People v. Fackler CA4/1

Filed 6/28/24 P. v. Fackler CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082161

Plaintiff and Respondent,

v. (Super. Ct. No. SCD286044)

JEORGE SAMUEL FACKLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed.

Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.

Jeorge Samuel Fackler was charged with 10 counts of lewd and

lascivious acts upon a child (Pen. Code, § 288, subd. (a))1; two counts of lewd and lascivious acts upon a child age 14 or 15 years old (§ 288, subd. (c)(1)); and two counts of sexual penetration with a foreign object (§ 289, subd. (j)), involving Jane Does 1, 2, 3, and 4. During trial, Fackler pleaded guilty as to three counts relating to Doe 1. A jury found him guilty of the remaining 11 counts against Does 1, 2, 3, and 4; and made a true finding that he committed the offenses against multiple victims. (§ 667.61, subds. (b), (c) & (e).) On appeal, Fackler argues the trial court violated his right to due process by instructing the jury that it could use the finding of guilt on the three uncontested counts involving Doe 1 as evidence of his propensity to commit the remaining 11 counts against Does 1, 2, 3, and 4. He contends the 11 counts to which he did not concede should be reversed and the matter remanded for a new trial. Fackler concedes his due process argument is foreclosed by our Supreme Court’s decision in People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), and acknowledges that we are bound to follow Villatoro in deciding this case (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity Sales)). He nonetheless brings this appeal to urge the Supreme Court to reconsider Villatoro and to preserve his federal constitutional claim. The People assert that Fackler forfeited his claim of instructional error by failing to raise it in the trial court. In the alternative, the People assert his claim is meritless under Villatoro and Auto Equity Sales.