P. v. Salih CA4/1

• Court: California Court of Appeal
• Decided: July 16, 2013
• Docket: D061622
• Status: Unpublished

Opinion

Filed 7/16/13 P. v. Salih CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061622

Plaintiff and Respondent,

v. (Super. Ct. No. SCE314667)

MUAYED SALIM SALIH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego 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 assault with a deadly weapon

other than a firearm (Pen. Code,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

1 All statutory references are to the Penal Code unless otherwise specified. 2 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-

3 182 [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.' " (People v. Curry (2007) 158 Cal.App.4th 766,

783.) 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.

4 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 (Brown) for the proposition that prisoners "earn[] credit at two

different rates" when their "custody overlap[s] the statute's operative date."

However, Brown, supra, 54 Cal.4th 314 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, "but these new credits are expressly 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 Brown,

which held that equal protection 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 constitutional right to equal protection by not requiring a court find an ability to

5 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.