Opinion
D071395
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MOHAMMED RAAD AGAB, Defendant and Appellant.
Avatar Legal, PC and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE340868) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. Avatar Legal, PC and Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Mohammed Raad Agab of the first-degree murder of his mother and the deliberate and premeditated attempted murder of his half-brother (brother). The jury sustained allegations Agab personally used a deadly and dangerous weapon—a knife—to commit the crimes, and inflicted great bodily injury on his brother. The court sentenced Agab to a total prison term of 26 years to life.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2014, a police officer responded to call for assistance at the apartment complex where Agab lived with his mother and brother. The police officer saw a body lying in a large pool of blood. Agab's brother came out of the apartment. He had blood all over his body and appeared to be in shock. Witnesses heard Agab, in Arabic, instruct his brother to tell police "it was a robbery." The brother identified Agab as the person who had stabbed him. The officer located a large, bloodied kitchen knife in bushes near the apartment building.
Agab was transported to the police station, where he was read his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights and interrogated. Agab told officers about medications he was taking for psychological problems. He said, "Yes, I murdered my mom, and I stabbed my brother, and I am a messenger of God, the President was talking about me, the FBI's gonna get me from you in five days . . . ."
Agab said he was planning to kill his brother and mother. He decided to stab his mother while she slept and then kill his brother. Agab waited until mother's friends left the apartment and his mother and brother were asleep. He stabbed his mother while she was sleeping on the couch. She started screaming. His brother came out of his bedroom. Agab stopped stabbing his mother and went to stab his brother. Agab said, "I ran outside, I was acting like somebody else who did it, but I did it because my mom's the devil, she's a devil. She takes my beliefs and my brother's a devil. Yeah. And, um, I am a messenger of God. The President was talking of me a few years ago on TV."
When asked whether he intended to kill anyone else, Agab said, "No . . . That's it, I killed the devil. My brother got away, but I'll kill him later . . . once we are on our way to making the world a peaceful place . . . ." Agab said he knew that he was going to be charged with murder and attempted murder, explaining, "I mean I attempted to murder my brother. I murdered my mom."
The trial was postponed until Agab was deemed competent to stand trial. Prior to trial, the People asked the court to determine whether Agab was knowingly, intelligently and competently choosing not to enter a plea of not guilty by reason of insanity (NGI). In a closed hearing, defense counsel set forth his reasons for not proceeding with an NGI defense: (1) Agab was competent; (2) Agab did not want to enter an NGI plea and face a possible life sentence in a psychiatric institution; and (3) the evidence mitigated against NGI. Agab agreed with counsel's assessment. The trial court accepted the decision not to enter an NGI plea as sound and well-reasoned.
The defense presented evidence showing that Agab had a history of mental health problems, including several suicide attempts. He had endured a chaotic boyhood in Iraq and was shuffled between his divorced parents for many years. In 2011, when Agab was 17 years old, he was diagnosed with bipolar disorder with psychotic features. The defense psychologist believed Agab was developing schizophrenia. Although he was well-medicated and stable in custody, he still displayed grandiosity and some delusional concepts. When given a hypothetical question matching the facts of Agab's case, the psychologist testified the action taken was consistent with someone who was suffering from psychotic delusion at the time of the killing.
Blood stains on Agab's body, and blood on the knife, contained his mother's and brother's DNA. Agab's mother had 13 stab wounds, three of which caused injuries to internal organs. Agab's brother had ten different stab wounds. He underwent surgery to repair life-threatening injuries and was hospitalized for 10 days following the stabbing.
After the close of evidence, defense counsel asked the trial court to instruct the jury on involuntary manslaughter. The defense argued the evidence showed that Agab believed his mother was the devil and the jury should be permitted to determine if he intended to kill a human being. The court said the argument was not persuasive in view of the number of wounds Agab inflicted on his mother and brother, his conduct shortly after the stabbing, and his statements during the interrogation. The court ruled that an intent to kill formulated by a bizarre thought process did not negate malice and denied the request.
Defense counsel moved to exclude Juror No. 3 after a juror reported overhearing Juror No. 3 talking to another juror. In response to the other juror's question why the trial was taking so long, Juror No. 2 said it was to "minimize appeals" and that she found the DNA evidence "interesting." When questioned by the court, Juror No. 3 denied violating the admonition not to discuss the case. The court gave the prosecution and defense the opportunity to ask Juror No. 3 additional questions; they declined. The court ruled that Juror No. 3's comment about an appeal did not reflect bias and was a mere technical violation of its instruction to not discuss the case, and denied the motion to dismiss Juror No. 3.
On October 14, 2016, the jury returned guilty verdicts on both counts and found all additional allegations true. Agab filed a timely notice of appeal.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal, and invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issues:
1. Did the trial court err in refusing to give an involuntary manslaughter instruction requested by defense counsel?
2. Was trial counsel's representation ineffective for failing to pursue a not guilty by reason of insanity defense?
3. Did the trial court err in denying defense counsel's request to excuse Juror No. 3 for cause based on that juror's comments on the case outside of deliberations?
A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issues suggested by counsel, has disclosed no reasonably arguable appellate issue. We granted Agab permission to file a brief on his own behalf. He has not responded. Agab has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.