P. v. Salih
Filed 7/16/13 P. v. Salih CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MUAYED SALIM SALIH,
Defendant and Appellant.
D061622
(Super. Ct.
No. SCE314667)
APPEAL from
a judgment of the Superior Court
of
County, Joseph P. Brannigan, Judge. Affirmed.
R. Clayton
Seaman, Jr., for Defendant and Appellant, under appointment by the Court of
Appeal.
Kamala D.
Harris, Attorney General, Dane R. Gillette and Julie L. Garland, Assistant
Attorneys General, Melissa Mandel and Warren Williams, Deputy Attorneys
General.
Muayed Salim Salih appeals his jury convictions for
firearm (Pen. Code,
name="_ftnref1" title="">[1] §
245, subd. (a)(1)), and exhibiting a deadly weapon other than a firearm (§ 417,
subd. (a)(1)). The court imposed a $154
booking fee on Salih under Government Code section 29550.1. It placed him on probation for three years
and ordered him to serve one year in jail.
The court awarded him 26 conduct credits under section 4019.
Salih
contends the court (1) prejudicially erred by not instructing the jury sua
sponte on unanimity; (2) miscalculated his presentence custody credits; and (3)
imposed a booking fee without finding an ability to pay, and the latter failure
violated his constitutional right to
equal protection. We affirm.
FACTS
In
September 2011, as Abdul Almaleki drove his daughter from a grocery store
parking lot in El Cajon, California,
Salih approached Almaleki's truck, spat on the window, insulted Almaleki and
Almaleki's family, and challenged Almaleki to fight. Almaleki tried to get away, but Salih ran to
his own car and speedily followed Almaleki out of the parking lot, stopping
directly behind him at a nearby intersection.
Hoping to find police officers or security cameras, Almaleki drove into
a neighboring courthouse parking lot and remained there for approximately 15
minutes. Salih parked nearby, waved a
knife out his window, and said something Almaleki could not hear. Almaleki drove to an adjacent police station
parking lot, followed by Salih. Almaleki
returned to the courthouse parking lot one or two minutes later. After approximately five minutes, Almaleki
noticed a passing police car and attempted to exit the parking lot to flag down
the officer. Salih partially blocked
Almaleki by stopping in front of the parking lot exit, but Almaleki maneuvered
around Salih's car and honked at the officer, who stopped at a nearby restaurant. Salih stopped following Almaleki. Police later arrested Salih.
DISCUSSION
I.
Salih
argues the court prejudicially erred by failing to instruct the jury sua sponte
on unanimity because jurors could have disagreed on whether he assaulted
Almaleki at the stoplight or at the courthouse parking lot exit. We review instructional
error de novo. (People v. Lueth (2012) 206 Cal.App.4th 189, 195.)
To convict,
juries must reach unanimous verdicts.
Courts must instruct on unanimity when multiple actions could
independently constitute a charged offense and the prosecution does not
identify which of a defendant's actions it relies on to support the
conviction. The unanimity requirement
protects due process by preventing juries from convicting a defendant without
agreeing on the discrete offense committed.
(People v. Russo (2001) 25
Cal.4th 1124, 1132.) However, a court
need not instruct on unanimity when the conduct constitutes a continuous
criminal incident. (People v. Percelle (2005) 126 Cal.App.4th 164, 181-182.)
"Continuous
conduct" refers to temporally proximate acts for which the defendant
harbors similar or identical criminal objectives, even if the incident
encompasses events that the charged crime does not. (People
v. Percelle, supra, 126
Cal.App.4th at pp. 181-182 [no unanimity instruction required when defendant
twice attempted credit card fraud within approximately one hour at the same
store]; People v. Haynes (1998) 61
Cal.App.4th 1282, 1294-1296 [no unanimity instruction required because the
defendant twice robbed the victim of "the same property" "just
minutes and blocks apart"].)
Here, the
jury based its conviction on a continuous, approximately 22-minute incident
during which Salih used the same instrument—his car—and targeted the same victim—Almaleki—throughout. Likewise, Salih cannot show that the
brief, insubstantial geographical and temporal separations disrupted continuity
between the parking lot and stoplight encounters. Salih harbored the same assaultive intent
during the entire pursuit. Thus, the court did not err in failing to
instruct on unanimity.
Even if the trial court
erred, it was harmless beyond a reasonable doubt under the heightened prejudice
standard set forth in Chapman v.
California (1967) 386 U.S.
18, 24. " 'Where the record
provides no rational basis, by way of argument or evidence, for the jury to
distinguish between the various acts, and the jury must have believed beyond a
reasonable doubt that defendant committed all acts if he committed any, the
failure to give a unanimity instruction is harmless. [Citation.]
Where the record indicates the jury resolved the basic credibility
dispute against the defendant and therefore would have convicted him of any of
the various offenses shown by the evidence, the failure to give the unanimity
instruction is harmless.' " (
Here, the jury did not have any reason to distinguish between the
stoplight and parking lot encounters; instead, the jury must have concluded
beyond a reasonable doubt that Salih assaulted Almaleki throughout the
incident.
II.
Salih
contends the court should have calculated his custody credits at two different
rates because he served time both before and after the October 2011, amendment
to section 4019 subdivision (h) became effective. Salih cites People v. Brown (2012) 54 Cal.4th 314, 322-323 (
prisoners "earn[] credit at two different rates" when their
"custody overlap[s] the statute's operative date."
However,
interpreted a different version of section 4019. Under the current version of section 4019
subdivision (h), defendants who commit crimes after October 1, 2011, are
entitled to presentence conduct credit at a full, day-for-day rate, "
available only to defendants who committed their crimes after October 1,
2011. (§ 4019, subd. (h).)" (People
v. Hull
(2013) 213 Cal.App.4th 182, 186.)
"Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law." (§
4019, subd. (h).) Thus, the trial court
correctly calculated Salih's custody credits.
We also
reject Salih's equal protection claim because we are bound by
does not require a retroactive application of section 4019. (Brown,
supra, 54 Cal.4th at pp. 328-329; see
Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
III.
Finally,
Salih argues the court erred by imposing the booking fee without finding he had
an ability to pay. Salih further argues
Government Code section 29550.1 violates his
by not requiring a court find an ability to pay—unlike Government Code sections
29550 and 29550.2. During this appeal's
pendency, the California Supreme Court held defendants forfeit their right to
appeal a booking fee when they fail to object in the trial court. (People
v. McCullough (2013) 56 Cal.4th 589, 597.)
Salih did not object to the booking fee in the trial court and thus
forfeited this claim.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise specified.
