Opinion
F073706
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK RANDALL FAWCETT, Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRL011163, CRL011165)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
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FACTS AND PROCEDURAL HISTORY
On the evening of January 8, 2014, Merced County Sheriff's Deputy Barile was dispatched to a residence in Los Banos, in regard to a report Mark Randall Fawcett (defendant) had broken into his parents' home and was beating his mother. Upon arrival, defendant's parents informed Barile that defendant, who lived in San Jose, had been having psychiatric problems. He was continuously coming to the house and harassing his parents by phone. The parents related that on January 8, 2014, they received a text message from defendant, stating that he was going to commit suicide. They were aware he had a firearm they believed to be a 12-gauge shotgun. Two hours after they received the text, defendant went to the back door of their residence, which was locked, and broke out the back door window, allowing him to unlock the door. Once inside, he took their cell phones and the residential phone, preventing them from calling 911. Defendant then threatened them with violence and physically abused his mother. His father was able to exit and run to a neighbor's house to call 911. His mother was able to calm defendant down and set off the alarm system to summon the sheriff's department. Defendant then began breaking antiques and other items in the home, causing more than $1,000 in damage. He demanded his personal property, and took a school yearbook that belonged to him and items that belonged to his parents. He then fled in a vehicle. Both parents said they feared for their lives. They reported defendant broke into their house and threatened them on regular occasions that were growing more frequent, and they were concerned he might return, kill them, and then commit suicide.
The facts of the offenses are taken from the police reports that were attached to the criminal complaints and are part of the clerk's transcript on appeal.
As a result of the foregoing events, defendant was charged, in Merced County Superior Court case No. CRL011163 (hereafter case No. 63), with first degree residential burglary (Pen. Code, § 459; count 1), making criminal threats (§ 422, subd. (a); count 2), disabling or removing a telephone line (§ 591; count 3), vandalism with damage in excess of $400 (§ 594, subd. (a); count 4), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 5). A criminal protective order was entered, restraining defendant from contact with his parents.
All statutory references are to the Penal Code unless otherwise stated.
On the afternoon of February 10, 2014, Merced County Sheriff's Deputy Ramos was dispatched to the residence of defendant's parents regarding criminal threats. Ramos reviewed the call log in defendant's father's phone. It showed defendant had called the father seven times in 40 minutes, in addition to sending him text messages. In the final call, defendant stated he was going to break into the house and kill both his parents. That was when the father called the sheriff's office. The father told Ramos that both parents were terrified of defendant and what he might end up doing to them. Ramos obtained an emergency protective order for the parents. In addition, a warrant was transmitted to San Jose in an attempt to arrest defendant on his previous charges, but defendant could not be located. Ramos requested extra patrol for the parents' residence and notified oncoming deputies of what had transpired.
That same evening, Barile was dispatched to the residence regarding a burglary in progress. Upon arrival, Barile met with defendant's father, who reported defendant had come to the residence, following various threats of wanting to kill his parents, and had forced entry into the garage. Defendant then began beating his mother's car with a stick or yard tool, causing more than $1,000 in damage. Barile confirmed there was damage to the vehicle. Barile arranged to have a GPS (global positioning system) signal locate defendant through defendant's cell phone. Defendant was westbound on Highway 152 in Merced County and appeared to be returning to Santa Clara County. When Barile reached him by phone, however, defendant denied being in Merced County, going to his parents' house, or damaging his mother's vehicle. After the phone call ended, defendant contacted his parents multiple times, harassing them about the damage to their home and vehicle, and saying he was too slick to be caught. He then stated he wanted money from them or he would continue coming to their house and vandalizing their property. He also referred to his mother in derogatory terms, told her that she needed to perform certain sexual acts with unknown males, and said he wanted her to die.
Defendant was located the next day in his vehicle and arrested by the San Jose Police Department. Police found a shotgun while searching the vehicle.
As a result of the foregoing events, a complaint was filed in Merced County Superior Court case No. CRL011165 (hereafter case No. 65), charging defendant with first degree residential burglary (§ 459; count 1), stalking (§ 646.9, subd. (b), subsequently amended to § 646.9, subd. (a); count 2), making criminal threats (§ 422, subd. (a); counts 3-7), and vandalism with damage in excess of $400 (§ 594, subd. (a); count 8). A criminal protective order was entered, restraining defendant from contact with his parents.
On February 26, 2014, the court ordered defendant referred, in both cases, for a mental health evaluation pursuant to section 4011.6.
On March 5, 2014, again in both cases, a doubt was declared as to defendant's competency (§ 1368), criminal proceedings were suspended, and a psychologist was appointed to evaluate defendant. On May 7, 2014, a second psychologist was appointed to further evaluate defendant.
On September 24, 2014, the parties stipulated, and the court found, that defendant was competent to stand trial. Criminal proceedings were reinstated, and a plea agreement reached, in both cases.
Defendant waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, and was informed of the consequences of his plea, including the sentence range for each offense, that he would be on felony probation, and that if he violated the terms of probation, he could be sentenced to prison for one of the terms within that sentence range. As part of the plea agreement, defense counsel was to deliver defendant the next day to the Community Medical Centers Community Behavioral Health Center, where defendant had been accepted for in-patient treatment. Community Medical Centers was to be the sole judge of defendant's progress, and to determine when he was deemed safe for release into the community as well as an appropriate treatment plan. Once defendant was released, he was to resume his probationary terms under the plea. If he successfully completed 12 months on probation, the charges to which he was pleading in both cases would be reduced to misdemeanors. If he then successfully completed an additional 12 months on informal probation, the People would agree to termination and expungement under sections 1203.3 and 1203.4. Counsel stipulated there was a factual basis for the pleas.
As noted, the police reports were attached to, and incorporated by reference in, the complaints. In his written "FELONY ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM," defendant acknowledged there was a factual basis for the pleas, and agreed the court could consider any report in the file in so finding.
In case No. 63, defendant pled no contest to count 4, vandalism with damage in excess of $400 (§ 594, subd. (a)), a felony. In case No. 65, he pled no contest to count 2 as amended, stalking (§ 646.9, subd. (a)), also a felony. The court accepted the pleas and impliedly found them to have been knowingly, intelligently, and voluntarily given. Defendant requested immediate sentencing; the court suspended imposition of sentence in each case and placed defendant on 36 months of felony probation, subject to the terms of the plea agreement and various other terms and conditions. Upon the request of the parties and consent of defendant's parents, the court also modified the protective order to allow peaceful contact initiated by the parents.
The court expressly declined to order fines at this point.
On May 4, 2015, and May 18, 2015, affidavits of probation violation were filed in case No. 63 and case No. 65, respectively, alleging defendant violated the terms of his probation by violating the " 'PEACEFUL CONTACT' " order with the victims. Probation subsequently was revoked in both cases.
On June 5, 2015, defendant waived his constitutional rights and admitted the violation of probation. The court initially terminated probation, then imposed and suspended execution of a three-year prison sentence in each case. The court then reinstated probation in both matters under the terms and conditions previously imposed, with the addition that defendant was to be assessed for Mental Health Court. In addition, defendant was ordered to have no contact with his parents.
There was no mention of any financial obligations.
On June 23, 2015, defendant was ordered to enroll in, and successfully complete, the Mental Health Treatment Court Program.
On February 10, 2016, Probation Officer Maldonado, who was assigned to the probation office's mental health caseload, submitted an affidavit of probation violation, alleging defendant violated the terms of his probation by contacting his parents. Probation was revoked in both cases. On February 23, 2016, the court terminated the Mental Health Treatment Court Program. On March 2, 2016, Maldonado submitted an amended affidavit of probation violation, adding an allegation that defendant violated the terms of his probation by failing to complete the mental health court program.
A contested probation violation hearing was held on March 23, 2016. Defendant's mother testified that on February 7, 2016, defendant sent a group text message to her and her husband's cell phones. The message read: "I will kill you both. I will hold a gun to your head and kill you. I bought a gun off the street. I will kill everyone else in the family until I'm caught." Defendant subsequently sent a few more messages about needing a haircut, as well as one that read, "I'm just kidding. Don't tell the cops." His parents did not respond. Defendant later texted that he needed his mother to take him to the doctor. His mother responded to that message. She had responded to several of defendant's texts prior to this date when she felt it was an emergency or, after talking to his therapist, it seemed he was "in a good place." On those prior occasions, which occurred perhaps once a week, defendant was always the one who initiated the contact.
Defendant's father testified that he also received the threatening message. He notified Maldonado. Prior to receiving that message, defendant's father probably received about 10 texts from defendant over the preceding six months. If defendant said he was going to the hospital or was agitated or something similar, defendant's father might respond, but not very often. Defendant's father never initiated the contact.
Maldonado testified that he was in court on this matter on February 23, 2016. Even though the threats were serious in nature, the mental health team had agreed defendant would be released and placed on GPS monitoring, because the mental health program was not designed to maintain long-term jail commitments. A release with monitoring would allow defendant to continue with the program. After defendant was advised of the plan, it became the consensus of the team that the program was no longer benefiting defendant, as he did not seem remorseful for his actions. The decision was made to terminate him from the mental health court program. Upon being so advised, defendant became upset and had to be restrained by the bailiffs. Prior to being terminated from the program, defendant was "pretty good" about meeting with Maldonado as required, attending review hearings, and attending therapy, although he was not fully compliant with taking his medications.
At the conclusion of the hearing, the court found not true the allegation that defendant failed to complete the mental health court program, reasoning that defendant was found to no longer be an appropriate candidate. The court found true the allegation of contact with the victims, defendant's parents.
After input from defendant's mother, Maldonado, and both counsel concerning the appropriate disposition, the court opined that defendant's condition was "far beyond what the county mental health is capable of dealing with," and that if defendant were returned to probation, defendant would receive "less, not more intensive treatment." The court stated it did not want to send to prison a person who suffered from a mental illness and therefore had a kind of diminished responsibility, but it saw itself as having very few options.
In case No. 65, the court terminated probation and sentenced defendant to prison for the upper term of three years. It found the upper term appropriate due to the threat of great violence that was present and repeated many times over the course of defendant's conduct. In case No. 63, it terminated probation and sentenced defendant to a concurrent three-year term. It found a concurrent sentence appropriate because the victims were the same in each case, and both cases arose from what was "a kind of continuing course of conduct." The court recommended, pursuant to section 2684, subdivision (a), that defendant be housed at the state hospital. The court also imposed a restitution fine of $300 in each case, with an additional fine in the same amount ordered but stayed pending defendant's successful completion of parole. The court awarded 308 days of actual custody credit and 308 days of conduct credit, for a total of 616 days, in case No. 65.
Defendant filed a timely notice of appeal in case No. 65. At appellate counsel's request, and there being no opposition from the Attorney General, we construed it to be from both cases.
APPELLATE COURT REVIEW
Defendant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts and procedural history, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, stating that defendant was advised he could file his own brief with this court. By letter dated February 6, 2017, we invited defendant to submit additional briefing.
Defendant replied in a lengthy letter. Insofar as we can ascertain actual claims of error, we have grouped them according to the overall nature of the claim and address each in turn. We find it appropriate to point out that "[i]n this cause, it is our appellate jurisdiction that we exercise. . . . 'Appellate jurisdiction is limited to the four corners of the record on appeal . . . .' [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 743.) In light of this limitation, we necessarily must reject those of defendant's claims that depend on matters falling outside the record on appeal.
For example, defendant expresses regret for the mistakes he acknowledges having made. This is commendable, but not something to which we can or will speak on appeal.
We have considered and rejected any claims not expressly addressed.
(1) Defendant makes a number of assertions about his attorneys, including that his original attorney lied about the effects, on defendant's criminal record and convictions, of section 1203.4; defendant wanted to fire his attorney and was not allowed to choose counsel; his attorney was recommended by the district attorney and had mental problems; defendant received ineffective assistance of counsel in many respects; and conflicts of interests existed with respect to defense counsel.
The record establishes the public defender's office and several attorneys declared unspecified conflicts of interest when the court was seeking to appoint counsel for defendant. The record does not show that any attorney who actually represented defendant was burdened by a conflict of interest or that any such attorney's performance was constitutionally deficient. The record also does not show defendant made known to the court any desire to change attorneys. Accordingly, we must reject these claims on appeal. (See, e.g., People v. Mai (2013) 57 Cal.4th 986, 1017; People v. Vines (2011) 51 Cal.4th 830, 876; People v. Rundle (2008) 43 Cal.4th 76, 169-170, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; In re Waltreus (1965) 62 Cal.2d 218, 224.)
The reporter's transcript of the probation violation hearing shows defendant addressed the court concerning the substance of the allegations and his feeling about the appropriate disposition. Although he asked for a different probation officer, the record shows no request for a different attorney. He also addressed the court during a hearing while criminal proceedings were suspended. Although he complained that he had not seen his attorney in four weeks and that the charges against him were not being investigated, the record on appeal again shows no request for different counsel.
(2) Defendant asserts the record shows he was terminated from the mental health court program for not being remorseful. He says not showing remorse is not against the law. We agree. The reason defendant was terminated from the program, however, is not pertinent to this appeal, since the court did not find him in violation of his probation based on that termination.
(3) Defendant seeks to have the testimony given by his parents and Maldonado at the probation violation hearing "suppressed and thrown out" because they are confused. Any confusion or conflicts go to the weight of the evidence, not its admissibility, and resolution of such conflicts is a matter for the trier of fact, not this court. (E.g., People v. Wader (1993) 5 Cal.4th 610, 633; People v. Westek (1948) 31 Cal.2d 469, 472; People v. Ennis (2010) 190 Cal.App.4th 721, 731.)
(4) Defendant challenges some of the charges originally brought against him. For instance, he expresses disagreement with the burglary charge, asserting he had a key to his parents' home, but they changed the lock without notifying him, and he only went to their house to get his own belongings. He also claims he "never laid hands on" either of them, and he is being punished for something he did not do. He also claims he was not trying to make a threat, that his messages "may have been a threat, but not a criminal threat," and that his parents were not in fear.
We are not concerned with any charges other than the two to which defendant pled no contest. The minutes of the September 24, 2014, hearing at which defendant entered that plea and was granted felony probation show the remaining counts were dismissed in both cases. We fail to see how defendant could be prosecuted on those counts in the future. (See, e.g., §§ 654, 1023; Kellett v. Superior Court (1966) 63 Cal.2d 822, 827; In re R.L. (2009) 170 Cal.App.4th 1339, 1342-1343.) Defendant's claim that the "falsified" allegation he "laid hands on" his mother caused him to " suffer[] . . . scrutiny" is not one we can address on the record before us. The same is true of any other collateral consequences defendant may have suffered as a result of being arrested and charged.
(5) Defendant seeks a reduction in charges, a continuance, a motion to vacate or reduce the charges, and a motion to suppress evidence regarding allegations of a threat being sent. The record does not support a finding any of these would be an appropriate remedy to grant on appeal. To the extent defendant is claiming defense counsel should have sought these things, the record contains no explanation for the challenged behavior, and we cannot say there could be no satisfactory explanation. Accordingly, we must reject the claim. (See People v. Kipp (1998) 18 Cal.4th 349, 367.)
(6) Defendant suggests he did not understand the law applicable to the charges to which he pled no contest. However, the "FELONY ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM" defendant signed with respect to both cases contained a provision stating defendant had had enough time to discuss his case with his attorney, the attorney had explained the elements of the charged offenses, and defendant and the attorney had discussed any possible defenses relating to the charges. Defendant initialed this provision. Thus, the record does not support his claim.
(7) With respect to the felony vandalism charge to which defendant pled no contest in case No. 63, defendant says the damage was done in the heat of the moment, and that he did not realize how much damage was being done. Both points — even if true — are immaterial. Subdivision (a) of section 594 simply requires that the damage be done maliciously. " '[M]aliciously,' " in turn, merely "import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act . . . ." (§ 7, subd. (4).) The relevant intent under section 594 is not an intent to cause property damage in a certain amount, "but only to deface, damage, or destroy property." (People v. Farley (2009) 46 Cal.4th 1053, 1113, fn. 20.)
(8) Defendant says he was charged twice for the same crime, as stalking includes harassment, and the only harassment was the charged vandalism. In this regard, "[t]he elements of the crime of stalking (§ 646.9) are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury. [Citation.]" (People v. Ewing (1999) 76 Cal.App.4th 199, 210.)
Even if we were to accept defendant's factual premise, that the only harassment was the charged vandalism, we would reject defendant's claim of error. As we indicated previously, we are concerned on appeal not with the crimes with which defendant was charged, but rather with the crimes of which he was convicted. Defendant was convicted of vandalism in one case, and of stalking in a separate case. The offenses occurred on different dates. Accordingly, whatever validity defendant's argument might have had if he had been convicted of vandalism and stalking committed in the same incident on the same date, he was not. Accordingly, he was not convicted twice of the same crime.
(9) Defendant claims he should have been allowed to serve his violation of probation in jail, but the judge and probation officer wanted probation revoked, based on their own biases, so they could send him to a mental institution. The record manifestly does not support this claim.
(10) Defendant asks that we allow him to finish out "PRCS" (post release community supervision) and have his original plea reinstated, which would allow him to reduce his charges and not have to face "the scrutiny of felony" the rest of his life. Defendant was given ample opportunity to achieve that result. He squandered that opportunity by violating the terms of his probation. He has shown no meritorious reason we should overturn the finding of a probation violation or ensuing state prison sentence. Accordingly, we decline his request.
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues. We note, however, that neither a court security fee (§ 1465.8) nor a court facilities funding assessment (Gov. Code, § 70373) was imposed in either case. Those fees and assessments are mandatory and must be imposed for each of defendant's convictions. (E.g., People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2; People v. Schoeb (2005) 132 Cal.App.4th 861, 863, 865-866.) We will modify the judgment accordingly.
Pursuant to Government Code section 68081, we notified the parties of our tentative conclusion in this respect, and afforded them an opportunity to address the issue.
DISPOSITION
The judgment is modified to impose a court security fee (Pen. Code, § 1465.8, subd. (a)(1)) in the total amount of $80 ($40 for each count) and a court facilities funding assessment (Gov. Code, § 70373, subd. (a)(1)) in the total amount of $60 ($30 for each count). As so modified, the judgment is affirmed. The clerk of the superior court is directed to issue an amended abstract of judgment reflecting said modification, and to transmit a certified copy of same to the appropriate authorities.