Opinion
C083067
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN GHASSAN FATTAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM044081)
Defendant Kevin Ghassan Fattal pleaded no contest to six counts of sexual abuse involving two victims. He was sentenced to a 16-year aggregate term. On appeal, he contends the trial court erred in failing to state reasons for imposing consecutive terms. He also contends his trial counsel rendered ineffective assistance in failing to object. We will affirm.
I. BACKGROUND
Defendant pleaded no contest to six counts of sexual assault. The first two counts pertained to E.H., who was a 15-year-old friend of defendant's daughter. The four remaining counts pertained to C.F., a woman to whom defendant served as legal guardian.
The counts and accompanying dates are as follows: sexual penetration of an intoxicated person (February 6, 2016) (Pen. Code, § 289, subd. (e)—count 1) (further undesignated statutory references are to the Penal Code); oral copulation of an intoxicated person (February 6, 2016) (§ 288a, subd. (i)—count 2); sexual penetration of an unconscious person (July 21, 2012) (§ 289, subd. (d)—count 3); sexual penetration of an unconscious person (October 18, 2012) (§ 289, subd. (d)—count 4); oral copulation of an unconscious person (July 8, 2013) (§ 288a, subd. (f)—count 5); and oral copulation of an unconscious person (July 21, 2012) (§ 288a, subd. (f)—count 6).
As part of the plea, the parties stipulated to a factual basis in the probation report, which provided as follows: A. Counts Involving E.H.
When E.H. was 15, she had been invited to a birthday party at defendant's house by defendant's daughter. There, defendant provided alcohol, and the victim drank four beers and four shots. That night, defendant offered her water and what he said was an ibuprofen pill to prevent a hangover. She went to sleep in defendant's daughter's bed.
During the night, the victim woke to see defendant. Defendant took off her pants and underwear. He groped her buttocks, put his finger in her vagina several times, fondled her breasts, forced her to kiss him, put his mouth on her breast and vagina, and put her hand on his penis. He also took photos. The victim tried to push defendant away and tell him to stop, but she fell in and out of consciousness. B. Counts Involving C.F.
C.F. was 22-years-old at the time of the birthday party and lived with defendant's family. In 2009, her father signed over custody to defendant, who became her legal guardian. Defendant made her sleep in his bed. When she asked for and got her own bedroom, defendant slept in her bed.
For several years, starting when she was 17 or 18, defendant gave her pills several times a week. The pills made her feel funny, see things, and black out. When she took the pills, she would wake to find she wasn't wearing pants or underwear. Twice she found a vibrator in and under her bed.
She recalled waking to see defendant performing oral sex on her, taking pictures, and touching her buttocks while masturbating. She also believed that on a couple of occasions defendant had raped and sodomized her.
After the incident with E.H., C.F. searched defendant's hard drives and discovered photos of herself asleep, placed in sexual positions.
Investigating officers found thousands of photos and hundreds of videos from 2011 to 2016 and some from an unknown year. The images included photos of a male's hand spreading the victim's buttocks and touching her vagina and breast; a penis touching her buttocks, upper thigh, breast, feet, and toes; defendant sucking the victim's breasts; a vibrator in the victim's vagina; and a penis in the victim's mouth and anus. The date stamp of some photos indicated C.F. was a minor when the photo was taken. C. Sentencing
At sentencing, the trial court indicated it was prepared to deny probation and impose a 16-year aggregate term based on a middle term principle term. Probation had recommended an 18-year aggregate term based on an upper term principle term.
Defense counsel asked the court to impose and suspend the aggravated term and grant probation. He argued there was no sexual act beyond the staging of a picture. He noted defendant had no prior criminal record and, citing a psychological evaluation, noted defendant had a low probability of reoffense. He also told the court defendant had a degenerative liver condition that would kill him in four to eight years, "[s]o I think the sentence you're proposing, basically, it might as well be life without possibility [of] parole."
After C.F. spoke to the court—recalling many of the instances reflected in the probation report—and the prosecution argued for the upper term, defense counsel told the court, "I'm going to stick by my request. Obviously, I would prefer the mitigated term rather than the aggravated term if the Court is willing to go forward."
The trial court denied probation citing the nature, seriousness, and circumstances of the crimes as compared to other instances of the same crimes; the victims' vulnerability; the infliction of emotional injury on the victims; defendant's active participation; his display of criminal sophistication; and his taking advantage of a position of trust. It added, any one of those factors would justify denying probation.
The court then selected the middle term on count 1 as the principal term, noting E.H. was particularly vulnerable, defendant's planning and sophistication, and his taking advantage of a position of trust. In mitigation, the court noted defendant is 52-years-old with no prior criminal record, and because of the resolution, the victims did not have to testify. On this count, the court imposed a six-year prison term.
On the remaining five subordinate counts, the court imposed full six-year middle terms, and then stayed all but one-third of each subordinate term. The court ordered the subordinate terms to run consecutively for an aggregate 16-year term. The trial court did not state reasons, and defense counsel did not object.
The trial court should have simply imposed "one-third of the middle term," instead of imposing the entire middle term and then staying two-thirds of each sentence. (§ 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) We modify the judgment accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
II. DISCUSSION
On appeal, defendant challenges the trial court's failure to state reasons for imposing consecutive sentences. He argues a lesser sentence was not inconceivable based on his nonexistent prior criminal record and his plea, which relieved the victims from testifying. He notes counts 1 and 2 occurred on the same day as did counts 3 and 6, which indicates a single period of aberrant behavior. He also notes neither party nor the court discussed discretion to impose concurrent rather than consecutive sentences. We find no error requiring reversal.
When imposing consecutive rather than concurrent sentences, a trial court must state reasons for doing so. (§ 1170, subd. (c); Cal. Rules of Court, rule 4.406; People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) But an appellate challenge to a failure to do so is forfeited by failing to object below. (People v. Morales (2008) 168 Cal.App.4th 1075, 1084; see also People v. Davis (1995) 10 Cal.4th 463, 552 [" 'Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention' "].)
Here, the trial court failed to state reasons for imposing consecutive terms. But defendant failed to object to that failure. The challenge is therefore forfeited.
Anticipating that conclusion, defendant argues his counsel rendered ineffective assistance in failing to object. He avers no satisfactory explanation exists for the failure, noting the court had not imposed the maximum term and had shown an appreciation for the mitigating circumstances.
To demonstrate ineffective assistance, a defendant must show: (1) counsel's performance was unreasonable as measured by prevailing professional norms and (2) a reasonable probability of a more favorable result but for counsel's performance. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) Put differently, confidence in the outcome must be undermined. (Ibid.)
Here, defendant cannot show a reasonable probability of a more favorable outcome. (See People v. Holt (1997) 15 Cal.4th 619, 703 [" ' " 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies' " ' "].) In considering consecutive terms, the trial court may consider whether (1) "[t]he crimes and their objectives were predominantly independent of each other; [¶] (2) [t]he crimes involved separate acts of violence or threats of violence; or [¶] (3) [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a).) The court may consider other circumstances in aggravation or mitigation except those used to impose the upper term or enhance a sentence or that are elements of the crime. (Cal. Rules of Court, rule 4.425(b).)
Here, the trial court cited numerous factors in denying probation including the serious nature of the crimes as compared to other instances of the same crimes, defendant's display of criminal sophistication, and his taking advantage of a position of trust. Since the trial court did not impose the upper term or enhancements, it could properly rely on those factors in ordering consecutive terms.
Further, although defendant pleaded to six counts occurring on four separate days, the probation report—which the parties stipulated to as the factual basis—indicated defendant's conduct occurred over the course of six years. (See People v. Otto (2001) 26 Cal.4th 200, 212 ["courts routinely rely upon hearsay statements contained in probation reports to make factual findings concerning the details of the crime"]; Williams v. New York (1949) 337 U.S. 241, 252 [93 L.Ed. 1337, 1344-1345] [sentencing judge may consider out-of-court information to assist in imposing sentence].) Defendant possessed thousands of photos of C.F., and she had reported numerous assaults including rape and sodomy. Thus, the circumstances indicated anything but a single period of aberrant behavior.
And while the trial court noted in mitigation defendant's nonexistent prior criminal record and his plea, given the nature of defendant's crimes and their context it is not reasonably probable a more favorable result would have been reached had the trial court stated reasons for imposing consecutive terms.
We decline defendant's invitation to adopt the "reasonable possibility" standard articulated in People v. May (1990) 221 Cal.App.3d 836, 839. (See People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685 [declining to adopt May standard]; People v. Davis, supra, 10 Cal.4th at p. 552 ["It is not reasonably probable that a more favorable sentence would have been imposed" absent the failure to articulate reasons for imposing consecutive sentences].) --------
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
MURRAY, J.