Opinion
G054399
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ADAM ULLAH, Defendant and Appellant.
Renee Paradis, under appointment by the Court of Appeal; Robert K. Weinberg, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16HF0457) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Renee Paradis, under appointment by the Court of Appeal; Robert K. Weinberg, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found Adam Ullah guilty of domestic violence against his girlfriend and found true the allegation that he personally inflicted great bodily injury (GBI) on her. On appeal, Ullah contends the trial court erred in failing to give, sua sponte, a unanimity instruction with respect to the GBI allegation. He further contends the trial court erred when it determined he was presumptively ineligible for probation based on the jury's true finding on the GBI allegation. For the reasons stated below, we find no reversible error and affirm the judgment.
I
STATEMENT OF CASE
A jury convicted Ullah of infliction of injury on a domestic partner in violation of Penal Code section 273.5, subdivision (a), and it found true the allegation that he inflicted GBI on the victim (§ 12022.7, subd. (e)). The trial court denied probation and sentenced Ullah to state prison for eight years, consisting of the midterm of three years, plus five years for the GBI enhancement. Ullah timely appealed.
All further undesignated statutory references are to the Penal Code. Section 12022.7, subdivision (e), provides: "Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years."
II
FACTS
Prosecution case
Irvine Police Officer Matthews Jones testified that on March 27, 2016, he responded to a call from a condominium. When he arrived at the scene, he observed that the victim, Carla B., was sitting on a couch in the front room. Carla was "hysterical"; she was crying and shaking. Carla was bleeding from lacerations on her back and her right leg. She had blood on her face and fingers, a swollen eye and bruising on her forehead. Jones accompanied the victim to the hospital. There, he observed that she received stitches for the laceration on her back and two staples for a wound on the back of her head.
Steven H. lived with his family in the unit adjacent to Ullah's condominium. He testified he was friends with Ullah, and still believed that Ullah "is a nice guy." On the evening of March 27, 2016, Steven heard a lot of noise coming from Ullah's residence. Steven recognized the noise as Ullah and Carla arguing. After hearing the argument get louder over a period of 30 to 40 minutes, Steven went into his backyard and peered into Ullah's residence. He observed Ullah "manhandling" Carla. Steven saw Ullah punch Carla in the face multiple times. Carla attempted to defend herself, and both Carla and Ullah ended up wrestling on the ground. Steven "freaked out and ran inside." He was planning to call the police when Carla came running to his door. She was crying and shaking. Steven observed she was "severely injured." She was bleeding from a wound on her face and there was blood on her back.
Steven's mother testified that on the night of March 27, 2016, she heard noises of a fight coming from Ullah's condominium. She observed the common wall shaking and heard "the girl just screaming, but then stopped." After one or two hours, she heard Carla knock on the door. Carla was crying and shaking. Although Carla looked injured, she was reluctant to say who had hurt her. Carla told Steven's mother that she fell from the stairs and injured herself. However, Carla also said, "Don't call the police because [Ullah] will kill me." Carla stated that Ullah had "hurt me." Steven's mother replied, "Okay, let me call your mom." After calling Carla's mother and being informed that the woman lived two hours away, Steven's mother told Carla, "[w]e cannot wait two hours because I'm not a nurse, [or] doctor. I can't have you bleed to death [on] my couch. So let me call an ambulance." About 10 minutes after the 911 call, the ambulance arrived, and shortly thereafter, the police also arrived.
Bria L. testified that she lived in the same complex as Ullah. At around 10:30 p.m., on March 27, 2016, she was laying in bed when she heard a loud crashing sound. She then heard a woman pleading, "[h]elp me, help me, help me." Bria got out of bed and looked out her window. She observed a woman run out of her home to the neighbor's, screaming, "[h]e's going to kill me. He's going to kill me." Bria went outside and noticed a man in a car circling the guest parking. The man stopped the vehicle for a minute before driving away.
Carla was unavailable to testify at trial. Her preliminary hearing testimony was read into evidence. At the preliminary hearing, Carla stated that in March 2016, she was in a dating relationship with Ullah. She still loved him. On March 27, 2016, Carla lived with Ullah in a condominium in Irvine. That day, she suffered a cut on her back, and later, had staples taken out of the back of her head and stitches removed from her back. She could not recall who caused the injuries. On cross-examination, Carla acknowledged that when she was at the hospital, she told police officers that she sustained the injuries from falling down the stairs.
Defense case
Ullah did not testify and did not present an affirmative defense.
III
DISCUSSION
A. The trial court's failure to give, sua sponte, a unanimity instruction with respect to the GBI allegation was not error.
The jury convicted Ullah of domestic violence, and found true the allegation that Ullah personally inflicted GBI on Carla during the commission of domestic violence. Although Ullah acknowledges there was sufficient evidence to sustain the jury's true finding on the GBI allegation, he contends the trial court erred in failing to instruct the jurors, sua sponte, that they must unanimously agree on the acts Ullah committed that led to the GBI.
1. Additional factual background
When the parties discussed the jury instructions, the trial court asked the prosecution, "Is there any reason to give a unanimity instruction in this case?" The prosecutor responded, "I don't think so." The court then stated that it did not believe a unanimity instruction was required because "[i]t's a continuing course of conduct . . . not a situation that there are multiple counts and they have to choose between them." The court asked defense counsel whether he wanted to be heard on this issue, and counsel responded, "No, your honor."
During closing argument, the prosecutor discussed the GBI allegation. In determining "whether or not the defendant personally inflicted [GBI]," the prosecutor stated: "You'll have to take a look at the injuries that the defendant inflicted on [the victim] . . . . [¶] You know look at the wound in her back. . . . This is what the defendant did to the victim in this case. We don't know how he did it. It's not important. I don't have to prove to you when exactly in the one to two hours they were arguing that he did this to her, but there's no evidence to the contrary that he didn't do this. None whatsoever, no credible evidence."
2. Analysis
In a criminal case, a "jury must agree unanimously [that] the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Therefore, "when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) The purpose of a unanimity instruction is to preclude a jury from finding a defendant guilty of a particular crime, "'even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid., quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) "But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.'" (Russo, 25 Cal.4th at p. 1135, quoting People v. Perez (1993) 21 Cal.App.4th 214, 223.) Stated differently, "where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.]" (Russo, supra, 25 Cal.4th at p. 1132.) Moreover, "no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time.' [Citation.] There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 679.) "'We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. [Citation.]' [Citation.]" (People v. Lueth (2012) 206 Cal.App.4th 189, 195.)
Here, assuming that the unanimity requirement applies to GBI findings, we conclude the trial court was not required to give a unanimity instruction in the present case. (See People v. Muniz (1989) 213 Cal.App.3d 1508, 1517-1519 & fn. 6 [after expressly declining to address whether a unanimity instruction is required for GBI findings, the appellate court rejected claim of instructional error], disapproved on another point by People v. Escobar (1992) 3 Cal.4th 740, 749.) Where the injuries are inflicted as part of a single and continuous course of conduct, jurors need not agree on any single injury to find the GBI enhancement true. (See People v. Robbins, supra, 209 Cal.App.3d at p. 265 ["It matters not that individual jurors may have differed in their view as to which particular injury or injuries constituted great bodily injury: The only requirement is that the jury unanimously find the injury sustained by Jane M. to be significant or substantial"]; see also People v. Ortiz (2012) 208 Cal.App.4th 1354, 1376 ["jurors were not required to unanimously agree on the particular act or acts [defendant] did in committing each of those single discrete crimes and allegations"].) Here, Steven testified that he observed Ullah manhandling, punching and wrestling with Carla. Following Carla's fight with Ullah, she suffered a swollen eye, bruised forehead, and cuts on her back and the back of her head. Thus, Carla's injuries were inflicted in the same continuous course of conduct. Accordingly, the jurors need not unanimously agree on which injuries Carla sustained during the domestic violence incident to find true the GBI allegation.
The only published case suggesting that a unanimity instruction may be required for a GBI finding is People v. Robbins (1989) 209 Cal.App.3d 261). There, with respect to a GBI enhancement under section 12022.8, the defendant argued that "the court was required sua sponte to instruct the jurors they had to agree which injury or injuries supported each great bodily injury enhancement." (Id. at p. 264.) After noting the argument presented a "novel theory of instructional error," the court concluded that in general whether to give a unanimity instruction on an enhancement should be based on the same considerations as whether to give a unanimity instruction on the underlying crime. (Id. at pp. 264-266.) However, at no time did the appellate court hold that a unanimity instruction must be given for GBI allegations.
Ullah's reliance on People v. Hernandez (2009) 180 Cal.App.4th 337, is misplaced. There, the appellate court addressed whether a unanimity instruction is required for a jury to find true a burglary special circumstance under section 667.61. (See id. at pp. 347-348.) It concluded that a unanimity instruction was not required. (See also id. at p. 349 ["Nothing in the language of section 667.61 negates our conclusion that the burglary exception to the unanimity requirement applies here. Thus, the question whether Hernandez entered the victim's residence with the intent to commit forcible sodomy or rape involves only the theory of how the crime was committed, and the jury was not required to agree unanimously that he entered with the intent to commit one or both of those sex offenses"].)
Ullah acknowledges the continuous conduct exception to the unanimity requirement, but argues that the exception only applies where there is no reasonable dispute that the defendant personally inflicted the injuries under consideration. He contends that in the present case, "there was not sufficient evidence for a reasonable trier of fact to conclude beyond a reasonable doubt that [he] personally inflected the injuries to [Carla's] back and head, versus [Carla] falling onto broken glass or another sharp object." (See People v. Cross (2008) 45 Cal.4th 58, 63 ["personally inflicts" as stated in GBI enhancement means that the defendant directly causes something damaging or painful to be endured].) We disagree. Although no witness directly observed the infliction of the injuries to Carla's back or the back of her head, a reasonable juror could infer from the evidence that Ullah personally inflicted those injuries during his fight with Carla. Carla was bleeding from her back and the back of her head immediately after her fight with Ullah, and she stated that Ullah had hurt her. Steven testified he observed Ullah manhandling Carla and wrestling with her on the ground. A neighbor, Bria, testified she heard a loud crashing sound during the couple's argument. On this record, a reasonable juror could find beyond a reasonable doubt that the injuries to Carla's back and the back of her head were personally inflicted by Ullah during the couple's fight. Thus, the jury was not precluded from considering the injuries to Carla's back and head in determining whether Ullah personally inflicted GBI on Carla. B. Sentencing error
The jury was instructed that facts can be proven by circumstantial evidence.
Ullah contends he is entitled to a new sentencing hearing because the trial court incorrectly determined he was presumptively ineligible for probation.
1. Additional factual background
Following the jury's guilty verdict and true finding on the GBI allegations, a probationer officer's report was prepared and filed with the court. In the report, the probation officer stated that Ullah was presumptively ineligible for probation because the jury found he caused GBI. The report also stated that a "review of unusual circumstances indicates the defendant does not meet the criteria for probation consideration." It identified numerous aggravating factors and only one mitigating factor (that in a police interview, the victim indicated she provoke the incident by pushing Ullah). Nevertheless, the probation officer recommended formal probation following incarceration in the Orange County Jail for "an appropriate period of time."
In the prosecution's sentencing memorandum, the deputy district attorney argued that because Ullah "was convicted of the GBI enhancement under [section] 12022.7[, subdivision] (e)," he was presumptively ineligible for probation under section 1203, subdivision (e). The deputy district attorney contended that the presumption was not overcome, arguing "this is not a probation case and this is not a defendant the Court should essentially take a chance on and grant probation to."
During the sentencing hearing, the trial court stated that it had read and considered the probation officer's report, the prosecution's sentencing memorandum, and the defense sentencing memorandum and related documents submitted on behalf of Ullah. The court stated: "As the prosecutor has noted, the defendant has been convicted of section 273.5 and the [GBI] allegation of section 12022.7[, subdivision] (e). Thus, the defendant is ineligible for probation under . . . section 1203[, subdivision] (e)(3) unless the court finds unusual circumstances." The court then determined that no unusual circumstance existed to overcome the presumption. Nevertheless, the court continued to address probation by considering factors relating to whether probation should be denied. It noted that under California law, aggravating factors can be used both to deny probation and support the imposition of an upper term sentence. Although the present crime involved great violence and great bodily harm, the court declined to consider that fact as an aggravating factor due to "the potential of . . . dual use of facts since it is found as an enhancement under [section] 12022.7." The court found the following aggravating factors: (1) the vulnerability of the victim, and (2) Ullah was on probation at the time he committed the crime. It found no mitigating factor, rejecting the probation report's suggestion that the victim provoked the incident. The court denied probation and sentenced Ullah to the midterm of three years.
2. Analysis
Section 1203, subdivision (e)(3), provides in relevant part that "[a]ny person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted" is presumptively ineligible for probation. Ullah contends the trial court erred in determining he was presumptively ineligible for probation without finding that he "willfully" inflicted GBI upon Carla. As used in section 1203, subdivision (e)(3), "'willful' requires the defendant's intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture." (People v. Lewis (2004) 120 Cal.App.4th 837, 853.) The deputy attorney general argues that the jury's true finding on the GBI allegation was sufficient to establish that Ullah had the requisite intent. We disagree. As noted, a true finding under section 12022.7, subdivision (e), requires a jury find that the defendant "personally inflicts great bodily injury under circumstances involving domestic violence." Under its plain language, section 12022.7, subdivision (e), "does not require a showing of intent to inflict GBI, separate or apart from the intent required to commit" the underlying crime. (Cf. People v. Poroj (2010) 190 Cal.App.4th 165, 168 [GBI enhancement under section 12022.7, subdivision (a), which provides that "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony" does not require showing of intent to commit GBI].) Thus, the jury's true finding on the GBI allegation, by itself, is insufficient to establish that Ullah was presumptively ineligible for probation under section 1203, subdivision (e)(3).
However, any sentencing error was cured or harmless, and remand for a new sentencing hearing would be an idle act. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [any sentencing error in imposing upper term and consecutive term based on same fact was harmless and resentencing was not required where trial court "could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so"]; People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [declining to remand matter for new sentencing hearing where sentencing court indicated that it would impose consecutive terms, even if not mandatory, and "the record reflects numerous grounds to support consecutive sentences, any one of which would be sufficient by itself"].) Here, the record reflects that trial court denied probation on two grounds: (1) Ullah was presumptively ineligible for probation and no unusual circumstances overcame the presumption, and (2) the presence of aggravating factors and absence of mitigating factors militated against granting probation. As to the former, the trial court could have determined Ullah was presumptively ineligible based on an implied finding that in light of the evidence of the lengthy and vicious nature of the attack on Carla, Ullah willfully intended to inflict GBI on her. (See People v. Fisher (1965) 234 Cal.App.2d 189, 192-193 [no prejudicial error in denial of probation for use of a deadly weapon in the commission of a crime where trial court made no express finding, as evidence supported implied finding that defendant had used a deadly weapon].) As to the latter, aggravating factors may be used to deny probation. (See also People v. Black (2007) 41 Cal.4th 799, 817 [same aggravating factor "may be used both to deny probation and to support imposition of an upper term sentence"].) Moreover, under California Rules of Court, rule 4.414(a)(3), (b)(2), factors affecting the grant or denial of probation include the vulnerability of the victim and the defendant's prior performance on probation. The trial court denied probation based on both of those factors. On this record, there is no reasonable possibility the court would have found Ullah suitable for probation.
IV
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.