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People v. Farhat

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 29, 2020
No. C082640 (Cal. Ct. App. Jan. 29, 2020)

Opinion

C082640

01-29-2020

THE PEOPLE, Plaintiff and Respondent, v. AMRO FARHAT et al., Defendants and Appellants.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F07793)

Amro Farhat and Quoc Hung Pham were tried together but with separate juries for pimping and pandering C., a minor. Farhat was convicted of pimping a minor, pandering a minor, oral copulation with a minor, possession of matter depicting a minor engaging in or simulating sexual conduct, and unlawful sexual intercourse with a minor. Pham was convicted of human trafficking, pimping a minor, and pandering a minor. Defendants challenge various aspects of their sentences.

Farhat contends the trial court (1) should have stayed the sentence on count five pursuant to Penal Code section 654, (2) erred in imposing fines pursuant to the catchall fine provision of section 672 on counts four through seven, (3) erred in imposing $41,000 in fines under section 672 because the maximum for a single proceeding was $10,000, (4) abused its discretion in imposing $44,600 in fines under sections 672 and 1202.4, and (5) imposed fines that were grossly disproportionate to his crimes. We conclude the trial court erred in imposing section 672 fines on counts five and seven, but that Farhat's other appellate claims lack merit. We will modify Farhat's judgment to strike the $10,000 fines imposed on counts five and seven pursuant to section 672 and to impose a $2,500 fine pursuant to section 311.11, subdivision (a).

Undesignated statutory references are to the Penal Code.

Pham contends (1) the trial court abused its discretion and erred in imposing a $500,000 fine and that his trial counsel's failure to object to the $500,000 fine constituted ineffective assistance, and (2) the order prohibiting visitation from the victim was unauthorized. We will modify Pham's judgment to strike the order prohibiting visitation from the victim, and affirm the judgment as modified.

BACKGROUND

The victim C. was 16 years old when she ran away from home. She stayed in Oakland where she had a pimp and was "busting dates," i.e., engaging in prostitution.

C. accepted the invitation of 15-year-old R. to hang out in Sacramento. C. wanted to bust dates with R. They agreed R. would pick up C. from Oakland. C. did not expect another person to be with R. Pham and R. drove C. from Oakland to Sacramento. C. was not friends with Pham. C. told Pham she was 16 years old.

When they arrived in Sacramento, C. overheard Pham and R. say that C. was going to make money for them. C. was afraid of Pham. He showed her a gun and warned her against leaving or telling. C. engaged in prostitution in Sacramento because of her fear of Pham.

C. had her first "date" at a truck stop in Sacramento. Pham gave her instructions, including that she should give him all the money she made. Pham or Farhat drove R. and C. to the truck stop. R. also "walked" the truck stop. C. had sex with Farhat and gave him a blow job.

Pham later took R. and C. to a motel room registered under Farhat's name. Farhat instructed C. to take off her clothes and he took photographs of her. He created an ad featuring naked photographs of C. that read, "50 dollar/quick session, hot and horny." The ad listed the number for a cell phone that Pham provided to C. C. had a date in the motel room after Pham and Farhat left, receiving $100 which she gave to R.

Pham drove C. to "the ghetto" and left her there when he found out she had called her mother for help. A pre-dawn text message from Pham's cell phone to Farhat's cell phone read "9-1-1" and then "Call me." "Is problem. At room." A subsequent message from Pham's cell phone read, "that birch started to act so funny. She ran away my birch -- she ran my birch away." A response from Farhat's cell phone read, "Room under my name. Any problems, I fuck that bitch up." The following message was then sent from Pham's cell phone: "I got that bitch out of there." And then, "I drop your birch off on 47th and left her."

The jury convicted Farhat of pimping a minor (§ 266h, subd. (b)(1) -- count two), pandering a minor (§ 266i, subd. (b)(1) -- count three), oral copulation with a minor (former § 288a, subd. (b)(1) -- counts four and six), possession of matter depicting a minor engaging in or simulating sexual conduct (§ 311.11, subd. (a) -- count five), and misdemeanor unlawful sexual intercourse with a minor (§ 261.5, subd. (c) -- count seven). The jury acquitted Farhat on count eight, a second charge of misdemeanor unlawful sexual intercourse with a minor (§ 261.5, subd. (c)). The trial court sentenced Farhat to an aggregate prison term of eight years, plus 364 days in county jail. It imposed punitive fines of $10,000 per count on counts two and four through six, imposed and stayed a $10,000 fine on count three, and imposed a $1,000 fine on count seven, for a total of $41,000 in punitive fines. In addition, the trial court imposed a restitution fine of $3,600 pursuant to section 1202.4 and a parole revocation fine of the same amount pursuant to section 1202.45.

Count one was only charged against Pham.

The abstract of judgment for Farhat states that a $10,000 restitution fine was imposed pursuant to section 1202.4 and another $10,000 fine was imposed pursuant to section 1202.45. That portion of the abstract of judgment must be corrected to reflect the oral pronouncement of sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The abstract of judgment must also be corrected to reflect the $10,000 fine the trial court imposed on count two.

The jury convicted Pham of human trafficking (former §236.1, subd. (c)(1) -- count one), pimping a minor (§ 266h, subd. (b)(1) -- count two), and pandering a minor (§ 266i, subd. (b)(1) -- count three). The jury found not true the allegation in count one that Pham used force, fear, fraud, deceit, coercion, violence, duress, menace and/or threat of unlawful injury to C. in committing the crime. The trial court sentenced Pham to an aggregate prison term of 12 years and imposed a restitution fine of $3,600 pursuant to section 1202.4, a parole revocation fine of the same amount pursuant to section 1202.45, and a punitive fine of $500,000 pursuant to section 236.4. The trial court ordered that Pham would not have visitation privileges with the victim.

DISCUSSION

I

Farhat argues the trial court should have stayed the sentence on the count five conviction for possession of matter depicting a minor engaging in sexual conduct because there was no evidence he possessed the photographs of C. for any purpose other than to facilitate the count two crime of pimping a minor. He says his failure to object in the trial court did not forfeit his appellate claim because the sentence was unauthorized. We conclude that even if Farhat did not forfeit this contention, he has not established error.

Section 654 protects against multiple punishment where the same act or omission or "a course of conduct deemed to be indivisible in time" results in multiple statutory violations. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) The statute provides, in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654 is intended to ensure that a defendant is punished commensurate with his or her culpability. (Harrison, p. 335.)

A defendant's intent and objective determines whether multiple punishment is permissible. (Harrison, supra, 48 Cal.3d at p. 335.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he [or she] may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (Ibid.)

A defendant's intent and objective and, thus, whether section 654 applies are factual questions for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Vang (2010) 184 Cal.App.4th 912, 915-916 (Vang).) We will not reverse the trial court's findings if there is any substantial evidence to support them. (Vang, at p. 916.) " 'We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (Ibid.)

Here, substantial evidence supports the trial court's finding that Farhat harbored separate objectives. (See generally People v. Britt (2004) 32 Cal.4th 944, 952.) Based on the evidence, the trial court found that Farhat committed the crimes to satisfy his own prurient interests and also for financial gain. Farhat had sexual intercourse with C. and had C. orally copulate him. Based on C's testimony, it was reasonable for the trial court to find that possession of nude images of C. was not merely incidental to pimping but also served Farhat's sexual interests. (Vang, supra, 184 Cal.App.4th at p. 916 [we review the evidence in the light most favorable to the People].) Farhat's argument lacks merit.

II

Farhat next contends the trial court erred in imposing fines under the catchall provision of section 672 on counts four through seven because section 311.11 (count five), former section 288a (counts four and six), and section 261.5 (count seven) prescribed their own fines. He argues his failure to object to the fines in the trial court did not forfeit his appellate claim because the sentence was unauthorized. Although section 672 was not mentioned by the probation officer or the trial court and is not referenced in the abstract of judgment, Farhat says the fines he challenges were imposed pursuant to that statute, and the People agree.

Section 672 provides: "Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed." Section 672 "is a catchall provision allowing a fine to be imposed for every crime, even if the statute criminalizing the conduct did not specifically authorize a fine. The limiting provision was meant to ensure that a fine pursuant to section 672 would not be imposed if another statute authorized a fine for the offense." (People v. Breazell (2002) 104 Cal.App.4th 298, 304 (Breazell).)

A

The People agree that the trial court erred in imposing a section 672 fine on count five because section 311.11, the statute on which the count five conviction is based, prescribed a fine. Section 311.11, subdivision (a) provides, "Every person who knowingly possesses or controls any matter . . . knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, 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." Farhat did not forfeit his appellate claim by failing to object in the trial court because the section 672 fine was unauthorized. (Breazell, supra, 104 Cal.App.4th at pp. 304-305.)

The People ask us to reduce the $10,000 fine imposed under section 672 to $2,500, which is the fine the trial court could have imposed under section 311.11. Farhat does not oppose the request. We will modify Farhat's judgment to strike the $10,000 fine imposed on count five pursuant to section 672 and to impose a $2,500 fine pursuant to section 311.11, subdivision (a).

B

Former section 288a did not articulate a specific fine for a violation of that section. Although the Legislature added subdivision (m) to that statute as part of Assembly Bill No. 2374 (1987-1988 Reg. Sess.), authorizing an additional fine on specified offenses to fund an AIDS education program (Stats. 1988, ch. 1243, § 7), it has been held that the legislation is not inconsistent with the imposition of a section 672 fine. (People v. Clark (1992) 7 Cal.App.4th 1041, 1045-1046 (Clark) [citing Legislative Counsel's Digest regarding Assembly Bill No. 2374].) Clark, supra, 7 Cal.App.4th 1041 is instructive because it involved another statute amended by Assembly Bill No. 2374. The defendant in that case pleaded no contest to possession of methamphetamine in violation of Health and Safety Code section 11377 and the trial court imposed a $500 fine. (Clark, at p. 1044.) The defendant argued that because of the Assembly Bill No. 2374 fine, no fine could be imposed pursuant to section 672. (Clark, at p. 1045.) But the Court of Appeal held the trial court properly imposed the section 672 fine. (Clark, at p. 1046.) We do the same here, and conclude the trial court did not err in imposing the section 672 fine on counts four and six.

Former section 288a provided in pertinent part: "(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. [¶] (b)(1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. [¶] . . . [¶] (m) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23." (Stats. 2013, ch. 282, § 1.) The statute was renumbered as section 287 effective January 1, 2019. (Stats. 2018, ch. 423, § 49.) Former section 1463.23 provided: "Notwithstanding Section 1463, out of the moneys deposited with the county treasurer pursuant to Section 1463, fifty dollars ($50) of each fine imposed pursuant to . . . subdivision (c) of Section 11377, or . . . subdivision (m) of Section 288a . . . shall be deposited in a special account in the county treasury which shall be used exclusively to pay for the reasonable costs of establishing and providing for the county, or any city within the county, an AIDS (acquired immune deficiency syndrome) education program under the direction of the county health department, in accordance with Chapter 2.71 (commencing with Section 1001.10) of Title 6, and for the costs of collecting and administering funds received for purposes of this section." (Stats. 2010, ch. 328, § 173.)

C

Section 261.5, subdivision (e)(3) imposes a fine identical to the Assembly Bill No. 2374 fine we have discussed: "In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23." For reasons we have discussed with regard to the Assembly Bill No. 2374 fine, we conclude section 261.5, subdivision (e)(3) does not preclude the imposition of a fine under section 672. (Clark, supra, 7 Cal.App.4th at p. 1046.)

But our conclusion is different regarding the civil penalty authorized in section 261.5, subdivision (e)(1). Subdivision (e)(1) states: "Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts: [¶] . . . [¶] (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000)."

The Legislature added subdivision (e)(1) to section 261.5 when it adopted the Teenage Pregnancy Prevention Act of 1995 (Assembly Bill No. 1490 (1995-1996 Reg. Sess.)). (Stats. 1996, ch. 789, §§ 1, 3.) The Legislature said "[a]dult males who prey upon minor girls must be held accountable for their conduct and accept responsibility for their actions." (Stats. 1996, ch. 789, § 2, subd. (c).) It declared its intent "to create civil liability for adults who engage in unlawful sexual intercourse with a minor to help fund future efforts to prevent teenage pregnancy and deter adult sexual predators from victimizing minor girls." (Stats. 1996, ch. 789, § 2, subd. (d).)

Like a fine, a civil penalty is punitive; it is imposed to deter similar misconduct in the future. (People v. Witzerman (1972) 29 Cal.App.3d 169, 177.) Unlike the Assembly Bill No. 2374 fine, there is no indication the Legislature intended the section 261.5, subdivision (e)(1) penalty to be in addition to other fines.

Under the circumstances, we conclude the trial court erred in imposing a section 672 penalty on count seven. We will modify the judgment to strike that fine.

III

Farhat argues the trial court erred in imposing $41,000 in section 672 fines because the maximum for a single proceeding is $10,000. He again says his failure to object in the trial court did not forfeit his claim because the sentence was unauthorized.

Farhat relies on People v. Sutton (1989) 212 Cal.App.3d 1254, which construed Government Code former section 13967, subdivision (a). But limiting a restitution fine to $10,000 regardless of the number of counts was consistent with the words of that statute. Here, however, the language of section 672 authorizes a trial court to impose a fine not to exceed $10,000 "[u]pon a conviction for any crime punishable by imprisonment in any jail or prison." Unlike Government Code former section 13967, subdivision (a), section 672 does not provide for a fine for "one or more felony offenses" or for "any crimes punishable by imprisonment" or "in every case." Instead, the trial court may impose a section 672 fine for "any crime . . . ." Farhat did not provide, and we have not found, legislative history for section 672 indicating that the $10,000 maximum applies only once regardless of the number of counts. We conclude that even if Farhat did not forfeit his appellate claim, the trial court did not err in imposing more than $10,000 in section 672 fines.

IV

Farhat further argues the trial court abused its discretion in imposing $44,600 in fines pursuant to sections 672 and 1202.4. The People assert Farhat forfeited his appellate claim by not objecting to the amount of the fine in the trial court. We agree. (People v. Scott (1994) 9 Cal.4th 331, 353-356 (Scott) [complaints about the manner in which the trial court exercised its sentencing discretion cannot be raised for the first time on appeal]; People v. Bradley (2012) 208 Cal.App.4th 64, 90 (Bradley).)

V

In addition, Farhat asserts that the fines imposed were grossly disproportionate to his crimes and violated the Excessive Fines Clauses of the federal and state Constitutions.

The Excessive Fines Clause of the Eighth Amendment to the federal Constitution " 'limits the government's power to extract payments, whether in cash or in kind, "as punishment for some offense." ' " (United States v. Bajakajian (1998) 524 U.S. 321, 328 [141 L.Ed.2d 314, 325].) The California Constitution contains a similar protection. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.) The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality. (Bajakajian, at p. 334.) The amount of the fine must bear some relationship to the gravity of the offense that it is designed to punish, and a fine that is grossly disproportional to the gravity of the defendant's offense violates the Excessive Fines Clause. (Ibid.) In deciding the matter, we may consider the nature of the crime, the punishment the Legislature provided for the offense, the harm the defendant caused, the defendant's culpability (for example, the defendant's good faith or lack thereof) and the defendant's ability to pay. (Id. at pp. 337-339 & fn. 14; R.J. Reynolds, at pp. 728, 730.)

In sentencing Farhat, the trial court said Farhat exploited C. because of her age and lack of sophistication for his financial gain and to satisfy his prurient interests. It said the manner in which the crimes were carried out indicated planning and sophistication and Farhat's conduct presented a danger to the public. It also said Farhat did not accept responsibility for his actions and expressed no remorse.

The evidence presented at trial supports the trial court's determination. C. was a 16-year-old runaway and was particularly vulnerable. There can be no question that the crimes for which Farhat was convicted are serious offenses. The trial court imposed the upper term on the count two conviction for pimping a minor and Farhat does not challenge the upper term sentence. (People v. McGhee (1988) 197 Cal.App.3d 710, 717 ["when the circumstances of a particular case are such that imposition of the upper term of imprisonment for a particular crime is justified, a trial court does not abuse its discretion in imposing the maximum restitution fine provided by law"].) Additionally, the probation officer's report indicated that C. suffered harm as a result of the crimes. The report also shows Farhat did not accept responsibility for his crimes. With regard to ability to pay, there was no objection or evidence of Farhat's inability to pay any fines. The probation report states that Farhat owned his own business selling cell phones. Farhat told detectives he owned two stores.

In addition, the punishment the Legislature provided for Farhat's offenses show the gravity of his crimes. The $44,600 in fines were not grossly out of proportion with the gravity of his offenses. Because we reject Farhat's abuse of discretion and excessive fine claims on the merits, we also reject his associated ineffective assistance of counsel claims. The failure to raise a meritless objection is not ineffective assistance of counsel. (Bradley, supra, 208 Cal.App.4th at p. 90.)

VI

The trial court ordered Pham to pay a fine of $500,000 pursuant to section 236.4. Pham argues the trial court abused its discretion and violated the Excessive Fines Clauses of the federal and state Constitutions by imposing the fine. But Pham's trial counsel did not object to the fine, and the People argue Pham forfeited his appellate claims by not objecting to the amount of the fine in the trial court. We agree that the challenges to the $500,000 fine are forfeited for failure to object in the trial court. (Scott, supra, 9 Cal.4th at pp. 353-356; Bradley, supra, 208 Cal.App.4th at p. 90.)

Apparently anticipating forfeiture, Pham alternatively asserts that the failure to object constituted ineffective assistance. To establish ineffective assistance of counsel, Pham must prove (1) that his trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to Pham. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)

Among other things, Pham was convicted of human trafficking in violation of former section 236.1, subdivision (c)(1). A violation of the statute was punishable by imprisonment and a fine of not more than $500,000. (Prop. 35, § 6 [former section 236.1, subd. (c)(1)].) In addition, the trial court had the discretion to impose an additional fine not to exceed $1,000,000. (§ 236.4, subd. (a).) Courts have held that the defendant's ability to pay is an important factor in determining whether a fine is grossly disproportional to the gravity of the defendant's offense and, therefore, violates the Excessive Fines Clause. (City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1322; People ex rel. State Air Resources Bd. v. Wilmshurst (1999) 68 Cal.App.4th 1332, 1350; People v. Overstock.com, Inc. (2017) 12 Cal.App.5th 1064, 1091.)

The trial court recognized it had discretion to impose total aggregate fines up to $1.5 million under section 236.1 and 236.4. It said while it was tempted to impose the total maximum aggregate fine because of the gravity of the offense and impact it had on C. and the community, it had no information suggesting Pham made so much money that the maximum fine was warranted. However, it said it was clear Pham financially benefited from his activities and a $500,000 fine was warranted due to the gravity of the offense and the effect on the victim and also because it was a financial crime involving a threat of violence.

Although ability to pay is an important factor in assessing fines, on this record we cannot say Pham's trial counsel was deficient in failing to object or that Pham suffered prejudice. Pham's appellate briefs do not challenge the trial court's comments regarding Pham's income or that Pham financially benefited from his criminal activity. On this limited record, the claim of ineffective assistance fails.

VII

Pham also argues the order prohibiting visitation from the victim was unauthorized because he was not convicted of any of the offenses listed in section 1202.05. The People agree and we do too. Section 1202.05 requires a trial court to prohibit all visitation between the defendant and a child victim whenever the defendant is sentenced to state prison for violating specified statutes. (Stats. 1992, ch. 1008, § 2.) Pham was not convicted of violating any of the statutes listed in section 1202.05. We will modify Pham's judgment to strike the order prohibiting visitation with the victim.

DISPOSITION

The Farhat judgment is modified to strike the $10,000 fines imposed on counts five and seven pursuant to section 672 and to impose a $2,500 fine pursuant to section 311.11, subdivision (a). The Farhat judgment is affirmed as modified. The trial court shall amend the Farhat abstract of judgment to reflect the judgment as modified, shall correct the abstract of judgment to reflect the $3,600 restitution fine orally imposed pursuant to section 1202.4, the additional $3,600 parole revocation fine orally imposed pursuant to section 1202.45, and the $10,000 section 672 fine imposed on count two, and shall forward a certified copy of the amended and corrected Farhat abstract of judgment to the California Department of Corrections and Rehabilitation.

The Pham judgment is modified to strike the order prohibiting visitation from the victim. The judgment is affirmed as modified. The trial court shall amend the abstract of judgment to reflect the judgment as modified and forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

/S/_________

MAURO, Acting P. J. We concur: /S/_________
HOCH, J. /S/_________
RENNER, J.


Summaries of

People v. Farhat

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Jan 29, 2020
No. C082640 (Cal. Ct. App. Jan. 29, 2020)
Case details for

People v. Farhat

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. AMRO FARHAT et al., Defendants…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jan 29, 2020

Citations

No. C082640 (Cal. Ct. App. Jan. 29, 2020)