People v. Ramirez ( 2023 )

Filed 12/22/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049957
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 18CR008098)
v.
ALFREDO RAMIREZ,
Defendant and Appellant.
I. INTRODUCTION
A jury found defendant Alfredo Ramirez guilty of three counts of lewd or
lascivious acts upon child Jane Doe 1 (Pen. Code, § 288, subd. (a); counts 1–3),1 three
counts of using minor Jane Doe 1 for sex acts (§ 311.4, subd. (c); counts 4–6), one count
of possession of matter depicting a minor engaging in sexual conduct (§ 311.11,
subd. (a); count 7), one count of a lewd or lascivious act upon child Jane Doe 2 (§ 288,
subd. (a); count 8), one count of a lewd or lascivious act upon child Jane Doe 3 (§ 288,
subd. (a); count 9), and two counts of lewd or lascivious acts upon child Jane Doe 4
(§ 288, subd. (a); counts 10–11). With regard to each of the lewd or lascivious acts upon
a child counts, the jury found true enhancements for committing the offenses against
multiple victims (§§ 667.61, subds. (b) & (e)(4), 1203.066, subd. (a)(7)). The trial court
sentenced defendant to a total term of 107 years to life in prison. The trial court also
imposed various fines and fees, including a $10,000 restitution fine pursuant to
1
All statutory references are to the Penal Code unless otherwise indicated.
section 1202.4, subdivision (b), and a suspended parole revocation restitution fine in the
same amount pursuant to section 1202.45.
On appeal, defendant raises nine claims of error: (1) the compelled use of his
fingerprint to unlock his phone constituted an unreasonable search under the Fourth
Amendment to the United States Constitution; (2) the compelled use of his fingerprint to
unlock his phone violated his privilege against compulsory self-incrimination under the
Fifth Amendment to the United States Constitution and under the California Constitution;
(3) the compelled use of his fingerprint to unlock his phone violated his right to due
process under the Fifth and Fourteenth Amendments to the United States Constitution
and under the California Constitution; (4) if the first three issues were not properly
preserved for appeal, he received constitutionally ineffective assistance of counsel;
(5) the trial court erred in admitting expert testimony concerning child sexual abuse
victims’ responses; (6) the trial court erroneously instructed the jury that behaviors of
child sexual abuse victims could be considered to evaluate the credibility of the
complaining witnesses, depriving defendant of his right to due process; (7) the trial court
violated his due process right by instructing the jury that it could use proof of any
charged offense to infer defendant was predisposed to commit the other charged offenses;
(8) he received constitutionally ineffective assistance of counsel when his trial counsel
failed to object to a comment by the prosecutor in closing argument that the jury should
not consider lesser included offenses on two counts until it first found defendant was not
guilty of the charged offenses; and (9) his due process right was violated by the
imposition of certain fines and fees without a determination that he was able to pay those
costs.
For reasons that we will explain, we will affirm the judgment.
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II. BACKGROUND
A. Jane Does 2, 3, and 4
When defendant was in high school, he began dating a 15-year-old girl, M. M.
was one of 12 children in her family. M. became pregnant and gave birth to a daughter at
age 15, and she married defendant. At least three of M.’s younger sisters – Jane Does 2,
3, and 4 – would regularly sleep over at the home of defendant, M., and the couple’s
daughter. The sleepovers were defendant’s idea. M.’s brothers would not sleep over at
defendant’s house. Defendant also took Jane Does 2, 3, and 4 to various activities,
including swimming pools, amusement parks, and a boardwalk. M.’s brothers generally
did not come to these activities.
According to Jane Doe 2’s testimony at defendant’s trial, defendant once came
into the room where she was sleeping during a sleepover and tugged at her blanket,
scaring her. Jane Doe 2, who was between age 11 and age 13 at the time, falsely told
defendant her stomach hurt and defendant left the room. Jane Doe 2, who described
herself as a heavy sleeper, testified that every time she slept at defendant’s home, she
would wake up in the morning to find her pants undone, something that did not happen
when she slept elsewhere. Jane Doe 2 also testified that when she was about 13 years
old, defendant took her and her sisters to the pool, and took her to buy a swimsuit
beforehand. Defendant bought Jane Doe 2 a bikini, encouraging her to choose a bikini
and telling her that she would not be able to wear one when she was older. Jane Doe 2
testified that when they went to the pool after this, defendant repeatedly threw her up in
the air while they were in the pool, each time lifting her top and touching her breasts as
she came back down into the water. Jane Doe 2 reported these incidents to her mother
and to police in 1996.
Jane Doe 3 testified that she “hated” going to sleepovers at defendant’s house
“[b]ecause I knew that he would try to sneak in the room or sneak next to us.” She
testified that she noticed one morning of a sleepover that the straps of her overalls were
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off. Jane Doe 3 testified that “[p]robably every time I spent the night at their house,”
defendant would come into their room in the middle of the night, and Jane Doe 3 would
try to protect her sisters by waking them up. She recalled one time when during the
night, defendant touched the bare skin on her leg from her calf to her thighs, scaring her.
She was about 11 years old when this occurred. As with Jane Doe 2, Jane Doe 3 reported
this information to her mother and to police in 1996.
Jane Doe 4 was the youngest of the sisters and took part in sleepovers at
defendant’s house from about age seven to age nine. She testified that she generally wore
nightgowns during the sleepovers at defendant’s request. However, she testified that her
sisters both wore overalls at night and they would find the overalls unbuckled in the
morning. She testified that defendant would come into the room during the night. She
testified that this scared her, because defendant came into the room seven or eight times
and touched her on her vagina with his hand, with skin-on-skin contact. She also testified
that defendant would touch her buttocks through her clothes while she slept over at his
house, and that this happened “[m]ore than twice.” Like her sisters, Jane Doe 4 told her
mother about defendant’s actions and then reported defendant’s actions to police in 1996.
Police did not refer the matter for prosecution.
When the girls reported defendant’s actions to police, defendant called the girls’
mother that same day, asking her who reported him to police. The girls’ mother testified
that defendant told her, “You need to drop everything,” and that the police report would
harm his marriage to M. The girls’ mother also testified that defendant also “desperately
pleaded” that if the matter were dropped, he would move out of town.
B. Jane Doe 1
Defendant and M.’s marriage ended at some point after this. Later, in the time
leading up to August 2018, defendant’s cousin’s daughter, Jane Doe 1, would have
sleepovers with another daughter defendant later had with another woman, with the
sleepovers taking place at defendant’s house. On August 5, 2018, Jane Doe 1 reported to
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her mother that she did not want to sleep over at defendant’s house again because
defendant was “weird.” When the girl’s mother asked her what she meant, Jane Doe 1
reported that during the previous night, defendant pulled down her pants and took
pictures of her vagina. The girl’s mother reported this to law enforcement. Jane Doe 1’s
mother also provided law enforcement with a photograph of Jane Doe 1 that depicted
what the girl was wearing the previous night during the sleepover.
C. The Investigation
Gabriel Gonzalez, a detective with the Salinas Police Department, was assigned to
the case involving Jane Doe 1. Gonzalez found and reviewed the 1996 report involving
Jane Does 2, 3, and 4, and he interviewed the three women in addition to Jane Doe 1.
Gonzalez obtained a warrant to search defendant’s home and vehicles and to seize
defendant’s phone. Gonzalez and other detectives then stopped a vehicle defendant was
in and took possession of the cell phone defendant had on him, based on Jane Doe 1’s
report that defendant used his phone to take pictures of defendant’s sexual abuse of her.
Gonzalez called the phone number Jane Doe 1’s mother had provided for defendant, and
the cell phone taken from defendant rang.
Gonzalez then obtained two electronic communications search warrants to search
the contents of the phone along with a tablet found at defendant’s home. After obtaining
the first electronic communications search warrant, Gonzalez used defendant’s finger to
unlock the phone and searched the phone’s contents, finding “dozens of images of young
girls” on the phone, with many of the images “focused on the buttocks of these young
girls.” After obtaining the second electronic communications search warrant, Gonzalez
again used defendant’s finger to unlock the phone. Gonzalez then searched the phone’s
contents and found three videos of Jane Doe 1 wearing the same clothing as in the
photograph Jane Doe 1’s mother had provided police. These videos each depicted Jane
Doe 1 lying in bed with her eyes closed as the camera approached and a hand pulled
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down her shorts and touched her vagina. Gonzalez also found sexually explicit images of
other young girls on the phone.
D. Pretrial and Trial Proceedings
Defendant moved in limine to suppress the results of the search of his cell phone,
alleging that the compelled use of his fingerprint constituted an unreasonable warrantless
search, violated his privilege against compulsory self-incrimination, and violated his right
to due process. The trial court denied defendant’s motion. The prosecution also moved
to admit expert testimony from Dr. Anthony Urquiza concerning behavior by child sexual
abuse victims, while the defense moved to “exclude and or limit” testimony regarding
child sexual abuse accommodation syndrome. The trial court ruled Dr. Urquiza could
testify to the limited matters the prosecutor identified. The prosecutor also moved under
Evidence Code section 1108 to be permitted to argue that evidence of defendant’s
commission of sexual offenses against one alleged victim could be used to prove
defendant’s propensity to commit sexual offenses against the other alleged victims. The
trial court granted the prosecutor’s motion, permitting the prosecution “to argue
propensity under [section] 1108 of the Evidence Code as to the charged offenses.”
At trial, Jane Does 1, 2, 3, and 4 testified, along with the mothers of Jane Doe 1
and Jane Does 2 through 4. Gonzalez testified about what was discovered on defendant’s
cell phone. Finally, Dr. Urquiza testified for the prosecution as an expert in the
psychological effects of child sexual abuse. Defendant did not testify, and the defense
called no witnesses and presented no evidence.
Following Dr. Urquiza’s testimony and again following closing arguments, the
trial court instructed the jury in accordance with CALCRIM No. 1193, which instructed
the jury concerning permissible and impermissible uses of Dr. Urquiza’s testimony. This
instruction stated in relevant part: “Dr. Urquiza’s testimony about the psychological
effects of child sexual abuse and general myths and misconceptions is not evidence that
the defendant committed any of the crimes charged against him or any conduct or crimes
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with which he was not charged. [¶] You may consider this evidence only in deciding
whether or not the conduct of Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was
not inconsistent with the conduct of someone who has been molested, and in evaluating
the believability of their testimony.” The trial court also instructed the jury in accordance
with CALCRIM No. 1191B, which informed the jury that if the prosecution proved
beyond a reasonable doubt that defendant committed one or more of the lewd and
lascivious acts counts (counts 1, 2, 3, 8, 9, 10, and 11), “you may, but are not required to,
conclude from that evidence that the defendant was disposed or inclined to commit
sexual offenses, and based on that decision, also conclude that the defendant was likely to
commit and did commit the other sex offenses charged in this case.”
In the rebuttal argument, the prosecutor stated: “So you are going to see an
instruction in the verdict forms for Counts 8 and 9. Lessers are basically if you find the
defendant not guilty of Counts 8 or 9, then and only then do you consider the lesser
offense.” Defense counsel did not object to this statement.
This appeal followed after the jury’s verdict and sentencing.
III. DISCUSSION
A. Use of Defendant’s Finger to Unlock Phone – Search and Seizure
1. Factual Background
After receiving the report from Jane Doe 1’s mother and obtaining a photograph
depicting Jane Doe 1’s clothing and appearance the night of the alleged sexual abuse,
Gonzalez obtained a warrant on August 23, 2018 to search defendant’s residence,
vehicle, and person, and to seize defendant’s cell phone “and the data, photographs,
messages, and information contained on the cellular device.” Gonzalez surveilled
defendant’s home, and when he saw defendant leave the home in a vehicle, Gonzalez
and other detectives stopped the vehicle on August 24, 2018 and seized defendant’s
cell phone. Gonzalez called the phone number Jane Doe 1’s mother had given him for
defendant, and the cell phone taken from defendant rang.
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Gonzalez then obtained a second warrant on August 24, 2018 to search
defendant’s phone along with a tablet found at defendant’s home. This electronic
communications search warrant authorized police to search the phone for evidence
including photos and videos. Nothing on the face of the electronic communications
search warrant referenced whether or how police could unlock the phone. However, the
statement of probable cause that Gonzalez signed and that accompanied the affidavit
states: “Your affiant requests permission to contact [defendant] so that we can use his
fingerprint to open his cell phone and go into the settings and turn off security features in
order to keep the phone unlocked so it can be searched. It has been my training and
experience that newer smart phones are difficult to access absent the passcode or
fingerprint even with recent technological advancements. . . . [¶] Your affiant will
attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not
cooperate with you[r] magistrate’s order, your affiant request[s] permission to use
reasonable force to obtain his fingerprint on his cell phone.” Gonzalez took the warrant
to the jail where defendant was located, and Gonzalez took defendant’s right hand and
guided defendant’s fingers one by one to the phone without using “physical force” in an
attempt to unlock the phone. None of the fingers on defendant’s right hand unlocked the
phone, so Gonzalez then asked for defendant’s left hand. Gonzalez then “grabbed”
defendant’s left hand and “guided it towards the phone.” As Gonzalez did so, defendant
“momentarily pulled away” before complying and allowing Gonzalez to guide his hand
toward the phone without physically resisting. However, defendant told Gonzalez, “I’m
not giving you permission to do that.” A fingerprint on defendant’s left hand unlocked
the phone, and Gonzalez looked through the contents of the phone, observing “dozens of
images of young girls” on the phone, with many of the images “focused on the buttocks
of these young girls.” However, as Gonzalez handed the phone off to a member of the
police department’s computer forensic team, the device locked. Police could not bypass
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the requirement to provide a fingerprint to unlock the phone, because doing so required a
passcode.
Because the phone locked and defendant’s fingerprint was again required to
unlock the phone, Gonzalez then obtained another electronic communications search
warrant concerning the phone, also on August 24, 2018. As with the earlier electronic
communications search warrant, this warrant contained nothing on its face referencing
whether or how police could unlock the phone, but Gonzalez’s statement of probable
cause requested permission to contact defendant to obtain his fingerprint to unlock the
phone and to use reasonable force if necessary to obtain defendant’s fingerprint.
Gonzalez again brought this warrant to the jail and asked defendant for his hand.
Defendant objected, stating that he wanted his attorney to review the warrant and to be
present, but he did not physically resist. Gonzalez testified that he heard another
detective tell defendant, “Look, man, we don’t want to make this more difficult than it
has to be, and we’re going to get your thumbprint on that phone whether you like it or
not.” Gonzalez also testified that he heard the other detective say, “So you could either
just do it and get it over with and deal with your day in court with it, or it’s not going to
be fun.” Gonzalez guided the same finger that earlier unlocked the phone to the phone
without using physical force, and the phone unlocked. Gonzalez then searched the
phone’s contents and found three videos of Jane Doe 1 wearing the same clothing as in
the photographs Jane Doe 1’s mother had provided to the police. These videos each
depicted Jane Doe 1 lying in bed with her eyes closed as the camera approached and a
hand pulled down her shorts and touched her vagina. Gonzalez also found sexually
explicit images of other young girls on the phone that formed the basis for the count of
possession of matter depicting a minor engaging in sexual conduct (count 7).
2. Legal Principles and Standard of Review
“When reviewing issues relating to the suppression of evidence derived from
governmental searches and seizures, we defer to the court’s factual findings, express or
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implied, where supported by substantial evidence. [Citation.] To determine whether,
based on the facts so found, a search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment. [Citation.]” (People v. Fayed
(2020) 9 Cal.5th 147, 186.)
“The Fourth Amendment to the United States Constitution prohibits ‘unreasonable
searches and seizures.’ In general, a law enforcement officer is required to obtain a
warrant before conducting a search. [Citation.] Warrantless searches ‘are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.’ [Citations.]” (People v. Lopez (2019)
8 Cal.5th 353, 359.) In general, the warrant requirement applies to searches of cell
phones because of the “broad array of private information” contained in modern cell
phones. (Riley v. California (2014) 573 U.S. 373, 397 (Riley).)
“A ‘search’ occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113,
fn. omitted.) “Invasions of the body, including nonconsensual extractions of an
incarcerated felon’s blood for DNA profiling, are searches entitled to the protections of
the Fourth Amendment. [Citation.] ‘As the text of the Fourth Amendment indicates, the
ultimate measure of the constitutionality of a governmental search is “reasonableness.” ’
[Citation.]” (People v. Robinson (2010) 47 Cal.4th 1104, 1119–1120.)
“ ‘Reasonableness . . . is measured in objective terms by examining the totality of the
circumstances’ [citation], and ‘whether a particular search meets the reasonableness
standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.’ ” ’ [Citations.]”
(Id. at p. 1120.)
3. Analysis
At the conclusion of defendant’s motion to suppress the results of the search of
defendant’s phone, the trial court denied the motion. Regarding defendant’s
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unreasonable search and seizure argument, the trial court cited Gonzalez’s probable cause
statements that asked permission to use reasonable force to obtain defendant’s fingerprint
to unlock the cell phone. The trial court ruled that probable cause supported the warrants,
and that “the statement of probable cause was properly incorporated by reference into the
search warrants.” The trial court also cited several cases for the proposition that police
officers are permitted to “use reasonable force to carry out a bodily intrusion search if the
suspect forcibly resists a lawful but nonconsensual search.” The trial court concluded
law enforcement’s actions in this case were less intrusive than other situations that have
been held to constitute reasonable force to carry out a search, such as forcing a suspect to
submit to a blood draw, provide a urine sample, remove evidence from his or her mouth,
submit to a strip search, or submit to a body cavity search. The trial court ruled that
Gonzalez used reasonable force in requiring defendant to produce his fingerprint to
unlock the phone, noting that Gonzalez did not injure defendant, did not use any “forceful
control holds,” and did not violate defendant’s personal privacy, concluding: “the
officers utilized verbal commands and used the minimal amount of force necessary to
guide his fingers onto the cellphone screen.” The trial court also concluded that the
evidence did not need to be suppressed because law enforcement would have inevitably
discovered the contents of defendant’s phone through other technological means, and
because the good faith exception to the Fourth Amendment exclusionary rule applied.
Gonzalez obtained two electronic communications search warrants to search the
contents of the phone. Defendant therefore does not appear to challenge the search of
the phone itself as a violation the Fourth Amendment. Instead, he alleges that law
enforcement violated his Fourth Amendment right to be free from unreasonable searches
because “the forced extraction of [defendant’s] biometric data, in the form of his
fingerprint, without a separate warrant specifically requesting extraction of that data,
constituted an unreasonable search.” The parties dispute whether the compelled use of
defendant’s fingerprint constitutes a search entitled to Fourth Amendment protection,
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whether the electronic search communications warrants provided law enforcement with
authority to compel defendant to produce his fingerprint, and whether—if a warrant was
required to use defendant’s fingerprint to unlock the phone but such a warrant was not
obtained––suppression of the evidence from defendant’s phone is required under the
exclusionary rule. We conclude that even assuming the compelled use of defendant’s
fingerprint constitutes a search within the meaning of the Fourth Amendment, the
electronic communications search warrants issued by the magistrate authorized law
enforcement officials to require defendant to produce his fingerprint to unlock the phone.
Thus, no Fourth Amendment violation occurred. Moreover, even assuming a Fourth
Amendment violation occurred because the warrant did not encompass the compelled use
of defendant’s fingerprint, the evidence discovered on defendant’s phone was not
required to have been excluded because the good faith exception to the exclusionary rule
applies.
“The scope of a warrant is determined by its language, reviewed under an
objective standard without regard to the subjective intent of the issuing magistrate or the
officers who secured or executed the warrant. [Citations.] . . . As many courts have
observed, ‘officers executing a search warrant are “required to interpret it,” and they are
“not obliged to interpret it narrowly.” ’ [Citation.] To satisfy the objective standard, the
officer’s interpretation must be reasonable.” (People v. Balint (2006) 138 Cal.App.4th
200, 207.) “While we do not interpret warrants narrowly, we must interpret them
reasonably. [Citation.]” (People v. Nguyen (2017) 12 Cal.App.5th 574, 583.)
In both electronic communications search warrants, Gonzalez’s probable cause
statements to the magistrate specifically requested permission to contact defendant to
obtain his fingerprint to open the phone, and the statements both read: “Your affiant will
attempt to get [defendant’s] cooperation in order to obtain his fingerprint. Should he not
cooperate with you[r] magistrate’s order, your affiant request[s] permission to use
reasonable force to obtain his fingerprint on his cell phone.” The warrants ordered law
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enforcement to search the cell phone for stored electronic communications, including
images and videos. Law enforcement could not comply with the warrants and search the
phone without unlocking it, a fact Gonzalez clearly communicated to the magistrate in
the affidavits accompanying the warrant applications. Gonzalez’s statements of probable
cause were incorporated by reference into the warrants. Both electronic communications
search warrants stated: “The facts in support of this warrant are contained in the
Statement of Probable Cause and any exhibits, which are attached hereto and
incorporated by reference.” In fact, the second electronic communications search warrant
(the third warrant overall that Gonzalez obtained in this matter) specifically noted that
police had used defendant’s finger to unlock the phone, but that police could not turn off
the screen lock function without a passcode, and therefore the phone locked after police
conducted an initial review of the phone. There would be no need to seek the second
electronic communications search warrant if defendant’s fingerprint was not necessary,
as the re-locking of the phone was the reason for the additional warrant. A reasonable
officer in Gonzalez’s position would have understood that the warrants authorized him to
obtain defendant’s fingerprint to unlock the phone, and to use reasonable force to compel
defendant to produce his fingerprint.
The trial court agreed with this conclusion, ruling that Gonzalez’s statements of
probable cause were incorporated by reference into the warrants, and thus Gonzalez’s
actions in compelling defendant to provide his fingerprint to unlock the phone were not
warrantless. Defendant argues that the trial court erred in this respect, because he asserts
that the face of the warrant must authorize the compelled use of a fingerprint to unlock a
phone. Relatedly, he asserts that because the face of the warrant does not specifically
authorize law enforcement to compel the use of defendant’s fingerprint to unlock the
phone, “there is no guarantee that the magistrate issuing the warrant was aware the
officers planned to extract [defendant’s] biometric data or use force in doing so.”
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However, defendant cites no authority for the proposition that the magistrate’s
authorization to use his fingerprint was required to be contained on the face of the
warrant rather than in the probable cause statement that was incorporated into the
warrant. Generally, “the scope of the officer’s authority is determined from the face
of the warrant and not from the affidavit.” (Thompson v. Superior Court (1977)
70 Cal.App.3d 101, 109.) Here, nothing on the face of the warrant either specifically
authorized Gonzalez to unlock the phone with defendant’s fingerprint or prohibited
Gonzalez from taking this action. A deficient description of the place to be searched or
items to be seized may be cured by reference to the affidavit where “(1) the affidavit
accompanies the warrant at the time it is served, and (2) the warrant uses suitable words
of reference which incorporate the affidavit by reference. [Citations.]” (People v.
MacAvoy (1984) 162 Cal.App.3d 746, 755.) “The requirement that the affidavit be
incorporated into and attached to the warrant insures that both the searchers and those
threatened with search are informed of the scope of the searcher’s authority. [Citations.]
‘When the affidavit is incorporated into the warrant and limits the generality of the
description in the warrant, the discretion of the officers executing the warrant is limited.
When the affidavit accompanies the warrant the person being searched has notice of the
specific items the officer is entitled to seize . . . .’ [Citation.] Thus, the requirements of
incorporation by reference and attachment provide the same protection provided by an
adequate description on the face of the warrant: clear notice to the executing officer and
those subject to search of the authorized scope of the search at the time the warrant is
executed.” (Id. at pp. 755–756.)
The Fourth Amendment does not prohibit “a warrant from cross-referencing other
documents. Indeed, most Courts of Appeals have held that a court may construe a
warrant with reference to a supporting application or affidavit if the warrant uses
appropriate words of incorporation, and if the supporting document accompanies the
warrant. [Citations.]” (Groh v. Ramirez (2004) 540 U.S. 551, 557–558.) Here, there is
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no dispute that the warrants used appropriate words to incorporate Gonzalez’s probable
cause affidavits, and that the affidavits accompanied the warrants at the time they were
served. Both electronic communications search warrants stated: “The facts in support of
this warrant are contained in the Statement of Probable Cause and any exhibits, which are
attached hereto and incorporated by reference.” The use of defendant’s fingerprint to
unlock the phone was the means by which the search of the phone was to be conducted,
not an end unto itself. The magistrate knew from the probable cause statement that use
of defendant’s fingerprint was likely to be necessary for the search of the phone to be
carried out, and the magistrate authorized the search with this knowledge. Therefore,
even assuming the compelled use of defendant’s finger to unlock the phone constituted a
“search” under the Fourth Amendment, the warrant authorized law enforcement to utilize
defendant’s fingerprint to unlock the phone before searching it, and law enforcement thus
complied with the Fourth Amendment’s warrant requirement.
Even if the electronic communications search warrants could not be reasonably
understood to encompass the compelled use of defendant’s fingerprint, suppression of
the evidence discovered on defendant’s phone was not required because the good faith
exception to the exclusionary rule applies. “Exclusion of evidence due to a Fourth
Amendment violation is not automatic.” (People v. Macabeo (2016) 1 Cal.5th 1206,
1219.) While the exclusionary rule “ ‘bars the prosecution from introducing evidence
obtained by way of a Fourth Amendment violation,’ ” “the deterrent purpose of the rule
is not served by excluding evidence when an officer reasonably acts in objective good
faith.” (Id. at p. 1220.) “ ‘If the purpose of the exclusionary rule is to deter unlawful
police conduct, then evidence obtained from a search should be suppressed only if it can
be said that the law enforcement officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the Fourth Amendment.’ ”
(United States v. Leon (1984) 468 U.S. 897, 919 (Leon).) The good faith exception
assumes “that the officers properly executed the warrant and searched only those places
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and for those objects that it was reasonable to believe were covered by the warrant.” (Id.
at p. 918, fn. 19.)
In Leon, the United States Supreme Court “set forth four scenarios in which such
objectively reasonable reliance should not be found and suppression remained the
appropriate remedy: (1) ‘[T]he magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would have known was false
except for his [or her] reckless disregard of the truth’; (2) if ‘the issuing magistrate
wholly abandoned his [or her] judicial role’; (3) the affidavit is ‘ “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable” ’; or
(4) if the warrant was ‘so facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers cannot reasonably
presume it to be valid.’ [Citation.]” (People v. Meza (2023) 90 Cal.App.5th 520, 543.)
“The government bears the burden to establish applicability of the good faith exception.
[Citation.]” (Ibid.)
Here, even if the compelled use of defendant’s fingerprint to unlock the phone
constituted a search, and even if the warrant did not authorize the compelled use of
defendant’s fingerprint to unlock the phone, the prosecution established that the good
faith exception applies. Gonzalez sought and obtained three warrants, including two
electronic communications search warrants. His probable cause statements specifically
spelled out the request to obtain defendant’s fingerprint to unlock the phone, and the need
to use reasonable force, if necessary, to obtain defendant’s fingerprint to unlock the
phone. In addition, Gonzalez’s probable cause statement for the second electronic
communications search warrant specifically noted that police had used defendant’s
fingerprint to unlock the phone once, but that using his fingerprint to unlock the phone
again was necessary because the screen lock function could not be disabled without a
passcode. None of the four Leon scenarios where the good faith exception does not apply
is present here. Defendant points to no misinformation in Gonzalez’s affidavits. No
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evidence was presented to the trial court concerning the magistrate abandoning a judicial
role. For the reasons articulated above, even though nothing on the face of the warrant
specifically authorized Gonzalez to unlock the phone with defendant’s fingerprint, the
warrant would have been reasonably understood to include this action, and thus the
warrant was not so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. Finally, for similar reasons, the warrant did not fail to
particularize the place to be searched or the things to be seized such that Gonzalez could
not reasonably presume it to be valid. The object of the search was clear: based on Jane
Doe 1’s report of recent sexual abuse captured on defendant’s phone, police were to seize
the phone and search it for evidence including images or videos of the abuse. In order to
search the phone, unlocking it was necessary, a fact the probable cause statements clearly
informed the magistrate of. Gonzalez’s affidavit listed in detail the information that
indicated that evidence of defendant’s crimes would be found on the phone. Defendant
does not assert that probable cause to support the search of the phone was lacking. If law
enforcement officials committed any error, the error was limited to not specifically listing
on the face of the warrant the need to use defendant’s fingerprint to unlock the phone.
However, this matter was addressed in the affidavit and was incorporated by reference
into the warrant. Under these facts, no deterrent purpose would be served by excluding
the evidence, as Gonzalez and other law enforcement officials reasonably acted in
objective good faith on the issuance of two electronic communications search warrants.2
(Leon, supra, 468 U.S. at p. 919.)
2
Our resolution of this matter means we need not decide whether the inevitable
discovery doctrine applies, which the Attorney General asserts is another basis for
concluding that the evidence from defendant’s cell phone should not be suppressed.
17
B. Use of Defendant’s Finger to Unlock Phone – Privilege Against Compulsory
Self-Incrimination
Defendant next argues that the compelled use of his finger to unlock the phone
violated his privilege against compulsory self-incrimination under the Fifth Amendment
to the United States Constitution and article I, section 15 of the California Constitution.
Defendant argues that the use of his fingerprint to unlock the phone was compelled,
incriminating, and testimonial, and therefore violated his privilege against compulsory
self-incrimination. The Attorney General responds that “the trial court reasonably held
that requiring [defendant] to use his finger to unlock his phone was not tantamount to
compelled testimony.” The Attorney General also asserts that compelling defendant to
provide his fingerprint to unlock the phone did not violate defendant’s privilege against
compulsory self-incrimination because this act produced nontestimonial evidence under
the “foregone conclusion” doctrine.
1. Legal Principles and Standard of Review
“It is error under the United States Constitution to admit a defendant’s coerced
confession into evidence at a criminal trial. [¶] The Fifth Amendment establishes a
privilege against self-incrimination: ‘No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .” (People v. Cahill (1993) 5 Cal.4th 478, 512.)
“Separately and independently, it is error under the California Constitution to admit a
defendant’s coerced confession into evidence at a criminal trial. . . . For present
purposes, the state constitutional privilege is much the same as the federal. [Citation.]”
(Id. at p. 514.) “At its core, the privilege protects against the ‘cruel trilemma of self-
accusation, perjury or contempt.’ [Citation.] Accordingly, the amendment prohibits
the direct or derivative criminal use against an individual of ‘testimonial’
communications of an incriminatory nature, obtained from the person under official
compulsion. [Citations.]” (People v. Low (2010) 49 Cal.4th 372, 390.) Thus, “[t]o
qualify for the Fifth Amendment privilege, a communication must be testimonial,
18
incriminating, and compelled. [Citation.]” (Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cty. (2004) 542 U.S. 177, 189.)
“[I]n order to be testimonial, an accused’s communication must itself, explicitly or
implicitly, relate a factual assertion or disclose information. Only then is a person
compelled to be a ‘witness’ against himself [or herself].” (Doe v. United States (1988)
487 U.S. 201, 210, fn. omitted (Doe).) “Thus, a suspect may be compelled to furnish a
blood sample, [citation]; to provide a handwriting exemplar, [citation], or a voice
exemplar, [citation]; to stand in a lineup, [citation]; and to wear particular clothing,
[citation]. These decisions are grounded on the proposition that ‘the privilege protects an
accused only from being compelled to testify against himself [or herself], or otherwise
provide the State with evidence of a testimonial or communicative nature.’ [Citation.]”
(Ibid.) “It is the ‘extortion of information from the accused,’ [citation], the attempt to
force him [or her] ‘to disclose the contents of his [or her] own mind,’ [citation], that
implicates the Self-Incrimination Clause. [Citation.] ‘Unless some attempt is made to
secure a communication -- written, oral or otherwise -- upon which reliance is to be
placed as involving [the accused’s] consciousness of the facts and the operations of his
[or her] mind in expressing it, the demand made upon him [or her] is not a testimonial
one.’ [Citation.]” (Id. at p. 211, fn. omitted.) Thus, “[r]equests by the prosecution for
handwriting and fingerprint evidence from a defendant or a suspect are not prohibited by
the Fifth Amendment right against self-incrimination because such evidence is not
testimonial in nature. [Citations.]” (Northern Mariana Islands v. Bowie (2001) 243 F.3d
1109, 1120, fn. 5.)
In United States v. Hubbell (2000) 530 U.S. 27 (Hubbell), the United States
Supreme Court provided further direction as to what kinds of activity can constitute
testimonial evidence. In Hubbell, the court held that compelling the defendant to produce
potentially incriminating documents could violate the privilege against self-incrimination
because in producing the documents, “[i]t was unquestionably necessary for respondent
19
to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of
documents responsive to the requests in the subpoena. [Citation.] The assembly of those
documents was like telling an inquisitor the combination to a wall safe, not like being
forced to surrender the key to a strongbox. [Citation.]” (Id. at p. 43.)
In United States v. Dionisio (1973) 410 U.S. 1 (Dionisio), the United States
Supreme Court held that compelling voice exemplars from the defendant did not violate
his privilege against compulsory self-incrimination. (Id. at p. 5.) The court noted: “It
has long been held that the compelled display of identifiable physical characteristics
infringes no interest protected by the privilege against compulsory self-incrimination.”
(Id. at pp. 5–6.) The court stated: “The voice recordings were to be used solely to
measure the physical properties of the witnesses’ voices, not for the testimonial or
communicative content of what was to be said.” (Id. at p. 7, fn. omitted.) Similarly, in
Schmerber v. California (1966) 384 U.S. 757 (Schmerber), the United States Supreme
Court held that a compulsory blood draw did not violate the defendant’s privilege against
compulsory self-incrimination. (Id. at p. 761.) The court distinguished between a
suspect’s communications (which are protected by the Fifth Amendment), and actions
such as “compulsion to submit to fingerprinting, photographing, or measurements, to
write or speak for identification, to appear in court, to stand, to assume a stance, to walk,
or to make a particular gesture,” which are not protected by the privilege against
compulsory self-incrimination. (Schmerber, supra, at p. 764, fn. omitted.) The court
held: “The distinction which has emerged, often expressed in different ways, is that the
privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that
compulsion which makes a suspect or accused the source of ‘real or physical evidence’
does not violate it.” (Id. at p. 764.) While the court noted that in some instances, this
distinction might not comport with the intent of the Fifth Amendment, it nonetheless
applied this distinction, holding that “[n]ot even a shadow of testimonial compulsion
20
upon or enforced communication by the accused was involved either in the extraction or
in the chemical analysis.” (Schmerber, supra, at p. 765.)
In Fisher v. United States (1976) 425 U.S. 391 (Fisher), the United States
Supreme Court recognized that while the compelled production of taxpayer records could
implicate the privilege against compulsory self-incrimination, under the facts of the case
before it, “however incriminating the contents of the accountant’s workpapers might be,
the act of producing them – the only thing which the taxpayer is compelled to do – would
not itself involve testimonial self-incrimination.” (Id. at pp. 410–411.) The court held:
“It is doubtful that implicitly admitting the existence and possession of the papers rises to
the level of testimony within the protection of the Fifth Amendment. The papers belong
to the accountant, were prepared by him, and are the kind usually prepared by an
accountant working on the tax returns of his [or her] client. Surely the Government is in
no way relying on the ‘truthtelling’ of the taxpayer to prove the existence of or his [or
her] access to the documents. [Citation.] The existence and location of the papers are a
foregone conclusion and the taxpayer adds little or nothing to the sum total of the
Government’s information by conceding that he [or she] in fact has the papers. Under
these circumstances by enforcement of the summons ‘no constitutional rights are
touched. The question is not of testimony but of surrender.’ [Citation.]” (Id. at p. 411.)
In such a situation, the Fisher court held, a defendant’s “Fifth Amendment
privilege is not violated because nothing he [or she] has said or done is deemed to be
sufficiently testimonial for purposes of the privilege.” (Fisher, supra, 425 U.S. at
p. 411.) The court also observed that the production of the accountant’s papers had no
significant testimonial significance, holding that “we are quite unprepared to hold that
either the fact of existence of the papers or of their possession by the taxpayer poses any
realistic threat of incrimination to the taxpayer.” (Id. at p. 412.) The court also
discounted the defendant’s argument that producing the tax records would authenticate
the documents, stating: “[P]roduction would express nothing more than the taxpayer’s
21
belief that the papers are those described in the subpoena. The taxpayer would be no
more competent to authenticate the accountant’s workpapers or reports by producing
them than he would be to authenticate them if testifying orally. The taxpayer did not
prepare the papers and could not vouch for their accuracy. The documents would not be
admissible in evidence against the taxpayer without authenticating testimony. Without
more, responding to the subpoena in the circumstances before us would not appear to
represent a substantial threat of self-incrimination.” (Id. at pp. 412–413, fn. omitted.)
Thus, the court held, “compliance with a summons directing the taxpayer to produce the
accountant’s documents involved in these cases would involve no incriminating
testimony within the protection of the Fifth Amendment.” (Id. at p. 414.)
Based on Fisher, federal appeals courts have defined when the “foregone
conclusion doctrine” applies such that the Fifth Amendment privilege against compulsory
self-incrimination is not implicated. For example, the Second Circuit Court of Appeals in
United States v. Greenfield (2nd Cir. 2016) 831 F.3d 106 (Greenfield), held that the
prosecution must establish “ ‘with reasonable particularity’ ” that it knew of the existence
and control of the compelled evidence for the foregone conclusion doctrine to apply. (Id.
at p. 116.) In In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011 (11th Cir.
2012) 670 F.3d 1335, the Eleventh Circuit Court of Appeals held: “Where the location,
existence, and authenticity of the purported evidence is known with reasonable
particularity, the contents of the individual’s mind are not used against him [or her], and
therefore no Fifth Amendment protection is available.” (Id. at p. 1344, fn. omitted.) The
Ninth Circuit Court of Appeals has held that the foregone conclusion doctrine “allows for
circumvention of the self-incrimination privilege if the government already has the
information it is seeking to compel. [Citation.]” (United States v. Oriho (9th Cir. 2020)
969 F.3d 917, 927 (Oriho).) The Ninth Circuit held: “For this ‘exception to apply, the
government must establish its independent knowledge of three elements: the documents’
22
existence, the documents’ authenticity and [the defendant’s] possession or control of the
documents.’ [Citation.]” (Ibid.)
In determining whether a defendant’s privilege against compulsory self-
incrimination has been violated, “[w]e review deferentially the trial court’s resolution of
any factual disputes. [Citation.]” (People v. Seijas (2005) 36 Cal.4th 291, 304.)
However, where the facts are undisputed, we review independently the trial court’s
conclusion that a defendant’s privilege against compulsory self-incrimination was not
violated. (Ibid.)
2. Analysis
The defense’s motion to suppress the evidence from defendant’s phone alleged
that the compelled use of defendant’s finger to unlock the phone violated his privilege
against compulsory self-incrimination because his act of providing his fingerprint
constituted a testimonial communication. The trial court’s ruling rejected this argument,
concluding that the use of defendant’s fingerprint was not a testimonial communication
or act. The trial court stated: “The seizure of a finger in itself does not reveal the
contents of the person’s mind in the way that disclosure of a pass code would or in the
way that disclosure of a cryptography key to decrypt encrypted data would compel
someone to reveal a specific pass code or to reveal information on how to decrypt data is
compelling testimony from that person. But obtaining information from a person’s mind
is not what happens when agents pick a finger to apply to the sensor under the screen of a
cellphone. [¶] To be clear, there is no revelation of the contents of the defendant’s mind
with the procedure utilized by the officers in this case for the use of the defendant’s
fingerprint. [¶] Instead, the officers chose the finger to apply to the sensor on the
cellphone screen and obtained the physical characteristics without the need for the
defendant to put any thought at all into the seizure. [¶] Thus, the use of the defendant’s
fingerprint is much more like the compelled use of other physical characteristics of
criminal suspects that Courts have found non-testimonial, even when they are used for
23
investigatory purposes rather than solely for [i]dentification. [¶] Compelling physical
access to information via the fingerprint seizure is also not different from requiring
someone to surrender a key to a safe whose contents otherwise would not be accessible to
the government. [¶] The surrender of the key may be compelled, but the compelling of
the safe’s combination is forbidden. . . . [¶] The Fifth Amendment privilege was not
triggered in this matter because the officers merely compelled the physical act and the
defendant was not called upon to make use of the contents of his mind.”
Additionally, the trial court concluded that the Fifth Amendment privilege against
compelled self-incrimination was not violated because the act of using defendant’s
fingerprint was not testimonial under the foregone conclusion doctrine. The trial court
concluded that the prosecution in defendant’s case “can show with reasonable
particularly that at the time the officer sought to compel the act of production with both
warrants, they already knew of the photographs or video, thereby making any testimonial
aspect a foregone conclusion.” The trial court ruled: “The officers in this matter knew of
the existence of the photographs in the defendant’s cellphone, knew that the defendant
possessed the cellphone that was used to photograph Jane Doe 1, and could establish
authenticity not through the use of the defendant’s mind, but rather through testimony
from others. [¶] The existence, location and authenticity of [the] requested materials in
this case were foregone conclusions.”
The parties have identified no United States Supreme Court or California
decisions holding whether the compelled use of a suspect’s fingerprint amounts to self-
incrimination. However, decisions from other jurisdictions have addressed this issue.
In State v. Diamond (Minn. 2018) 905 N.W.2d 870 (Diamond), the Supreme Court
of Minnesota held that no violation of the defendant’s Fifth Amendment privilege against
compulsory self-incrimination occurred when police compelled the defendant to unlock
his seized cell phone with his fingerprint. (Diamond, supra, at p. 878.) The court
distinguished the United States Supreme Court’s decision in Hubbell, supra, concluding:
24
“Because we conclude that producing a fingerprint is more like exhibiting the body than
producing documents, we hold that providing a fingerprint to unlock a cellphone is not a
testimonial communication under the Fifth Amendment. The police compelled
Diamond’s fingerprint for the fingerprint’s physical characteristics and not for any
implicit testimony from the act of providing the fingerprint. [Citation.] Moreover, the
fingerprint was physical evidence from Diamond’s body, not evidence of his mind’s
thought processes. [Citation.]” (Diamond, supra, at p. 875.) The court cited two reasons
in support of its conclusion. First, the court stated, “[T]he State compelled Diamond to
provide his fingerprint only for the physical, identifying characteristics of Diamond’s
fingerprint, not any communicative testimony inherent in providing the fingerprint. The
State’s use of Diamond’s fingerprint was therefore like a ‘test’ to gather physical
characteristics, akin to a blood sample, a voice exemplar, trying on clothing, or standing
in a lineup, in an effort to unlock the cellphone. [Citations.]” (Id. at pp. 875–876.)
Second, the court stated, “Diamond’s act of providing a fingerprint to the police was not
testimonial because the act did not reveal the contents of Diamond’s mind. [Citations.]”
(Id. at p. 876.) Thus, the court concluded, “Diamond merely provided his fingerprint so
that the police could use the physical characteristics of the fingerprint to unlock the
cellphone. The compelled act did not require Diamond to ‘submit to testing in which an
effort [was] made to determine his guilt or innocence on the basis of physiological
responses, whether willed or not.’ [Citation.] To the extent that providing a fingerprint
to unlock a cellphone might require a mental process to unlock the phone, the police did
not need to rely on that mental process here. [Citation.] Diamond did not need to self-
select the finger that unlocked the phone. He did not even need to be conscious.
Diamond could have provided all of his fingerprints to the police by making his hands
available to them, and the police could have used each finger to try and unlock the
cellphone.” (Id. at p. 877, fns. omitted.) Thus, the court held that this situation was more
like that in Dionisio and Schmerber than Hubbell. (Diamond, supra, at p. 875.)
25
Several decisions by other courts have similarly held that the compelled use of
a defendant’s fingerprint to unlock a phone does not constitute a testimonial act, and
therefore that no Fifth Amendment violation occurs in this situation. (United States v.
Barrera (N.D.Ill. 2019) 415 F.Supp.3d 832, 833 (Barrera) [“[T]his Court holds that
compelling an individual to scan their biometrics, and in particular their fingerprints, to
unlock a smartphone device neither violates the Fourth nor Fifth Amendment”]; In re
Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case (D.Idaho 2019)
398 F.Supp.3d 785, 793–794, fns. omitted [“Where, as here, the Government agents will
pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the
thought process of the subject at all in effectuating the seizure. . . . Accordingly, the
Court determines—in accordance with a majority of Courts that have weighed in on this
issue—that the requested warrant would not violate the Fifth Amendment because it does
not require the suspect to provide any testimonial evidence”]; In the Matter of the Search
of [Redacted] Washington, D.C. (D.D.C. 2018) 317 F.Supp.3d 523, 535 [no Fifth
Amendment violation because “the compelled use of the Subject’s biometric features is
far more akin to the surrender of a safe’s key than its combination” (fn. omitted)]; In the
Matter of the Search Warrant Application for [Redacted] (N.D.Ill. 2017) 279 F.Supp.3d
800, 801 [“requiring the application of the fingerprints to the sensor does not run afoul of
the self-incrimination privilege because that act does not qualify as a testimonial
communication”]; Commonwealth v. Baust (Va.Cir.Ct., Oct. 28, 2014, No. CR14-1439),
2014 Va.Cir. Lexis 93, pp. *9–10 [“The fingerprint like a key . . . does not require the
witness to divulge anything through his mental processes. On the contrary, like physical
characteristics that are non-testimonial, the fingerprint of Defendant if used to access his
phone is likewise non-testimonial and does not require Defendant to ‘communicate any
knowledge’ at all”].)
We agree with the decisions from other jurisdictions that hold that compelling a
suspect to place his or her a finger on a phone does not constitute a testimonial act.
26
Therefore, under the facts of the instant matter, the act of compelling defendant to place
his fingers on the phone to unlock it did not violate defendant’s privilege against
compulsory self-incrimination. Defendant was not asked to communicate anything –
verbally or otherwise – in the act of placing his fingers on the phone. Law enforcement
used defendant’s fingerprint solely for its physical characteristics as a biometric key to
unlock the phone, not for any implicit testimony from defendant’s act of providing his
fingerprint. Defendant was not asked to produce any evidence of his mental process,
particularly because Gonzalez selected the finger(s) to be used in unlocking the phone.
As in Diamond, defendant did not self-select the finger to be used to unlock the phone;
he did not even need to be conscious for law enforcement to obtain his fingerprint and
unlock the phone. Defendant was thus not asked to engage in any thought process in
unlocking the phone. He merely provided his physical characteristic – a fingerprint – that
served as the key to the strongbox that was defendant’s phone. The actions by law
enforcement in compelling defendant to place his finger on the phone were functionally
equivalent to the gathering of other physical characteristics that do not present self-
incrimination concerns, such as blood samples or fingerprints (Schmerber) or voice
exemplars (Dionisio). Law enforcement sought defendant’s finger merely as a
mechanism to unlock the phone, not for any testimonial communication that might be
implicit in this action.
Defendant nonetheless argues that his act in producing his fingerprint to unlock
the phone had some testimonial nature. Specifically, he asserts that his use of his finger
to unlock the phone communicated that “he had previously accessed the phone and had
some level of control over the phone and its contents.” However, any marginal
communication implicit in defendant’s act concerning his access to and control over the
phone was already known by law enforcement. Jane Doe 1 identified that defendant used
a phone to capture his sexual abuse of her. Jane Doe 1 reported defendant’s action to her
mother on August 5, 2018, the day following the sleepover. Jane Doe 1’s mother
27
promptly reported this to law enforcement, and law enforcement seized defendant’s
phone on August 24, 2018, less than three weeks after defendant used it in his crimes.
When police stopped defendant, he only had one phone in his possession. Gonzalez
called the phone number Jane Doe 1’s mother had provided him for defendant, and
defendant’s phone rang. In addition, by the time of the second use of defendant’s
fingerprint, Gonzalez had already reviewed the contents of the phone and had verified
defendant’s access to and control over the phone by reviewing some of its contents.
Thus, defendant’s access to and control over the phone was well established apart from
any communication along these lines implicit in defendant placing his finger on the
phone to unlock it.
Defendant argues that the foregone conclusion doctrine should not apply because
“the officers did not anticipate finding the photographs and video of other young girls,
which were introduced into evidence at trial and did not feature Doe 1.” However,
defendant fails to identify any testimony his fingerprint produced in this regard.
Defendant’s act of producing his finger to unlock the phone conveyed no testimony
about the contents of the phone. The fact that officer discovered sexual images of young
girls on the phone is a result of the physical search of the phone, not any communication
implicit in defendant’s act of placing his finger against the phone’s screen. At most,
the use of defendant’s finger merely confirmed what law enforcement officials already
knew – that defendant had access to and control over the phone.
As the trial court found: “The officers in this matter knew of the existence of the
photographs in the defendant’s cellphone, knew that the defendant possessed the
cellphone that was used to photograph Jane Doe 1, and could establish authenticity not
through the use of the defendant’s mind, but rather through testimony from others. [¶]
The existence, location and authenticity of requested materials in this case were foregone
conclusions.” In this situation, law enforcement was “in no way relying on the
‘truthtelling’ ” of defendant to prove his access to and control over the phone. (Fisher,
28
supra, 425 U.S. at p. 411.) The prosecution established “ ‘with reasonable
particularity’ ” that it knew of defendant’s access to and control over the phone, and thus
defendant’s act of producing his finger did not produce any testimonial evidence that law
enforcement did not already establish as a foregone conclusion. (Greenfield, supra,
831 F.3d at p. 116.) Even assuming defendant’s act of producing his finger to unlock
the phone had some marginal testimonial quality, the prosecution demonstrated that law
enforcement “already ha[d] the information it [was] seeking to compel,” and thus the
foregone conclusion doctrine applies. (Oriho, supra, 969 F.3d at p. 927.)
Defendant cites two decisions in support of his position that his compelled act
of placing his finger to the phone to unlock the device was testimonial. Both are
distinguishable. First, in In re Application for a Search Warrant (N.D.Ill. 2017)
236 F.Supp.3d 1066 (In re Application), the government sought a warrant “to compel
any individual who is present at the subject premises at the time of the search to provide
his fingerprints and/or thumbprints ‘onto the Touch ID sensor of any Apple iPhone, iPad,
or other Apple brand device in order to gain access to the contents of any such device.’ ”
(Id. at p. 1067.) The court denied this aspect of the search warrant, noting that factual
deficiencies concerning the lack of detailed information about the resident(s) of the
premises were “important for purposes of the Fourth and Fifth Amendment issues
presented by this case.” (Id. at p. 1068.) Where “the request is made without any
specific facts as to who is involved in the criminal conduct linked to the subject premises,
or specific facts as to what particular Apple-branded encrypted device is being employed
(if any),” the court held that the aspect of the warrant application seeking to compel any
person at the premises to produce their fingerprint to unlock a device lacked probable
cause under the Fourth Amendment. (In re Application, supra, at p. 1068.) The court
then stated that “in addition to the Fourth Amendment concerns articulated above, the
Court believes that the government’s warrant application raises concerns under the Fifth
Amendment’s protection prohibiting compelled self-incrimination.” (Id. at p. 1070.)
29
The court stated: “The government is generally correct that the production of physical
characteristics generally do not raise Fifth Amendment concerns. [Citations.]” (Ibid.)
However, under the facts of the instant case, the court held that “the connection of the
fingerprint to the electronic source that may hold contraband . . . does ‘explicitly or
implicitly relate a factual assertion or disclose information.’ [Citation.]” (Id. at p. 1073.)
The court stated: “By using a finger to unlock a phone’s contents, a suspect is producing
the contents on the phone. With a touch of a finger, a suspect is testifying that he or she
has accessed the phone before, at a minimum, to set up the fingerprint password
capabilities, and that he or she currently has some level of control over or relatively
significant connection to the phone and its contents.” (Ibid.) Thus, the court concluded
that “the Court does not find, under the circumstances presented here, that the
government has established a proper basis to force any individual at the subject premises
to provide a fingerprint or thumbprint in an attempt to unlock any Apple device that may
be found.” (Id. at p. 1074.)
In re Application is based on significantly different facts from the instant case, and
thus we find it not persuasive as applied to the instant matter. In re Application dealt
with a warrant application to have any residents present at the premises place their fingers
on any Apple devices found on the scene. The court noted a lack of particularity to as to
which residents were suspected to be involved in the criminal conduct linked to the
premises, and what particular device(s) were suspected to be employed. In the situation
before it, the court focused much of its analysis on its Fourth Amendment concerns, only
secondarily addressing the Fifth Amendment issue. With regard to its Fifth Amendment
analysis, the court stated that a suspect’s act of unlocking a phone with his or her
fingerprint could communicate access to and control over the device, and thus this act
could present a concern about compulsory self-incrimination. As we have stated, no such
concerns are present here, where defendant was the only person compelled to produce his
fingerprint and his access to and control over the device were foregone conclusions. The
30
court in In re Application indicated that under different facts, the Fifth Amendment
concern it articulated might not be present. The court stated that “[i]n circumstances
where the existence and nature of the electronic information sought is a ‘foregone
conclusion,’ Fifth Amendment jurisprudence tells us that the concerns noted above may
be obviated.” (In re Application, supra, 236 F.Supp.3d at p. 1074.) The court noted:
“Indeed, after the execution of this warrant, the government may garner additional
evidence that addresses both of these concerns such that the government can promptly
apply for additional search warrants. We simply are not there yet.” (Ibid.) Here, unlike
in In re Application, law enforcement had firmly established defendant’s access to and
ownership of the phone, and defendant’s act of unlocking the phone with his finger
provided no testimonial evidence that raises a self-incrimination concern. In re
Application therefore does not indicate that defendant’s act was testimonial.
The second case defendant cites, In the Matter of the Search of Residence in
Oakland, California (N.D.Cal. 2019) 354 F.Supp.3d 1010 (Matter of Residence), is
similarly distinguishable. In Matter of Residence, the government applied for and
received a warrant to seize various items including cell phones. (Id. at p. 1013.)
However, the court denied the application for a warrant “to compel any individual present
at the time of the search to press a finger (including a thumb) or utilize other biometric
features, such as facial or iris recognition, for the purposes of unlocking the digital
devices found in order to permit a search of the contents as authorized by the search
warrant.” (Ibid.) The court first found that under the Fourth Amendment, probable cause
did not exist to support the biometric aspect of the warrant application and that the
application was overbroad because two suspects were identified but the request was not
limited to a particular person or a particular device. (Matter of Residence, supra, at
p. 1014.) The court then found that the proposed compelled use of fingerprints to unlock
items was testimonial, for two reasons. First, the court stated that “biometric features
serve the same purpose of a passcode, which is to secure the owner’s content,
31
pragmatically rendering them functionally equivalent.” (Id. at p. 1015.) The court held
that “if a person cannot be compelled to provide a passcode because it is a testimonial
communication, a person cannot be compelled to provide one’s finger, thumb, iris, face,
or other biometric feature to unlock that same device.” (Id. at p. 1016.) Second, the
court stated that “requiring someone to affix their finger or thumb to a digital device is
fundamentally different than requiring a suspect to submit to fingerprinting,” because
“the act concedes that the phone was in the possession and control of the suspect, and
authenticates ownership or access to the phone and all of its digital contents.” (Ibid.)
The court then held that the foregone conclusion doctrine did not apply because under
Riley, supra, cell phones are subject to “different treatment than more traditional storage
devices,” and thus “the Government inherently lacks the requisite prior knowledge of the
information and documents that could be obtained via a search of these unknown digital
devices, such that it would not be a question of mere surrender. [Citation.]” (Matter of
Residence, supra, at pp. 1017, 1018.) In addition, the court found that the foregone
conclusion doctrine did not apply because “the Government would be unable to articulate
facts to compel the unlocking of devices using biometric features by unknown persons
the Government could not possibly anticipate being present during the execution of the
search warrant.” (Id. at p. 1018.)
Matter of Residence’s holding was based on different facts than those presented
in the instant case. In Matter of Residence, the warrant application sought authority to
compel “any individual present” to produce a fingerprint to unlock any digital devices
found. (Matter of Residence, supra, 354 F.Supp.3d at p. 1013.) Under these facts, the
court found that a Fifth Amendment concern was presented and that the foregone
conclusion did not apply. In the instant case, again, defendant was the only person
compelled to produce his fingerprint, and he was compelled to do so for one cell phone.
Jane Doe 1 had identified defendant as recently using this phone to capture the sexual
abuse; Gonzalez verified the phone was defendant’s by calling the phone number
32
provided for defendant; and Gonzalez’s first search of the phone further confirmed that
defendant had access to and control over the phone. Under these facts, the concerns
articulated in Matter of Residence are not present. Additionally, the fact that under Riley
cell phones are subject to different treatment than other storage devices does not alter the
analysis. Defendant did not “communicate” the contents of his cell phone to law
enforcement by providing his finger, any more than a suspect “communicates” by
providing a key to a strongbox; in fact, defendant took no action whatsoever in the instant
case. Instead of handing over a key, defendant remained passive while law enforcement
tried each of defendant’s fingers until one unlocked the phone. The only possible
communication implicit in defendant’s act of providing his fingerprint was that he had
access to and control over the phone, matters that the prosecution established that law
enforcement already knew. As the court in Barrera noted, Riley “did not address any
Fifth Amendment concerns with respect to cell phones,” and Riley’s concerns about
warrantless searches of cell phone data and the resulting invasion of privacy are properly
addressed when the government seeks a warrant to search the phone. (Barrera, supra,
415 F.Supp.3d at p. 842.) Post-Riley, established Fifth Amendment analysis remains
intact with respect to accessing cell phones: “Just as letters were replaced with electronic
mail and cassette tapes were replaced with digital music files, keys are being replaced
with biometric functions. Consolidation and digitization, resulting in the carrying of the
least amount of physical items as possible while holding the most amount of functionality
and data, is de jure and here to stay. However, the applicable analysis — that a
fingerprint has now replaced a key — does not automatically transform what has been
previously considered non-testimonial into testimonial acts. The old tests, in this
particular circumstance, remain relevant and applicable.” (Barrera, supra, at p. 842.)
Citing Matter of Residence, defendant argues that “it is illogical to conclude that
forced disclosure of a spoken passcode has Fifth Amendment implications, but forced
disclosure of a biometric one has none.” To the extent that Matter of Residence can be
33
understood to state that a fingerprint to unlock a phone is testimonial simply because it is
the functional equivalent of providing a passcode, we do not agree. Defendant’s act of
providing his fingerprint to unlock his phone was not testimonial. The fact that phones
can be unlocked through other, testimonial, means is not at issue here. As the trial court
stated: “The seizure of a finger in itself does not reveal the contents of the person’s mind
in the way that disclosure of a pass code would or in the way that disclosure of a
cryptography key to decrypt encrypted data would compel someone to reveal a specific
pass code or to reveal information on how to decrypt data is compelling testimony from
that person. But obtaining information from a person’s mind is not what happens when
agents pick a finger to apply to the sensor under the screen of a cellphone.” Regardless
of any testimonial component of a suspect being compelled to provide a passcode,
defendant’s provision of his fingerprint did not require him to divulge the contents of his
mind under the facts of this case.
Defendant’s act of producing his fingerprint to unlock his phone did not constitute
testimonial evidence under the facts of this case, as nothing about the act of providing his
fingerprint called for defendant to utilize or disclose the contents of his mind. “[T]he
privilege against self-incrimination is limited to the involuntary giving of testimonial or
communicative evidence. It does not extend, as here, to ‘real or physical’ evidence
extracted under compulsion. [Citations.]” (People v. Scott (1978) 21 Cal.3d 284, 291.)
Even if defendant engaged in some marginal implicit communication by providing his
fingerprint to unlock his phone, the fact that defendant had access to and control over
the phone at issue was a foregone conclusion. Because defendant’s act was non-
testimonial, no concern regarding compulsory self-incrimination is present. Therefore,
the trial court did not err in denying defendant’s motion to suppress on this basis. (Doe,
supra, 487 U.S. at p. 210.)
34
C. Use of Defendant’s Finger to Unlock Phone – Due Process
Defendant next contends that the compelled use of his fingerprint to unlock the
phone violated his due process rights under the Fifth and Fourteenth Amendments to the
United States Constitution and under article I, section 7 of the California Constitution.
He argues: “[W]here Gonzalez grabbed [defendant’s] hand and forced his finger onto his
phone, while [defendant] objected and asked for an attorney, [defendant’s] will was
overcome. His testimony, resulting from him opening the phone, that he had previously
accessed the phone and had some level of control over the phone and its contents, was
not voluntary. Additionally, [defendant] was told by the officers that they were ‘going to
get your thumbprint on that phone whether you like it or not,’ and that he could ‘do it and
get it over with’ or ‘it’s not going to be fun.’ [Citation.] These threats also had the effect
of rendering [defendant’s] testimony involuntary. As a result, defendant’s right to due
process was violated when the officers forced the use of his biometric data.” We find no
due process violation in the actions of Gonzalez and other law enforcement officials.
1. Legal Principles and Standard of Review
“An involuntary confession . . . is inadmissible under the due process clauses of
both the Fourteenth Amendment [citation] and article I, sections 7 and 15 [of the
California Constitution] [citations].” (People v. Benson (1990) 52 Cal.3d 754, 778.)
“Involuntary statements to police are inadmissible for all purposes. [Citation.]
Statements are involuntary when they are not the product of ‘ “ ‘a rational intellect and
free will.’ ” ’ [Citations.] To use a defendant’s statements to police at trial, the
prosecutor must prove by a preponderance of the evidence that they were voluntary.
[Citation.] On appeal, the voluntariness of the statements ‘is reviewed independently in
light of the record in its entirety, including “all the surrounding circumstances—both the
characteristics of the accused and the details of the interrogation.” ’ [Citation.] We
‘ “ ‘examine the uncontradicted facts surrounding the making of the statements to
determine independently whether the prosecution met its burden.’ ” ’ [Citation.]”
35
(People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 20.) “ ‘[C]oercive police activity is a
necessary predicate to the finding that a confession is not “voluntary” . . . .’ [Citation.]”
(Ibid.) “If coercive police conduct is present, we evaluate the totality of the
circumstances to determine whether a defendant’s statements were freely given.
[Citation.]” (Ibid.)
2. Analysis
At trial, defendant’s motion to suppress asserted that compelling him to provide
his finger to unlock the phone violated his due process rights because his “will was
overborne by the use of physical force” to unlock the phone. His motion asserted:
“Physical force was used in this case to overbear [defendant’s] will and elicit an
incriminating statement. In the present case Detective Gonzalez literally grabbed
[defendant’s] hands and fingers against his will and forced his hand onto the phone, while
[defendant] repeatedly objected and requested an attorney. As such, any and all
statements elicited therefrom and the fruits of search of the cellphone that followed must
be suppressed on state and federal Due Process grounds.”
The trial court denied this aspect of the motion to suppress, concluding: “Here the
force used was grabbing the defendant’s hand and applying each finger to the sensor on
the cellphone screen. [¶] The force used in applying the defendant’s fingers to the
cellphone was reasonable. The defendant was not restrained and he was not forced to
experience any forceful control holds to gain compliance. [¶] [Defendant] slightly pulled
his hand back. Detective Gonzalez asked him to not pull away. [Defendant]
subsequently complied. [¶] [Defendant] was ordered a second time to give the officers
his hand again. Then Detective Gonzalez guided the defendant’s fingers to the phone
one by one. [¶] Nothing in the -- nothing that the officers did resulted in any injury to
[defendant].” The trial court ruled that detectives used “minimal” force to secure
defendant’s fingerprint, that they did not threaten defendant’s health or safety, that they
36
did not use deception, and that any affront to defendant’s privacy was minimal when
compared other permissible uses of force such as bodily intrusion searches.
Defendant’s due process argument relies on his assertion that his act of placing his
finger on the phone constituted a testimonial act, an assertion we have already rejected in
defendant’s claim of compulsory self-incrimination. The basis for his due process
argument is that his “testimony, resulting from him opening the phone, that he had
previously accessed the phone and had some level of control over the phone and its
contents, was not voluntary.” However, the only testimony defendant identifies in his act
of placing his finger on the phone consists of an acknowledgement that he had access to
and ownership of the phone. This was not disputed, and the prosecution introduced no
evidence and made no argument at trial that defendant’s act of unlocking the phone
demonstrated his access to or control over the phone. In fact, Gonzalez did not even
explicitly mention in his testimony at trial that defendant’s finger unlocked the phone.
Thus, even if defendant’s act of unlocking the phone with his finger had some testimonial
aspect, any such testimony or confession was not introduced at trial.
In addition, as the trial court noted, even though defendant’s act of placing the
finger on the phone was not voluntary, the physical force Gonzalez used to effect the
unlocking of the phone was minimal and reasonable. In performing a search or seizure
of a person, law enforcement “may not use unreasonable force to perform a search or
seizure of a person.” (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078.) While
defendant objected to the use of his fingerprint, the only actual force Gonzalez used was
to take defendant’s hand and move it to the phone. As the trial court stated, a due process
violation does not necessarily occur when law enforcement effects a compulsory blood
draw from a suspect. (Schmerber, supra, 384 U.S. at p. 760.) “Law enforcement must
act reasonably and use only that degree of force which is necessary to overcome a
defendant’s resistance in taking a blood sample. Even where necessary to obtain a blood
sample police may not act in a manner which will ‘shock the conscience.’ ” (Carleton v.
37
Superior Court (1985) 170 Cal.App.3d 1182, 1187–1188, fn. omitted.) Placing
defendant’s finger against his phone was less intrusive than a compulsory blood draw,
and defendant points to no evidence that indicates law enforcement’s actions in guiding
his finger to the phone shocks the conscience or constituted force beyond that which was
necessary to overcome defendant’s resistance. Thus, we see no due process violation in
the actions by law enforcement to compel defendant to provide his fingerprint to unlock
the phone.
D. Use of Defendant’s Finger to Unlock Phone – Ineffective Assistance of
Counsel
Finally on the issue of the use of defendant’s finger to unlock his phone, defendant
contends that “defense counsel failed to argue specifically why the contents of
[defendant’s] phone and his testimony in opening the phone should have been excluded
due to violations of the Fourth and Fifth Amendment and his right to due process.”
Relatedly, defendant asserts that his trial counsel failed to cite cases that supported his
argument that the act of producing his finger to unlock the phone constituted compelled
self-incrimination. Thus, he asserts that he received constitutionally ineffective
assistance of counsel.
To prevail on an ineffective assistance of counsel claim, a criminal defendant must
establish both that his or her counsel’s performance was deficient and that the deficient
performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).) The deficient performance component of an ineffective assistance of
counsel claim requires a showing that “counsel’s representation fell below an objective
standard of reasonableness” under prevailing professional norms. (Id. at p. 688.)
“Unless a defendant establishes the contrary, we shall presume that ‘counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.]”
(People v. Ledesma (2006) 39 Cal.4th 641, 746.)
38
“On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]”
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) “[W]e begin with the presumption
that counsel’s actions fall within the broad range of reasonableness, and afford ‘great
deference to counsel’s tactical decisions.’ [Citation.] Accordingly, we have
characterized [a] defendant’s burden as ‘difficult to carry on direct appeal,’ as a
reviewing court will reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel had ‘ “ ‘no rational tactical
purpose’ ” ’ for an action or omission. [Citation.]” (People v. Mickel (2016) 2 Cal.5th
181, 198 (Mickel).)
Regarding prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
“A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply
speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241
(Fairbank).)
“[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of
39
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
Defendant’s trial counsel fully briefed and argued to the trial court the issues
concerning the use of defendant’s finger to unlock the phone. Trial counsel asserted to
the trial court that the compelled use of defendant’s finger to unlock the phone
constituted violations of the Fourth Amendment, the privilege against self-incrimination,
and defendant’s right to due process. Defendant has had the opportunity to fully raise
these issues to this court. We have reviewed defendant’s issues concerning the accessing
of his cell phone and have concluded that the trial court did not err in denying
defendant’s motion to suppress the evidence recovered from the phone. Because of this,
defendant cannot show that but for any errors made by his trial counsel, the result of his
proceedings would have been different. Defendant cannot demonstrate prejudice, and as
a result, his claim of ineffective assistance of counsel fails. (Strickland, supra, 466 U.S.
at p. 694.)
E. Expert Testimony on Behavior by Child Sexual Abuse Victims
In discussing the parties’ motions concerning testimony by Dr. Urquiza, the
prosecution’s expert on the psychological effects of child sexual abuse, the prosecutor
asserted: “[W]e are asking to present the testimony not for the purposes of establishing a
child abuse accommodation syndrome, but simply to dispel some of the myths and
misconceptions regarding how victims of sexual assault typically -- how children victims
of sexual assault react upon being assaulted.” The prosecutor then identified several
misconceptions that the prosecution expert would dispel, misconceptions the prosecutor
asserted would be relevant as to Jane Does 1 through 4. In response, defense counsel
acknowledged that the type of testimony the prosecutor referred to was generally
admissible, and defense counsel noted that the prosecution’s expert was not going to
testify as to the facts of this case, so defense counsel asked the trial court to limit
testimony to the areas the prosecutor identified and to provide a limiting instruction.
40
The trial court asked defense counsel to clarify whether he had any objection to the
expert concerning the areas the prosecutor identified, and defense counsel confirmed he
did not, stating: “I believe both based on my legal research and understanding of the law
that those matters are permitted by case law in the State of California.” The trial court
agreed that the expert could testify to the matters the prosecutor identified, ruling:
“[E]vidence about the victim’s behavior and disabusing the myths that are associated
with those particular myths that have just been addressed here specifically on the record
will be permitted in the People’s case-in-chief if the victim’s credibility is placed in issue
due to the paradoxical behavior.”
At the conclusion of defendant’s trial, the defense moved for a new trial based
on the admission of Dr. Urquiza’s testimony. Defense counsel acknowledged that
Dr. Urquiza “was permitted to testify in, admittedly, a limited fashion.” However,
defense counsel asserted that Dr. Urquiza’s testimony “in a practical sense tends to be
vouching for the credibility of witnesses.” The prosecution responded that Dr. Urquiza’s
testimony was limited and Dr. Urquiza did not “vouch for any of the credibility of the
witnesses.” The trial court denied defendant’s request for a new trial in this regard,
identifying several misconceptions about how a child might react to sexual abuse that
Dr. Urquiza’s testimony helped to dispel. The trial court observed: “Dr. Urquiza did not
render an opinion of whether a molestation occurred. During his testimony, he made it
clear that he was not expressing any opinion concerning the specific events in the case.”
The trial court also noted that it instructed the jury to consider Dr. Urquiza’s testimony
only for the limited purpose of deciding whether the conduct of Jane Does 1 through 4
was not inconsistent with the conduct of someone who has been molested and in
evaluating the believability of their testimony.
On appeal, defendant contends that the trial court abused its discretion in
admitting Dr. Urquiza’s testimony because the testimony constituted child sexual abuse
accommodation syndrome (CSAAS) evidence, evidence defendant asserts “cannot
41
possibly be limited to dispelling myths surrounding child sexual abuse.” Defendant
asserts that “the jury cannot possibly avoid using CSAAS to support whatever version
of events the victim in any given case describes,” because “[u]nder CSAAS, any
conceivable behavior is a behavior consistent with a child abuse victim.” Thus, he
argues, “in every case, the jury will only use CSAAS testimony as evidence that the
victim’s allegations must be true and that the defendant must be guilty.”
1. Legal Principles and Standard of Review
Expert opinion testimony is admissible when the subject matter is “beyond
common experience” and the opinion would assist the trier of fact. (Evid. Code, § 801,
subd. (a).) “ ‘When expert opinion is offered, much must be left to the trial court’s
discretion.’ [Citation.] The trial court has broad discretion in deciding whether to admit
or exclude expert testimony [citation], and its decision as to whether expert testimony
meets the standard for admissibility is subject to review for abuse of discretion.
[Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 426 (McDowell).)
“Trial courts may admit CSAAS evidence to disabuse jurors of five commonly
held ‘myths’ or misconceptions about child sexual abuse. [Citation.] While CSAAS
evidence is not relevant to prove the alleged sexual abuse occurred, it is well established
in California law CSAAS evidence is relevant for the limited purpose of evaluating the
credibility of an alleged child victim of sexual abuse. [Citations.]” (People v. Lapenias
(2021) 67 Cal.App.5th 162, 171 (Lapenias).) CSAAS evidence “is admissible solely for
the purpose of showing that the victim’s reactions as demonstrated by the evidence are
not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d
385, 394.) “For instance, where a child delays a significant period of time before
reporting an incident or pattern of abuse, an expert could testify that such delayed
reporting is not inconsistent with the secretive environment often created by an abuser
who occupies a position of trust.” (Ibid.) CSAAS evidence “is not admissible to prove
that the complaining witness has in fact been sexually abused; it is admissible to
42
rehabilitate such witness’s credibility when the defendant suggests that the child’s
conduct after the incident -- e.g., a delay in reporting -- is inconsistent with his or her
testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to
disabuse jurors of commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300–1301, fn. omitted
(McAlpin).)
2. Analysis
Dr. Urquiza did not use the term “child sexual abuse accommodation syndrome”
or “CSAAS” in his testimony. However, we assume without deciding for the purposes
of this analysis that because Dr. Urquiza’s testimony was focused on dispelling myths or
misconceptions about how child sexual abuse victims might be expected to act, his
testimony was equivalent to CSAAS evidence.
The trial court determined Dr. Urquiza’s testimony was relevant to the extent the
victims’ credibility was placed at issue. Defendant does not specifically challenge the
trial court’s ruling in this regard, and we find no abuse of discretion in this ruling.
Dr. Urquiza’s testimony provided relevant evidence to the jury in deciding whether each
girl’s conduct was inconsistent with the conduct of someone who had been molested. For
example, Dr. Urquiza testified about how victims of child sexual abuse react in various
ways, how victims of child sexual abuse might not hate their abusers or might even seek
them out, how child sexual abuse victims develop coping mechanisms to manage their
feelings, how victims of child sexual abuse can delay disclosure of the abuse or disclose
the abuse incrementally, and how such victims can have difficulty remembering details
about the abuse. Therefore, the trial court did not abuse its discretion in concluding that
the testimony involved a matter “beyond common experience” that would assist the jury.
(Evid. Code, § 801, subd. (a).)
43
Defendant argues that CSAAS evidence should be generally inadmissible because
it is unreliable and because, by its very nature, CSAAS evidence will always support the
conclusion that abuse occurred because it suggests that both intuitive and counterintuitive
behavior support an alleged victim’s credibility. He asserts that while “California has
accepted the admissibility of CSAAS evidence, courts have acknowledged the inherent
problems with such evidence,” citing cases largely from other jurisdictions. Defendant
acknowledges that in McAlpin, the California Supreme Court held that CSAAS evidence
could assist jurors by dispelling common misperceptions about victim behavior, and that
this court is bound by the decisions of our Supreme Court. (McAlpin, supra, 53 Cal.3d at
pp. 1300–1302.) However, defendant argues that McAlpin is “no longer an accurate
reflection of current understandings of how children respond to abuse,” and that recent
decisions from Courts of Appeal in this state applying McAlpin were wrongly decided.
Defendant asserts that jurors are no longer likely to hold the misconceptions that CSAAS
evidence addresses, and that the admission of CSAAS evidence deprived him of due
process by permitting the jury to infer that Jane Does 1 through 4 were credible
witnesses.
Our Supreme Court indicated in McAlpin that CSAAS expert testimony is
admissible to disabuse jurors of commonly held misconceptions about child sexual abuse
victims’ behavior and to explain seemingly contradictory behavior of a child sexual abuse
victim. (McAlpin, supra, 53 Cal.3d at pp. 1300–1302.) The California Supreme Court’s
decisions are binding on all lower courts in this state. (People v. Johnson (2012)
53 Cal.4th 519, 527–528 (Johnson).) “CSAAS evidence has been admitted by the courts
of this state since the 1991 McAlpin decision.” (People v. Munch (2020) 52 Cal.App.5th
464, 468 (Munch).) “Further, reviewing courts have routinely held the admission of
CSAAS evidence does not violate due process. [Citations.]” (Lapenias, supra,
67 Cal.App.5th at p. 174.) Defendant’s references to decisions from other jurisdictions
that reached a different position do not affect the binding nature of the McAlpin decision.
44
The McAlpin decision “is binding on all lower courts in this state. [Citation.] That other
jurisdictions may disagree with it does not change its impact on California cases.
[Citation.]” (Munch, supra, at p. 468.) Accordingly, we adhere to precedent from our
Supreme Court that CSAAS evidence is generally admissible for the limited purposes for
which it was admitted in the instant case. We therefore find no abuse of discretion in the
trial court’s admission of this evidence.3 (McDowell, supra, 54 Cal.4th at p. 426.)
Even if the trial court should have excluded Dr. Urquiza’s testimony, defendant
was not prejudiced by the admission of the evidence. Jane Doe 1 timely reported the
abuse, and her testimony was corroborated by the discovery of videos on defendant’s
phone documenting the abuse. Jane Does 2 through 4 provided testimony that
demonstrated common themes about defendant’s pattern of abuse, with each detailing
similar types of abuse that defendant committed upon them during similar time frames at
the same location. The prosecution also argued that defendant’s reaction to the mother of
Jane Does 2 through 4 – in which he asked which girl reported him, said the complaint
would harm his marriage to M., and offered to move out of town if the matter was
dropped – demonstrated his consciousness of guilt. The defense’s cross examination of
Jane Does 1 through 4 did little to discredit their testimony. The prosecutor also did not
discuss Dr. Urquiza’s testimony in her closing argument. The judge instructed the jury
concerning the limited use for which Dr. Urquiza’s testimony could be considered, and
we presume the jury generally understands and follows instructions. (People v.
McKinnon (2011) 52 Cal.4th 610, 670.) This instruction stated in relevant part:
“Dr. Urquiza’s testimony about the psychological effects of child sexual abuse and
3
Defendant argues that the trial court’s admission of Dr. Urquiza’s testimony is
reviewed de novo because the question presented is whether the trial court correctly
construed the Evidence Code in admitting the evidence. Assuming without deciding that
the de novo standard of review applies, our conclusion remains that the trial court did not
err.
45
general myths and misconceptions is not evidence that the defendant committed any of
the crimes charged against him or any conduct or crimes with which he was not charged.
[¶] You may consider this evidence only in deciding whether or not the conduct of Jane
Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of their testimony.”
Dr. Urquiza also testified that his testimony solely involved dispelling any
misconceptions about how victims of child sexual abuse might be expected to react, not
whether abuse actually occurred in this case. In this situation, even if the trial court
improperly admitted Dr. Urquiza’s testimony, and even if the admission amounted to a
violation of defendant’s due process rights, we find beyond a reasonable doubt that any
error was harmless, and thus reversal is not warranted. (Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).)
F. Instruction Regarding Child Sexual Abuse Expert Testimony
Defendant contends that the trial court erred by using CALCRIM No. 1193 to
instruct the jury regarding Dr. Urquiza’s testimony.4 Defendant argues that CALCRIM
No. 1193 “does not inform the jurors that CSAAS assumes the truth of the complaining
witnesses’ claims. It fails to instruct the jury that the evidence is relevant only to educate
the jurors about how molested children may act in general. Instead, it tells the jurors they
may consider the evidence in ‘evaluating [victims’] believability,’ ” which defendant
asserts improperly invites the jury to consider CSAAS evidence to support an alleged
4
In full, this instruction stated: “You have heard testimony from Dr. Anthony
Urquiza regarding the psychological effects of child sexual abuse and general myths and
misconceptions. [¶] Dr. Urquiza’s testimony about the psychological effects of child
sexual abuse and general myths and misconceptions is not evidence that the defendant
committed any of the crimes charged against him or any conduct or crimes with which he
was not charged. [¶] You may consider this evidence only in deciding whether or not the
conduct of Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, was not inconsistent
with the conduct of someone who has been molested, and in evaluating the believability
of their testimony.”
46
victim’s allegations against a defendant. As a result, defendant asserts that the trial court
erred in using CALCRIM No. 1193, and that the alleged error deprived him of his due
process right under the Fourteenth Amendment to the United States Constitution.
1. Legal Principles and Standard of Review
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
“A jury instruction may ‘ “so infuse[] the trial with unfairness as to deny due
process of law.” ’ [Citation.] However, ‘ “not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process violation. The question
is ‘ “whether the ailing instruction . . . so infected the entire trial that the resulting
conviction violates due process.” ’ ” ’ [Citations.] ‘ “It is well established that the
instruction ‘may not be judged in artificial isolation,’ but must be considered in the
context of the instructions as a whole and the trial record.” ’ [Citations.] ‘ “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.’ ” ’ [Citation.]” (People v. Lemcke (2021) 11 Cal.5th 644, 655.)
2. Analysis
As with the previous issue, we assume without deciding for the purposes of this
analysis that Dr. Urquiza’s testimony was equivalent to CSAAS evidence.
Defendant did not object to CALCRIM No. 1193 at trial. In fact, defense
counsel’s trial brief listed CALCRIM No. 1193 as one of the defense’s proposed
instructions. At trial, defense counsel raised no objection when the trial court proposed
issuing CALCRIM No. 1193. Based on this, the Attorney General urges this court to
conclude that defendant has forfeited this issue. In reply, defendant asserts that “the rule
of forfeiture does not apply if the instruction was an incorrect statement of the law, which
is [defendant’s] argument here.”
47
We need not decide whether forfeiture applies in this case because the trial court
did not err in giving CALCRIM No. 1193. The trial court did not err in instructing the
jury in accordance with CALCRIM No. 1193 because it is not reasonably likely that
jurors understood the instruction as permitting the use of Dr. Urquiza’s testimony for the
improper purpose of proving that defendant sexually abused Jane Does 1 through 4.
CALCRIM No. 1193 informs jurors that they may use CSAAS evidence to evaluate
whether the alleged victim’s behavior, which may appear inconsistent with being
molested, was actually not inconsistent with the behavior of a child sexual abuse victim.
To the extent that CALCRIM No. 1193 allowed the jury to consider Dr. Urquiza’s
testimony in their evaluation of the believability of the testimony from Jane Does 1
through 4, the instruction is proper. CSAAS evidence is relevant and admissible when an
alleged victim’s credibility has been attacked. (See McAlpin, supra, 53 Cal.3d at p. 1302
[expert opinion that it is not unusual for a parent to refrain from reporting a known child
molestation was “clearly relevant [citation] because it tended to rehabilitate the
testimony” of the victim’s mother as a corroborating witness].) The jury could use the
CSAAS evidence in evaluating whether the testimony of Jane Does 1 through 4 was
believable. The instruction specifically instructs the jurors that they must not consider
CSAAS testimony as evidence that defendant committed the charged crimes. Thus,
nothing about the language of CALCRIM No. 1193 supports defendant’s argument that
his due process rights were denied.
When combined with Dr. Urquiza’s testimony emphasizing the limited nature of
his testimony, the instruction would not cause the jury to believe that they could consider
Dr. Urquiza’s testimony as proof that defendant sexually abused Jane Does 1 through 4.
As defendant acknowledges, the Court of Appeal in People v. Gonzales (2017)
16 Cal.App.5th 494 (Gonzales) rejected a similar argument to the one defendant raises
here. In Gonzales, the court noted that CALCRIM No. 1193 “must be understood in the
context” of the expert’s testimony, which in that case stressed that “CSAAS is not a tool
48
to help diagnose whether a child has actually been abused.” (Gonzales, supra, at p. 503.)
In this context, the court held, a reasonable juror would understand CALCRIM No. 1193
to mean that the jury could use the expert’s testimony to conclude that the alleged
victim’s behavior “does not mean she lied when she said she was abused.” (Gonzales,
supra, at p. 504.) The court held that the jury would understand that it could not use the
CSAAS expert’s testimony to conclude that the alleged victim “was, in fact, molested.”
(Ibid.) The court concluded: “The CSAAS evidence simply neutralizes the victim’s
apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who
believes [the expert’s] testimony will find both that [the alleged victim’s] apparently self-
impeaching behavior does not affect her believability one way or the other, and that the
CSAAS evidence does not show she had been molested. There is no conflict in the
instruction.” (Ibid.) Other courts have come to similar conclusions regarding CALCRIM
No. 1193. (See Lapenias, supra, 67 Cal.App.5th at pp. 175–176; Munch, supra,
52 Cal.App.5th at p. 474.) Recently, this court also held that a trial court did not err in
instructing the jury with CALCRIM No. 1193 regarding testimony from the same expert
who testified in the instant case, and that there was no reasonable likelihood the jurors
applied the instruction in an impermissible manner. (People v. Ortiz (2023)
96 Cal.App.5th 768, 782, 816.) We follow the same approach here. Because the
instruction correctly informed the jury of the permissible and impermissible uses of
Dr. Urquiza’s testimony, and because there is no reasonable likelihood that the jury
misconstrued or misapplied the instruction in the manner asserted by defendant, the trial
court did not err in instructing the jury with CALCRIM No. 1193, and defendant’s due
process right was not denied.
In addition, even if the trial court erred in instructing the jury with CALCRIM
No. 1193, any such error would not constitute reversible error. The trial court instructed
the jury to not use the testimony to determine whether abuse occurred. The prosecutor
did not mention Dr. Urquiza’s testimony in her closing argument, indicating that this
49
testimony was not a central matter in the prosecution’s case. Dr. Urquiza’s testimony
was brief and limited, and he stressed in his testimony that he was not familiar with the
facts of this case and was not expressing any view as to whether abuse occurred in this
matter. The strong evidence against defendant, including the video evidence that
corroborated Jane Doe 1’s testimony and the similar testimony from Jane Does 2
through 4, also supports the conclusion that defendant would have been convicted of the
same offenses regardless of any alleged error in the instruction. Even if the trial court
erred in using CALCRIM No. 1193 and the error was of federal constitutional dimension,
we find the error harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at
page 24.
G. Instruction Regarding Using Evidence of Defendant’s Charged Actions to
Demonstrate Propensity
Defendant next asserts that the trial court erred in instructing the jury in
accordance with CALCRIM No. 1191B. Consistent with this instruction, the trial court
instructed defendant’s jury as follows: “The People presented evidence that the
defendant committed the crimes of lewd or lascivious acts on a child under 14 years as
charged in counts 1, 2, 3, 8, 9, 10, and 11. [¶] If the People have proved beyond a
reasonable doubt that the defendant committed one or more of these crimes, you may,
but are not required to, conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision, also conclude that the
defendant was likely to commit and did commit the other sex offenses charged in this
case. [¶] If you find that the defendant committed one or more of these crimes, that
conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of another crime. The People
must still prove each charge and allegation beyond a reasonable doubt.” Defendant
contends that the instruction is legally erroneous in allowing the jury to consider evidence
of charged acts of sexual abuse to be used as evidence of defendant’s propensity to
50
commit other charged acts of sexual abuse, and that the error prejudiced him. We do not
agree.
As a preliminary matter, as with the CALCRIM No. 1193 instruction, defendant’s
trial brief listed CALCRIM No. 1191B as one of its proposed instructions. Defense
counsel also voiced no objection when the trial court proposed issuing this instruction.
However, we need not decide whether forfeiture applies here, because the trial court’s
instruction was not legally erroneous.
Evidence Code section 1101 provides in relevant part: “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1108 provides in relevant part: “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.”5 (Evid. Code, § 1108, subd. (a).)
As defendant notes, the California Supreme Court has held that Evidence Code
section 1108’s reference to “the defendant’s commission of another sexual offense or
offenses” permits the jury to consider evidence of a defendant’s charged sexual offenses,
in addition to evidence of uncharged sexual offenses, to demonstrate his or her
propensity to commit the other charged sexual offenses. In People v. Villatoro (2012)
54 Cal.4th 1152 (Villatoro), our Supreme Court held: “In short, we conclude nothing in
the language of section 1108 restricts its application to uncharged offenses. Indeed, the
Evidence Code section 352 states: “The court in its discretion may exclude
5
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
51
clear purpose of section 1108 is to permit the jury’s consideration of evidence of a
defendant’s propensity to commit sexual offenses. . . . In light of this clear purpose, we
perceive no reason why the Legislature would exclude charged sexual offenses from
section 1108’s purview, and no indication that it did so in either the text of section 1108
or its legislative history. Whether an offense is charged or uncharged in the current
prosecution does not affect in any way its relevance as propensity evidence.” (Id. at
p. 1164.) As with defendant’s earlier issue regarding admission of Dr. Urquiza’s
testimony, decisions by the California Supreme Court are binding on this court.
(Johnson, supra, 53 Cal.4th at pp. 527–528.) Under Villatoro, the trial court correctly
instructed the jury that if it found beyond a reasonable doubt that defendant committed
one or more of the charged lewd or lascivious acts, it could conclude from that evidence
that defendant was likely to commit and did commit the other sexual offenses charged in
this case.
H. Ineffective Assistance of Counsel – Failure to Object to Prosecutor’s Closing
Argument Regarding Lesser Offenses
Defendant next asserts that he received constitutionally ineffective assistance of
counsel when his trial counsel failed to object to the prosecutor’s statement during
closing argument that the jury should not consider a lesser included offense until it had
acquitted defendant of the charged offense. This argument stems from the prosecutor’s
argument to the jury as follows: “So you are going to see an instruction in the verdict
forms for Counts 8 and 9. Lessers are basically if you find the defendant not guilty of
Counts 8 or 9, then and only then do you consider the lesser offense.” Defense counsel
did not object to this statement. Counts 8 and 9 alleged defendant committed lewd acts
against Jane Does 2 and 3. The trial court instructed the jury that attempted lewd acts
were lesser included offenses to counts 8 and 9.6 Defendant claims the prosecutor’s
6
Defendant waived the statute of limitations so the trial court could instruct the
jury on these lesser included offenses to counts 8 and 9.
52
statement misstated the law because the statement “conflated an instruction about
verdicts -- i.e., the jury cannot reach a verdict on the lesser included offense without
reaching a not guilty verdict on the charged offense -- with the jury’s ability to
simultaneously discuss the charged offense along with the lesser included offense.”
To prevail on an ineffective assistance of counsel claim, a criminal defendant must
establish both that his or her counsel’s performance was deficient and that he or she
suffered prejudice. (Strickland, supra, 466 U.S. at p. 687.) “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.” (Id. at p. 697.) Regarding prejudice,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (Id. at
p. 694.) “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” (Ibid.) “A defendant must prove prejudice that is a ‘ “demonstrable
reality,” not simply speculation.’ [Citations.]” (Fairbank, supra, 16 Cal.4th at p. 1241.)
In People v. Kurtzman (1988) 46 Cal.3d 322, the California Supreme Court
interpreted an earlier decision from the court to “be read to authorize an instruction that
the jury may not return a verdict on the lesser offense unless it has agreed beyond a
reasonable doubt that defendant is not guilty of the greater crime charged, but it should
not be interpreted to prohibit a jury from considering or discussing the lesser offenses
before returning a verdict on the greater offense.” (Id. at p. 329.) “Kurtzman thus
affirmed the validity of an ‘acquittal-first’ rule—that the jury may not return a verdict on
a lesser offense unless it first finds a defendant not guilty of the greater offense—but
rejected a strict acquittal-first rule, applied in some states, ‘under which the jury must
acquit of the greater offense before even considering lesser included offenses.’
[Citation.]” (People v. Olivas (2016) 248 Cal.App.4th 758, 773.)
53
Assuming without deciding that trial counsel was ineffective in failing to object to
this statement by the prosecutor,7 defendant was not prejudiced by the failure to object.
Soon after the prosecutor’s argument, the trial court instructed the jury in accordance
with CALCRIM No. 3517 as follows: “It is up to you to decide the order in which you
consider each crime and the relevant evidence, but I can accept a verdict of guilty of a
lesser crime only if you have found the defendant not guilty of the corresponding greater
crime.” “We of course presume ‘that the jurors understand and follow the court’s
instructions.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 803.) Thus, the jury
is presumed to have followed the trial court’s instructions that the jury could determine
the order in which it would consider each charged offense and the relevant evidence.
Defendant was not prejudiced by any deficiency in his trial counsel’s failure to object to
the prosecutor’s statement, and thus he is not entitled to relief on this issue.
I. Imposition of Fines and Fees
The trial court imposed various fines and fees at sentencing, including a $10,000
restitution fine pursuant to section 1202.4, subdivision (b) and a suspended restitution
fine in the same amount under section 1202.45, a $300 sex offender registration fine
pursuant to section 290.3 plus $930 in penalty assessments, a $440 court operations
assessment pursuant to section 1465.8, subdivision (a)(1), and a $330 court facilities
assessment (also referred to as a criminal conviction assessment) pursuant to Government
Code section 70373. Defendant did not object that he lacked the ability to pay these fines
and fees, and when the trial court asked defense counsel if he wished to address anything
concerning the sentence the court imposed, defense counsel replied negatively. The trial
court did not explicitly conduct an assessment as to defendant’s ability to pay these
amounts.
7
The Attorney General concedes that this statement by the prosecutor was
erroneous, and that no tactical reason could account for defense counsel’s failure to
object to it.
54
Defendant challenges the imposition of the fines and fees listed above, asserting
that imposing these fines and fees without a determination that he was able to pay these
costs violated his due process rights under the United States and California Constitutions.
Defendant cites People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) in support of
this argument. We conclude defendant forfeited this argument by failing to object to the
imposition of these fines and fees at sentencing.
In Dueñas, the Court of Appeal reversed an order imposing the court operations
assessment and the court facilities assessment after concluding that it was “fundamentally
unfair” and violated the defendant’s due process rights under the federal and California
Constitutions to impose these assessments without determining the defendant’s ability to
pay these amounts. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also
concluded that the execution of a restitution fine under section 1202.4 “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.” (Dueñas, supra, at p. 1164.)
At sentencing, the defendant in Dueñas had requested a hearing to determine her ability
to pay various amounts that were imposed by the trial court, and at the separate hearing,
she presented an “uncontested declaration concerning her financial circumstances.” (Id.
at p. 1163.)8
In general, a defendant who fails to object to the imposition of fines and fees at
sentencing forfeits the right to challenge those fines and fees on appeal. (See, e.g.,
People v. Aguilar (2015) 60 Cal.4th 862, 867; People v. Trujillo (2015) 60 Cal.4th 850,
8
The California Supreme Court has granted review of two related issues in light
of Dueñas: 1) Must a court consider a defendant’s ability to pay before imposing or
executing fines, fees, and assessments; and 2) If so, which party bears the burden of
proof regarding defendant’s inability to pay. (People v. Kopp (2019) 38 Cal.App.5th 47,
95 (Kopp) [citing Dueñas in holding that a trial court erred by not conducting an ability
to pay hearing for court facilities and court operations assessments after the defendant
explicitly raised the issue below], review granted Nov. 13, 2019, S257844.)
55
853–854.) Following Dueñas, several courts have continued to apply forfeiture where
a defendant fails to object to fines and fees on ability to pay grounds and the sentencing
hearing was conducted after Dueñas was decided. (People v. Flowers (2022) 81
Cal.App.5th 680, 687; People v. Washington (2021) 61 Cal.App.5th 776, 800; People v.
Keene (2019) 43 Cal.App.5th 861, 864; People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153 (Frandsen).) This court has likewise held that forfeiture applies where a defendant
fails to object to the imposition of fines and fees at sentencing proceedings that took
place after Dueñas. (People v. Greeley (2021) 70 Cal.App.5th 609, 624 (Greeley).)
While we await the California Supreme Court’s decision in Kopp, we need not
address in this case whether Dueñas was correctly decided because defendant forfeited
this issue by failing to object at his sentencing hearing. Defendant’s sentencing hearing
took place on April 12, 2022, more than three years after Dueñas was decided. Thus,
“there is no reason why defendant could not have requested an ability-to-pay hearing
based on Dueñas.” (Greeley, supra, 70 Cal.App.5th at p. 624.) “Defendant’s apparent
decision to not raise the issue at the felony sentencing hearing forfeits [his] arguments on
appeal.” (Ibid.) Defendant’s case is distinguishable from other decisions by this court
where the sentencing hearings took place prior to Dueñas. (See People v. Santos (2019)
38 Cal.App.5th 923, 932 [holding forfeiture did not apply where the defendant’s
sentencing hearing took place about one year before Dueñas was decided]; People v.
Petri (2020) 45 Cal.App.5th 82, 88–89 [assuming without deciding that the defendant did
not forfeit his due process claim under Dueñas where sentencing took place before the
Dueñas decision].)
In addition, apart from Dueñas, the trial court imposed the maximum restitution
fine of $10,000 under section 1202.4, along with a suspended parole revocation fine in
equal amount under section 1202.45. Subdivision (d) of section 1202.4 states that “the
court shall consider any relevant factors, including, but not limited to, the defendant’s
inability to pay . . .” in setting a restitution fine above the statutory minimum.
56
Because the trial court imposed the maximum restitution fine (§ 1202.4, subd. (b)(1)),
defendant was “obligated to object to the amount of the fine and demonstrate his
inability to pay anything more than the $300 minimum. Such an objection would not
have been futile under governing law at the time of his sentencing hearing. [Citations.]”
(Frandsen, supra, 33 Cal.App.5th at p. 1154.) In other words, “even before Dueñas
a defendant had every incentive to object to imposition of a maximum restitution
fine based on inability to pay because governing law as reflected in the statute
[citation] expressly permitted such a challenge. [Citation.]” (People v. Gutierrez
(2019) 35 Cal.App.5th 1027, 1033.) Because defendant forfeited his objection to the
$10,000 restitution fine and suspended parole revocation fine in equal amount, the
forfeiture analysis applies to the other fines and fees in lesser amounts. “As a
practical matter, if [defendant] chose not to object to a $10,000 restitution fine based
on an inability to pay, he surely would not complain on similar grounds regarding
[lesser] fees.” (Ibid.)
Defendant alleges in the alternative that he was denied his right to effective
assistance of counsel by his trial counsel’s failure to object to the imposition of
certain fines and fees. However, where—as here—a claim of ineffective assistance
of counsel is made on direct appeal, ineffective assistance of counsel will be found
only if the record affirmatively demonstrates trial counsel had no rational tactical
purpose for the challenged act or omission. (Mai, supra, 57 Cal.4th at p. 1009;
Mickel, supra, 2 Cal.5th at p. 198.) Here, the record does not affirmatively
demonstrate defendant’s trial counsel had no rational tactical purpose for failing to
object to the imposition of the challenged fines and fees. Defense counsel may
have had access to information about defendant’s financial status, including the
possibility of his earnings while in prison, that would make such an objection
57
unsuccessful.9 We therefore conclude that defendant has not demonstrated his trial
counsel was ineffective in failing to object to the imposition of the fines and fees.
J. Conclusion
The compelled use of defendant’s fingerprint to unlock his phone did not violate
defendant’s Fourth Amendment right to be free from unreasonable searches and seizures
because even assuming the use of his fingerprint constituted a search under the Fourth
Amendment, the detective’s probable cause statements seeking authority to compel
defendant’s fingerprint were incorporated by reference into the warrants, and thus the
detective’s actions in compelling defendant to provide his fingerprint to unlock the phone
were not warrantless. In addition, suppression of the evidence from defendant’s phone
was not called for because the good faith exception to the exclusionary rule applies.
Defendant’s act of producing his fingerprint to unlock the phone was not testimonial and
thus the privilege against compulsory self-incrimination was not violated, as defendant
provided physical evidence rather than testimonial evidence. Defendant did not make use
of the contents of his mind in providing his fingerprint, and any marginal testimonial
component of this act concerning his access to and control over the phone was a foregone
conclusion. Because defendant’s act of providing his fingerprint was non-testimonial and
because law enforcement used reasonable force in procuring his fingerprint, defendant’s
due process rights were not violated. Defendant did not receive ineffective assistance of
counsel concerning the motion to suppress the results of the search of his phone, as trial
counsel raised the same issues defendant raises on appeal, issues we have determined do
not warrant relief.
9
The probation officer’s presentencing report characterized defendant’s financial
capability as “[l]imited,” while noting defendant “will have earning potential in State
Prison.” The search warrants in this matter noted defendant either possessed or had
access to two vehicles, a Volkswagen Beetle and a BMW X5, and that in addition to his
personal cell phone, he possessed a work phone.
58
Even assuming forfeiture does not apply, the trial court did not err in admitting the
testimony of Dr. Urquiza or in instructing the jury in accordance with CALCRIM
Nos. 1193 and 1191B. Defendant did not receive constitutionally ineffective assistance
of counsel based on his trial counsel’s lack of objection to a statement by the prosecutor
concerning lesser included offenses. Defendant forfeited any objection that the trial court
erred in imposing various fines and fees, and he has not demonstrated he received
constitutionally ineffective assistance of counsel based on his trial counsel’s lack of
objection to the imposition of these fines and fees.
IV. DISPOSITION
The judgment is affirmed.
59
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
WILSON, J.
BROMBERG, J.
People v. Ramirez
H049957
Trial Court: Monterey County Superior Court
Superior Court No.: 18CR008098
Trial Judge: Hon. Rafael Vazquez
Attorneys for Defendant and Appellant: Rachel Paige Varnell
Alfredo Ramirez
Sixth District Appellate Program
Attorneys for Plaintiff and Respondent: Rob Bonta
The People Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffery M. Laurence
Senior Assistant Attorney General
Amit A. Kurlekar
Deputy Attorney General
David M. Baskind
Deputy Attorney General
People v. Ramirez
H049957