P. v. Fattah

Filed 4/5/07 P. v. Fattah CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Anthony P. Capozzi, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant urges us to find the lower court abused its discretion when it awarded the Recording Industry Association of America (RIAA) $150,001 in restitution for lost profits. Because we find a rational basis for the amount ordered, we affirm.

FACTUAL AND PROCEDURAL BACKGROND

An information charged Fadel Ahmad Abdel Fatah (appellant) and his wife, Nahbiha Ahmad Fattah, with the felony offense of selling or possessing for sale counterfeits of a registered mark (Pen. Code,  350, subd. (a)(2)) (Count 1),^[1]and failing to disclose the origin of a recording or audiovisual work ( 653w, subd. (b)(1)) (Count 2). On November 10, 2005, appellant pled no contest to Count 1 and admitted a $150,000 loss enhancement under section 12022.6, subdivision (a)(2).^[2]

The parties agreed to the following facts at the restitution hearing: appellant was engaged in the business of distributing compact disks (CDs) and cassette tapes to various stores throughout Fresno County; law enforcement officers seized 19,700 cassettes and 22,160 CDs from appellants garage and van; and investigators for the RIAA reviewed 13,881 of the recovered CDs in great detail.^[3] Investigation of the 13,881 CDs revealed they consisted of either illegal replicas or illegal compilations of songs. In addition to the recovered CDs, law enforcement officers purchased from various stores three counterfeit CDs supplied by appellant at a price of $12.95 per CD.

The People sought $179,758 in restitution for lost profits, calculated by multiplying the 13,881 CDs reviewed by the $12.95 selling price per CD. Appellant argued for restitution of $38.85, the $12.95 purchase price multiplied by the three CDs officers purchased during their investigation. The judge ruled appellant pay $150,001 as restitution to the RIAA for lost profits, that amount to be divided equally between the companies whose products were counterfeited.^[4] Appellant challenges this $150,001 determination as an abuse of discretion.

ANALYSIS

A trial courts determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) The trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. (People v. Thygesen, supra, 69 Cal.App.4th at p. 992; In re Brian S. (1982) 130 Cal.App.3d 523.) No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss . [Citation.] (People v. Akins, supra, 128 Cal.App.4th at p. 1382.) We will affirm the lower courts determination of restitution provided we find a factual or rational basis for the amount ordered. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)

Appellant claims the trial court abused its discretion by basing its restitution award on potential loss as opposed to actual loss. He relies on People v. Ortiz (1997) 53 Cal.App.4th 791 (Ortiz) to support his argument. In Ortiz, the defendant was convicted of possessing for sale approximately 53,000 counterfeit cassette tapes in violation of section 653w, subdivision (a). (Ortiz, supra, 53 Cal.App.4th at p. 794.) As a condition of probation, the lower court ordered defendant to pay a nonprofit trade association restitution for investigatory costs and $2,000 for estimated economic loss. (Ibid.) The lower court extrapolated the amount of economic loss from evidence the defendant had $1,150 cash in her bedroom, that she sold tapes for 75 to 80 cents and that she usually sold tapes in lots of 250. (Id. at p. 799.) The court estimated the defendant sold 2,000 tapes, reasoning the $1,150 reflected a sale of 1,500 tapes at 75 to 80 cents and additional packing/labeling materials in the house reflected proceeds from the sale of another 500 tapes. (Ibid.) Ortiz found this method rational for determining actual loss. (Id. at p. 800.)

Appellant asserts he only caused $38.85 in actual lost profits to the victim record companies. He notes that unlike Ortiz, law enforcement officers found no cash in his possession from which the court could extrapolate any additional amount for lost sales. He admits officers found invoices in his home from CD purchases totaling approximately $120,000 but argues they found no evidence to show he sold any of them aside from the three CDs bought by law enforcement. He argues any restitution award beyond $38.85 constitutes an unjust enrichment because the trial court could not rationally establish actual loss to the victims. We disagree.

We are tempted to hold appellants admission to the loss enhancement alone precludes him from now arguing he did not cause an actual loss of $150,001. It is illogical for appellant to admit he caused a loss of at least $150,000 but simultaneously argue it is not an actual loss. Nevertheless, the record reveals ample evidence on which the trial court based its restitution award: appellant was distributing counterfeit CDs on a large scale; appellant purchased 30,000 CDs within a two-year period at an average cost of $4.01 per CD, far below the average wholesale price for non-counterfeit CDs; and most of his CDs were recent titles from contemporary artists. It is irrelevant that unlike Ortiz, officers found no cash or other indicia from which the trial court could extrapolate an amount for lost sales. Ortiz did not deal with an admission to a loss enhancement, which in this case provided the lower court a reasonable starting point to calculate lost profits. Appellant set the baseline at $150,000 and the court did not want to engage in complex calculations beyond that amount. We cannot say the lower court abused its discretion in making its determination.

DISPOSITOIN

The judgment is affirmed.

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^* Before Ardaiz, P.J., Dawson, J. and Kane, J.

^[1] All further references are to the Penal Code unless otherwise stated.

^[2] The subdivision (a)(2) enhancement states: If the loss exceeds one hundred fifty thousand dollars ($150,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted, shall impose an additional term of two years.

^[3] RIAA investigators did not review all the recovered CDs because the district attorney instructed them to review only $150,000 worth of appellants CDs.

^[4]The judge also found appellant should pay $10,230.35 to the RIAA for reimbursement of out-of-pocket investigative and storage costs. Appellant does not dispute this amount.