years
old, and was “probably like the same” when she was age 15.
Stepdaughter’s entire testimony about the individual acts
of sexual abuse alleged in counts 2 and 3 was:
“[Prosecutor]: How often did he touch you in this sexual
way when you were 11 years old?
“[Stepdaughter]: As often as he could . . . .
“[Prosecutor]: Can you tell us, and you can approximate,
how many times a month he would touch you in this
manner?
“[Stepdaughter]: No.
“[Prosecutor]: Okay. Would you say it was every single
day?
“[Stepdaughter]: Maybe like every other day.
“[Prosecutor]: Okay. Now, let’s go to when you were 12
years old. Did he continue to touch you in this manner?
“[Stepdaughter]: Yes.
5 Appellant does not make a substantial evidence argument
as to counts 1 and 4, the two continuous sexual abuse convictions.
9
“[Prosecutor]: And how often was he touching you in this
manner?
“[Stepdaughter]: The same.
“[Prosecutor]: So like every other day?
“[Stepdaughter]: Yeah.
“[Prosecutor]: How about when you were 13 years old?
“[Stepdaughter]: Yeah, the same.
“[Prosecutor]: How about when you were 14 years old?
“[Stepdaughter]: The same.
“[Prosecutor]: How about when you were 15 years old?
“[Stepdaughter]: I don’t – I don’t remember. Probably like
the same.”
“ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658,
715.)
Stepdaughter’s inability to describe precise dates, times,
places, or circumstances does not render her testimony legally
insufficient. In People v. Jones (1990) 51 Cal.3d 294, our
Supreme Court recognized that child victims often cannot recall
specific dates, locations or other details of sexual offenses. (Id. at
pp. 313–321.) Thus, prosecutions under section 288 must
sometimes be based on “generic testimony.” (Id. at p. 315.) In
Jones the Court found a child witness’s generic testimony
sufficient to support a conviction for lewd and lascivious conduct,
and reasoned that “the particular details surrounding a child
10
molestation charge are not elements of the offense and are
unnecessary to sustain a conviction.” (Ibid.)
“The victim, of course, must describe the kind of act or acts
committed with sufficient specificity, both to assure that unlawful
conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g., lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the victim
must describe the number of acts committed with sufficient
certainty to support each of the counts alleged in the information
or indictment (e.g., ‘twice a month’ or ‘every time we went
camping’). Finally, the victim must be able to describe the
general time period in which these acts occurred (e.g., ‘the
summer before my fourth grade,’ or ‘during each Sunday morning
after he came to live with us’), to assure the acts were committed
within the applicable limitation period. Additional details
regarding the time, place or circumstance of the various assaults
may assist in assessing the credibility or substantiality of the
victim’s testimony, but are not essential to sustain a conviction.”
(Jones, supra, 51 Cal.3d at p. 316.)
Here, stepdaughter testified in great detail as to several
specific lewd acts appellant repeatedly committed on her when she
was under the age of 14, and that he committed these acts—such
as touching her vagina, breasts and buttocks and making her rub
his penis—whenever he was alone with her, about every other day.
We have no doubt the jury understood that stepdaughter’s
testimony that appellant’s acts of sexual abuse when she was 14
and 15 years old were the “same” or “probably the same,” referred
to what had happened to her when she was under 14, and that
those acts continued into her 14th and 15th years. Consistent with
what Jones requires, she identified the kinds of acts appellant
11
committed, the frequency of their occurrence, and the general time
period of abuse. This testimony was sufficient to sustain the
convictions on counts 2 and 3. (See Jones, supra, 51 Cal.3d at
p. 314 [“[E]ven generic testimony (e.g., an act of intercourse ‘once a
month for three years’) outlines a series of specific, albeit
undifferentiated, incidents, each of which amounts to a separate
offense, and each of which could support a separate criminal
sanction.”].)
3. Instructional Errors
Appellant makes three claims of instructional error:
(1) instructing the jury that continuous sexual abuse is a general
intent crime (CALCRIM No. 252), (2) failing to orally instruct the
jury on CALCRIM No. 252, and (3) misreading CALCRIM
No. 351 and failing to give a written copy of the instruction to
the jury.
We review claims of instructional error de novo (People v.
Grandberry (2019) 35 Cal.App.5th 599, 604), but with certain
principles in mind. “A single jury instruction may not be judged
in isolation, but must be viewed in the context of all instructions
given.” (People v. Thomas (2011) 52 Cal.4th 336, 356.) “If the
charge as a whole is ambiguous, the question is whether there is
a ‘ “reasonable likelihood that the jury has applied the challenged
instruction in a way” that violates the Constitution.’ ” (Middleton
v. McNeil (2004) 541 U.S. 433, 437.) Jurors are presumed to have
understood and followed the trial court’s jury instructions.
(People v. Sandoval (2015) 62 Cal.4th 394, 422.)
a. Instructing the jury that section 288.5(a) is always a
general intent crime
Appellant was charged with engaging in continuous
“ ‘substantial sexual conduct,’ ” and “ ‘lewd and lascivious acts’ ”
12
with stepdaughter (count 1) and Z.W. (count 4) in violation of
section 288.5(a). Section 288.5(a) penalizes the “continuous
sexual abuse of a child” defined as three or more acts of
“substantial sexual conduct” or “lewd or lascivious conduct” with
a child under 14 years of age within a period of no less than three
months.6 The trial court instructed the jury with CALCRIM
No. 252:
“The crimes and other allegations charged in [c]ounts 1–4
require proof of the union, or joint operation, of act and
wrongful intent. [¶] The following crime and allegation
require general criminal intent: Continuous Sexual Abuse,
as charged in [c]ounts 1 and 4 and more than one victim.
For you to find a person guilty of these crimes or to find the
allegations true, that person must not only commit the
prohibited act, but must do so with wrongful intent. A
person acts with wrongful intent when he or she
intentionally does a prohibited act; however, it is not
required that he or she intend to break the law. The act
required is explained in the instruction for that crime or
allegation. . . .”
6 Section 288.5(a) provides, in pertinent part: “Any person
who either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less
than three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14 years
at the time of the commission of the offense, as defined in
subdivision (b) of [s]ection 1203.066, or three or more acts of lewd
or lascivious conduct, as defined in [s]ection 288, with a child
under the age of 14 years at the time of the commission of the
offense is guilty of the offense of continuous sexual abuse of a
child . . . .”
13
We agree with appellant that the court erred in instructing
that section 288.5(a) is necessarily a general intent crime.
Continuous sexual abuse in violation of section 288.5(a) can be
committed two ways: through substantial sexual conduct or by
lewd or lascivious conduct. (§ 288.5(a).) Although a conviction
based on “substantial sexual conduct” is a general intent crime, a
finding of lewd or lascivious acts requires the specific intent “ ‘of
arousing, appealing to, or gratifying the lust, passions, or sexual
desires’ ” of the perpetrator or the child. (§ 288; People v.
McCarthy (2016) 244 Cal.App.4th 1096, 1110.) Here, the
prosecutor argued to the jury that appellant “engaged in three or
more acts of substantial sexual conduct o[r] lewd and lascivious
conduct with a child . . . and the child was under the age 14 years
at the time of the act[s].” Because appellant was prosecuted
under both theories of continuous sexual abuse—substantial
sexual conduct and lewd or lascivious conduct—the jury should
have been instructed that section 288.5(a) is a general intent
crime when based on acts of “substantial sexual conduct,” and a
specific intent crime when based on acts of “lewd or lascivious
conduct.”
Although CALCRIM No. 252 effectively informed the jury
only about the intent required for the substantial sexual conduct
prong of section 288.5(a), the trial court also instructed the jury
with CALCRIM No. 1120, which states that “lewd or lascivious
conduct” for purposes of section 288.5(a) “is any willful touching
of a child accomplished with the intent to sexually arouse the
perpetrator or the child.” Although this instruction was
specifically directed to counts 2 and 3 (§ 288), that instruction
correctly informed the jurors of the requisite intent for acts of
lewd or lascivious conduct. There is nothing in the record that
14
suggests the jury believed the specific intent for lewd and
lascivious conduct under section 288.5(a) was any different than
it was under section 288.
To the extent there was a conflict in the instructions, we
review the error under the Chapman v. California (1967)
386 U.S. 18 harmless error standard. (See People v. Sandoval
(2007) 41 Cal.4th 825, 838.) “[W]here a reviewing court
concludes beyond a reasonable doubt that the . . . element was
uncontested and supported by overwhelming evidence, such that
the jury verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless.” (Neder
v. United States (1999) 527 U.S. 1, 17; People v. Aranda (2012)
55 Cal.4th 342, 367–368.)
Here, the instructional error was harmless. Appellant does
not cite to any evidence that could rationally lead to a finding
that the acts of lewd or lascivious conduct about which the
victims testified were committed for a purpose other than sexual
arousal, gratification, or abuse. In the trial court, appellant did
not contest his intent; instead, he denied that he engaged in the
conduct at all. As the defense did not contest the specific intent
element for one theory of continuous sexual abuse, and there was
overwhelming evidence of specific intent to convict appellant of
lewd and lascivious conduct, under correct instructions, on counts
2 and 3, we find the error as to counts 1 and 4 harmless.7
b. The failure to orally instruct with CALCRIM No. 252
Although the court included CALCRIM No. 252 in the
packet of instructions it gave to the jury, appellant contends the
7 Because we conclude the error was harmless, we need not
decide whether appellant forfeited his argument of instructional
error by failing to object to CALCRIM No. 252.
15
court prejudicially erred in not orally instructing the jury with
that instruction. “It is generally presumed that the jury was
guided by the written instructions.” (People v. Davis (1995)
10 Cal.4th 463, 542.) “Consequently, as long as the court
provides accurate written instructions to the jury to use during
deliberations, no prejudicial error occurs from deviations in the
oral instructions.” (People v. Rodriguez (2000) 77 Cal.App.4th
1101, 1113.)
Appellant first argues he was prejudiced by the trial court’s
failure to orally instruct the jury with CALCRIM No. 252 because
the jury was not orally informed “regarding the necessity of a
joint union between an appellant’s prohibited act and his intent.”
However, the jury was given a accurate written copy of
CALCRIM No. 252 which correctly stated the necessity of the
joint union. (People v. Osband (1996) 13 Cal.4th 622, 717 [“[A]s
long as the court provides the jury with the written instructions
to take into the deliberation room, they govern in any conflict
with those delivered orally”].) Thus, the error in not reading that
instruction was harmless.
c. The misreading and omission of a written copy of
CALCRIM No. 351
Appellant argues the trial court prejudicially erred in
instructing the jury on the cross-examination of character
witnesses: the court both misread CALCRIM No. 351 on this
issue and failed to include a written copy of the instruction in the
set given to the jury.
Appellant’s childhood friend and a former employer each
testified as a character witness for the defense. They had known
appellant for 40 and 10 years, respectively, and told the jury that
appellant was not the type of man who would inappropriately
16
touch a child. A third character witness—appellant’s ex-wife —
testified along the same lines. On cross-examination, the
prosecutor asked appellant’s friend and his former employer
whether their opinion of appellant would change if they “learned
that two girls, who did not know each [other] . . . reported seven
years apart from each other that” appellant sexually abused
them. Each witness answered no.
The trial court orally instructed the jury with a modified
version of CALCRIM No. 351 on the cross-examination of
character witnesses. We repeat verbatim from the Reporter’s
Transcript:
“The attorney for the People was allowed to ask character
witnesses if they heard the defendant engaged in concern
conduct. These are the questions, ask their answers are
not evidence of the defendant engaged in any such conduct.
You may consider these questions and answer only to
evaluate the meaning and importance of a character
witness’s testimony.”8
At the outset, we are unsure whether this was a
misreading of the instruction or an error in transcription. In
either event, the central point of law of CALCRIM No. 351 was
read to the jury. At most, the oral instruction was not word-for-
8 The form CALCRIM No. 351 provides:
“The attorney for the People was allowed to ask defendant’s
character witnesses if they had heard that the defendant had
engaged in certain conduct. These ‘have you heard’ questions
and their answers are not evidence that the defendant engaged in
any such conduct. You may consider these questions and
answers only to evaluate the meaning and importance of the
character witness’s testimony.”
17
word with its written counterpart, but without significant
omissions. As for appellant’s claim that the instruction was
unintelligible, defense counsel’s own conduct proves otherwise.
Counsel was present in the courtroom when the instructions were
read and did not object. There was no call to correct an aberrant
word.
There is also a non-semantical consequence of counsel’s
failure to object—appellant has forfeited the point on appeal.
(People v. Stone (2008) 160 Cal.App.4th 323, 331.)
Finally, defense counsel addressed the character testimony in
closing argument, reminding the jury that three witnesses
testified appellant “was not the type of person who would
inappropriately touch a child.” Counsel referred to
CALCRIM No. 350 as “a very, very important jury instruction,
and it tells you that that alone can be reasonable doubt. [¶] Just
his character.” Defense counsel did not discuss CALCRIM
No. 351 with the jury, again suggesting that the trial court’s
reading was sufficiently clear.
As for the written instruction itself, defense counsel did not
object when the trial court provided the jury with the packet of
written instructions that had omitted CALCRIM No. 351. He
thereby forfeited this claim of instructional error. (Stone, supra,
160 Cal.App.4th at p. 331.)
Even if under Penal Code section 1259 we were to consider
the merits of appellant’s claims of instructional error, we would
find the errors harmless under both Chapman v. California,
supra, 386 U.S. at p. 18 and People v. Watson (1956) 46 Cal.2d
818. Appellant contends he was prejudiced by the court’s failure
to give the jury the written instruction, because the questions put
to the character witness essentially “asked the witnesses to
18
assume appellant committed the unproven conduct alleged in the
charged offenses.” Not so; the prosecutor’s questions asked
whether the witnesses’ opinion of appellant’s good character
would change if they were to learn that two girls who did not
know each other “reported” that appellant had molested them.
The prosecutor’s question did not assume appellant’s guilt.
Instead, it was based on the undisputed facts that the two
victims did not know each other and both “reported” that
appellant had molested them. The factual assumption appellant
makes for his prejudice argument is not borne out by the record,
and the argument accordingly fails.
Finally, we observe that the trial court instructed the jury
that nothing the attorneys had said constituted evidence. For
this reason, and in light of the overwhelming evidence against
appellant, any error in omitting the written instruction was
harmless.
4. Fines and Assessments
At sentencing, the trial court imposed a $5,000 restitution
fine (§ 1202.4), and a parole revocation fine of the same amount,
which the court stayed (§ 1202.45). The court also imposed a $40
court operation fee (§ 1465.8) and $30 conviction fee (Gov.
Code, § 70373) on each count. Relying on People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas), appellant argues the court
violated his right to due process by imposing these amounts
without first determining his ability to pay.
The Dueñas court held that “due process of law requires the
trial court to conduct an ability to pay hearing and ascertain a
defendant’s present ability to pay before it imposes court facilities
and court operations assessments under Penal Code section
1465.8 and Government Code section 70373.” (Dueñas, supra,
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30 Cal.App.5th at p. 1164.) It also held that the execution of a
restitution fine must be stayed “unless and until the trial court
holds an ability to pay hearing and concludes that the defendant
has the present ability to pay the restitution fine.” (Ibid.)9
“Ordinarily, a criminal defendant who does not challenge
an assertedly erroneous ruling of the trial court in that court has
forfeited his or her right to raise the claim on appeal.” (In re
Sheena K. (2007) 40 Cal.4th 875, 880 [juvenile delinquency
appeal]; see People v. Frandsen (2019) 33 Cal.App.5th 1126,
1154.) Here, appellant did not request an ability-to-pay hearing
before the trial court at his August 6, 2019 sentencing hearing
even though that hearing postdated Dueñas by seven months.
Dueñas aside, section 1202.4 statutorily authorizes the trial court
to consider a defendant’s inability to pay when setting a
restitution fine in excess of the minimum amount of $300.
(§ 1202.4, subd. (d).) Here, the court imposed a $5,000 restitution
fine. As appellant did not object to the increased restitution fine
as allowed by statute, there is no reason to assume he would have
contested the lesser amounts. He has forfeited the argument.10
Appellant argues that if he forfeited his Dueñas challenge,
his trial counsel was ineffective for failing to raise the issue. To
show that counsel was constitutionally ineffective, appellant
9 Our Supreme Court has granted review to decide whether,
as Dueñas holds, a court must consider a defendant’s ability to
pay before imposing or executing fines, fees, and assessments.
(People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)
10 Appellant contends that there are several exceptions to
forfeiture in this context. We find appellant’s arguments
unpersuasive.
20
must establish both that counsel’s performance was deficient and
that he suffered prejudice as a result of counsel’s error.
(Strickland v. Washington (1984) 466 U.S. 668, 687.)
The record is silent as to why defense counsel failed to object to
the restitution fine or the assessments without a hearing on
appellant’s ability to pay. However, there is at least one
reasonable explanation: nothing in the record suggests that
appellant is unable to pay the $5,000 restitution fine and $280 in
assessments out of savings, sellable assets or prison wages paid
during his lengthy sentence. (People v. Aviles (2019)
39 Cal.App.5th 1055, 1076.)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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