Opinion
H048807
03-10-2023
THE PEOPLE, Plaintiff and Respondent, v. ANDRE FURTADO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. F1902557)
LIE, J.
Andre Furtado appeals his conviction for kidnapping arising from his forcible movement of T. Doe from the inside of a house to a car. He contends the conviction was not supported by a showing that the movement was substantial. Furtado also contends that he was denied his statutory right to a hearing on his ability to pay the $10,000 restitution fine imposed by the trial court, as a consequence of his counsel's ineffective assistance in failing to request such a hearing. We conclude that the kidnapping conviction is supported by sufficient evidence and that the record does not affirmatively demonstrate ineffective assistance of counsel. Accordingly, we affirm the judgment.
I. BACKGROUND
The Santa Clara County District Attorney charged Furtado by information with the following: (1) human trafficking - intent to effect or maintain specified felony violation (Penal Code § 236.1, subd. (b)); (2) kidnapping within county or to another county, state, or country (§ 207, subd. (a)); (3) dissuading or attempting to dissuade a witness by use of force or threat of force (§ 136.1, subd. (c)(1)); (4) pimping where the prostitute is an adult (§ 266h, subd. (a)); (5) encouraging another to become a prostitute (§ 266i, subd. (a)(2); (6) inflicting corporal injury on a spouse, cohabitant, former spouse or former cohabitant (§ 273.5, subd. (a)); and (7) failure to register as a sex offender, with a felony conviction (§ 290, subd. (b)). With regard to the first count, it was also alleged that Furtado inflicted great bodily injury on Doe within the meaning of section 236.4, subdivision (b). The district attorney further alleged that Furtado had two prior convictions-for criminal threats (§ 422) and dissuading a witness (§ 136.1, subd. (a)(2))-each of which increased his sentencing exposure under both section 667, subdivision (a) (as five-year priors) and section 667, subdivisions (b) through (i) (as strike priors).
Unspecified statutory references are to the Penal Code.
A. Trial Evidence
Interviewed by law enforcement in July 2019, Doe recounted the history of her relationship with Furtado and his abuse of her. Prior to trial, however, Doe recanted what she told law enforcement, stating that she "made up a story against Mr. Furtado"; when she initially refused to testify at trial, the trial court admitted evidence of her prior statements at trial on the dual grounds that they were prior inconsistent statements (Evid. Code, § 1235) and that Furtado had procured Doe's "unavailability" (Evid. Code, § 1390). Doe accordingly was not among the prosecution's witnesses but ultimately testified on behalf of Furtado.
Doe and Furtado met on Facebook in 2014. Although Doe thought of Furtado as her boyfriend, Furtado also acted as her pimp. Almost from the beginning of their relationship, Furtado would beat Doe. After one such beating that year sent Doe to the hospital, Furtado was arrested. Despite the beating, Doe continued working for Furtado while he was in custody.
When Furtado was released after a year and a half, Doe and Furtado continued their relationship. The two went to Las Vegas, where Furtado continued to beat Doe. Doe and Furtado had no success making money in Las Vegas and decided to return to California. At a gas station on the return drive, Doe jumped out of the car because Furtado hit her, and Furtado chased after her. Bystanders told Furtado to leave Doe alone. Furtado left without Doe and crashed the car, which belonged to Doe. Doe never got the car back.
Doe and Furtado later resumed their relationship again, and the beatings started anew. As part of Furtado's abuse of Doe, he would choke her with both hands until she approached unconsciousness. There were times when Doe thought she would die as a result of the choking.
Doe left Furtado again and they did not talk for about a year. In 2018 or 2019, Doe got back in touch with Furtado on Instagram.
In February 2019, Doe called her brother and asked him or their father to call Furtado's parole officer to come to Furtado's mother's house in Watsonville to stop Furtado from beating her. Doe hoped the parole officer would see that Furtado was in violation of an order for him to stay away from Doe.
Doe's brother and father attempted to call Furtado's parole agent, then called the Watsonville Police Department, and then Doe's brother called Doe back to see if she was okay. Furtado and Doe were together at the time, eating at his mother's house, and Furtado made Doe answer the call on speakerphone. After hearing Doe's brother ask about her well-being, Furtado became angry, taking Doe's phone, and hitting her.
Ripping off his ankle monitor, Furtado then grabbed Doe by her arm and neck and dragged her from the house to her car, which was parked on the street.
In line with her recantation of her prior statements to law enforcement, Doe later testified for the defense that she never asked her brother to call Furtado's parole officer and that Furtado did not force her into the car.
Furtado told Doe she had made the house "hot" because the police would be coming there. Furtado went back into the house to get money, so Doe got out of the car and ran away. Furtado followed her in the car and told her he would throw her dog onto the freeway if she did not get back in the car. He also told her he was going to kill himself. Doe got back into the car.
There were police three houses away at that time, but Furtado drove past them and was not stopped. Furtado and Doe drove to Salinas, then San Francisco, then Watsonville (where they met Furtado's mother), and then San Jose, where they got a room and stayed for about a week.
While they were in San Jose, Furtado continued to beat Doe to the point that she had trouble walking and she was constantly menstruating. Doe ended up checking in to the emergency room at Valley Medical Center hospital.
Furtado eventually let Doe leave and she went to her father's house. Doe visited Furtado once to go to the beach for the day, after which Furtado tried to convince Doe to stay with him again. Several days later, Doe relented, picking Furtado up in her car. After a call with his parole officer, Furtado again removed his ankle monitor and they drove to Gilroy. Doe continued working and Furtado continued beating her.
On the last day Doe stayed with Furtado, she took her dog for a walk to the park. The dog ran around the park but, while Doe was on the phone, the dog was hit by a car and died. In her July 2019 interview, Doe stated that she never went back to Furtado after that. At trial, however, it was asserted that she and Furtado later communicated through a large number of jail calls, especially during August 2020, but continuing through the trial. Doe testified at trial that Furtado was her fiance.
B. Verdict and Sentencing
The jury found Furtado guilty on all counts except for count 3. It also found true the great bodily injury allegation on count 1. The jury found true the alleged prior convictions.
The trial court denied Furtado's request to dismiss his strike priors pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced Furtado to a total term of 85 years to life, consecutive to a determinate term of 19 years four months: 60 years to life on count 1, with an additional 10 years for the great bodily injury enhancement (§ 236.4, subd. (b)) to run consecutively. As to count 2, the court imposed a term of 25 years to life, consecutive to count 1. The court sentenced Furtado to aggravated terms of 12 years on count 4 and 12 years on count 5 but stayed those terms. On count 6, the court imposed a consecutive, aggravated term of eight years, and on count 7 the court imposed a term of one year four months, consecutive to count 6. The court struck the five-year priors alleged under section 667, subdivision (a). The court ordered a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b)(2), but waived all other fees.
Furtado timely appealed.
II. DISCUSSION
A. Kidnapping
Disputing the sufficiency of the evidence of kidnapping, Furtado argues that the only proper basis for the kidnapping charge was Doe's movement from the house to the car, and that the distance was both unspecified and likely short. "When considering a challenge to the sufficiency of the evidence to support a conviction, 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 the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).) "We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Edwards (2013) 57 Cal.4th 658, 715.) We" 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (Ibid.; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Assuming without deciding that the kidnapping ended when Doe first fled the car and that her reentry into the car was not coerced, we consider the evidence sufficient to support the jury's finding on the asportation element.
1. Legal Principles
Under section 207, subdivision (a), "[e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." Thus, "[t]he prosecution must prove that the defendant unlawfully moved the victim by the use of physical force or fear, without the person's consent, and the movement was for a substantial distance (the asportation element)." (People v. Williams (2017) 7 Cal.App.5th 644, 670 (Williams).)
"For simple (rather than aggravated) kidnapping, the jury is to' "consider the totality of the circumstances,"' not simply distance, in deciding whether the movement was substantial." (Williams, supra, 7 Cal.App.5th at p. 670 .) In People v. Martinez (1999) 20 Cal.4th 225 (Martinez), overruled on a different point as stated in People v. Fontenot (2019) 8 Cal.5th 57, 70, the California Supreme Court described some of the contextual factors that may be considered. For example, "the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Martinez, supra, 20 Cal.4th at p. 237 .)
The Supreme Court in Martinez did not purport to set forth a minimum distance for "substantial movement," while stating that "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Martinez, supra, 20 Cal.4th at p. 237.) Since Martinez, multiple courts have upheld kidnapping convictions where a victim was moved only a short distance, especially where the movement changed the victim's environment-for example, leaving the safety of a family home, or going from a place of public view to the interior of an apartment. (See People v. Nieto (2021) 62 Cal.App.5th 188, 200 [sufficient evidence of asportation where the minor victim was lured out of her grandmother's house even though no distance was proven]; People v. Arias (2011) 193 Cal.App.4th 1428, 1435 [sufficient evidence of asportation where the defendant moved the victim approximately 15 feet "from a public area to the seclusion of his apartment"].)
2. Analysis
Furtado contends that Doe's detention, and therefore any kidnapping, ended when she left the car and ran down the street, on the theory that when she eventually reentered the car, she did so voluntarily and not under duress. Accordingly, he argues that the limited distance he initially moved Doe-from inside the house to her car parked on the street-was insufficient to support the element of asportation. Even under Furtado's narrow conception of the relevant movement, however, the record here discloses sufficient evidence to support the kidnapping conviction.
To begin, reviewing the record in the light most favorable to the judgment (see Lindberg, supra, 45 Cal.4th at p. 27), we do not consider it to establish that the movement was "only a very short distance" that would preclude our consideration of "contextual factors" under Martinez. Doe was somewhere inside the house when Furtado seized her by the neck, forced her to and through the front door, to the street, and into her car. Even assuming that she was right at the front door when he began to force her outside, Doe reported to law enforcement that Furtado "dragged [her] out of the house" and "into the car in front of all the neighbors, those assholes," implicitly suggesting the distance was sufficient to afford the neighbors ample opportunity to observe and intercede. From this, the jury was entitled to infer that the distance from the front door of a single-family residence to the car was more than merely negligible.
Furtado argues that circumstantial evidence demonstrates Doe was not moved a "substantial distance." He asserts that if the distance between the house and the car were substantial, a neighbor would have responded to the sight of Doe being dragged to the car. But the availability to the jury of an alternative inference contrary to the judgment does not bear on our deferential review for substantial evidence. And we need not categorize the distance Furtado dragged Doe to conclude that substantial evidence supported the jury's determination that his movement of her was substantial.
As Furtado acknowledges, distance is not the only factor to be considered in determining whether movement was substantial. "Where movement changes the victim's environment, it does not have to be great in distance to be substantial." (People v. Shadden (2001) 93 Cal.App.4th 164, 169 [movement of nine feet was substantial].) The jury heard evidence that Furtado did not just move Doe outside the house, he forced her out of a residence to which the two expected police imminently to respond and then into the car for the very purpose of keeping her from those her family called on to protect her. Furtado's statement that the house was now "hot" allowed the jury to determine that his motive for dragging Doe from the house to the car was to remove Doe to a location where the police would not find her. The jury could thereby conclude that forcing Doe into the car provided Furtado with a means to both flee and keep Doe from cooperating with police.
Further, the jury could legitimately have determined that Doe's movement to the car increased her risk of harm. The movement itself was forcible and violent, progressing from the beating Furtado administered in the wake of her brother's call; Doe told law enforcement she did not want to move, but Furtado grabbed her neck to force her to move, heightening the risk of both physical injury and psychological harm. (People v. Leavel (2012) 203 Cal.App.4th 823, 834 [increased risk of harm to victim can include emotional or psychological harm]; see also CALCRIM No. 1215 [risk of harm also includes psychological harm].) Indeed, Doe told law enforcement, "I was . . . scared . . . he's gonna take me somewhere and probably kill me." Even if we assume the kidnapping ended when Doe left the car, it is the risk of increased harm from the movement from the house to the car that is relevant; even when the dangers that could flow from that increased risk "do not in fact materialize[,] [that] does not, of course, mean that the risk of harm was not increased." (People v. Rayford (1994) 9 Cal.4th 1, 14.)
Forcing Doe into her car made it easier for Furtado to keep Doe from the protection she had asked her family to seek from law enforcement. Furtado knew law enforcement had been summoned to the house, making the location "hot"; staying there would have given Doe a chance to leave with police intervention, whereas forcing her to her car allowed Furtado to abscond with her to a location unknown to his parole agent, the very authority figure Doe had hoped would intercede to protect her. (See People v. Singh (2019) 42 Cal.App.5th 175, 188 [movement to a vehicle can substantially increase the risk of harm to the victim and enhance the defendant's opportunity to commit additional crimes].)
On this record, we conclude that the kidnapping conviction is supported by sufficient evidence.
B. Restitution Fine
Furtado argues that his counsel's failure to request a hearing on his ability to pay the $10,000 restitution fine imposed by the trial court, despite his right to such a hearing, constituted ineffective assistance of counsel. He asserts that he therefore did not forfeit his right to such a hearing and the case should be remanded to allow him to present evidence of his inability to pay the fine. We conclude the record does not demonstrate ineffective assistance of counsel.
1. Legal Principles
When sentencing a person convicted of a felony, the court must impose a restitution fine in the range of $300 to $10,000, absent compelling and extraordinary reasons for not doing so. (§ 1202.4, subd. (b).) Despite the mandatory nature of the fine, the court may consider inability to pay when "increasing the amount of the restitution fine in excess of the minimum fine." (§ 1202.4, subd. (c).) But it is the defendant's burden to demonstrate inability to pay, and the trial court is not required to conduct "[a] separate hearing for the fine" or to make "[e]xpress findings . . . as to the factors bearing on the amount of the fine." (§ 1202.4, subd. (d).)
Because "the most knowledgeable person regarding the defendant's ability to pay [is] the defendant himself[,]" it is generally incumbent on the defendant to raise that issue. (See People v. McMahan (1992) 3 Cal.App.4th 740, 749.) Bringing such an argument to the court's attention allows the court to "exercise[] its discretion and consider[] defendant's ability to pay, along with other relevant factors, in ascertaining the fine amount." (People v. Avila (2009) 46 Cal.4th 680, 729.) Failing to raise an objection to the restitution fine results in forfeiture. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153.)
Furtado eventually filed a request for a hearing on the restitution fine amount- nearly three months after the court had ruled on the fine and after Furtado's appeal divested the trial court of jurisdiction "over any matter embraced in or affected by the appeal." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.)
Under the well-established standard of Strickland v. Washington (1984) 466 U.S. 668, 687-694, "[t]o secure reversal . . . upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) In addressing the objective reasonableness of counsel's performance, we defer to counsel's "reasonable tactical decisions" and presume that counsel "acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) "On direct appeal, a conviction will be reversed for ineffective assistance 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." (Ibid.; see also People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260 [in assessing an "attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice"].)
2. Analysis
Furtado argues that he should be relieved of his forfeiture because his counsel's failure to ask for a hearing on Furtado's ability to pay the restitution fine constituted ineffective assistance of counsel. But "[t]he test for ineffective assistance of counsel is a demanding one. It requires that a criminal defendant establish both that his counsel's performance was deficient and that he suffered prejudice." (People v. Acosta (2018) 28 Cal.App.5th 701, 706 (Acosta).) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.)
Because Furtado refused to attend his sentencing and significant portions of his trial, his attorney may reasonably have doubted both the trial court's willingness to set the matter for a separate hearing not required under section 1202.4, subdivision (d) and also Furtado's willingness to cooperate in such hearing. On this record, we are unable to exclude the possibility that Furtado's reaction to the jury verdict and the probation report may not have facilitated his discussion with counsel of the restitution fine or any aspect of his sentencing.
Furtado refused transport several times during trial. His refusal to return to court for his cross-examination resulted in the trial court striking his testimony on direct examination.
Moreover, to the extent that trial counsel did not elect to independently assert Furtado's inability to pay more than the minimum restitution fine in Furtado's absence, it has been "recognize[d] that a defense counsel's decision whether to object to the imposition of fines and fees can encompass factors beyond a defendant's financial circumstances, especially in serious cases involving potentially long prison sentences." (Acosta, supra, 28 Cal.App.5th p. 707.) "[A] myopic focus on [a defendant's] financial circumstances that neglects any of the other factors at play in a sentencing hearing may not provide an accurate picture of counsel's strategic calculus." (Ibid.) Furtado's attorney asked the court to dismiss Furtado's prior strike convictions and also asked for leniency, in light of those prior strikes, so that Furtado would have a chance to "at some point in his life live as a free and responsible individual." Counsel in his sentencing brief cited Furtado's experience of physical and emotional abuse in foster care as a detrimental factor leading to his life on the streets, criminality, and perpetuation of abuse, drawing a contrast between Furtado's experience and circumstances and the largely positive outcome exemplified by Furtado's brother, whose experience in foster care had been nurturing. Although the court declined counsel's request to dismiss the strike priors, it did exercise its discretion to dismiss the two five-year enhancements under section 667, subdivision (a). Given the potential for an extremely long sentence, Furtado's attorney may have chosen to focus on reducing the length of the sentence as much as possible rather than introduce issues related to the restitution fine.
Further, in determining ability to pay, a trial court is permitted to consider wages to be earned in prison. (People v. Kopp (2019) 38 Cal.App.5th 47, 96; People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) On this record, we are unable to disregard the possibility that counsel may have rationally concluded it would be futile to object to the amount of the fine, given his understanding of the defense burden and, perhaps, the practices of the trial judge. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [counsel is not ineffective for failure to proffer futile objections].)
Citing to Lee v. U.S. (2017) 137 S.Ct. 1958 (Lee), Furtado argues that he need not show a reasonable probability that the trial court would have reduced the fine, but instead that he was prejudiced by the deprivation of a judicial proceeding. In Lee, the defendant, who was not a United States citizen, was advised by his attorney that he would not be deported if he pleaded guilty. (Id. at p. 1962.) The defendant accepted a plea, but was then deported. (Ibid.) The Supreme Court stated that the defendant's claim for ineffective assistance of counsel did not involve attorney error during the course of a legal proceeding, but instead forfeiture of the proceeding itself. (Id. at pp. 1964-1965.) The Court therefore considered whether the defendant was prejudiced by the denial of the entire judicial proceeding to which he had a right. (Id. at p. 1965.)
We find Lee to be neither binding nor persuasive here. In Lee, the ineffective assistance of counsel turned on the attorney's misadvisement of the defendant: the defendant had specifically asked about immigration consequences prior to accepting the plea agreement, and his attorney told him that "if deportation was not in the plea agreement, 'the government cannot deport you.'" (Id. at p. 1963.) Nothing in the record here suggests that Furtado's attorney gave him incorrect or inadequate advice, and the probation report included the recommendation that the restitution fine be set at the maximum of $10,000. Furtado accordingly had notice of what was at stake when he elected to absent himself from the sentencing hearing at which he could have contested the amount of the restitution fine and his ability to pay it. We reject his contention that his counsel should have requested another hearing or that such a request would have had a reasonable probability of being granted here.
C. Correction of Abstract of Judgment
At sentencing, the trial court stated that Furtado had 503 days of actual custody credit, plus 75 days credit under the joint operation of sections 2933.1 and 4019. These days of credit were also reflected in the minutes. Although the determinate abstract of judgment correctly captures the trial court's oral statement of custody credits, the indeterminate abstract of judgment reflects only 50 days of actual custody credit but total custody credits of 578 days. The parties agree that this is a clerical error.
Section 2933.1 places a 15-percent limit on credits otherwise available under section 4019 when a person is convicted of certain felony offenses.
Furtado requests that the indeterminate abstract of judgment be corrected, whereas the Attorney General asks that the case be remanded to the trial court for clarification. We see no reason to remand for clarification of what on its face is a clerical error.
Accordingly, we order the trial court to correct the indeterminate abstract of judgment to state that Furtado has 503 days of actual custody credit. (People v. Mitchell (2001) 26 Cal.4th 181, 188 [when there is a "discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court itself should order the trial court to correct the abstract of judgment"].) To the extent the indeterminate abstract of judgment fails in other respects to accurately reflect the trial court's oral pronouncement and the minute order, we direct the trial court to further correct the indeterminate abstract of judgment, as set forth in our disposition.
III. DISPOSITION
The indeterminate abstract of judgment is modified to: (1) reflect 503 days of actual custody credit; (2) state that count 1 is pursuant to Penal Code section 236.1, subdivision (b), not 263.1; (3) state that the sentence on count 1 is 60 years to life; (4) strike the Penal Code section 667, subdivision (a)(1) enhancements; and (5) reflect that the sentence was imposed pursuant to "PC 667(b)-(i) or PC 1170.12" in line 8.
As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended indeterminate abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: GREENWOOD, P.J., GROVER, J.