P. v. Dawson

 

 

 

 

 

Filed 1/2/14  P. v. Dawson 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NOT TO BE
PUBLISHED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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

(Glenn)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JOHN HOWELL DAWSON,                           Defendant and Appellant.

C072214   (Super. Ct. No. 11NCR08852)

 

 

 

 

            A
jury found defendant John Howell Dawson guilty of attempted child molestation
and misdemeanor indecent exposure.  The
trial court suspended imposition of sentence and placed defendant on three
years of probation, subject to various conditions (including a 240-day jail
term). 

            In
his appeal, defendant asserts the prosecutor committed several instances of
irremediable misconduct during closing
argument, and trial counsel was ineffective in failing to make any
objection to them.  He also identifies
several errors in the probation order’s imposition of fees and fines, which the
People concede.  We shall affirm the
order granting probation as modified.

FACTUAL AND PROCEDURAL BACKGROUND

            Given
the nature of the contentions on appeal, we do not need to provide an extensive
summary of the evidence at trial.  In
February 2011, the victim was staying overnight at the apartment of her stepsister
and the latter’s boyfriend.  Defendant,
who was a friend of the stepsister and boyfriend, was a stranger to the
victim.  On being introduced to the
victim, defendant learned that she was 13 years old; he told her that if she
were 18 he would have liked to date her, because she was pretty.  The victim took this as a compliment. 

            The
stepsister, her boyfriend, and defendant had been sitting in the living room
smoking marijuana.  The victim went to
the store with her stepaunt, who lived in the same complex.  When they came back, it was after dark.  There was a movie playing on the
television.  Defendant was sitting on the
sofa; the stepsister was asleep in her bedroom; and the boyfriend was in the
bedroom as well.  The boyfriend came into
the living room once or twice during the movie. 


            As
defendant was sitting next to the victim, she noticed that his hand was moving
inside his pants.  The victim asked what
he was doing, and defendant told her he had “a masturbation problem.”  He then asked if she wanted to see his
penis.  She said “no,” and returned her
attention to the movie.  Defendant asked
her several times whether she wanted to touch his penis, and she repeatedly
told him that she did not.  She did not
call to her stepsister or the boyfriend, because she did not know what to
do.  Defendant pulled his erect penis out
of his pants and stood in front of her holding it, telling her that she should
touch it because it was really big.  When
he heard the boyfriend coming back into the living room, defendant reclothed
himself and sat back on the couch. 

            The
victim took this occasion to go into the bedroom and tell the stepsister that
she was going to the apartment upstairs, where her stepaunt’s friend
lived.  She did not tell the stepsister
what happened because she felt embarrassed and “weird.”  The stepaunt was also in her friend’s
apartment.  The stepaunt asked the victim
what was wrong, because the victim was white and shaking.  When the victim told the two women what had
happened with defendant, they said they would take care of it in the
morning.  The victim spent the night with
her stepaunt’s friend and did not return to the stepsister’s apartment.  When she woke in the morning, she called her
other stepsister and asked for a ride to her house.  The other stepsister thought the victim
sounded agitated on the phone.  During
the drive, the victim told her what happened. 
She was fidgeting and close to href="http://www.sandiegohealthdirectory.com/">tears.  The other stepsister called the police to
report the incident. 

            Defendant
testified that he did not have much contact with the victim when both were at
the apartment.  He never told her that
she was pretty, or that he would date her if she were older.  When the two of them were alone on the couch
together, he was using his laptop computer. 
At some point, he slid his computer to the side so that he could scratch
at his itchy genitals from the outside of his pants.  (He had told the police that he had stuck his
hand inside his pants to scratch himself.) 
He saw that the victim had a shocked look on her face.  He then apologized for scratching himself in
front of her. 

DISCUSSION

I. 
The Misconduct Claim Is Forfeited

            Defendant
contends the prosecutor committed four instances
of misconduct in his closing argument. 
First, the prosecutor made reference to a statement the victim had made
to the police (in which she mentioned that defendant was 27) that was not part
of the evidence at trial, and (in defendant’s view) suggested there was
independent verification of her testimony outside the record.  Second, the prosecutor characterized the
decision to bring a case to trial with only uncorroborated victim testimony as
being fairly unusual, which defendant asserts vouched for the victim’s href="http://www.mcmillanlaw.us/">credibility.  Third, the prosecutor made an improper appeal
to the feelings of the jury in urging that “we” would want to believe “our
kids” and therefore “we” would want a jury to believe them.  (Admixed into this argument is a challenge to
the prosecutor commending the victim for being willing to go through with the
ordeal of the trial, and making reference to the extrajudicial fact of the
emotional support that her family provided her.)  Fourth, defendant claims the prosecutor
misstated the law in arguing that the jury had the job of deciding which of the
two stories it had heard was worthy of belief. 
In addition to the prejudice defendant claims from this misconduct >qua misconduct, he also claims that to
the extent the prosecutor was relying on extrajudicial information in closing
argument, he became a witness who was not subjected to cross-examination and
therefore also violated defendant’s right to confrontation.  (See People
v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4.) 

            Recognizing
that there is an absence of any contemporaneous objection to the various
incidents of misconduct, defendant makes a perfunctory assertion that it would
have been futile to object and request admonitions because the prejudice was
incurable.  In the alternative, he states
in conclusory manner that trial counsel could not have had any reasonable basis
for failing to object, and therefore provided ineffective assistance. 

            A prosecutor commits misconduct
under state law through a resort to deceptive or reprehensible tactics
designed to sway the verdict of the finder of fact; this rises to a violation
of the federal Constitution only where the prosecution’s actions permeate the proceedings
with a “degree of unfairness” that renders them a deprivation of due
process.  (People v. Panah (2005)
35 Cal.4th 395, 462 (Panah).) 
In order to preserve the issue for appeal, a defendant must make a
timely objection, state the grounds of the objection, and ask the trial court
to admonish the jury on the subject.  (Ibid.)  This salutary remedial procedure gives a
trial court the opportunity to purge any resulting taint and rein in any
further occurrences; a reviewing court will deem the failure of a party to
follow this procedure for registering objections as representing a willingness
to participate in the atmosphere of prejudice. 
(People v. Brown (2003) 31 Cal.4th 518, 553.)  Moreover,
entertaining an issue after the fact is unfair to the trial court and the
prosecution.  (>Keener v. Jeld-Wen, Inc.
(2009) 46 Cal.4th 247, 264-265 & fn. 22; Imagistics Internat., Inc. v. Department of General Services (2007)
150 Cal.App.4th 581, 584, fn. 2.)  We
will relieve a defendant from this rule of appellate forfeiture only where the
lodging of an objection and/or an admonition request would have been futile
(including where the immediate overruling of an objection forecloses an
admonition request), or where the misconduct is simply irremediable.  (Panah, supra, 35 Cal.4th at
p. 462.)  A “ritual incantation that
an exception applies is not enough”; the defendant must affirmatively
demonstrate its application in light of the record.  (Ibid.) 

            In
the first place, even if defendant were correct on the merits about the various
portions of the prosecutor’s argument, none of these touched the proverbial
live wire in the case (see People v.
Galloway (1979) 100 Cal.App.3d 551, 560) with a resulting potential emotional
impact on the jury.  A focused admonition
in each instance would easily have corrected any misstatements of the facts or
law, or reminded the jury that their verdict must be based on the facts
introduced into evidence without consideration of personal sympathies.  Defendant thus fails to establish that any
of the challenged argument comes within the narrow category of
irremediable matter to which a jury has been exposed for which admonitions are
not effective (see People
v. Ervine (2009) 47 Cal.4th 745, 776) and thus fails to establish that this exception applies (>Panah, >supra, 35 Cal.4th at p. 462).  

            As for
the claim of ineffective assistance, the failure to object to prosecutorial
misconduct rarely provides the basis for a successful claim on direct
appeal.  (People v. Lopez (2008) 42 Cal.4th 960, 966.)  A defendant must craft a persuasive argument
of the manner in which defense counsel fell below professional norms at trial,
and cannot simply lob conclusory reasoning in our direction.  (People
v. Mitchell (2008) 164 Cal.App.4th 442, 467.)  Defendant has failed in this regard.  Accordingly, we confine ourselves to
observing that (for purposes of direct appeal) we believe a reasonable attorney
could have taken the same view of the asserted misconduct as we do, and
believed it did not seriously distort the prosecution’s burden such that
counsel needed to take any remedial action. 
(People v. Pope (1979) 23 Cal.3d
412, 425.) 

            Assuming
defendant’s argument regarding the purported violation of his right to
confrontation is not forfeited as a “lurking” argument (one that does not have
any logical connection with the heading (Imagistics Internat., Inc. v. Department of General Services,
supra, 150 Cal.App.4th at
p. 593, fn. 10; Smith
v. City of Napa (2004) 120 Cal.App.4th 194, 202), the failure to
object in the trial court forfeits it in any event (People v. Riccardi (2012) 54 Cal.4th 758, 827, fn. 33). 

II. 
Conceded Errors in Fees and Fines

A. 
Government Code Section 70373

            In
its oral rendition of judgment, the trial court imposed $70 as a “[c]ourt
facilities charge.”  The order granting
probation, however, references an undesignated $80 fee pursuant to “SB1407M/I.” 


            Government
Code section 70373, enacted in 2008 as part of Senate Bill No. 1407
(Stats. 2008, ch. 311, § 6.5), authorizes an assessment for funding the
court facilities construction fund in the amount of $30 for each conviction of
a felony or misdemeanor (Gov. Code, § 70373, subd. (a)(1)).  As a result, both the oral rendition of judgment and the probation order impose
an unauthorized amount for the fee, which allows defendant to raise the issue
initially on appeal.  (Cf. People v. Zito (1992) 8 Cal.App.4th 736,
740-742.)  We
thus accept the People’s concession and modify the judgment to reflect a fee of
$60 for the construction fund. 

B. 
Penal Code Section 1202.4

            At
the time of defendant’s offenses, the minimum restitution fine a trial court
could impose pursuant to Penal Code section 1202.4 was $200.  (Former Pen. Code, § 1202.4, subd. (b),
as amended by Stats. 2010, ch. 351, § 9.) 
Effective 2012, the minimum was $240. 
(See Pen. Code, § 1202.4, subd. (b)(1) [also scheduling increases
to $280 for 2013, and to $300 for 2014].) 


            At
defendant’s 2012 sentencing, the trial court questioned why the probation
officer had recommended a $740 restitution fine.  “The restitution fine is not [$]740.  I don’t know where you came up with
that.  It’s [$]240. . . .  [¶] . . .  It can be—I realize it can be higher
than that, but I don’t know where [the probation officer] was coming up with
[$]740.”  The trial court then declined
to impose a recommended “$500 felony report fee.  I find that [defendant does not] have
sufficient funds to do that or the $59 per day confinement [fee].”  Considering these remarks in combination, we
discern that the trial court intended to impose the minimum restitution fine as
an act of leniency (even though a lack of present assets does not >require a court to impose a minimum
restitution fine (People v. McGhee
(1988) 197 Cal.App.3d 710, 715)). 

            Because
this statute is considered punishment for purposes of ex post facto analysis (>People v. Valenzuela (2009) 172 Cal.App.4th 1246,
1248 (Valenzuela)), the minimum fine in effect at the time of defendant’s offenses
was controlling (see John L. v. Superior
Court (2004) 33 Cal.4th 158, 182, citing Lindsey v. Washington (1937) 301 U.S. 397, 400 [81 L.Ed.
1182] (Lindsey) [cannot increase
minimum punishment after commission of offense]). 

            Again,
defense counsel failed to raise this issue at the time of sentencing.  However, this was also an unauthorized
sentence, i.e., one that “could not lawfully
be imposed under any circumstance in the particular case.”  (People v. Scott (1994) 9 Cal.4th 331, 354.)  Although the $240 restitution fine >is within the lawful discretionary
statutory range of the present statute, the trial court announced an intention
to impose the minimum fine, and the
only lawful maximum “minimum” fine that could be imposed under any
circumstances was the $200 amount in effect at the time of defendant’s
offenses.  (Lindsey, supra, 301 U.S.
at pp. 400-401 [81 L.Ed. at pp. 1185-1186] [cannot impose new
minimum of 15 years under statute as amended after commission of offense, even
if sentence was within range authorized under former statute]; cf. >Valenzuela, supra, 172 Cal.App.4th at p. 1248 [even though sex
offender fine was amount presently authorized under statute, it was in excess
of amount in effect at time of offense and thus unauthorized for purposes of ex
post facto principles; issue therefore could be raised initially on appeal].)  As a result, the $240 fine was >constitutionally unauthorized under any
circumstances, and defendant did not forfeit the issue. 

            Moreover,
where a trial court has indicated its intent to impose a minimum restitution
fine, we cannot discern any reasonable tactical basis for a failure to make
sure that a defendant gets the full benefit of this announced leniency.  We would thus need to grant defendant relief
in any event on the basis of trial counsel’s ineffective assistance, it being
reasonably probable that the trial court would have reduced the fine further if
the proper minimum had been called to its attention. 

            We
therefore accept the People’s concession. 
We will modify the probation order to reduce the restitution fine to
$200 (along with the tandem probation revocation fine).

C. 
Additional Restitution Fine

            The
preprinted lines on the probation order include “Restitution per [Penal Code sections]
1202.4[, subdivision] (f) [and] 1202.45,” which is where the clerk filled in
the amount of the $240 restitution fine that the trial court had specified in
its oral rendition.  (This description is
something of a non sequitur, because the first referenced statute involves >restitution to a victim, and the second
involves the tandem parole revocation
fine imposed in connection with restitution fines.)  Immediately below is a line designated
“Restitution Fine” (without any further identification of the statutory
authorization), in which the clerk filled out an amount of $100 that was not
included at any point in the court’s oral rendition of judgment (or in the
probation officer’s recommendations).  A
second restitution fine is an unauthorized sentence, so a failure to object in
the trial court does not forfeit the issue on appeal.  (People
v. Chambers (1998) 65 Cal.App.4th 819, 823.) 

            The
clerk’s orders and minutes must conform to the oral rendition of judgment.  We may correct any deviations on appeal.  (People
v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)  We therefore accept the People’s concession
and strike the $100 “Restitution Fine” from the probation order. 

D. 
Penal Code Section 1463.07

            Where
a person, such as defendant, is released on his own recognizance pending trial,
Penal Code section 1463.07 authorizes the imposition of a $25 “administrative
screening fee.”  In its oral rendition of
judgment, the court imposed a “court processing fee of [$]30,” which the clerk
entered on the probation order as being pursuant to this statute.  Again, this was an unauthorized amount, so
forfeiture does not apply.  We accept the
People’s concession that we must modify the probation order to reduce the fee
to the authorized $25. 

DISPOSITION

            The
order granting probation is modified to reduce the court facilities fee to $60,
to reduce the restitution and probation revocation fines to $200, to strike the
unspecified $100 “Restitution Fine,” and to reduce the administrative screening
fee to $25.href="#_ftn1" name="_ftnref1"
title="">[1]  As so modified, the order is
affirmed.  The trial court is directed to
prepare and file an amended probation order in accordance with these
modifications. 

 

 

 

                                                                                              BUTZ                            ,
J.

 

 

 

We concur:

 

 

 

          ROBIE                          , Acting P. J.

 

 

 

          HOCH                          , J.