IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
December 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RAHAT SHAH QURAISHI, DEFENDANT AND APPELLANT.
(Super. Ct. No. 05-1061)
The opinion of the court was delivered by: Butz , J.
P. v. Quraishi CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Rahat Shah Quraishi appeals the jury's verdict finding him guilty of armed second degree robbery and being an accessory after the fact. He claims the prosecutor's improper argument during closing rebuttal resulted in prejudicial error. As we shall explain, there was no error and the judgment will therefore be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005, Yasir Elsumeri and Lawrence Estrada, both students at the University of California, Davis, lived together as roommates in an apartment in the University Village apartment complex on Cantrill Drive in Davis. At approximately 2:00 a.m. on February 12, 2005, Elsumeri and Estrada drove to the grocery store in Elsumeri's car, a 2005 black Mercedes, to get some clam chowder. They returned to the apartment complex approximately 30 minutes later and pulled into the parking lot. As they did, a green Cadillac Escalade SUV approached and stopped in front of the Mercedes. The passenger, Masi Mojaddidi, got out and asked Estrada for directions to a particular apartment in the complex. Mojaddidi repeatedly asked Estrada to roll the window down further, making Elsumeri suspicious. Mojaddidi and defendant, the driver of the SUV, appeared to be intoxicated, and admitted they had been drinking that night.
After obtaining directions, defendant and Mojaddidi returned to the SUV and drove off. Elsumeri backed the Mercedes into his parking space. Suddenly, the SUV returned, pulling up in front of the Mercedes, preventing it from leaving. Defendant and Mojaddidi quickly got out of the SUV and approached the Mercedes. Mojaddidi said, "This is a robbery." Elsumeri could see that defendant was carrying a pistol and Mojaddidi was holding a knife. Defendant asked Elsumeri, "Where is the stuff at? Where's your money. Where is your wallet?" He pointed the gun at Elsumeri's head and demanded money. When Elsumeri said he did not have a wallet or any money, and invited defendant to pat him down, defendant became agitated and said, "You're lying. Where's the money? Where [sic] the wallet?" Defendant patted Elsumeri down and discovered a cell phone, which he took from Elsumeri. Elsumeri pleaded with defendant not to take the phone, which was brand new and "fairly expensive." Defendant cocked the gun and said, "This is serious, man. This is a robbery. This is a gun." Hoping to appeal to defendant's sympathy, Elsumeri said he had a Muslim name. Defendant punched Elsumeri and then searched the car and found Elsumeri's wallet, which he took.
Meanwhile, Mojaddidi held a knife to Estrada's neck, patted him down, and asked him where his wallet and money were. He searched the passenger side of the car and found a bottle of cologne, which he took. Finally, defendant went back to the SUV and got in, telling Mojaddidi, "Hey, let's go. We're done, you know." Mojaddidi said, "Hold up. Let me go stab this fool." Defendant responded, "No, let's just leave. No." Mojaddidi ignored the plea and approached Estrada but did not stab him. Instead, he searched the car for more items. Finding nothing of interest, he returned to the SUV. Defendant and Mojaddidi told the victims to look away and drove off. The victims borrowed a cell phone and called the police. Officers arrived within approximately 10 minutes and took the victims' statements.
Shortly thereafter, police found a vehicle matching the description given by the victims parked at a Chevron station just two blocks from the University Village apartment complex. Officer Sean Timm saw defendant and Mojaddidi standing next to the SUV. Timm got out of his patrol vehicle, drew his weapon, and ordered the two men to put their hands up. Mojaddidi immediately put his hands up as instructed. Defendant ignored Timm and walked towards a nearby dumpster. Timm shouted repeatedly for defendant to stop, but defendant ignored him and walked behind the dumpster, concealing himself from sight. After repeated commands to come out, defendant finally came out from behind the dumpster and threw himself down on the ground, at which point he was placed under arrest and taken into custody. Timm checked behind the dumpster and the surrounding area and found a wallet, a credit card, a holster and a semiautomatic pistol. Another officer searched the SUV and found a wallet, keys, numerous credit cards and the bottle of cologne taken during the robbery.
The police drove Elsumeri and Estrada to the Chevron station where the two victims identified defendant and Mojaddidi.
Approximately 19 months before trial, Elsumeri met with a man who identified himself as defendant's brother. Elsumeri refused a $2,000 offer to falsify his testimony at trial.
Defendant was charged by a second amended information with two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)--counts 1 and 2). The information alleged that defendant personally used a firearm during the commission of those offenses (id., § 12022.53, subd. (b)).
The jury found defendant guilty of count 2 (robbery) and guilty of the lesser included offense to count 1 (accessory after the fact), and found the firearm enhancement true as to count 2. The trial court declared a mistrial as to count 1.
The court sentenced defendant to 13 years eight months in state prison. Defendant filed a timely notice of appeal.
"It has long been settled that appeals to the sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial. [Citations.] We recognize that the prosecutor 'may vigorously argue his case and is not limited to "Chesterfieldian politeness"' [citations], but the bounds of vigorous argument do not permit appeals to sympathy or passion . . . ." (People v. Fields (1983) 35 Cal.3d 329, 362-363.)
Defendant contends the prosecutor committed misconduct during closing rebuttal when he argued as follows:
"[PROSECUTOR]: People with money, trying to get money, that they shouldn't have or items they shouldn't have. Someone is not poor and does not mean they're not capable of committing a crime, as Mr. Elsumeri plainly admitted on the stand, feeling a great deal of sympathy for [defendant]. If you think that's going to intrude on what you promised, what you swore to do when you become jurors, which is just to weigh the facts of this case, I know it can be difficult sometimes to try to separate out, you know, sympathy, other concerns you may have from what you have to do.
"Folks, that's the job of the judge. She is mandated to consider those things. It goes both ways sometimes, you know, and maybe that's the case in here. You're so angry, and that you're going to allow that to intrude on your analysis in this case, that's equally wrong, but any sympathy you're feeling, you're going to have a hard time, make the proper call. If you're going to consider compassion and allow sympathy in your analysis, consider that it does run both ways.
"[DEFENSE COUNSEL]: I am going to object to that.
"THE COURT: Overruled.
"[PROSECUTOR]: But ideally you shouldn't be considering it at all."
Defendant argues the prosecutor's statements invited the jury to consider sympathy for the two victims in reaching its verdicts. We disagree. The prosecutor's statements did not appeal to the sympathy or passion of the jury, but rather cautioned the jury not to let sympathy influence its verdict. Noting that the victim, Elsumeri, felt "a great deal of sympathy for [defendant]," the prosecutor cautioned the jury that sympathy should not interfere with their sworn oath to weigh the facts. While the prosecutor's comment that "If you're going to consider compassion and allow sympathy in your analysis, consider that it does run both ways" appears to be contrary to his immediately preceding words of caution, counsel thereafter corrected himself by warning the jury that "ideally you shouldn't be considering it [(sympathy)] at all."
Defendant claims the prosecutor's misconduct was "compounded when the Court overruled . . . defendant's objection" and failed to admonish the jurors not to consider sympathy for the victims. Defendant ignores the following admonishment given by the court immediately after the completion of the prosecutor's rebuttal argument: "Ladies and gentlemen, what the attorneys argue, the law, and instructions are what I have handed you. You are not to sympathize in either direction. It [(sympathy)] is not part of your duty to consider and weigh the facts and determine what the facts are." (Italics added.)
The jury was also admonished at the conclusion of the evidence and prior to deliberations that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence."
The prosecutor's statements, taken as a whole, cautioned the jury not to consider sympathy in reaching its verdict. The court's admonishment to the jury drove that point home. There was no error.
The judgment is affirmed.
We concur: ROBIE , Acting P.J. MAURO ,J.
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