P. v. Mukhtar
Filed 6/24/13 P. v. Mukhtar CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FAHIYEH MUKHTAR,
Defendant and Appellant.
D061039
(Super. Ct.
No. SCD222706)
APPEAL from
a judgment of the Superior Court
of
County, Joseph P. Brannigan, Judge. Affirmed.
Jerry M.
Leahy for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Lynne G.
McGinnis, Deputy Attorneys General for Defendant and Respondent.
INTRODUCTION
A jury convicted Abdikidir Abdillahi Guled
attempted murder (Pen. Code,
§§ 187, subd. (a), 664), discharging a firearm from a motor
vehicle (former § 12034, subd. (c), now § 26100, subd. (c)), and
subd. (a)(2)). As to count 1, the jury
found true allegations the offense was willful, deliberate and premeditated (§
189). As to counts 1 and 2, the jury
found true allegations Guled intentionally and personally discharged a firearm
causing great bodily injury (§
12022.53, subd. (d)). As to count 3, the
jury found true allegations Guled personally used a firearm (§ 12022.5, subd.
(a)), and personally inflicted great bodily injury on the victim (§ 12022.7,
subd. (a)). Guled additionally admitted
being out on bail at the time of the offenses (§12022.1, subd. (b)).
The court
sentenced Guled to life in prison with the possibility of parole for count 1,
plus 25 years to life for the attendant firearm discharge enhancement finding,
plus 2 years for the attendant on bail enhancement finding.
remaining counts and enhancement findings under section 654.
Guled
appeals, contending: (1) the court
denied him his right to testify or, alternatively, failed to obtain his express
waiver of his right to testify; (2) his counsel provided ineffective assistance
by failing to call him as a witness; (3) the photographic lineup of him was
unduly suggestive and the pretrial identifications of him were unreliable; (4)
the court abused its direction by excluding the testimony of his cultural expert;
and (5) there was insufficient evidence he possessed the requisite mental state
for attempted murder. We conclude these
contentions lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
At around 2:00 a.m., on August 17, 2009, Abdiwali Hassan and Ahmed Ismail went to
a restaurant after attending a Somali wedding.
At the restaurant, they met up with Ismail Mire.
As the
three men stood in the parking lot talking to one another and to others who had
also attended the wedding, they saw Guled standing next to a silver Toyota
Camry smoking a cigarette. Saynab Jama
was sitting in the front passenger seat of the car.
driven by Guled's sister, who had moved to Germany
four days earlier.
Ismail looked
in Guled's direction. Guled nodded at
Ismail, but Ismail ignored him because they did not know one another. Guled subsequently walked up to Mire and
demanded a cigarette. Guled smelled like
alcohol. Mire found Guled's demeanor
offensive and falsely told Guled he did not have any cigarettes. Guled returned to the Camry and started to
drive slowly around the parking lot.
Mire and three friends approached the driver's side of the Camry and
Mire asked Guled, "What's going on?
Is there any problem?" Guled
responded, "No, I'm cool, I'm cool."
Mire
started walking toward Ismail, who was waiting by Mire's car. As Mire approached Ismail, Guled stopped the
Camry, but kept the engine running.
Guled and Jama got out the car and went to the trunk. Jama handed Guled a dark colored object and
they both got back into the car; however, this time Jama was driving and Guled
was in the front passenger seat. Jama
drove the Camry forward and stopped it.
Guled leaned his torso out of the passenger's side window, holding a
gun. He fired three or four shots at
Ismail and Mire. He fired the first shot
up and to Ismail's side. Ismail turned
and started to run when the second shot struck and broke his right femur. Ismail backed against Mire's car and sunk
down as the third shot struck the ground approximately three feet to the right
of him. Jama and Guled then sped away in
the Camry as Jama laughed and Guled yelled, "You're going to get it."
A San Diego
police officer who responded to the scene found and collected a bullet. A criminalist analyzed this bullet and
another taken from Ismail's leg. The
criminalist determined the bullets were fired from the same gun. The list of guns that could have fired the
bullets included several revolvers and one semiautomatic gun. An investigator with the district attorney's
office believed the gun that fired the bullets was most likely a revolver
because no casings were found at the scene.
Sergeant
Patti Clayton, a supervisor in the San Diego police department's multicultural
community relations office, met Jama when Jama was a teenager and mentored
her. In March 2009, Jama told Clayton
she was dating Guled. Clayton frequently
saw Guled and Jama driving around together.
Clayton learned of the shooting at a morning briefing two days after the
shooting occurred. When she heard the
descriptions of the suspects, she told a police detective the suspects may be
Guled and Jama.
Ismail and
Mire identified Guled and Jama from photographic lineups and in court. Hassan tentatively identified Guled from a
photographic lineup, but could not identify Jama. However, Hassan positively identified Guled
at trial, explaining that at the time of the photographic lineup he was afraid
to make an identification.
Clayton
learned a car matching the description of the one used in the shooting was
registered to one of Guled's sisters. An
investigator with the district attorney's office attempted but was never able
to locate the car.
Defense Evidence
Guled's
sister and niece testified they went to the wedding with Guled, then to the
restaurant for about 15-20 minutes, and then straight home. Guled stayed at his sister's home until 8:00
a.m. the next morning.
A San Diego
Somali community member who attended the wedding testified he was leaving the
restaurant when he heard two gunshots.
He saw two African-American men run to a black car, get in, and drive
away. The community member knew Jama. He did not know Guled, but had previously
seen him in the community. He did not
see either of them at the restaurant. He
also did not see a gray or silver car speed away from the restaurant after the
shooting.
Another
person who attended the wedding and went to the restaurant afterwards testified
he saw Guled at the wedding, but not at the restaurant. However, as he was leaving the restaurant, he
saw two African-American men arguing. A
Somali man started arguing with them.
Ismail went over to the men to see what was going on. A short while later, some African-American
men drove by in a black sports utility vehicle.
One of the men came out of the right rear window of the car and fired a
revolver at Ismail and Mire.
Jama and
her sister testified they stayed at home while their other family members
attended the wedding. Jama went to bed
before midnight and never left the house.
Jama
additionally testified Guled did not smoke around her and did not drive when
they were together because he did not have a car or a valid driver's
license. She further testified they had
broken up and were not in a relationship at the time the shooting occurred.
An elder in
the San Diego Somali community testified he had spoken with Ismail and asked
Ismail who shot him. Ismail said he did
not know.
Prosecution Rebuttal
Ismail
testified he had never met the elder and had not talked to an elder about the
shooting.
DISCUSSION
I
A
Before defense counsel began presenting his case, the
court asked Guled's defense counsel how many witnesses he had and who they
were. Defense counsel named a few
possible witnesses, including Guled.
After calling two witnesses, defense counsel reached a point where he
had to decide whether to recommend Guled testify to provide the factual
foundation for Guled's cultural expert's testimony (see part III.A.,
Defense counsel indicated he had previously discussed the matter with
Guled, but needed time to discuss it with him further.
The
prosecutor then informed the court that, if Guled testified, the prosecutor
would seek to impeach him with prior bad acts.
Although the court reserved a final decision until it had more specific
information before it, the court tentatively indicated it would allow the
impeachment evidence.
Based on
the court's tentative decision, defense
counsel reiterated he needed time to discuss the matter further with
Guled. He also stated that, while Guled
had an absolute right to testify, he would advise him not to testify because of
the potential impeachment evidence.
When the
trial resumed the following afternoon, defense counsel informed the court he
had talked to Guled for "a little bit" earlier that day and Guled was
not going to testify. The court asked
whether there was any "need to have a hearing or anything" and
defense counsel stated there was not. The
court then remarked, "All right, okay, if that's the decision you've made
I'm sure you, with the years of experience, you've discussed it with your
client, if that is his decision then I assume at this point you'd be
resting." Defense counsel responded,
"Yes, your honor."
After
Guled's defense counsel formally rested his case and Jama's defense counsel was
nearing the completion of hers, the court conducted a jury instruction
conference. During the conference, the
following exchange occurred:
"THE COURT
[to Guled's defense counsel]: . . . Your
portion of the evidence has already concluded so the record is clear your
client has decided not to testify.
"[DEFENSE
COUNSEL]: Correct.
"THE
COURT: We didn't have any hearing
regarding his prior misconduct. [The
prosecutor] indicated he would attempt to use that but you and your client
spoke about that and—
"[DEFENSE
COUNSEL]: I told [Guled] and I explained
to him that this information—adverse information could come in if he took the
stand.
"THE
COURT: Well, we never had a hearing
outside the jury to make that determination, so just I want the record to be
clear that you're aware of that information but—
"[DEFENSE
COUNSEL]: Yes.
"THE
COURT: But we didn't go completely
through it line by line. But based on
what [the prosecutor] said rather than any ruling that I made you and your
client made a decision that it would be appropriate that he not testify; is
that right?
"[DEFENSE
COUNSEL]: Yes. He understands that he has a right to testify
under People v. Robles [(1970) 2
Cal.3d 205, 215].
"THE
COURT: Okay, but it's his decision not
to.
"[DEFENSE
COUNSEL]: You understand that?
"[GULED]: Yes, your honor."
The
prosecutor also informed the court that, during an interview between Guled and
Guled's proposed cultural expert, Guled said he had been incorrectly labeled as
a gang member. The prosecutor informed
defense counsel he was prepared to call the law enforcement officer who
classified Guled as a gang member in rebuttal, if necessary. Defense counsel was aware of this possibility
when he counseled Guled about whether to testify.
After this
exchange, Jama began testifying. During
a break in her testimony, Guled's defense counsel informed the court that Guled
wanted to reopen his case and testify.
After Jama completed her testimony and Jama's defense counsel rested her
case, Guled's defense counsel formally moved to reopen his case, indicating
Guled "wants to exercise his right to testify under People v. Robles."
The court
stated it would grant the motion. The
court, the prosecutor and Guled's defense counsel then discussed whether the
prosecutor could impeach Guled's testimony with prior bad acts. The prior bad acts were: giving a peace officer a false name, lying to
a peace officer, and falsely impersonating another. After considering relevant legal authority,
including whether the evidence was more prejudicial than probative under
Evidence Code section 352, the court determined the prosecution could use the
prior bad acts to impeach Guled's testimony.
After
subsequently confirming Guled's defense counsel could reopen his case to allow
Guled to testify, the court asked the prosecutor if he had any comments. The prosecutor remarked, "I just need
some assurance that this is it because I have [Ismail] waiting all day in the
hallway thinking I was going to put him on this morning." The court responded, "Yes, I understand
and we want to move the trial along; however, it's [important] that [Guled]
have his day in court. If he's changed
his mind, and he wants to testify, then he should be able to testify. That's why I'm allowing him to reopen his
case and testify."
After a
recess, Guled's defense counsel informed the court that Guled wanted another
witness to testify. Defense counsel
additionally stated he was going to put the witness on and "then I don't
know if [Guled] is really going to take the stand. I don't think he is." Defense counsel further noted there was
"another little problem that [the prosecutor] may want to discuss because
if [Guled] takes the stand and if I go into the tribal stuff, I don't know what
you're going to let him do; but there is some immigration judge made a finding
in a case [Guled v. Mukasey (8th Cir.
2008) 515 F.3d 872] that my client wasn't quite credible with regard to his
tribal affiliations."
name="_ftnref5" title="">[5]
The
prosecutor acknowledged he would raise the issue if Guled testified about
tribal issues and he had case law supporting the admissibility of the
immigration judge's finding. The court
clarified, "If he takes the stand and starts talking about tribes and if
he doesn't talk about tribes it is not relevant, all right."
After
Guled's last-minute witness testified, Guled's defense counsel asked, "May
I have just a moment?" The court
gave him the requested time and he subsequently announced, "We
rest." Guled never testified.
After the
trial, Guled substituted in a new attorney, who moved for a new trial in part
on the ground Guled had been deprived of his right to testify on his own
behalf. At the hearing on the new trial
motion, Guled testified he told his defense counsel every day during the trial
that he wanted to take the stand. His
defense counsel assured him he would have the opportunity to do so, but never
called him. Guled claimed he never told
his defense counsel he did not want to testify.
He further claimed he did not know he was not going to testify until
after closing argument, when defense counsel informed him the trial was over
and the court would not allow him to reopen his case to testify. He stated he only had an 11th grade education
and had never been through a trial before.
Consequently, he depended on his defense counsel to let him know when it
was time for him to testify and to call him.
On
cross-examination Guled acknowledged he knew the decision whether to testify
belonged to him. He also acknowledged
the court had asked him whether he wanted to testify and had allowed him to
reopen his case so he could testify. However,
he denied changing his mind and deciding not to take the stand after his
last-minute witness testified. Rather,
he claimed he kept waiting for defense counsel to call him. He further claimed he did not inform the
court defense counsel was not letting him testify because he did know he could
directly address the court.
The court
denied the new trial motion. In reaching
its decision, the court specifically found Guled had decided, in conjunction
with his defense counsel, not to testify.
B
Guled
contends the court deprived him of his constitutional
right to testify on his own behalf.
The record belies this contention.
" '
"Every criminal defendant is privileged to testify in his own defense, or
to refuse to do so."
[Citation.] The defendant's
"absolute right not to be called as a witness and not to testify"
arises from the Fifth Amendment to
the United States Constitution and article I, section 15 of the California
Constitution. [Citation.] Although tactical decisions at trial are generally
counsel's responsibility, the decision whether to testify, a question of
fundamental importance, is made by the defendant after consultation with
counsel. [Citations.]' [Citation.]" (People
v. Carter (2005) 36 Cal.4th 1114, 1198.)
In this case,
the record shows Guled knew he had a right to testify and knew the choice
whether to exercise the right belonged solely to him. Defense counsel repeatedly acknowledged
Guled's right and choice on the record in Guled's presence. Guled also acknowledged his right and choice
on the record.
In
addition, the court went to great lengths to accommodate Guled's right and
choice. It gave him time during the
trial to discuss the matter with defense counsel and it allowed him to reopen
his case to testify, even though the trial was running long and it
inconvenienced the People's rebuttal witness, the victim. Although defense counsel did not believe it
advisable for Guled to testify, nothing in the record indicates defense counsel
did anything to prevent Guled from testifying.
Moreover,
while Guled testified at the hearing on his new trial motion that his desire to
testify was unwavering, the record shows otherwise. Before he rested his case for the first time,
Guled expressly stated he had decided not to testify. The events following this initial decision
show Guled continued to grapple with the matter. They do not show Guled made a firm decision
to testify or that his defense counsel obstructed his decision. At the hearing on the new trial motion, the
court implicitly found Guled's testimony on this point lacked credibility. The finding is supported by substantial
evidence and bolstered by the existence of good reasons for Guled to choose not
testify. He had other witnesses to
support his alibi defense and his testimony was impeachable both with his prior
bad acts and, if he testified about tribalism, with the immigration court's
adverse credibility finding.
Accordingly, we conclude Guled has not established the court deprived
him of his right to testify.
C
Guled
alternatively contends the court was required to obtain his express waiver of
his right to testify because of known difficulties between him and his defense
counsel and his lack of sophistication with criminal trial matters. We disagree.
A court has
no duty to advise a defendant of the right to testify or seek an explicit
waiver of the right from the defendant unless the court learns of an express
conflict between the defendant and defense counsel about the matter. (People
v. Enraca (2012) 53 Cal.4th 735, 762.)
In this case, the record shows the court conducted two closed hearings
at the outset of the trial in which Guled complained about his defense counsel,
who was retained rather than appointed.
Guled's complaints centered on his belief his defense counsel had not
been communicating enough with him, had not prepared enough for trial, and was
not following Guled's preferred defense strategy. Importantly, Guled never complained then or
at any other time during the trial that defense counsel would not let him
testify on his own behalf. In addition,
while defense counsel indicated he intended to advise Guled not to testify, he
never indicated he would not call or assist Guled if Guled chose to testify. His request to reopen Guled's case so Guled
could testify demonstrates he was willing to facilitate Guled's choice
notwithstanding any disagreement he might have had with it.
Guled's
asserts, as he did at the hearing on his new trial motion, he did not know he
could directly inform the court defense counsel was obstructing his desire to
testify. The court implicitly found this
assertion incredible and Guled's active participation in the two closed
hearings at the outset of the trial belies it.
Moreover,
before Guled rested his case the first time, the court inquired and Guled
expressly stated he had decided not to testify.
The fact Guled continued to grapple with his choice after making this
statement did not demonstrate the existence of an express conflict requiring
the court to inquire again. (See, e.g.,
1229, 1332-1333).
D
Guled also
alternatively contends defense counsel provided ineffective assistance by
failing to call him as a witness because he could have solidified his alibi as
well as testified about how tribal status and prejudices may have motivated the
testimony of Ismail, Mire, and Hassan.
" 'The
law governing defendant's claim is settled.
"A criminal defendant is guaranteed the right to the assistance of
counsel by both the state and federal Constitutions. [Citations.]
'Construed in light of its purpose, the right entitles the defendant not
to some bare assistance but rather to effective
assistance.' " [Citations.] It is defendant's burden to demonstrate the
inadequacy of trial counsel.
[Citation.] [The California
Supreme Court has] summarized defendant's burden as follows: " 'In order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel's performance was
"deficient" because his "representation fell below an objective
standard of reasonableness . . . under prevailing professional
norms." [Citations.] Second, he must also show prejudice flowing
from counsel's performance or lack thereof.
[Citation.] Prejudice is shown
when there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." '
" [Citation.] [¶]
Reviewing courts defer to counsel's reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is
a "strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance."
[Citation.] Defendant's burden is
difficult to carry on direct appeal, as we have observed: " 'Reviewing courts will reverse
convictions [on direct appeal] on the ground of inadequate counsel only if the
record on appeal affirmatively discloses that counsel had no rational tactical
purpose for [his or her] act or omission.' " [Citation.]'
[Citation.]" (
875-876.)
In this
case, the record amply demonstrates defense counsel had a rational tactical
purpose for not calling Guled as a witness.
Because defense counsel had already presented alibi witnesses, the chief
purpose for calling Guled would have been to provide a factual foundation for
the cultural expert's testimony in support of a tribalism defense. (See part III.A., post.) On this point,
Guled's testimony was both generally and specifically impeachable. It was generally impeachable with his prior
bad acts of giving a peace officer a false name, lying to a peace officer, and
falsely impersonating another. It was
specifically impeachable with an immigration judge's prior finding Guled's
claim of being a member Madhiban was not credible. (See fn. 5, ante.) The impeachment not
only could have undermined the tribal defense, but it also could have
undermined the stronger alibi defense.
Thus, Guled has not established defense counsel's failure to call him as
a witness was professionally unreasonable or that it is reasonably probable the
trial result would have been different had defense counsel called him as a
witness.
II
Suggestiveness of Photographic Lineup and Reliability of Pretrial
Identifications
Guled
contends the photographic lineup was unduly suggestive and the resulting
pretrial identifications were untrustworthy because Guled did not match the
initial descriptions of the shooter and he was the only person in the lineup
previously known to the witnesses.
Because Guled did not object to the admission of the lineup evidence
below, he has forfeited this contention on appeal. (People
v. Cunningham (2001) 25 Cal.4th 926, 989; In re Michael L. (1985) 39 Cal.3d 81, 87-88.)
Even if
Guled had not forfeited this contention, we conclude it lacks merit.
" ' [T]o determine whether the admission of
identification evidence violates a defendant's right to due process of law, we
consider (1) whether the identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was nevertheless
reliable under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the suspect at the time of
the offense, the witness's degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of time between
the offense and the identification.
[Citations.]' [Citation.] If the answer to the first question is 'no,'
because we find that the challenged procedure was not unduly suggestive, our
inquiry into the due process claim ends.
[Citation.]" (
1256; see also People v. Avila (2009)
46 Cal.4th 680, 698 [to successfully challenge lineup evidence, a defendant
must first establish that the lineup procedure was unduly suggestive, and then
establish the resulting identification was unreliable under the totality of the
circumstances].)
The
defendant " 'has the burden of showing that the identification procedure
was unduly suggestive and unfair "as a demonstrable reality, not just
speculation."
[Citation.] . . . [¶] . . . '[A]n identification procedure
is considered suggestive if it "caused defendant to 'stand out' from the
others in a way that would suggest the witness should select him." [Citation.]'
[Citation.]" (
253, 271-272.)
The
photographic lineup presented to the witnesses in this case depict six Black
males of similar age, complexion, and build.
All of the men have mustaches, goatees, and long hair styled close to
their heads and away from their faces.
All of the men have their eyes opened and their mouths closed. One of the men, not Guled, had a raised scar
under his right eye. Four of the men
wore black T-shirts, one of the men wore a white T-shirt, and Guled wore a
white or gray shirt underneath a black shirt or jacket. Because of his black jacket, Guled's photo
tended to blend with, rather than stand out from, the photos of the four men
wearing black T-shirts.
While the
photos were taken in similar lighting, there are differences in the background
colors and image size. Most notably, the
head of the man wearing the white T-shirt is larger than the others and he was
photographed against a pink background rather than a gray or blue background
like the others. Such differences do not
generally render a lineup impermissibly suggestive (People v. Johnson (1992) 3 Cal.4th 1183, 1217) and, in this case,
they tended to divert attention from Guled's photo.
Moreover,
at the top of the lineup is an admonition, stating: "You will be asked to look at a group of
photographs. The fact that the
photographs are shown to you should not influence your judgment. You should not conclude or guess that the
photographs contain the picture of the person who committed the crime. You are not under any obligation to identify
anyone. It is just as important to free
innocent persons from suspicion as it is to identify guilty persons. Do not be influenced by the fact that the
persons in the photographs may have beards, mustaches, or long hair. Do not be influenced by the fact that some of
the pictures may have different background color or lighting. Please do not discuss the case with other
witnesses nor indicate in any way that you have or have not identified
someone." The officer who presented
the lineup testified he read the admonition to each witness before the witness
made an identification. "Where
photographs in a lineup are of males of the same ethnicity and 'generally of the
same age, complexion, and build, and generally resembling each other,' and
where the accused's 'photograph did not stand out, and the identification
procedure was sufficiently neutral,' the lineup is not impermissibly
suggestive. [Citations.]" (People
v. Ybarra (2008) 166 Cal.App.4th 1069, 1082.)
The fact
Guled may have been the only person depicted in the lineup with whom Mire and
Ismail were previously familiar does not alter our conclusion.
authority holding prior familiarity with a depicted person renders a lineup
unduly suggestive. In addition, it does
not appear either man knew Guled well enough to avoid the need for a
lineup. The evidence shows only that
they had seen him around the San Diego Somali community with Jama and that Mire
knew Guled's moniker. It also does not
appear the officer who created the lineup knew of Mire and Ismail's prior
familiarity with Guled. Even if the
officer had known of the prior familiarity, his task remained the same: to create an array of people who generally
resembled one another. Since he
succeeded in this task, Guled has not established the pretrial identifications
deprived him of due process of law.
III
Exclusion of Cultural Expert's Testimony
A
Before the
prosecutor rested his case, defense counsel informed the court he intended to
call a cultural expert who would "expand upon or refute [Clayton's]
testimony relative to the clan structure and . . . testify that [Guled] is a
member of what is charitably and lovingly referred to [as] an occupational
clan, the Madhiban. And that people of
the higher clans, such as the Hawiye and the higher clans, can be ostracized
from their clan for marrying someone or keeping company with someone from a
marginalized clan such as the Madhiban."
The
prosecutor objected to the expert's testimony as irrelevant since Clayton did
not testify about tribalism. Defense
counsel countered that Clayton had testified about the clans and Guled should
be allowed to rebut the testimony.
name="_ftnref9" title="">[9] The court did not decide the matter at that
time, but revisited it just before defense counsel intended to call the expert.
The
prosecutor again objected to the testimony as irrelevant. The prosecutor pointed out that Clayton
testified about her experience with language barrier challenges and concerns
San Diego Somali crime victims had about retaliation. She did not testify about tribalism. He also pointed out there was no factual
basis for the expert's testimony because there had been no evidence presented
indicating tribal differences prompted rival tribe members to frame one another
for crimes.
The
prosecutor additionally questioned whether the expert possessed sufficient
qualifications to testify about Somali tribalism. According to the expert's curriculum vitae,
his expertise was in the history of slavery in West Africa, not tribal strife
in East Africa. There was no indication
the expert knew anything about tribal strife in East Africa, had published on
the topic, or had any knowledge of interactions within the San Diego Somali
community.
The court
indicated that, while it was inclined to allow defense counsel to use an expert
to present a tribalism defense, no evidence had yet been presented to support
and make the defense relevant. Rather,
the evidence presented to that point indicated younger Somalis were not
concerned with or motivated by tribal affiliations.
Defense
counsel acknowledged the conundrum and indicated he would have to call Guled or
an elder from the Somali community to provide the factual foundation for the
expert's testimony. However, defense
counsel did not do either and subsequently released the expert as witness.
B
Guled contends the court erred by failing to allow him to
present expert testimony to show tribal animosity motivated witnesses to
falsely identify him as the shooter. We
review a trial court's determination whether an expert's testimony is
admissible for abuse of discretion. (
discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.'
[Citation.]" (
395, 430.) We discern no abuse of
discretion in this case.
Although
the court was inclined to allow Guled to use an expert to present a tribalism
defense, there was no factual foundation for the defense at the point defense
counsel sought to call the expert. None
of the eyewitnesses gave any indication their tribal affiliations or Guled's tribal
affiliation played any role in their identifications of him as the
shooter. Rather, the evidence showed the
eyewitnesses did not know Guled well and were uninterested in tribal matters.
In
addition, Clayton did not profess to be an expert in nor did she testify about
Somali tribal matters. Her testimony was
limited to explaining certain challenges in police interactions with crime
victims in the San Diego Somali community, including language barriers, lack of
trust in people wearing uniforms, concerns about retaliation, and the desire to
try to resolve problems within the community before contacting the police
department.
title="">[11] While she acknowledged knowing some of the
major tribes represented in the Somali community, she testified knowledge of
tribal interactions was not directly pertinent to her job
responsibilities. She also testified,
consistent with the eyewitnesses' testimony, that her "best guess"
was younger Somalis were generally unconcerned about tribal matters.
Had he
testified, Guled might have been able to provide a sufficient factual
foundation for the expert's testimony; however, as we explained in part I.D.,
reasons for not calling Guled as a witness.
Not the least of these reasons was a prior finding by an immigration
judge, upheld on appeal, that Guled's claim of being from the purportedly
disfavored Madhiban tribe was not credible.
(See fn. 5, ante.)
As a
defendant does not have a right to present factually unfounded expert testimony
(People v. Dunn (2012) 205
Cal.App.4th 1086, 1099 & fn. 10), Guled has not established the court
abused its discretion in excluding the testimony of his expert. Given
this conclusion, we need not
address Guled's assertion defense counsel provided ineffective assistance by
failing to call the expert.
name="_ftnref12" title="">[12]
IV
Insufficient Evidence of Requisite Mental State
Finally,
Guled contends there is insufficient evidence to support his attempted murder
conviction because there is insufficient evidence he intended to kill Ismail. In deciding claims of insufficient evidence
in criminal cases, " 'we review the whole record in the light most
favorable to the judgment to determine whether it discloses 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.
[Citations.] The standard of
review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] "Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of
the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably
justify the trier of fact's findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]'
[Citations.] The conviction shall
stand 'unless it appears "that upon no hypothesis whatever is there
sufficient substantial evidence to support [the
conviction]." ' " (
507-508.)
"
'Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citation.]" (People
v. Houston (2012) 54 Cal.4th 1186, 1217.)
Here, the evidence shows that after Ismail and Mire slighted Guled,
Guled retrieved a gun from the back of his car.
Then, while Jama drove slowly by Ismail and Mire, Guled fired at least
three shots at them, striking Ismail with one of the shots. "The act of shooting a firearm toward a
victim at close range in a manner that could have inflicted a mortal wound had
the shot been on target is sufficient to support an inference of an intent to
kill." (Id. at p. 1218.) That Guled
may not have known Ismail, may not have had a motive to kill him, and may not
have been aiming at him does not preclude a valid attempted murder
conviction. Motive is not an element of
the crime of attempted murder nor does the crime necessarily require a specific
target. (Ibid.) Accordingly, we
conclude Guled has not established there was insufficient evidence to support
his attempted murder conviction.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
name="_ftn1" title="">[1] Official court documents list appellant's name as either
"Fahiyeh Mukhtar" or "Mukhtar Fahiyeh." Appellant indicated below his true name is
"Abdikidir Abdillahi Guled" and, at his request, the court referred
to him by this name. We do the same for
consistency.
name="_ftn2" title="">
[2] Further statutory references are also
to the Penal Code unless otherwise stated.
