Filed 9/20/21 P. v. Fenwick CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JASON LAMONT FENWICK,

 Defendant and Appellant.

2d Crim. No. B304002

(Super. Ct. No. 18F-10662)

(San Luis Obispo County)

Jason Lamont Fenwick appeals from the judgment 

after a jury convicted him of assault with the intent to commit a 

sex crime (Pen. Code,1 § 220, subd. (a)(1)), oral copulation of an 

intoxicated person (§ 288a, subd. (i)), sexual penetration of an 

intoxicated person (§ 289, subd. (e)), and invasion of privacy 

(§ 647, subd. (j)(2)). The trial court sentenced him to 10 years in 

state prison for his crimes. It also ordered him to pay a $7,200 

restitution fine (§ 1202.4, subd. (b)).

1 Unlabeled statutory references are to the Penal Code.
2

Fenwick contends: (1) the judgment should be 

reversed due to the erroneous exclusion of evidence, (2) there was 

insufficient evidence to support his invasion-of-privacy 

conviction, (3) counsel provided ineffective assistance when he 

failed to object to the trial court’s erroneous instruction on the 

invasion-of-privacy charge, and (4) the court erred when it found 

he had the ability to pay the restitution fine. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Fenwick sexually assaults Jane Doe

Jane Doe was a passenger in a car driven by her 

boyfriend. Police stopped the car and cited him for driving under 

the influence. Jane was also intoxicated and could not drive. An 

officer at the scene ordered her a Lyft to take her home.

Fenwick, a driver for Lyft, arrived a few minutes 

later. He drove Jane Doe home. Jane could not walk on her own, 

so Fenwick helped her out of the car and to the back of the house 

where the sliding glass door to her bedroom was unlocked. Jane 

does not remember entering her bedroom or anything else about 

interacting with Fenwick that night.

Jane Doe awoke the next morning with vomit in her 

mouth, feces in her bed, and blood on the wall. Her abdomen and 

lower extremities were sore. She felt a burning sensation when 

she urinated and “excruciating” pain when she defecated. She 

felt that something sexual had occurred the night before.

Later that day, Jane Doe’s boyfriend reviewed 

surveillance video footage from the night before.2 The video 

showed Fenwick holding Jane’s arm as the two walked to her 

house. Jane entered her bedroom through a sliding glass door, 

followed by Fenwick. Fenwick closed the blinds and helped Jane 

2 The video was played for the jury at trial.
3

remove her shoes. He then started to leave, but Jane grabbed his 

hand. She passed out a few minutes later. Fenwick briefly left 

the house, returning with a cell phone to photograph Jane. He 

then removed her shorts and underwear and performed sexual 

acts on her.

Police interviewed Fenwick about the incident.3 He 

initially said that nothing sexual had occurred and that he simply 

stayed with Jane Doe until she fell asleep. He also claimed that 

he was sick and may have coughed on Jane’s vagina when he 

helped her up after she fell off a toilet.

After police accused him of lying, Fenwick changed 

his story and said that Jane Doe was “all over” him. Although he 

protested, she undressed, kissed him, forced him to touch her 

breasts, and rubbed her vagina in his face. “That’s what she 

wanted . . . she wanted me to, you know, stay with her.”

Jane Doe’s statements to a victim-witness advocate

Prior to opening statements, the prosecutor disclosed 

that Jane Doe had asked a victim-witness advocate whether he

(the prosecutor) was “available.” Jane also told the advocate that 

she found the prosecutor “attractive.” Fenwick sought to have 

Jane’s statements admitted at trial on the theory that they 

contradicted claims she made to the advocate: that she “flinches 

when men touch her,” has “no desire for men,” and is “terrified” of 

them. He also theorized that Jane was attempting to bolster a 

civil suit she had filed against Lyft.

The trial court concluded that the admission of Jane 

Doe’s statements was prohibited by the rape shield law because 

they would be used to prove that she consented to Fenwick’s 

3 A recording of the interview was played for the jury at 

trial.
4

sexual acts. The evidence was also more prejudicial than 

probative.

Fenwick later reiterated his belief that the rape 

shield law did not apply to Jane Doe’s statements because they 

did not amount to “past sexual conduct.” He also claimed the 

statements were relevant because, “if she’s in a relationship and 

. . . comes on to other men,” that is “highly probative” of how she 

operates. The trial court disagreed and excluded the evidence.

Trial and sentencing

At trial, Fenwick claimed that the sexual acts he 

performed on Jane Doe were consensual and that she was not 

inebriated to the degree alleged by the prosecution. He rubbed 

his fingers on Jane’s vagina, but said he did not have sexual 

intercourse with her because she was too “sleepy.”

Fenwick admitted that he took photographs of Jane 

Doe without her consent. He did not know if she knew that he 

was taking them. He showed a picture of Jane’s exposed breasts

to a coworker.

The trial court instructed the jury that, to find that 

Fenwick invaded Jane Doe’s privacy when he took the pictures, 

the prosecutor had to prove that: (1) Fenwick “used a . . . camera 

. . . to secretly . . . photograph” Jane; (2) “the . . . photograph . . . 

was under or through the clothing being worn by [Jane] without 

[her] consent or knowledge”; (3) the photograph was “taken with 

the intent to arouse, appeal to, or gratify the lust, passions, or 

sexual desires of [Fenwick] and invade the privacy of [Jane]”; and 

(4) the photograph “was made under circumstances in which 

[Jane] had a reasonable expectation of privacy.” The court then 

defined “identifiable” and “intimate body part” for jurors. It did 
5

not define any other term. Counsel conceded that Fenwick was 

guilty of this crime during closing arguments.

Jurors convicted Fenwick of assault with the intent 

to commit a sex crime, oral copulation of an intoxicated person, 

sexual penetration of an intoxicated person, and invasion of 

privacy. At sentencing, the trial court said that it was going to 

impose a $7,200 restitution fine. Fenwick asked the court to 

reduce the fine, arguing that he would earn minimal wages in 

prison. The court recognized that Fenwick would earn low 

wages, but declined to reduce the fine.

DISCUSSION

Exclusion of evidence

Fenwick first contends the trial court erred when it 

excluded Jane Doe’s statement that she was attracted to the 

prosecutor. We disagree.

In a case involving one or more specified sex offenses, 

evidence of an alleged victim’s past sexual conduct is not 

admissible to prove consent. (People v. Fontana (2010) 49 Cal.4th 

351, 354 (Fontana); see Evid. Code, § 1103, subd. (c)(1).) But 

such evidence may be admitted to “attack the credibility of the” 

victim if: (1) “its probative value outweighs the danger of undue 

prejudice” (see Evid. Code, § 352), and (2) “the defendant . . . 

complies with the procedures set forth in Evidence Code section 

782.” (Fontana, at p. 354.) We review the trial court’s order

excluding evidence pursuant to these provisions for abuse of 

discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.)

There was no abuse of discretion. Fenwick initially 

sought to introduce Jane Doe’s statements about the prosecutor 

to contradict claims she made to the victim-witness advocate: 

that she “flinches when men touch her,” has no desire for men, 
6

and is terrified of them. But the claims Jane made to the victimwitness advocate were not presented to the jury. Jane’s alleged 

interest in the prosecutor was therefore irrelevant. (People v.

Freeman (1994) 8 Cal.4th 450, 491 [evidence relevant only if it 

tends to prove or disprove an issue before the jury].)

Fenwick also sought to introduce Jane Doe’s 

statements to show that she had manipulated the prosecutor’s 

office to bolster the civil suit she filed against Lyft. But this 

theory of admissibility rests on a string of assumptions, the first 

of which is that Jane was willing to engage in “sexual conduct” to 

gain her desired outcome. (See People v. Franklin (1994) 25 

Cal.App.4th 328, 334 (Franklin) [“sexual conduct” includes “any 

behavior that reflects the actor’s or speaker’s willingness to 

engage in sexual activity”].) As such, it implicates the rape shield 

law and the narrow exception set forth in Evidence Code section

782. But as he admits in his opening brief, Fenwick did not 

comply with the procedural requirements of that section because 

he failed to submit a written motion and offer of proof on the 

relevancy of Jane’s statements. (Evid. Code, § 782, subd. (a)(1).) 

Additionally, courts construe Evidence Code section 782’s 

exception to the rape shield law “‘narrowly’” so that it does not 

become a “‘“back door” for admitting otherwise inadmissible 

evidence.’ [Citation.]” (Fontana, supra, 49 Cal.4th at pp. 362-

363.) Fenwick’s “‘sketchy and unconfirmed allegations’” 

regarding Jane’s manipulation of the prosecutor do not fit within 

such a narrow construction. (People v. Mestas (2013) 217 

Cal.App.4th 1509, 1518.)

Finally, Fenwick claimed Jane Doe’s statements were 

“highly probative” because they showed that she was willing to 

“come[] on to other men” while in a relationship with her 
7

boyfriend. This theory of admissibility again implicates the rape 

shield law because it goes directly to whether Jane consented to 

engaging in sexual acts with Fenwick. (Franklin, supra, 25 

Cal.App.4th at p. 334.) Evidence of an alleged victim’s sexual 

conduct with a third party is not admissible to prove consent. 

(Fontana, supra, 49 Cal.4th at p. 354.) The trial court thus did 

not abuse its discretion when it denied Fenwick’s motion to admit 

Jane’s statements about the prosecutor. (Id. at p. 370.) Nor did 

that denial deprive Fenwick of his constitutional rights. (Ibid.)

Sufficiency of the evidence

Section 647, subdivision (j)(2), prohibits the use of a 

“concealed” camera to secretly photograph another person “under 

or through” their clothing. (§ 647, subd. (j)(2).) Fenwick contends 

there was insufficient evidence that he violated this statute 

because: (1) the camera he used to photograph Jane Doe was not 

“concealed,” and (2) he did not photograph Jane “under or 

through” her clothing. We disagree with both contentions.

To evaluate Fenwick’s contentions, “‘we review the 

entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that 

is, evidence that is reasonable, credible, and of solid value—from 

which a reasonable trier of fact could find [him] guilty beyond a 

reasonable doubt.’” (People v. Avila (2009) 46 Cal.4th 680, 701.)

We draw all reasonable inferences in favor of the verdict, and 

presume the existence of every fact the jury could reasonably 

deduce from the evidence. (People v. Maciel (2013) 57 Cal.4th 

482, 515.) It is immaterial whether we would have drawn the 

same inferences (People v. Solomon (2010) 49 Cal.4th 792, 811-

812); our job is not to reweigh the evidence or reevaluate witness 

credibility (People v. Jones (1990) 51 Cal.3d 294, 314).
8

As to Fenwick’s first contention, a camera is 

“concealed” if it is hidden from view, if something prevents the 

disclosure or recognition of it, or if it is placed or kept out of sight. 

(In re R.C. (2019) 39 Cal.App.5th 302, 307-308.) Here, Fenwick 

retrieved a cell phone from his car and then used it to take 

pictures of Jane while she was unconscious. Fenwick’s act of 

waiting until Jane was unconscious to take pictures of her kept 

the phone out of Jane’s sight. (See id. at p. 308 [camera 

“concealed” where minor did not obtain victim’s permission to use 

it and kept it hidden from her sight].) Substantial evidence thus 

supports the jury’s determination that Fenwick “concealed” his 

cell phone camera. (Id. at p. 309.)

Substantial evidence also supports the jury’s 

determination that Fenwick photographed Jane Doe “under or 

through” her clothing. “Under” means “‘in . . . a position below or

beneath something’” (Natural Resources Defense Council, Inc. v.

Perry (N.D.Cal. 2018) 302 F.Supp.3d 1094, 1097) or “‘below or

beneath so as to be covered, protected, or concealed’” (RJT

Investments X v. Commissioner (8th Cir. 2007) 491 F.3d 732, 736, 

fn. 6, alterations omitted). Fenwick had photographs on his cell 

phone depicting Jane both clothed and with her breasts exposed. 

Because Jane’s breasts were at one point covered by clothes and 

then uncovered and exposed, Fenwick photographed her “under 

or through” her clothing.

Ineffective assistance of counsel

Next, Fenwick contends trial counsel provided 

ineffective assistance because he conceded Fenwick’s guilt on the 

invasion-of-privacy charge instead of objecting to the trial court’s 

erroneous jury instruction. We again disagree.
9

To succeed on an ineffective assistance of counsel 

claim, a defendant must prove, by a preponderance of the 

evidence, that counsel’s performance was deficient and resulted 

in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 

691-692; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) As to 

the first requirement, we “defer to counsel’s reasonable tactical 

decisions” and indulge “a ‘strong presumption that [their] conduct 

falls within the wide range of reasonable professional assistance.’ 

[Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) As 

to the second, a defendant establishes prejudice by showing “‘a 

probability sufficient to undermine confidence in the outcome.’ 

[Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 

1003.) 

Here, the trial court’s instruction on the invasion-ofprivacy charge failed to tell jurors that they had to conclude that 

the camera Fenwick used to photograph Jane Doe was 

“concealed” in order to convict him. The instruction thus omitted 

an essential element of the charged crime. (See In re R.C., supra, 

39 Cal.App.5th at pp. 307-308.) But that omission was harmless 

beyond a reasonable doubt. (See People v. Flood (1998) 18 

Cal.4th 470, 502-503 [instruction that omits element of crime 

reviewed under standard set forth in Chapman v. California

(1967) 386 U.S. 18].)

The video footage shown to jurors depicted Fenwick 

waiting until Jane Doe passed out to retrieve his cell phone and 

use it to take pictures of her. Fenwick then admitted at trial that 

he took pictures of an unconscious Jane. These actions served to 

“conceal” the camera Fenwick used. Any error in failing to 

instruct jurors on concealment was therefore harmless. Counsel’s 

failure to object to the erroneous instruction thus does not 
10

undermine confidence in Fenwick’s conviction. His ineffectiveassistance-of-counsel claim fails.

Restitution fine

Finally, Fenwick contends the trial court abused its 

discretion when it concluded that he had the ability to pay a 

$7,200 restitution fine. (Cf. People v. Nelson (2011) 51 Cal.4th 

198, 227 [ability-to-pay determination reviewed for abuse of 

discretion].) But the record shows that Fenwick held two jobs 

when he sexually assaulted Jane Doe, and had the ability to 

afford rent, child support, and car payments. (See, e.g., People v.

Gentry (1994) 28 Cal.App.4th 1374, 1377-1378 [past and future 

earnings relevant to determining ability to pay].) Fenwick will

also have the ability to earn wages while in prison. (See, e.g., 

People v. Castellano (2019) 33 Cal.App.5th 485, 490 [potential 

earnings in prison relevant to defendant’s ability to pay].) 

Fenwick provided no evidence to counter these considerations. 

(Ibid. [defendant bears burden of showing inability to pay].) He 

thus failed to show that the court below abused its discretion 

when it declined to reduce the restitution fine.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. PERREN, J.
Matthew G. Guerrero, Judge

Superior Court County of San Luis Obispo

______________________________

Matthew Alger, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Paul M. Roadarmel, Jr. and David F. 

Glassman, Deputy Attorneys General, for Plaintiff and 

Respondent.