Opinion
F085657
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. MUHAMMAD ABID SHARIF, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Ian Whitney, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF181215A. Brian M. McNamara, Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Ian Whitney, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
In an amended information, the Kern County District Attorney charged defendant with transmitting harmful matter as defined in Penal Code section 313 (count 1; § 288.2), committing lewd and lascivious acts with a child under the age of 14 (counts 24, 6, 8, 10, 12; § 288, subd. (a)), aggravated sexual assault of a child under the age of 14 and more than seven years younger than the defendant (counts 5, 13; § 289, subd. (a) &269, subd. (a)(5)), forcible oral copulation of a child under the age of 14 and more than seven years younger than the defendant (counts 7, 9, 11; § 269, subd. (a)(4)), and continuous sexual abuse of a child (count 14; § 288.5 subd. (a).) Count 14 was charged in the alternative to counts 2 through 13.
All further undesignated statutory designations are to the Penal Code unless otherwise stated.
In counts 7, 9, and 11, the information alleged the victim was more than 10 years younger than defendant, but the statute only requires the victim be seven or more years younger than the defendant. (§ 269, subd. (a).)
As to each count, the information alleged the following aggravating factors: the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)), defendant threatened or prevented witnesses from testifying (rule 4.421(a)(6)), the crime showed planning, sophistication or professionalism (rule 4.421(a)(8)), and defendant took advantage of a position of trust or confidence (rule 4.421 (a)(11)).
The jury convicted defendant on counts 1 through 13 and found true all of the aggravating factors except witness tampering (Cal. Rules of Court, rule 4.421(a)(6).)The court sentenced defendant to five consecutive terms of 15 years to life on counts 5, 7, 9, 11, and 13, plus an eight-year term on count 2, plus a two-year term on count 3, plus a one-year term on count 1. The court stayed punishment on counts 4, 6, 8, 10, and 12 pursuant to section 654.
The effect of these jury findings on the aggravating factors, which were not expressly tied to specific counts on the verdict forms, is the subject of dispute on appeal.
The court also imposed $10,700 in fines, assessments and fees, comprised of the following: a $300 restitution fine under section 1202.4; eight $300 fines under section 290.3; eight $300 assessments under section 1464; eight $210 assessments under Government Code section 76000; eight $30 assessments under Government Code section 76104.6; eight $120 assessments under Government Code section 76104.7; eight $150 assessments under Government Code section 70372; eight $60 assessments under Government Code section 76000.5; eight $60 assessments under section 1465.7; eight $40 fees under section 1465.8; and eight $30 fees under Government Code section 70373.
The court held an ability-to-pay hearing after which it reaffirmed its imposition of the fines and fees. The court noted that if something came up that hindered defendant's ability to work in prison, the issue could be revisited at that time.
FACTS
Z.J. was born in November 2003. She moved to the United States from Pakistan because her mother married defendant. Z.J.'s biological father did not speak to her, so she looked to defendant to be someone she could call "dad."
Over time, Z.J. came to trust defendant and love him as a father. In the beginning of the summer between eighth and ninth grades, defendant showed Z.J. pornographic videos.
Sometimes, when the family would visit the home of defendant's friend in Los Angeles, they would all sleep in the same bed. Defendant would pretend he was asleep but would touch Z.J.'s breasts. Later, defendant had Z.J. orally copulate him. This occurred "several" times. Sometimes, defendant would masturbate in front of Z.J. Other times, he placed his finger inside of Z.J.'s vagina. Yet other times, defendant orally copulated Z.J. These events occurred when Z.J. was 13 years old.
Z.J. did not feel that she could tell her mother because defendant threatened to "take over" her schooling and to "take away" her home. Defendant also threatened to kill Z.J. and her mother. Z.J. was afraid that her mother would have to get divorced again.
At some point, perhaps when she was around 15 or 16 years old, Z.J. finally started to have the courage to say no. Defendant threatened and insulted her as a result, brought her less of the food she liked, and said God would punish her.
When she was 16 or 17 years old, Z.J. told her mother about the touching. She also told police officers.
Z.J. conducted a pretext call with defendant on the phone while officers were present. Defendant discussed molesting Z.J.
DISCUSSION
I. Defendant Has Forfeited His Challenge Deriving from the Verdict Forms
The information alleged the same four aggravating factors as to each and every count against defendant. Those factors were: the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)), defendant threatened or prevented witnesses from testifying (rule 4.421(a)(6)), the crime showed planning, sophistication or professionalism (rule 4.421(a)(8)), and defendant took advantage of a position of trust or confidence (rule 4.421 (a)(11)).
At the beginning of trial, the court read the information to the jury. The court told the jurors that there were four "enhancements" that applied to each of the counts. The court then read the enhancements described above.
The record contains four total "verdict" or finding forms, one for each aggravating factor, even though each of the four factors were alleged as to each of the 13 counts. The verdict forms are not labeled with any particular count, and their text was phrased to generically refer to "the crime" rather than a specific count.
Analysis
Defendant contends that because the verdict forms for the aggravating factors did not expressly identify count 2, the court erred in relying on those factors to select the upper term for count 2. Specifically, defendant contends the verdict forms were written in a way that it was unclear which counts they applied to.
The Attorney General contends the issue was forfeited because it was not raised below. We agree.
"The forfeiture rule generally applies in all civil and criminal proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458-459; 6 Witkin &Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 37, pp. 497-500.) The rule is designed to advance efficiency and deter gamesmanship." (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.)" '"' "The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had ...." [Citation.]' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." .' [Citation.]" (Ibid.)"' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." '" (Keener, supra, 46 Cal.4th at pp. 264-265.)
Here, defendant failed to object to the verdict forms on the grounds that it was unclear to which counts they applied. Consequently, his appellate challenges based thereon are forfeited. (See People v. Jones (2003) 29 Cal.4th 1229, 1259; see also People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
Defendant does not point to any objection lodged in the trial court, but instead contends the issue is preserved because it affects his "substantial rights." Courts do have the authority in some instances to choose to overlook the failure to object when a defendant's substantial rights are involved. (§ 1259.) But exercising that discretion is not mandatory and we decline to do so here.
II. Defendant Has Failed to Establish Ineffective Assistance of Counsel on Direct Appeal
Defendant contends counsel was deficient for failing to preserve the issue described above.
Defendant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) To establish such a claim, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
"Because of the difficulties inherent in making the evaluation [of counsel's performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; . . . the challenged action 'might be considered sound trial strategy.'" (Strickland v. Washington, supra, 466 U.S. at p. 689.) Moreover," '" '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.'" '" (People v. Holt (1997) 15 Cal.4th 619, 703.)
Ineffective assistance of counsel claims should generally be pursued through habeas corpus proceedings. (People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.) This is because on direct appeal, a court may find deficient performance only if: (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. (People v. Johnsen (2021) 10 Cal.5th 1116, 1165; Mai, at p. 1009.) If counsel's tactics or strategic reasons for challenged decisions do not appear on the record, courts will not find ineffective assistance of counsel unless there could be no conceivable reason for counsel's acts or omissions. (Johnsen, at p. 1165.) Given this framework, "[r]arely is ineffective assistance of counsel established on [direct] appeal since the record usually sheds no light on counsel's reasons for action or inaction." (People v. Woodruff (2018) 5 Cal.5th 697, 736.)
However, the record does not disclose the reason counsel did not object to the verdict form. One conceivable reason is that counsel did not believe the form was misleading when read in light of the charging instrument. As noted above, the trial court read the information to the jury and noted the aggravating circumstances (which it referred to as "enhancements") applied to every count. And since a verdict should be read in light of the charging instrument (People v. Jackson (2014) 58 Cal.4th 724, 750), counsel may have concluded the form was not ambiguous.
Alternatively, counsel could have determined that there should have been 13 verdict forms for each aggravating circumstance (one for each count), but also tactically decided not to object because a single verdict form per aggravating circumstance might work in his client's favor. Specifically, he may have made a tactical determination that the jury was less likely to return a true finding because it would have to conclude the circumstance applied to all 13 counts, rather than just one at a time.
Certainly, deficient performance is yet another possible explanation for counsel's behavior. But since it is only one of several possibilities, we cannot resolve the issue in defendant's favor on direct appeal.
Finally, even if counsel's performance had been deficient, defendant could not show prejudice. Because the aggravating circumstances were alleged to all counts, and that fact was conveyed to the jury during the reading of the information, it is not reasonably likely that providing the jury with individual verdict forms for each circumstance as to each count would have yielded a different result. That is, the record demonstrates the jury's true findings were intended to apply to all counts.
III. Defendant Has Not Established that the Court's Ability-to-Pay Determination Was Erroneous
Some courts have held the imposition of fines and assessments without a determination that the defendant is able to pay is fundamentally unfair and violates the due process clause. (People v. Belloso (2019) 42 Cal.App.5th 647, 654-655, review granted Mar. 11, 2020, S259755.) However, there is a split of authority, as some courts have rejected that view and instead apply an Eighth Amendment analysis under the excessive fines clause. (Id. at p. 649.) We need not address this split of authority because even if the former line of cases applied, the court did make an ability-to-pay determination here.
As noted above, the court held an ability-to-pay hearing after which it reaffirmed its imposition of fines and fees in the case. Thus, the only reasonable deduction from the record is that the court determined defendant would have the ability to pay the fines and fees imposed.
Defendant requested and the court held an ability-to-pay hearing. At the hearing, defense counsel indicated that there were no physical disabilities or other reasons defendant could not work in custody. Defendant presented no evidence he was unable to pay fines and fees.
Defendant observes that the prosecution did not prove he was eligible for incustody employment, nor that such employment was available. But it was not the prosecution's burden to show that defendant could pay, it was defendant's burden to prove he could not pay. (People v. Cowan (2020) 47 Cal.App.5th 32, 49-50, review granted June 17, 2020, S261952; People v. Santos (2019) 38 Cal.App.5th 923, 934; People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844; see also People v. Castellano (2019) 33 Cal.App.5th 485, 490.)
Defendant also cites prison unemployment statistics, prison wage schedules, and the fact that he was appointed counsel on appeal to indicate he is unable to pay fines and fees. None of these were cited to the trial court at the ability to pay hearing, and they therefore cannot be relied upon for the first time on appeal. More fundamentally, these citations do not warrant reversal on the present standard of review. Because defendant bore the burden of proof below and lost, he faces a nearly insurmountable burden on appeal. "When the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals, it is somewhat misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This is because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements ._ [Citations.] Thus, where the issue on appeal turns on a failure of proof . . . the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279.)
The facts that prison wages are low, that he was appointed counsel on appeal, and that unemployment is high in prison are not "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." In other words, defendant has failed to show the evidence was such that the court was compelled to make a factual finding in his favor.
DISPOSITION
The judgment is affirmed. --------- Notes: [*] Before Hill, P. J., Poochigian, J. and Pena, J.