Filed 6/20/13 P. v. Fahey CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047489

         v.                                                            (Super. Ct. No. 09HF0428)

MATHEW MACUL FAHEY,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Patrick
Donahue, Judge. Affirmed.
                   Ava R. Stralla, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Defendant Mathew Macul Fahey filed a notice of appeal. His appointed
counsel filed a brief setting forth a statement of the case, but advised this court she found
no issues to support an appeal. Fahey filed his own written brief after we provided him
an opportunity to do so. We conclude Fahey’s arguments are without merit, and after
conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d
436, we affirm.


                                           FACTS
              An amended felony complaint filed in April 2009 charged Fahey with
committing lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); all statutory
references are to the Penal Code unless noted) between January 1996 and December 1998
(count 3), and again in September 2001 (count 1), and possessing child pornography
(§ 311.11, subd. (a)) in June 2008 (count 2). The complaint alleged Fahey had
substantial sexual conduct (§ 1203.066, subd. (a)(8) [masturbation]) with the victim in
count 3, and committed sexual offenses against more than one victim (§ 667.61, subd.
(b), (e)).
              Laguna Beach Police Officer Deborah Kelso testified at Fahey’s October
2010 preliminary hearing that in May 2008 Nicole F. (born in February 1991) disclosed
she met Fahey at the beach in September 2001. He claimed he was a professional
photographer and asked to photograph her. After a subsequent photo shoot at a park,
Nicole accompanied Fahey to a Laguna Beach apartment. Fahey asked her to remove her
shirt and get on a bed. She complied, and he took additional photos of her in her jeans
and underwear. He then asked her to remove her pants and get on her hands and knees.
He took photos of her vagina. He then physically manipulated her vagina and took
additional close-up photos. He moved his finger back and forth and told her not to tell
her mother.



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               Alex S. (born in January 1989) stated Fahey dated her mother when Alex
was eight years old. The three were watching television under a comforter when Fahey
put his hand down Alex’s pants, manipulated her vagina, and inserted his finger into her
vagina. The incident lasted at least 20 minutes.
               Kelso seized Fahey’s computer in June 2008. It contained photographs of
nude young girls touching their vaginal areas and holding dildos, and young children
involved in oral copulation and sexual intercourse. Fahey denied downloading child
pornography, which he described as disgusting. Images would “pop up” on his computer
and he would look out of curiosity. None of the photos were of Nicole.
               An information filed in October 2010 charged Fahey with the offenses
mentioned above. Fahey’s retained counsel declared a conflict and the court appointed
the public defender in July 2011.
               Fahey pleaded guilty to the three felony counts in September 2012. The
prosecutor agreed to dismiss the enhancing allegations. Fahey initialed and signed a Tahl
form waiving his constitutional and statutory rights. He expressly waived his right to
appeal from “any and all decisions and orders” of the superior court made in the case,
including motions to suppress evidence, his guilty plea, and “any legally authorized
sentence the court imposes which is within the terms and limits of” the plea agreement.
He also waived his right to a probation report. He agreed the court would sentence him
to prison for 10 years and 8 months, he would receive credit for 1,270 days of actual
custody and 108 days of conduct credit as limited by section 2933.1. He agreed to
various fines and fees, and acknowledged he would be required to register as a sex
offender (§ 290) for the rest of his life.
               Fahey provided the following factual basis for his plea: “In Orange
County, California, on September 5, 2001, I did commit a lewd and lascivious act on
Nicole F., who was under 14 years of age, with the intent [of] appealing to my own
sexual desires. On or between January 2, 1996 and December 31st, 1998, I did commit a

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lewd and lascivious act on Alex S., who was under 14 years of age, with the intent [of]
appealing to my own sexual desires. On June 3, 2008, I knowingly possessed matter,
knowing that it depicted persons under the age of 18 engaging in sexual conduct as
defined in PC 311.4(d).”
              Fahey’s attorney acknowledged he had explained Fahey’s rights to him,
discussed the charges, possible defenses, sentence ranges and immigration consequences
with Fahey, and concurred with Fahey’s decision to waive his rights and plead guilty.
              At the September 21, 2012 plea and sentencing hearing, Fahey expressly
waived his constitutional rights on the record, and the trial court accepted Fahey’s guilty
plea and sentenced him to the agreed upon sentence, comprised of the upper eight-year
term for the lewd act offense against Nicole, a consecutive two-year term for the offense
against Alex, and an eight-month term for possession of child pornography. Fahey stated
he was “very, very, very sorry for everybody having to go through this. And I want to
say thank you for making me believe in the justice system and due process again.”
              Fahey filed a notice of appeal in October 2012 based on the sentence or
other matters occurring after the plea that did not affect the validity of the plea. He
requested a certificate of probable cause, asserting in a lengthy request that his “conduct-
credit tabulation” had been miscalculated. He claimed his attorney rendered
constitutionally defective representation and alleged the prosecutor committed
misconduct concerning the deliberate destruction of evidence, including forensic exams
and the testimony of the alleged victims. He alleged the Laguna Beach Police
Department illegally destroyed or altered material evidence but Fahey’s attorney refused
to investigate. He also complained about the “misapplication of” Penal Code
section 667.61 in the “indictment,” which was “based on flawed science” and applied
unconstitutionally to a certain class of people, which resulted in a high bail and three and
a half years of pretrial confinement under “bla[tantly] unconstitutional conditions” that
affected his “cognitive reasoning and awareness.” He also asserted there was “‘new

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evidence’” related to the child pornography offense that raised “serious doubt” he
“‘knowingly’” possessed the material. He also stated there was an ex post facto problem
with this conviction “in that at the time of the offense (pre-2007) 311.11(a) was not a
serious or violent felony subject to 2 years in prison and a consecutive sentencing
enhancement.” The trial court certified there was probable cause for the appeal.
              A minute order reflects that on October 24, 2012, Fahey’s trial counsel
advised the trial court Fahey’s conduct credits under section 2933.1 had been
miscalculated. The court recalculated the presentence conduct credits, granting 190 days
rather than 108 days of conduct credit, and prepared an amended abstract of judgment.


                                     POTENTIAL ISSUES
              Fahey’s appellate lawyer identifies several potential issues for our
consideration: (1) Whether the trial court properly advised Fahey of his constitutional
rights and the consequences of pleading guilty, and whether he validly waived those
rights before pleading guilty; (2) Whether imposition of the upper term on count 1 as a
condition of the plea agreement violate Fahey’s right to a jury trial (Blakely v.
Washington (2004) 542 U.S. 296, 301; Cunningham v. California (2007) 549 U.S. 270);
(3) Whether the court failed to state reasons for imposing consecutive terms; and (4)
Whether the court correctly awarded conduct credits under Penal Code section 2933.1.
              The record reflects Fahey was advised in writing on the Tahl form and on
the record of the consequences of pleading guilty and of the constitutional rights he was
waiving. Fahey executed a Blakely/Cunningham waiver, which acknowledged and
waived his right to a court or jury trial concerning factors that could be used to increase
his sentence on any count. He also agreed the court would sentence him to prison for
10 years and 8 months as a condition of the plea agreement. At sentencing, the court
stated “[p]ursuant to the agreement, the court will select the aggravated term of eight
years on count 1.” A trial court is not required to provide reasons for imposing an upper

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term under a plea bargain because the defendant expressly agreed to the sentence.
(People v. Sutton (1980) 113 Cal.App.3d 162, 163, 165; Scoggins v. Superior Court
(1977) 65 Cal.App.3d 873, 877 [where sentence is in accord with plea bargain, there is no
need to discuss with the defendant the possible range of punishments for the charge].)
We also note Fahey’s sentence was legally authorized, and Fahey waived his right to
appeal “any legally authorized sentence the court imposes which is within the terms and
limits of” the plea agreement. Finally, section 2933.1 limits presentence conduct credits
to 15 percent of actual custody credits whenever the defendant has suffered a current
conviction for a violent felony (§ 667.5) and the terms for the violent and nonviolent
offenses run consecutively. (People v. Baker (2002) 144 Cal.App.4th 1320, 1326-1327.)
Fahey suffered two violent felony convictions for lewd or lascivious acts (§§ 288, subd.
(a), 667.5, subd. (c)(6)) in addition to his nonviolent conviction for possession of child
pornography (§ 311.11). The court therefore properly imposed consecutive terms
pursuant to the plea agreement.
              Fahey has filed a 23-page supplemental letter brief. He states he is not
contesting “the underlying validity of the plea” but is “respectfully asking this Court . . .
to clarify those issues I could not understand at the time” he pleaded guilty. We note
during the plea colloquy, Fahey stated he had read the Tahl form “completely,” he
understood what he read, and his lawyer answered “[e]very single one” of his questions.
              Fahey apparently objects to the statutorily-mandated limitation on
worktime credits under section 2933.1, subdivision (a). Section 2933.1 generally
provides persons convicted of a crime and sentenced to state prison serve their entire
sentence. But “[n]otwithstanding any other law, any person who is convicted of a felony
offense listed in subdivision (c) of Section 667.5 [defining violent felonies] shall accrue
no more than 15 percent of worktime credit, as defined in Section 2933.”
              Because the trial court sentenced Fahey to prison for two violent felony
convictions for committing lewd acts, his suggestion his “most current [sic, recent]

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offense” (possession of child pornography) should control his entitlement to conduct
credits, and that only “recidivist,” “habitual” or “3rd strike offenders” should have their
conduct credits limited, is supported by neither law nor reason. Section 2933.1 applies to
persons currently convicted of violent offenses, not only to “habitual violent offenders.”
              Fahey also argues that because section 2933.1 only pertains to violent
felonies, the fact his lewd act convictions also qualify as “serious” felonies (§ 1192.7,
subd. (c)(6)) “eliminat[es] them from the harsher penalties under section 2933.1,
subdivision (a).” The language of section 2933.1 applies “Notwithstanding any other
law,” and therefore refutes Fahey’s claim.
              Likewise, Fahey does not explain how his eligibility for probation made
application of section 2933.1 “a violation of law.” The cases cited by Fahey stand for the
proposition the section 2933.1 limitation on credits does not apply when a defendant is
placed on probation rather than sentenced to prison as occurred in this case. (See In re
Carr (1998) 65 Cal.App.4th 1525, 1535-1536; People v. Daniels (2003) 106 Cal.App.4th
736, 739 [Carr does not apply where a defendant is initially placed on probation but
sentenced to state prison when probation is revoked].)
              Fahey’s suggestion he did not receive notice of the limitation on prison
credits is not well taken. The charging documents advised him the sex offenses were
violent felonies, which was sufficient to inform him of the nature of the charges,
including the 15 percent limitation on credits. (People v. Fitzgerald (1997)
59 Cal.App.4th 932, 936-937.) Moreover, the Tahl form advised Fahey that pretrial
credits were limited to 15 percent, so it could have come as little surprise, even assuming
he knew of the prison credits scheme, that he would not receive full credits.
              Fahey does not explain how his section 2933.1 “credit liability” can be
considered “multiple punishment” under section 654. Nothing in the record supports
Fahey’s claim he is a “low risk” offender, nor does Fahey explain why it is
unconstitutional to apply a “‘delayed-release provision’” such as section 2933.1 to him.

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              Fahey is not subject to a “life-time punishment” under 2933.1, rather he
received the 10-year, 8-month sentence promised as part of the plea bargain. Of course,
his convictions might have future effect if he is subsequently convicted of other offenses.
Also, he must register as a sex offender for life.
              Fahey complains the credit limitation denies “an inmate the ability to earn
program credits that might include treatment” and asks “Is it not a goal of CDCR to
rehabilitate?” This is a matter for the Legislature, not the courts.
              Fahey also objects to the punishment imposed for his conviction for
possessing child pornography (count 2), asserting the offense was previously deemed a
misdemeanor or a felony/misdemeanor wobbler. But Fahey pleaded guilty and admitted
violating section 311.11 in June 2008. At that time, section 311.11 provided “Every
person who knowingly possesses or controls any [prohibited matter as described], . . . is
guilty of a felony and shall be punished by imprisonment in the state prison, or a county
jail for up to one year, or by a fine not exceeding two thousand five hundred dollars
($2,500), or by both the fine and imprisonment.” (Italics added.)
              Section 311.11 would ordinarily grant the trial court discretion to impose a
jail sentence or a prison sentence. If the court imposed a jail sentence, the maximum
term would be one year. If the court imposed a prison sentence, no term of imprisonment
is specified in section 311.11. Because no term of imprisonment is prescribed, section 18
applies. It provides: “[E]very offense declared to be a felony is punishable by
imprisonment for 16 months, or two or three years in the state prison unless the offense is
punishable pursuant to subdivision (h) of Section 1170.” (§ 18, subd. (a).)
              Section 18 is not ambiguous, the consecutive term was authorized, and the
resulting sentence is not absurd. Fahey does not explain how the “rule of lenity” applies
in this appeal, or how his sentence violates ex post facto provisions.
              Fahey also claims he pleaded guilty to section 311.11 assuming he would
receive an eight-month concurrent term. The Tahl form clearly shows he agreed to a

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consecutive eight-month (one-third midterm) prison term for his violation of section
311.11. He did not object when the court imposed the consecutive term. He says the
10-year, 8-month sentence for a “first offense” does not appear “logical.” But he pleaded
guilty to three separate offenses committed at different times against different victims.
As noted, he agreed to this sentence.
              Fahey suggests his plea was entered under duress and that he has or had
serious medical and mental issues, but nothing in the record supports these claims. We
note during the plea colloquy, Fahey stated he was entering into the agreement freely and
voluntarily, no one made any threats, and no promises were made other than what
appeared on the Tahl form.
              Fahey mentions prison or jail overcrowding and an “‘over-crowding
reduction order’” but does not explain how this relates to this appeal. He mentions a
“federal rule 60” but does not explain what this is or how it applies to his case.
              Finally, Fahey insists that he pleaded guilty “to the offenses only” and not
to the “unreliable, false, misleading, and reckless details of the police report.” By
pleading guilty to the offenses, Fahey waived his right to challenge the underlying facts
of the charges. We also note no legal basis exists for distinguishing between a guilty plea
in relation to the charges and a guilty plea in relation to the underlying facts.
              We discern no arguable issues from counsel’s brief, Fahey’s letter brief, or
in our independent review of the record. Because Fahey waived his right to appeal, we
will affirm the appeal.




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                                     DISPOSITION
           The appeal is affirmed.




                                              ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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