Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. INF47508 Richard A. Erwood, Judge.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Richard A. Erwood, Judge.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
Gaut, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant, a 7-Eleven employee, of the first degree murder of Rafi Panhwar, and the personal and intentional discharge of a firearm, causing death. (§§ 187, subd. (a), and 12022.53, subd. (d).) An earlier trial had ended in a mistrial with a vote of 10-2 in favor of acquittal. The court sentenced defendant to an indeterminate sentence of 50 years to life.
On appeal, defendant argues the trial court erred by excluding exculpatory evidence about the financial arrangement concerning the 7-Eleven store between the victim, his brother, and a third person. Defendant also challenges the firearm enhancement. In a supplemental appellant’s brief and in a related petition for writ of habeas corpus, defendant challenges the prosecutor’s comment that defendant’s mother did not testify and corroborate his alibi defense because “she was nowhere near Palm Springs at the time of this murder.” We reject defendant’s contentions on appeal and in his petition, affirm the judgment, and deny the petition.
2. Facts
Rafi operated a 7-Eleven store in Palm Springs. Defendant was an employee. Substantial evidence presented at trial showed that defendant shot Rafi to death in the 7-Eleven’s office, wrapped the body in a red carpet from the store, and moved the body to Cabazon.
For ease of reference, we use the first names of the victim, Rafi Panhwar, his wife, Abida, and his brother, Sani.
a. Prosecution Evidence
On Saturday and Sunday, May 29 and May 30, 2004, Rafi and his wife, Abida, visited his brother, Sani, in Torrance. On Sunday, Rafi had coffee with a friend and confided to her that defendant was stealing from the store--as much as $75,000 in cashier’s checks--but that he did not want to fire defendant. Rafi also told Abida that defendant was stealing by using money orders and Rafi would have to fire him.
Rafi spent the whole day, Monday, May 31, with another woman, Cheryl West, in Joshua Tree. He talked with her about defendant’s thefts. When Abida called Rafi in the evening on his cell phone, he told her he was going to the store to confront defendant. Rafi left West’s residence about 10:00 p.m. Rafi stopped at a McDonald’s at 10:36 p.m.
Numerous calls were placed to Rafi’s cell phone between 11:09 a.m. and 1:36 a.m.
Another store employee, Toshko Nikolov, was working when Rafi arrived at the store that evening. Defendant told Nikolov to clean up outside and then go home. About midnight, defendant called Abida, awakening her to tell her Rafi had never arrived. While Nikolov cleaned outside, a sign announcing “closed for cleaning” was placed on the store’s front door between midnight and 12:30 a.m., Tuesday, June 1. No other employee was there and Nikolov did not see Rafi leave. Nikolov left at 1:00 a.m.
Between 1:06 a.m. and 3:58 a.m., the store’s video camera recorded time-stamped images of shadowy movements. At 1:22 a.m. defendant, wearing a black shirt and a medallion, serves a customer at the counter. At 1:36 a.m. a person wearing dark clothes and a white glove on one hand is shown moving around. At 2:05 a.m., a person walks backward, dragging something. At 2:33 a.m., a carpet is removed from view. At 3:04 a.m., a person wearing a black shirt, a medallion, and gloves, adjusts the carpet.
At 3:23 a.m., defendant, using his cell phone, called another employee, Sukhwant Kaur, and asked her to come in earlier then her scheduled starting time of 5:00 a.m.
At 4:00 a.m., defendant asked Jonathan Hammond, a frequent customer who lived nearby, if he would hose down the parking lot in front of the store. Defendant asked to borrow a pair of shorts, which Hammond retrieved from home. Defendant asked Hammond to clean up what defendant identified as being red cherry Slurpee mix that had been spilled in the office. Hammond cleaned the floor using a mop and rags. Defendant cleaned the walls and asked Hammond not to mention the spill to anyone. Kaur arrived at 4:24 a.m. while Hammond was still cleaning the office.
When Hammond finished, defendant asked him to help drop off a car. They left the store about 6:00 a.m. Defendant drove Rafi’s silver SUV, using white gloves because the steering wheel was sticky or slippery. Hammond drove defendant’s car. They left the SUV at the outlet mall in Cabazon. Defendant again asked Hammond not to mention the Slurpee spill because he could lose the 7-Eleven franchise. Hammond returned to his apartment at 6:45 a.m. Defendant returned to the store at 7:00 a.m. and said goodbye to Kaur.
Defendant’s cell phone had no activity between 3:23 a.m. and 7:19 a.m. on June 1.
Between 6:02 a.m. and 9:01 p.m. on June 1, many calls were made to Rafi’s cell phone at a location near Cabazon. After that time, no further calls were logged.
The police found Rafi’s decomposed body on Sunday, June 6, in the Cabazon mall parking lot. The body was wrapped in a red carpet from a 7-Eleven store. Rafi’s body displayed eight close-range gunshot wounds and several blunt-impact injuries to the lower body. Two shots were to the top and back of the head. The rest were to the body. Rafi’s blood was found in multiple locations in the store’s office. White gloves stained with Rafi’s blood were next to the cash register.
Store employees, Kaur and Johanna Reyes, testified they had prepared between sixty-six and sixty-eight $500 money orders for defendant at his request.
Edward Greer testified that defendant solicited him to cause Rafi to “disappear” and Greer offered to help him find someone else to perform the job. Defendant made multiple phone calls to Greer between May 25 and May 30, 2004.
b. Defense Evidence
Defendant testified that Rafi hired him to manage the 7-Eleven. Defendant said Rafi operated the store improperly and illegally. He did not pay overtime to employees. He falsified records. He cheated the 7-Eleven Corporation and his business associates—his brother, Sani, and Ali Niksefat—in numerous ways with defendant assisting him. Sani and Niksefat were the real owners of the store.
Defendant claimed that he worked until 9:30 p.m. on Monday, May 31. When he left the store, two employees, Nikolov and Hameed Moinuddin, were still working. Defendant went home where his mother was visiting him from India. He showered, and missed a cell phone call from Rafi. He went back to the store to buy milk and only Nikolov was there. About 3:00 a.m., defendant called Kaur to ask her to go in early and relieve Nikolov who was ill. Defendant did not return to the store until later in the morning. Defendant disputed the truth of the testimony given by Hammond, the store customer, and Kaur. Later, on Thursday, after Rafi was missing, Sani came to the store and reviewed the surveillance tapes. Defendant denied deleting any material from the store’s security computer.
Also on Thursday, defendant told Sani that Rafi had taken a bank deposit on Sunday, June 30, that had not been made. On Friday, Sani found the deposit bag at Rafi’s house containing $10,000, including $6,000 in money orders. Defendant explained to Sani about Rafi’s scheme of skimming cash from the store’s receipts and substituting money orders in lesser amounts. Sani told defendant that was their practice and not to tell anyone else. After Rafi’s body was discovered, Sani told defendant to conceal the false records from Niksefat and Sani advised defendant to sign a promissory note for $6,200 as demanded by Niksefat.
Defendant explained that his calls to Greer were to arrange a party.
3. Exculpatory Evidence
Consistent with what he argued below, defendant claims the court violated the law governing “third party culpability” evidence, by not allowing evidence about the ownership and other financial arrangements concerning the 7-Eleven store existing between the victim, Sani, and Niksefat. (See People v. Hall (1986) 41 Cal.3d 826 (Hall).) The trial court’s ruling allegedly resulted in the denial of defendant’s right to due process and to present a defense under the federal Constitution. We disagree.
In the first trial, the prosecutor had offered evidence to show that Niksefat was the store’s named franchisee but Niksefat and Sani were secret partners in the store, with Rafi making a financial contribution as well. The 7-Eleven Corporation did not know about Sani and Rafi’s participation in the franchise. After Rafi’s body was discovered, Niksefat had to pay $70,000 to 7-Eleven to replace missing deposits and inventory and Sani had to reimburse Niksefat. In June 2005, the store was sold for $271,000, shared equally by Niksefat and Sani, with Sani’s share of the proceeds going to Rafi’s family.
In the second trial, the prosecutor made a motion to exclude any evidence of the financial arrangements between Niksefat and Sani or about the sale of the store. Defendant argued the evidence could be used for impeachment and showed consciousness of guilt linking Niksefat and Sani to the murder. The court granted the prosecution’s motion.
During her testimony at trial, Abida denied Rafi was stealing from the store and exclaimed rhetorically, “It was his store. Why should he take money?” The court allowed defense counsel to present evidence that Sani and Niksefat owned the store. Niksefat then testified he owned the store and had a side agreement with Sani.
“In general, third party culpability evidence is admissible if it ‘rais[es] a reasonable doubt of defendant’s guilt.’ (Hall, supra, 41 Cal.3d 826, 833.) This does not mean, however, that no reasonable limits apply. Evidence that another person had ‘motive or opportunity’ to commit the charged crime, or had some ‘remote’ connection to the victim or crime scene, is not sufficient to raise the requisite reasonable doubt. (Ibid.) Under Hall and its progeny, third party culpability evidence is relevant and admissible only if it succeeds in ‘linking the third person to the actual perpetration of the crime.’ [Citations.]” (People v. DePriest (2007) 42 Cal.4th 1, 43.)
Contrary to what defendant claims, the trial court properly found that evidence about the private agreements concerning the 7-Eleven store raised no reasonable doubt as to defendant’s guilt. The proffered evidence did not suggest a motive or opportunity tending to link someone other than defendant to “actual perpetration” of the charged crime. (Hall, supra, 41 Cal.3d at p. 833.) There is no evidence whatsoever that Niksefat or Sani were in contact with Rafi or present at the 7-Eleven store when he was killed and the body relocated to Cabazon. Even if the three men shared a financial interest in the store and they were mutually cheating one another, it did not constitute substantial proof of motive or opportunity implicating Niksefat or Sani in the actual perpetration of Rafi’s murder. We find no error in excluding the subject evidence. (Hall, supra, at p. 832; People v. Whitney (1978) 76 Cal.App.3d 863, 869.)
Furthermore, any error was harmless. (Hall, supra, 41 Cal.3d at pp. 834-835; People v. Cudjo (1993) 6 Cal.4th 585, 611-612 (Cudjo).) Defense counsel argued at trial that Niksefat and Sani owned the 7-Eleven and had a motive to kill Rafi if he was stealing from them. The exact particulars of the financial arrangements between the three men would not have added any more weight to this argument which the jury obviously rejected, probably because there was no evidence linking Niksefat or Sani to the commission of the murder.
Finally, the evidence against defendant was overwhelming. Three witnesses—Nikolov, Hammond, and Kaur—testified defendant was at the store on the night in question. The videotape confirmed his presence there. Nikolov saw Rafi enter the store and never saw him leave. Defendant lied to Abida about Rafi never arriving. The video evidence confirms Rafi visited the store on May 31 and June 1. Traces of his blood were found in the store’s office. Hammond, a disinterested party, testified that defendant drove Rafi’s SUV to Cabazon where the body was found days later. We can only speculate about why the previous trial ended in a mistrial but, the evidence in the present trial was such that any different outcome was not reasonably probable. (Cudjo, supra, 6 Cal.4th at pp. 611-612.)
4. Firearm Enhancement
Defendant received a consecutive enhancement of 25 years to life based on section 12022.53, subdivision (d):
“Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
Defendant protests there was no finding by the jury that Rafi, the victim, was a “person other than an accomplice” and therefore the enhancement was imposed unlawfully. This argument fails because, even if Rafi joined defendant in stealing from the 7-Eleven, Rafi was not an accomplice to his own murder.
As defendant recognizes, the theft or embezzlement purportedly committed by defendant and Rafi together does not qualify as a felony under section 12022.53, subdivision (d), so the accomplice exception does not apply.
Furthermore, defendant relies on People v. Flores (2005) 129 Cal.App.4th 174 (Flores), a case which is easily distinguishable. Flores, a gang member, shot at Morales, a rival gang member, and mistakenly killed Valdivia, a member of his own gang. The court analyzed the accomplice exception as follows:
“. . . when determining whether the accomplice exception applies . . . the relevant question must be whether Valdivia was an accomplice to the intended crime, the natural and probable consequence of which was the intentional discharge of a firearm resulting in his own death. Here, the jury found defendant guilty of a conspiracy to commit a battery on Morales. ‘Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design.’ [Citations.]
“There was sufficient evidence from which the jury could have found Valdivia was defendant’s coconspirator, and that a natural and probable consequence of the conspiracy to commit a battery on Morales was the firing of the gun which killed Valdivia. Valdivia’s status as a coconspirator to commit a battery on Morales would make him defendant’s accomplice to that crime, which resulted in his own murder.” (Flores, supra, 129 Cal.App.4th at pp. 182-183.)
The same analysis does not operate here. It cannot be said reasonably or plausibly that Rafi was defendant’s coconspirator and that a natural and probable consequence of theft or embezzlement from the 7-Eleven was Rafi’s death, making Rafi an accomplice in a crime that resulted in his own murder. The enhancement was proper.
5. Prosecutorial Error and Ineffective Assistance of Counsel
Defendant testified that he was at his apartment with his mother during the time the murder occurred. In rebuttal argument, the prosecutor explained defendant’s mother had been interviewed by an investigator but her statements could not be admitted because it would be inadmissible hearsay. Defendant’s mother did not testify and, as previously noted, the prosecutor commented on this omission, asserting she did not corroborate her son’s alibi defense because “she was nowhere near Palm Springs at the time of this murder.” Defense counsel did not raise an objection.
We disagree with the essential predicate of defendant’s argument. In his supplemental brief, defendant contends the prosecutor committed prejudicial error by making a factual statement for which the record contains no support. We, however, have reviewed the objectionable statement in context and conclude the prosecutor was not making a factual statement about the evidence. Instead, the prosecutor’s comment “came within the broad range of permissible argument.” (People v. Freeman (1994) 8 Cal.4th 450, 495; People v. Dennis (1998) 17 Cal.4th 468, 522 People v. Mincey (1992) 2 Cal.4th 408, 446.) His statement about the mother’s location was merely a rhetorical flourish. Even if we were to assume that the prosecutor’s remark was error, its content was not so egregious as to deny defendant a fair trial or of such a serious nature so as to require reversal. (People v. Medina (1995) 11 Cal.4th 694, 758, citing People v. Sully (1991) 53 Cal.3d 1195, 1236.) It is not plausible that this one brief comment prejudiced defendant in light of the record, which contains such convincing evidence of guilt. According, no prosecutorial error occurred.
Our conclusion on this point also resolves the related issue presented in defendant’s petition for writ of habeas corpus that it was ineffective assistance of counsel for defense counsel not to object to the prosecutor’s statement. In the absence of prosecutorial error, there could be no ineffective assistance of counsel by defendant’s trial attorney.
6. Disposition
We affirm the judgment and deny the petition for writ of habeas corpus.
We concur: McKinster Acting P. J., Richli, J.