Opinion
B286784
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL MOLAYEM, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA445216) THE COURT:
Daniel Molayem (defendant) appeals from a judgment sentencing him to 50 years to life in prison after a jury convicted him of first degree murder conviction (Pen. Code, § 187, subd. (a)) and found true the allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). We affirm defendant's conviction and sentence.
All further statutory references are to the Penal Code unless otherwise indicated. --------
BACKGROUND
On March 23, 2016 at 1:18 p.m., Kourtney Yochum (Yochum) was shot in the back of the head with a single bullet while she was walking her dogs in front of her apartment complex in the Skid Row area of downtown Los Angeles. Directly after hearing a shot fired, two security guards on duty at neighboring buildings saw defendant running down Sixth Street away from Yochum while being chased by a crowd of people, who were yelling that he had just shot someone. After defendant tripped and fell, the crowd of pursuers tried to kick and punch him. Defendant pulled a black semiautomatic gun from his waistband, waived it at the crowd, and resumed running. The two security guards quickly caught up to defendant, forced him to the ground, handcuffed him, and removed the gun from his waistband. Minutes later, a police officer arrived at the scene, took custody of the semiautomatic gun from the security guard, observed that a single round had been fired, and then secured it in the trunk of his police car; the gun was booked into evidence later that day. Police officers at the scene also recovered a spent shell casing under Yochum's left armpit that matched the weapon recovered from defendant's waistband.
At defendant's trial, the security guards and police officers testified. An additional witness testified that she was standing across the street when she observed a man shoot Yochum in the back of the head and run down Sixth Street while people chased him. This witness identified defendant as the shooter shortly after he was arrested and identified defendant as the shooter at trial. The jury also viewed surveillance footage from multiple sources recovered by law enforcement depicting the shooting, defendant running from the scene, brandishing a weapon, and the security guard removing the weapon from defendant's waistband.
A jury convicted defendant of first degree murder (§ 187, subd. (a)) and found true the allegation that he personally and intentionally discharged a firearm causing death. The trial court sentenced defendant to prison for 50 years to life, comprised of 25 years to life for the murder and 25 years for the gun enhancement.
Defendant filed a timely appeal, and we appointed counsel to represent him on appeal. Defendant's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On May 22, 2018, we gave notice to defendant that his counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant filed a letter brief on June 14, 2018.
DISCUSSION
The first degree murder conviction and firearm enhancement are supported by substantial evidence. Multiple witnesses testified at trial to seeing defendant shoot Yochum and run from the scene of the shooting, and surveillance footage from multiple cameras corroborated this testimony. Defendant also testified at trial that he and Yochum had been in dating off and on since 2000, that he saw Yochum on the morning of the shooting, but that she was attacked by an unidentified man and when defendant grabbed the gun from the unknown assailant's hand to protect Yochum, the gun accidentally went off. The jury was entitled to credit the other witnesses' testimony and video surveillance evidence over defendant's version of the facts, and we cannot reject the reasonable inference drawn by the jury for another inference more favorable to the defendant.
We have also not identified any defects with the trial itself. The jury was properly instructed on the crimes of first and second degree murder, and also on the allegation of personal use of a deadly weapon. Additionally, when sentencing defendant, the trial court in anticipation of the amendment to section 12022.53 allowing the trial court discretion to strike the previously mandatory 25-year sentence enhancement, did exercise that discretion and ultimately decided not to strike or dismiss the enhancement because of the circumstances of the offense and defendant's prior criminal history.
We have independently examined the entire record and are satisfied that defendant's attorney has fully complied with his responsibilities, and that no arguable issues exist. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. /s/_________
ASHMANN-GERST, Acting P. J., /s/_________
CHAVEZ, J., /s/_________
HOFFSTADT, J.