Opinion
D073241
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. FATHY ABDUSALAM, Defendant and Appellant.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD273625) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Arthur Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Fathy Abdusalam pleaded guilty to robbery (Pen. Code, § 211; count 1) and admitted allegations of a serious felony prior (id., §§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a strike prior (id., §§ 667, subd. (b)-(i), 668, 1170.12) in exchange for a stipulated nine-year sentence and the dismissal of a charge for resisting an officer (id., § 148, subd. (a)(1); count 2). Abdulsalam signed the plea agreement with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758, which permitted the court to consider the entire factual background of the case, including dismissed charges.
The court sentenced Abdusalam to the agreed upon stipulated term of nine years based on the low term of two years for count 1, which was doubled for the strike prior, plus five years for the serious felony prior. In addition to imposing various fines and fees, the court ordered $45 in restitution paid to victim M.B. and restitution in an amount "to be determined" for victim T.F.
On appeal, Abdusalam contends the restitution order as to T.F. was improper because T.F. was a traumatized witness, not a direct victim of either the robbery or the dismissed resisting arrest count. We conclude T.F. was a victim of the dismissed count and the court properly exercised its discretion to award T.F. restitution in an amount to be determined. Therefore, we affirm the judgment.
BACKGROUND
As the factual basis for his plea, Abdusalam agreed he "took property of another by using force without permission unlawfully and had a prior strike conviction and serious felony prior."
According to the probation report, M.B. was headed to a bank with two $100 bills in hand when Abdusalam grabbed and twisted M.B.'s hand and pried the money away. M.B. chased and caught Abdusalam, retrieved the money, and let Abdusalam go. M.B. called the police as he followed Abdusalam. M.B. flagged down and pointed out Abdusalam to a passing patrol unit. The officers gave chase on foot as Abdusalam fled.
Abdusalam approached a car occupied by T.F. and banged on the driver's side door and window. T.F. locked the door. Abdusalam tried to open the door as he banged on the car door and window. He continued to bang on the door and window when a police officer approached and told Abdusalam to "Freeze!" Officers apprehended and arrested Abdusalam after a struggle.
T.F. provided a statement at the sentencing hearing. She described the impact of Abdusalam's actions toward her in the early morning as she was getting donuts for her coworkers. She saw Abdusalam's dilated pupils as he continually beat on her car. Abdusalam's actions caused her sleeping patterns to change, made her feel fearful and uncomfortable in her own skin, and caused her to lose trust in others to the point of needing counseling.
DISCUSSION
"The California Constitution gives crime victims a right to restitution and, consequently, requires a court to order a convicted wrongdoer to pay restitution in every case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).)" (People v. Sy (2014) 223 Cal.App.4th 44, 62 (Sy).) To implement this constitutional right to restitution, Penal Code section 1202.4, subdivision (a)(1), provides, "[i]t is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." Generally, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim ... in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (Pen. Code, § 1202.4, subd. (f).) Restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (Pen. Code, § 1202.4, subd. (f)(3).)
" ' "The standard of review of a restitution order is abuse of discretion. 'A victim's restitution right is to be broadly and liberally construed.' " ' " (Sy, supra, 223 Cal.App.4th at p. 63.) " ' "In reviewing the sufficiency of the evidence [to support a factual finding], the ' "power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support he trial court's findings.' " ' " (Ibid.)
Abdusalam contends T.F. does not qualify as a direct victim because she was not the object of a crime, merely a witness or a bystander. He contends the robbery was completed when he encountered T.F. He also contends T.F. cannot qualify as a direct victim of the dismissed charge of resisting a police officer because he did not commit the crime of resisting arrest against T.F.
We need not reach Abdusalam's contention that the robbery was completed at the time Abdusalam encountered T.F. because we conclude T.F. qualified as a victim of the dismissed count of resisting an officer. " 'It is unquestioned that restitution may be granted to a victim in a dismissed count so long as there is a valid Harvey waiver by the defendant.' " (People v. Weatherton (2015) 238 Cal.App.4th 676, 681, citing Pen. Code, § 1192.3.)
"A victim is the object of a crime. [Citation.] ' "Actual" ' or ' "direct" ' victims are 'the real and immediate objects' of the offense." (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1086, citing People v. Birkett (1999) 21 Cal.4th 226, 232, 233.) The California Constitution provides, "a 'victim' is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act." (Cal. Const., art. I, § 28, subd. (e); see People v. Pierce (2015) 234 Cal.App.4th 1334, 1336-1337 [multiple victims entitled to restitution when fleeing codefendant crashed the stolen truck into a utility pole while fleeing law enforcement].)
" 'The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.' [Citation.] 'The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence.' " (In re Amanda A. (2015) 242 Cal.App.4th 537, 546.)
Here, Abdusalam resisted, delayed, or obstructed the officers he knew were engaged in the performance of their duties when he fled after being pointed out by M.B. and by attempting to gain entry to T.F.'s vehicle, presumably to get away from the officers. He continued to bang on the car door and window and attempted to open the car door after a police officer directed him to "Freeze!" Contrary to Abdusalam's contention, T.F. was not merely a bystander or a witness who observed a crime. Abdusalam's conduct was directed at gaining entry into T.F.'s vehicle in attempting to escape police officers. T.F. described the mental trauma she endured as an immediate result of Abdusalam's conduct. Therefore, the court did not abuse its discretion in finding T.F. to be a victim entitled to restitution.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.