People v. Cresham CA2/8

Filed 6/11/21 P. v. Cresham CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303803
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075346)
v.
WILLIAM MARTIN CRESHAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Kathleen Blanchard, Judge. Affirmed.
Eileen Manning-Villar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Lindsay Boyd,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
William Cresham beat his girlfriend and threatened to kill
her, for which a jury convicted him of assault by means of force
likely to produce great bodily injury, criminal threats, and
violation of two criminal protective orders. On appeal, he argues
the trial court erred by admitting evidence of two prior incidents
of domestic violence, instructing the jury with CALJIC No.
2.50.02, and imposing fines and fees without conducting an
ability-to-pay hearing. He also argues the criminal threats
statute is unconstitutional. We reject his arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Cresham and Lauren S.1 began dating in 2008. In
November 2018, Lauren contacted police and reported that
Cresham had severely beat her about two weeks earlier. An
officer who interviewed her noticed yellow bruising on the left
side of her face.
Lauren told police officers that she and Cresham had an
argument while in a car. Cresham took Lauren’s keys and phone
and told her he would strangle her if she left. Lauren got out of
the car and started running towards her parents’ house, which
was nearby. Cresham chased her and tackled her. He slammed
her on the ground, hit her in the back of the head, flipped her
over, and mounted her. Cresham then wrapped his hand around
Lauren’s throat and strangled her to the point that she could not
breathe. He punched her in the face with such force that she
began to see stars and lost consciousness for a few seconds.
Cresham said if Lauren tried something like that again, he would
1 We refer to the victim by her first name and last initial in
order to protect her privacy interests. (See Cal. Rules of Court,
rule 8.90(b)(4).)
2
beat her and kill her. Lauren was terrified that Cresham would
kill her.
Lauren and Cresham eventually got back in the car. They
drove around over the next few days, and Lauren felt like she
was being held hostage. Cresham continued to threaten that if
Lauren tried to run away, he would catch and beat her. Lauren
told Cresham she was in pain and asked to go to a hospital, but
he refused.
Cresham was charged with assault by means of force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(4);
count 1),2 criminal threats (§ 422, subd. (a); count 2), and two
counts of contempt of court for violating a criminal protective
order (§ 166, subd. (c)(1); counts 3 & 4). The information further
alleged that Cresham had suffered two prior serious felony
convictions (§ 667, subd. (a)(1)) that qualified as strikes (§§ 667,
subd. (d), 1170.12, subd. (b)).
At trial, the prosecution presented evidence consistent with
the facts summarized above. The prosecution also presented
evidence showing Cresham knowingly had contact with Lauren
in violation of two criminal protective orders. Further, the
prosecution presented evidence of two prior incidents of domestic
violence between Cresham and Lauren, which we discuss in more
detail below.
Lauren testified at trial and denied that Cresham attacked
her. She claimed she fabricated her police report because she
was upset that Cresham recently crashed her car.
2 All further undesignated statutory references are to the
Penal Code.
3
Cresham testified in his own defense. He denied assaulting
or threatening Lauren. According to Cresham, Lauren lied to
police because she was worried her father would be upset if he
found out Cresham crashed her car.
The jury found Cresham guilty of the substantive offenses
as charged. In a bifurcated trial, the court found true the prior
conviction allegations.
The court sentenced Cresham to an aggregate term of 18
years plus 25 years to life, consisting of the following: on count 1,
the high term of four years, doubled because of the prior strikes;
on count 2, 25 years to life, plus 10 years for the prior serious
felony convictions3; and on counts 3 and 4, 364 days in jail, to be
served concurrent to the other sentences. The court also imposed
various fines and fees.
Cresham appealed.
DISCUSSION
I. The Court Did Not Err in Admitting Evidence of
Prior Incidents of Domestic Violence
Cresham contends the trial court erred in admitting
evidence of prior incidents of domestic violence between him and
Lauren. We disagree.
A. Background
Before trial, Cresham moved to exclude evidence of two
uncharged acts of domestic violence he committed against Lauren
in 2015 and 2017. The court ruled the evidence was admissible
3 The abstract of judgment mistakenly reflects that the two
five-year terms were imposed under section 667.6, subdivision
(b). We order the trial court to issue a new abstract that correctly
reflects they were imposed pursuant to section 667, subdivision
(a).
4
under Evidence Code section 1109 and declined to exclude it
under Evidence Code section 352. The court noted the evidence
was highly probative given the prior incidents were recent, and
there was a risk the victim would recant. The court further
determined the evidence was not likely to inflame the passions
and prejudices of the jury.
At trial, the prosecutor presented evidence that in
November 2015, Lauren and Cresham had an argument, and
Lauren went to her parents’ home to get away from him.
Cresham repeatedly called Lauren and sent her approximately
100 text messages. In some of the messages, Cresham
threatened to kill Lauren, make her mother suffer, and force her
to watch as he killed her family.
The prosecutor also presented evidence that in July 2017,
Cresham became upset after Lauren told him she was hungry.
Cresham pulled Lauren’s hair, put her in a headlock, and
punched her in the face. Lauren began bleeding from her nose.
Cresham demanded Lauren drive them to the desert, which she
did. He then threatened to kill her. Lauren had bruising around
her eyes and on her thighs.
The jury learned that Cresham was convicted of crimes
arising out of both incidents.
B. Relevant Legal Authority
Evidence Code section 1101, subdivision (a), sets forth the
general rule that propensity evidence, including evidence of
specific instances of prior conduct, is not admissible to prove a
defendant’s conduct on a specific occasion. (People v. Jackson
(2016) 1 Cal.5th 269, 299.) Evidence Code section 1109 (section
1109) provides an exception to Evidence Code section 1101’s
general exclusion of propensity evidence. It permits in “a
5
criminal action in which the defendant is accused of an offense
involving domestic violence, [admission of] evidence of the
defendant’s commission of other domestic violence . . . if the
evidence is not inadmissible pursuant to [Evidence Code s]ection
352.” (§ 1109, subd. (a)(1).)
“[T]he obvious intention of the Legislature [in enacting
section 1109] was to provide a mechanism for allowing evidence
of . . . acts of domestic violence to be used by a jury to prove that
the defendant committed the charged offense of the same type;
recidivist conduct the Legislature has determined is probative
because of its repetitive nature. Furthermore, it is apparent that
the Legislature considered the difficulties of proof unique to the
prosecution of these crimes when compared with other crimes
where propensity evidence may be probative but has been
historically prohibited.” (People v. Brown (2000) 77 Cal.App.4th
1324, 1333–1334 (Brown).)
C. Analysis
1. Section 1109 Does Not Violate Due Process
Cresham first contends the admission of propensity
evidence under section 1109 violated his constitutional rights to
due process and a fair trial. According to Cresham, the
constitution categorically forbids the admission of propensity
evidence. We disagree.
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the
California Supreme Court rejected a nearly identical challenge to
Evidence Code section 1108, which mirrors section 1109, except it
permits the admission of evidence of uncharged sexual
misconduct when the defendant is accused of a sexual offense.
The high court reasoned that “ ‘[b]y subjecting evidence of
uncharged sexual misconduct to the weighing process of section
6
352, the Legislature has ensured that such evidence cannot be
used in cases where its probative value is substantially
outweighed by the possibility that it will consume an undue
amount of time or create a substantial danger of undue prejudice,
confusion of issues, or misleading the jury. (. . . § 352.) This
determination is entrusted to the sound discretion of the trial
judge who is in the best position to evaluate the evidence.
[Citation.] With this check upon the admission of evidence of
uncharged sex offenses in prosecutions for sex crimes, we find
that . . . section 1108 does not violate the due process clause.’ ”
(Falsetta, supra, 21 Cal.4th at pp. 917–918.) Courts of Appeal
have uniformly held the reasoning is Falsetta is equally
applicable to section 1109, and defeats similar due process
challenges to that statute. (See People v. Johnson (2010) 185
Cal.App.4th 520, 529 (Johnson) [listing cases].)
Cresham does not dispute that the reasoning in Falsetta
defeats his due process argument. Instead, he insists Falsetta
was wrongly decided. We are bound by the California Supreme
Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 456), and we agree with the numerous Courts of
Appeal that have applied Falsetta in the context of challenges to
section 1109. Accordingly, we reject Cresham’s contention that
section 1109 violated his rights to due process and a fair trial.
2. Section 1109 Does Not Violate Equal Protection
Cresham next contends section 1109 violates the equal
protection clause because it impermissibly treats defendants
charged with domestic violence offenses differently from
otherwise similarly situated defendants. We disagree.4
4 We reject the Attorney General’s argument that Cresham
forfeited this issue by failing to raise it in the trial court. (See
7
As Cresham recognizes, courts have repeatedly rejected
equal protection challenges to section 1109. (See People v.
Jennings (2000) 81 Cal.App.4th 1301, 1310–1313 (Jennings);
People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Brown
(2011) 192 Cal.App.4th 1222, 1233, fn. 14.) In Jennings, for
example, the court found there is a rational basis for permitting
propensity evidence in domestic violence cases, but not in others.
Specifically, “domestic violence is quintessentially a secretive
offense, shrouded in private shame, embarrassment and
ambivalence on the part of the victim, as well as intimacy with
and intimidation by the perpetrator. . . . Although all criminal
trials are credibility contests to some extent, this is unusually—
even inevitably—so in domestic . . . abuse cases, specifically with
respect to the issue of victim credibility. The Legislature could
rationally distinguish between [this kind of case] and all other
criminal offenses in permitting the admissibility of previous like
offenses in order to assist in more realistically adjudging the
unavoidable credibility contest between accuser and accused.”
(Jennings, supra, at p. 1313.)
Cresham contends the Jennings court erred by applying
rational basis review, rather than strict scrutiny. His argument,
however, presupposes that section 1109 violates due process, a
contention we have already rejected. We agree with the
reasoning in Jennings and reject Cresham’s equal protection
argument on the same grounds.
People v. Yeoman (2003) 31 Cal.4th 93, 118 [it is a well-
established principle that a reviewing court may consider for the
first time a claim raising a pure question of law on undisputed
facts]; People v. Delacy (2011) 192 Cal.App.4th 1481, 1493
[defendant did not forfeit an equal protection challenge to a
statute by failing to raise it in the trial court].)
8
3. The Trial Court Did Not Abuse its Discretion
Finally, Cresham contends the trial court abused its
discretion by refusing to exclude the prior domestic violence
evidence under Evidence Code section 352. Once again, we
disagree.
Although generally admissible under section 1109, evidence
of an uncharged act of domestic violence remains subject to
exclusion under section 352. (§ 1109, subd. (a).) Evidence Code
section 352 states: “The court in its discretion may exclude
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.”
When deciding whether to admit evidence of an uncharged
act of domestic violence, trial courts “must engage in a careful
weighing process. . . . [and] consider such factors as its nature,
relevance, and possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the
burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its
outright admission, such as admitting some but not all of the
defendant’s other [] offense, or excluding irrelevant though
inflammatory details surrounding the offense. [Citations.]”
(Falsetta, supra, 21 Cal.4th at pp. 916–917.) “ ‘ “The principal
factor affecting the probative value of an uncharged act is its
similarity to the charged offense.” ’ [Citation.]” (People v.
Johnson, supra, 185 Cal.App.4th at p. 531.)
9
We review a trial court’s admission of evidence of an
uncharged act of domestic violence for an abuse of discretion.
(Johnson, supra, 185 Cal.App.4th at p. 531.) “A court abuses its
discretion when its rulings fall ‘outside the bounds of reason.’ ”
(People v. Ochoa (1998) 19 Cal.4th 353, 408.) We will uphold the
court’s decision “unless it exercised its discretion in an arbitrary,
capricious, or patently absurd manner. [Citations.]” (People v.
Thomas (2012) 53 Cal.4th 771, 806.)
Here, there are substantial similarities between the two
prior acts of domestic violence and the present offenses. All three
incidents involved the same victim (Lauren) and occurred in close
temporal proximity (roughly three years apart). In both the 2015
incident and the incident giving rise to the present charges,
Cresham became enraged and threatened to kill Lauren after she
left him. In the 2017 incident, like the present incident, Cresham
became upset with Lauren, physically struck her with enough
force to cause bruising, threatened to kill her, and took her to an
area where she could not obtain help.
Moreover, like many domestic violence cases, there were no
witnesses to the current crimes other than Cresham and the
victim. As a result, the trial was essentially a credibility contest
between the two, a situation in which propensity evidence is
particularly probative. (See Jennings, supra, 81 Cal.App.4th at
p. 1313; Brown, supra, 77 Cal.App.4th at pp. 1333–1334.)
Several other factors also weigh in favor of admission of the
evidence. The degree of likelihood that the prior incidents took
place is high given Cresham was convicted of offenses arising out
of each. The jurors also learned of that fact, which lessened the
probability that they would try to punish Cresham for his prior
transgressions. (See People v. Rucker (2005) 126 Cal.App.4th
101107, 1119.) Further, the record shows the prosecutor presented
the evidence relatively quickly and in a manner that was not
overly confusing, distracting, or misleading for the jury.
Cresham contends the court could have decreased any
potential prejudice by permitting the prosecutor to introduce
evidence that he suffered the prior convictions, while omitting the
specific facts underlying those convictions. Cresham, however,
overlooks that the probative value of the evidence arises out of
the factual similarities with the present offenses. Simply noting
that Cresham suffered prior offenses would not serve the same
purpose.
Cresham also argues the evidence was unduly prejudicial
because some of the prior acts were significantly more
inflammatory than the charged crimes. In particular, he points
to evidence that he threatened to make Lauren watch as he killed
her family, which displayed an “enhanced level of psychological
cruelty.”
While we agree the prior domestic violence was
reprehensible—particularly Cresham’s threat to make Lauren
watch as he killed her family—we disagree that it was
significantly more inflammatory than the charged offenses. The
evidence in this case shows that when Lauren tried to run from
Cresham, he chased her down, choked her, and hit her with such
force that she saw stars and briefly lost consciousness. Cresham
then threatened to kill Lauren if she tried to escape and
essentially held her hostage for several days. During that time,
he prevented her from receiving medical treatment for the
injuries he inflicted on her. Given the terrible nature of all three
incidents, we cannot say one was significantly more
inflammatory than the others.
11
Considering all the relevant factors, the court’s admission
of the prior domestic violence evidence was not arbitrary,
capricious, patently absurd, or unduly prejudicial. The trial court
did not abuse its discretion.
II. CALJIC No. 2.50.02 is Not Unconstitutional
Cresham contends the trial court erred by instructing the
jury with CALJIC No. 2.50.02 because the instruction is
unconstitutional.5 We disagree.
The court instructed the jury with a modified version of
CALJIC No. 2.50.02, as follows: “If you find by a preponderance
of the evidence that the defendant committed any such
uncharged offense involving domestic violence, you may, but are
not required to, infer that the defendant had a disposition to
commit other offenses involving domestic violence. If you find
that the defendant had this disposition, you may, but are not
required to, infer that he was likely to commit and did commit
the crimes of which he is accused. However, even though you
find by a preponderance of the evidence that the defendant
committed another uncharged crime or crimes involving domestic
violence, that is not sufficient by itself to prove beyond a
reasonable doubt that he committed the offense that you are
determining. If you determine an inference properly can be
drawn from this evidence, this inference is simply one item for
you to consider along with all the other evidence in determining
whether the defendant have [sic] been proved guilty beyond a
5 We reject the Attorney General’s contention that Cresham
forfeited this issue by failing to object to the instruction in the
trial court. (See People v. Hudson (2006) 38 Cal.4th 1002, 1012
[the forfeiture rule does not apply when the trial court gives an
instruction that is an incorrect statement of the law].)
12
reasonable doubt of the charged crimes that you are
determining.”
Cresham insists this instruction was constitutionally
infirm because it permitted the jury to infer guilt and convict him
based on a standard of proof less than beyond a reasonable doubt.
However, as Cresham recognizes, in People v. Reliford (2003) 29
Cal.4th 1007 (Reliford), the California Supreme Court rejected
these same arguments in the context of a jury instruction
pertaining to propensity evidence in sex offense cases (former
CALJIC No. 2.50.01). (Reliford, supra, at p. 1016.) As Cresham
further recognizes, CALJIC Nos. 2.50.01 and 2.50.02 are identical
in all material respects, and the reasoning in Reliford is equally
applicable to CALJIC No. 2.50.02. (See People v. Pescador (2004)
119 Cal.App.4th 252, 261–262 [applying Reliford to deny
challenge to CALJIC No. 2.50.02]; People v. Escobar (2000) 82
Cal.App.4th 1085, 1097 [noting cases decided with respect to
CALJIC Nos. 2.50.01 and 2.50.02 are generally interchangeable];
see also People v. Reyes (2008) 160 Cal.App.4th 246, 253
[applying Reliford to deny challenge to CALCRIM No. 852, which
is materially the same as CALJIC No. 2.50.02].)
We are bound by the Supreme Court’s guidance in Reliford
(Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at
p. 456), and we agree with our fellow Courts of Appeal that it
compels us to conclude that CALJIC No. 2.50.02 is not
constitutionally infirm on the grounds Cresham cites.
Accordingly, we reject Cresham’s arguments.
13
III. Penal Code Section 422 is Not Unconstitutionally
Vague
Chesham contends we must reverse his conviction for
violating section 422 because the statute is unconstitutionally
vague. We disagree.
Due process of law is violated by “a statute which either
forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning
and differ as to its application.” (Connally v. General
Construction Co. (1926) 269 U.S. 385, 391 (Connally).) A statute
will pass constitutional muster only “if it (1) gives fair notice of
the practice to be avoided, and (2) provides reasonably adequate
standards to guide enforcement.” (Fisher v. City of Berkeley
(1984) 37 Cal.3d 644, 702 (Fisher); Connally, supra, at p. 391.)
Fair notice requires that the statute’s terms be described with a
reasonable degree of certainty so that an ordinary person can
understand what conduct is required of her. (Fisher, supra, at p.
702.) Further, the statute must provide sufficient standards of
enforcement so there is no threat of arbitrary application. (Id. at
p. 703.) A statute is presumed to be valid and must be upheld
unless its unconstitutionality “ ‘ “clearly, positively and
unmistakably appears.” ’ [Citations.]” (Patel v. City of Gilroy
(2002) 97 Cal.App.4th 483, 488–489.)
Section 422 makes it an offense to “willfully threaten[] to
commit a crime which will result in death or great bodily injury
to another person, with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent
of actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person
14
threatened, a gravity of purpose and an immediate prospect of
execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for
his or her immediate family’s safety . . . .” (§ 422, subd. (a).)
Cresham argues section 422 is unconstitutionally vague
because it is unclear what crimes will result in death or great
bodily injury, making it difficult for an individual to know if his
threats are unlawful. Further, according to Cresham, the statute
gives law enforcement unfettered discretion to determine
whether a threatened crime will result in great bodily injury or
death.
The court in People v. Maciel (2003) 113 Cal.App.4th 679(Maciel), rejected nearly identical arguments to those Cresham
advances here. In holding section 422 is not unconstitutionally
vague, the court explained that the statute “does not criminalize
all threats of crimes that will result in death or great bodily
injury, leaving to law enforcement to determine those threats
that will result in arrest. Instead, the statute criminalizes only
those threats that are ‘so unequivocal, unconditional, immediate,
and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat,
and thereby causes that person reasonably to be in sustained fear
for his or her own safety or for his or her immediate family’s
safety.’ . . . One who willfully threatens violence against another,
intending that the victim take the threat seriously and be fearful,
cannot reasonably claim to be unaware that the conduct was
prohibited.” (Maciel, supra, 113 Cal.App.4th at p. 685.)
The court further held the phrase “ ‘will result in great
bodily injury’ ” is not vague, even when viewed in isolation. The
court explained that the phrase “means objectively, i.e., to a
15
reasonable person, likely to result in great bodily injury based on
all the surrounding circumstances. [Citations.] . . . . An objective
standard of reasonableness provides a sufficiently reliable guide
to individuals and law enforcement.” (Maciel, supra, 113
Cal.App.4th at pp. 685–686.) Moreover, the term “ ‘ “great bodily
injury” has been used in the law of California for over a century
without further definition and the courts have consistently held
that it is not a technical term that requires further elaboration.’
[Citation.] The phrase ‘great bodily injury’ means ‘a significant
or substantial physical injury.’ [Citation.] The phrase ‘great
bodily injury’ is ‘sufficiently certain and definite to meet the
constitutional requirements’ and avoid vagueness.” (Id. at p.
686.) We agree with the Maciel court’s analysis of the issue.
Cresham does not seriously challenge the above-quoted
reasoning from Maciel. Instead, he urges us to follow a decades-
old decision by the Nebraska Supreme Court holding a somewhat
similar statute to be unconstitutionally vague. (See State v.
Hamilton (1983) 215 Neb. 694, 695 (Hamilton).) The statute at
issue in that case made it an offense to threaten to commit “any
crime likely to result in death or serious physical injury to
another person . . . .” (Id. at p. 695.) The Nebraska court held
this to be unconstitutionally vague because it lacked a specific
intent requirement and used the term “likely,” which the court
thought was inherently problematic when included in a criminal
statute. (Id. at pp. 697–699.) Section 422 suffers neither
problem: it includes a specific intent requirement and does not
use the term “likely.”6 Accordingly, even if we agreed with the
holding in Hamilton, it would be of no help to Cresham.
6 Even if the term “likely” were implicit in section 422, as the
Maciel court suggested, we would not find the statute
16
IV. Cresham Forfeited His Arguments Regarding Fines
and Fees
Cresham contends the trial court erred by imposing fines
and fees without first conducting an ability-to-pay hearing. We
find the issue forfeited.
Prior to sentencing, Cresham’s public defender filed a
request that the court waive all fees and restitution, or
alternatively conduct an ability-to-pay hearing. Cresham
subsequently retained private counsel.
At the sentencing hearing, the court noted that it received
Cresham’s request for an ability-to-pay hearing. The court then
stated that it intended to impose the minimum fines and fees
because it thought Cresham could afford to pay them during his
incarceration. The court asked Cresham if he wanted to be heard
on the issue, and counsel submitted without argument. The
court then imposed a $300 restitution fine (§ 1202.4), a stayed
$300 parole revocation fine (§ 1202.45), $160 in court operations
assessments (§ 1465.8), and $120 in criminal conviction
assessments (Gov. Code, § 70373).
On appeal, Cresham contends the court erred by imposing
the fines and fees without conducting an ability-to-pay hearing.
The Attorney General insists Cresham forfeited the issue by
unconstitutionally vague. As the Maciel court observed,
California courts have held statutes with similar language pass
constitutional muster. (See, e.g., People v. Covino (1980) 100
Cal.App.3d 660, 668 [holding “assault by means of force likely to
produce great bodily injury” is not unconstitutionally vague];
People v. Basuta (2001) 94 Cal.App.4th 370, 397–398 [holding
assault on a child “ ‘by means of force that to a reasonable person
would be likely to produce great bodily injury’ ” is not
unconstitutionally vague].)
17
failing to object at sentencing. For the reasons set out in People
v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155 (Frandsen),
we find the issue forfeited and decline to exercise our discretion
to consider it. (See also People v. Gutierrez (2019) 35 Cal.App.5th
1027, 1031–1033 [finding forfeiture where defendant failed to
object to fines and fees under §§ 1202.4, 1465.8 & 290.3, and Gov.
Code, §§ 70373 & 29550.1, based on inability to pay]; People v.
Bipialaka (2019) 34 Cal.App.5th 455, 464 [citing Frandsen to find
fines and fees issue forfeited for failure to object in trial court].)
Cresham seems to concede that his counsel did not raise a
timely objection to the fines and fees. Nonetheless, he insists the
issue was not forfeited because it presents a pure question of law:
whether the court violated his constitutional rights by imposing
fines and fees without conducting an ability-to-pay hearing. We
are not persuaded. Regardless of his framing, Cresham is
essentially arguing that the court exercised its otherwise lawful
authority in an erroneous manner under the particular facts of
his case; such a claim encompasses factual matters and is subject
to forfeiture. (People v. McCullough (2013) 56 Cal.4th 589, 597;
see People v. Welch (1993) 5 Cal.4th 228, 236.) Cresham,
moreover, “may not ‘transform . . . a factual claim into a legal one
by asserting the record’s deficiency as a legal error.’ [Citation.]”
(People v. McCullough, supra, at p. 597.)
Cresham further argues he may raise the issue for the first
time on appeal because it implicates his fundamental
constitutional rights. In support, he cites People v. Vera (1997)
15 Cal.4th 269 (Vera), for the proposition that a “defendant is not
precluded from raising for the first time on appeal a claim
asserting the deprivation of certain fundamental, constitutional
rights.” (Id. at p. 276.) “[T]he dictum in Vera on which defendant
18
relies ‘was not intended to provide defendants with an “end run”
around the forfeiture rule,’ but was limited to a narrow class of
constitutional rights,” none of which are involved here. (People v.
Linton (2013) 56 Cal.4th 1146, 1166, quoting People v. Tully
(2012) 54 Cal.4th 952, 980, fn. 9.)
Cresham alternatively argues that, to the extent the issue
was forfeited, he received ineffective assistance of counsel. To
prevail on a claim of ineffective assistance of counsel a defendant
must establish two elements: (1) counsel’s representation fell
below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s errors or omissions,
a determination more favorable to the defendant would have
resulted. (Strickland v. Washington (1984) 466 U.S. 668, 690,
694; see People v. Holt (1997) 15 Cal.4th 619, 703.) If the record
fails to disclose why trial counsel acted or failed to act in the
manner challenged, the ineffective assistance of counsel claim
must be rejected unless counsel was asked for, and failed to
provide, an explanation or there could be no plausible
explanation. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled
on another ground in People v. Berryman (1993) 6 Cal.4th 1048,
1081, fn. 10.)
Here, the record does not disclose why counsel declined to
object to the fines and fees, and counsel was not asked to provide
an explanation. Moreover, we can conceive at least one plausible
explanation for counsel’s failure to object: he may have been
aware that Cresham had the ability to pay the relatively modest
fines and fees. Cresham, after all, had recently retained private
counsel to represent him at sentencing. Because we can conceive
a plausible explanation for counsel’s failure to object, we reject
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Cresham’s claim that he received ineffective assistance of
counsel.
DISPOSITION
We affirm the judgment.
BIGELOW, P. J.
We Concur:
GRIMES, J.
STRATTON, J.
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