Opinion
A148460
04-24-2018
THE PEOPLE, Plaintiff and Respondent, v. AKARAN ALEMDII ALISHLAH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151692-1)
A jury convicted defendant Akaran Alemdii Alishlah of a felony, unlawfully taking or driving a vehicle, and he was sentenced to two years and eight months in prison. On appeal, Alishlah contends that the trial court erred by not sua sponte giving a jury instruction on unanimity because the offense can be based on either taking or driving a vehicle. We conclude there was no error because in closing argument the prosecutor elected Alishlah's driving, not taking, of the vehicle as the basis of the charge. We also conclude that even if there was an error, it was harmless. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On August 26, 2015, a San Pablo police officer in a patrol car saw a Honda Civic veer onto 23rd Street from San Pablo Avenue. The officer followed the car because he had learned from experience that Hondas are commonly stolen. A DMV and warrants check confirmed that the Honda had been reported as stolen.
After backup arrived, the officer pulled over the Civic. The officer observed Alishlah driving; another man, Robert Rojas, in the front passenger seat; and a woman, Emily DeHaro, in the backseat. The car's three occupants complied with the officer's order to get out of the car, and they were arrested. The officer discovered that the car had been started with its actual key, rather than by another method. Inside the car, he also found a wallet containing credit and identification cards that did not belong to any of the car's occupants, as well as a pink slip that was filled out to transfer the car to Rojas.
Earlier that day, the registered owner of the Honda had lent the car to her sister for her to commute to the nursing home where she worked. While the sister was working, the car was taken from the nursing home's parking lot. The registered owner had never met Alishlah, Rojas, or DeHaro, and had never given any of them permission to drive the car.
In an interview at the police station played for the jury, Alishlah gave shifting accounts about how he came to drive the car. His final iteration of the story was that he and DeHaro were at the nursing home visiting her father. He claimed that DeHaro saw a purse out in the open, took the wallet and keys inside the purse, and went with Alishlah into the parking lot to find the car to which the keys belonged. After the officer repeated this outline of events to Alishlah, the following exchange took place:
[Officer]: . . . [A]m I tellin' you a lie? Or is that the truth? Say yes or no.
[Alishlah]: It's the truth.
[Officer]: And then you guys pick up Rojas later on. Is that true or false?
[Alishlah]: True.
[Officer]: Now did he pay you guys? Did you guys try to sell that car to him?
[Alishlah]: No.
[Officer]: So why is his name on the pink slip?
[Alishlah]: 'Cause he wrote it. He was like—he wanted the car and so he just . . . .
[¶] . . . [¶]
[Officer]: It was just you drivin' it until I got behind you?
[Alishlah]: I was drivin' it at that point. But he was drivin' before.
[Officer]: He was drivin' it before?
[Alishlah]: Yeah. He wanted to buy the car. [¶] . . . [¶] He wanted to switch it over [unintelligible].
[Officer]: Oh, okay. Do you know the registered owner of the vehicle?
[Alishlah]: I do not.
An information charged Alishlah with unlawfully taking or driving a vehicle and alleged that he had a prior serious or violent felony conviction. The jury convicted him of the vehicle offense and found true the allegation that he had a prior strike, and the trial court sentenced him to two years and eight months in prison.
Alishlah was charged under Vehicle Code section 10851, subdivision (a), and the prior conviction allegation was made under Penal Code sections 667.5, subdivision (c) and 1192.7. --------
II.
DISCUSSION
Alishlah's sole claim on appeal is that the trial court committed prejudicial error in not giving a unanimity instruction to the jury. We conclude that there was no error and, even if there was one, it was harmless.
A. Additional Facts.
At trial, the only witnesses to testify were the police officer who pulled over Alishlah, the registered owner of the Honda, and her sister. The officer's testimony on direct and cross-examination centered around his stopping the car; identifying Alishlah as the driver; viewing the car during pursuit; and interviewing Alishlah. The registered owner of the car testified about lending the car to her sister, getting the car back, and the fact that she had never seen Alishlah, DeHaro, or Rojas before the incident. The sister testified about being at the nursing home on the day of the incident and the fact that she had not seen Alishlah, DeHaro, or Rojas at the nursing home. No witness testified to having seen the car being taken from the nursing home's parking lot.
In closing argument, although the prosecutor never ruled out the possibility of the taking of the car as a basis for conviction, she focused almost entirely on Alishlah's driving of the car. She argued that the jury could find that Alishlah "took or drove someone else's vehicle without the owner's consent intending to deprive" because, "[f]rom the time [the police officer] got behind [the car] until the time he pulled it over, that driver was the same driver that he had seen. And he identified in court that that driver was the defendant. [¶] The defendant also admits to driving." On the intent-to-deprive prong of the offense, the prosecutor argued: "Now, while driving the vehicle, Mr. Alishlah knew he didn't have the owner's permission. . . . He knew that that vehicle was stolen because he was the one who was stealing it." The prosecutor also stated:
"How do we know there was either a taking or a driving? And I think the easier way for you to look at is driving. Remember, either taking or driving, either one of those can be proven, I don't have to prove both. It's an 'or' proposition in the jury instructions.
"So let's talk about the driving. The vehicle was seen by [the police officer]. . . . It was being driven. . . . [¶] The defendant doesn't have to be the one who actually first drove the vehicle out of the nursing home parking lot. Remember those elements. Now, you may believe he is the one who first drove it out of the parking lot. I think the evidence supports that as well, but you don't have to believe that. But defendant's own statement show[s] that he was the one to first take and drive it. . . . [¶] . . . [¶] That all being said, . . . some people learn things in different ways . . . . Some of you may say, 'No, no, no[,] he clearly took the vehicle.' Some may say, 'No, no, no, he drove the vehicle.'
"I submit that the easiest way to get there would be the driving theory, meaning, that this defendant was observed driving the vehicle." (Italics added.)
The defense's closing argument focused primarily on questioning Alishlah's identity as the driver. After noting that no witness had seen Alishlah at the time the car was stolen, his trial counsel highlighted the police officer's alleged initial confusion about the driver's race, "who came out of the car first," and "who handcuffed whom." In rebuttal, the prosecutor continued to focus on Alishlah's driving of the car: "There was no question in the officer's mind that there was only one driver of the vehicle. Only one person was driving the vehicle, and that is an uncontroverted fact. He saw one person driving the vehicle. He got behind that vehicle and he stopped it and it was the defendant who was driving." Neither party requested a unanimity instruction, and the trial court did not give one.
B. No Unanimity Instruction Was Required, and Any Error in the Omission of One Was Harmless.
CALCRIM No. 3500, the standard unanimity instruction, informs a jury that it cannot find a defendant guilty "unless [the jurors] all agree that the People have proved that the defendant committed at least one of [the charged] acts and [they] all agree on which act." (CALCRIM No. 3500.) A unanimity instruction is necessary "if there is evidence that more than one crime occurred, each of which could provide the basis for conviction under a single count." (People v. Grimes (2016) 1 Cal.5th 698, 727.)
The federal and state Constitutions secure the right to trial by jury in criminal cases (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16), and verdicts in California must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Hernandez (2013) 217 Cal.App.4th 559, 569.) "[W]here the acts proved constitute a continuous course of conduct," however, a unanimity instruction is not required. (People v. Napoles (2002) 104 Cal.App.4th 108, 115 (Napoles).) This circumstance arises " ' "when the acts are so closely connected that they form part of one and the same transaction, and thus one offense," ' " or " ' "when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time." ' " (Ibid.) The trial court has a duty to give a unanimity instruction sua sponte if one is necessary. (See People v. Vargas (1988) 204 Cal.App.3d 1455, 1460-1461.) "We review assertions the trial court should have given a particular jury instruction de novo." (People v. Moore (2018) 19 Cal.App.5th 889, 893; see also People v. Waidla (2000) 22 Cal.4th 690, 733.)
Alishlah points out that a unanimity instruction is necessary "where there is a risk that a jury may convict on two different crimes presented by a defendant's alleged conduct." According to him, the trial court erred in not giving such an instruction because "it is impossible to determine whether the jury agreed on the criminal conduct supporting the conviction." We are unpersuaded.
The jury found Alishlah guilty of violating Vehicle Code section 10851, subdivision (a) (section 10851(a)). Under that provision, "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle . . . or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense." (§ 10851(a).) "[S]ection 10851(a) 'proscribes a wide range of conduct' " from stealing a car to joyriding. (People v. Garza (2005) 35 Cal.4th 866, 876.) " '[A] defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of . . . section 10851(a).' " (People v. Calistro (2017) 12 Cal.App.5th 387, 395; compare Garza, at p. 881.) As a result, "[t]he theft of the vehicle may be considered complete when the driving is not 'part of the original taking' [citation]; when the driving is 'an act distinct from the taking' [citation]; when the driving is 'for purposes unconnected with the original taking' [citation]; 'when the driving is no longer part of a " 'continuous journey away from the locus of the theft' " ' [citation]; or when the driving is not part of the escape from the scene of the theft." (Calistro, at p. 395.) The "taking" and the "driving" contemplated under the statute therefore constitute distinct offenses.
Thus, it is theoretically possible that the jury could have found Alishlah guilty of the section 10851(a) charge based on either of two distinct crimes: taking the vehicle or driving it. A car's "taker" might be, but is not necessarily, its "driver." Given how section 10851(a) distinguishes between "taking" and "driving," both acts do not necessarily form " ' "the same transaction," ' " and the statute itself does not " ' "contemplate[] . . . a series of acts over a period of time." ' " (Napoles, supra, 104 Cal.App.4th at p. 115.) As a result, the continuous-course-of-conduct exception does not apply, and Alishlah is correct that a unanimity instruction is generally required when a defendant is charged with violating section 10851(a) for engaging in activities that could support findings of both a taking and a driving.
A unanimity instruction is not required, however, when the prosecutor elects the " ' "specific act relied upon to prove the charge to the jury." ' " (People v. Brown (2017) 11 Cal.App.5th 332, 341; see also People v. Mahoney (2013) 220 Cal.App.4th 781, 796; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado).) "The prosecution can make an election by 'tying each specific count to specific criminal acts elicited from the [witnesses'] testimony'—typically in opening statement and/or closing argument." (Brown, at p. 341.) When such an election is made, the jury is bound by it, and no unanimity instruction is necessary. (Ibid.)
In evaluating whether an effective election was made by the prosecutor in closing arguments, decisions have focused on the substance and context of the prosecutor's comments. The Attorney General cites People v. Hawkins (2002) 98 Cal.App.4th 1428 (Hawkins), a case concluding that a unanimity instruction was not required because the prosecutor did not "ask[] the jurors to select from among several discrete acts by [the] defendant in order to convict him of [taking, copying, or making use of data from a computer system without permission]. Rather, the prosecutor repeatedly asserted in argument to the jury that the crime was completed when [the] defendant copied his employer's source code files and took them home for installation on his home computer. The prosecutor did not rely on [the] defendant's alleged later use of the source code as a separate violation of [the statute]." (Id. at p. 1455.)
Alishlah, in contrast, relies on Melhado, which held that a unanimity instruction was required because the prosecutor had failed to adequately inform the jury which event among several it should consider as the basis for conviction. (Melhado, supra, 60 Cal.App.4th at p. 1536.) The prosecutor argued for a conviction on a charge of making criminal threats, but in doing so referred to several threats the defendant made at different times. (Id. at pp. 1535-1536 & fn. 5.) "Because the prosecutor did not directly inform the jurors of his election," Melhado concluded that the trial court's failure to give a unanimity instruction was erroneous. (Id. at p. 1536.)
Alishlah contends that the prosecutor did not make an effective election here because she remarked that "either taking or driving, either one of those can be proven, I don't have to prove both." But these remarks prefaced the prosecutor's actual substantive argument on how the law should be applied to the evidence, which focused on Alishlah's driving of the car. Thus, the closing argument here is more akin to the one in Hawkins, in which the prosecutor repeatedly asserted that one act supported a conviction (Hawkins, supra, 98 Cal.App.4th at p. 1455), than it is to the one in Melhado, in which the prosecutor made reference to several events but never said which of those events should form the basis for the jury's consideration (Melhado, supra, 60 Cal.App.4th at p. 1536). We conclude that a unanimity instruction was not required here because the prosecutor elected driving as the basis of the charge.
Finally, even if we could say that the prosecutor's failure to categorically rule out taking as the basis for a conviction constituted error, we would conclude that any such error was harmless. As the Attorney General points out, there is a split of authority as to whether the federal or state standard for assessing harmless error should apply. (People v. Vargas (2001) 91 Cal.App.4th 506, 561-562.) We need not decide the issue, because any error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and it is not reasonably probable that Alishlah would have obtained a more favorable verdict had the trial court given a unanimity instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The only trial witness who saw Alishlah committing a crime was the police officer, who identified Alishlah as the driver of the car, and Alishlah admitted to driving the car in his interview. No witness testified about the initial taking of the car. As emphasized by the prosecutor in closing, the evidence thus strongly supported Alishlah's guilt as the driver, and no reasonable juror could have concluded that Alishlah took the car but did not drive it. Accordingly, any error in the omission of a unanimity instruction was harmless. (See People v. Jenkins (1994) 29 Cal.App.4th 287, 299; People v. Burns (1987) 196 Cal.App.3d 1440, 1458; see also Melhado, supra, 60 Cal.App.4th at p. 1536.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.