People v. Askia CA2/1 ( 2020 )

Filed 11/19/20 P. v. Askia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304380
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA063233)
v.
ABDUL MAJEED ASKIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed with
directions.
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
This is the second appeal brought by defendant Abdul
Majeed Askia following his convictions for attempted murder and
assault with a deadly weapon. In defendant’s first appeal, we
remanded for the trial court to exercise its discretion whether to
strike defendant’s prior serious felony enhancement. The
trial court declined to strike the enhancement, and defendant
filed this second appeal.
Defendant’s appointed counsel filed a brief pursuant to
People v. Wende (1979) 25 Cal. 3d 436 (Wende), identifying no
issues and requesting that this court review the record and
determine whether any arguable issue exists on appeal.
Defendant filed a supplemental brief. We have reviewed the
record, conclude the record reveals no arguable issue on appeal,
and thus affirm. We instruct the trial court, however, to correct
clerical errors in the abstract of judgment.
FACTUAL BACKGROUND
We provided a detailed summary of the underlying facts in
our opinion from defendant’s first appeal, People v. Askia
(July 29, 2019, B290450) [nonpub. opn.]. In short, the
prosecution presented evidence that in June 2014, defendant
attacked the woman with whom he was living, stabbing her
multiple times with a knife and either strangling her or stepping
on her neck, fracturing her vertebrae in the process. The victim
fell unconscious from her injuries but survived.
2
PROCEDURAL BACKGROUND
An information charged defendant with attempted murder
(count 1) and assault with a deadly weapon (count 2), and alleged
enhancements for use of a deadly and dangerous weapon in the
commission of the attempted murder (Pen. Code1, § 12022,
subd. (b)(1)), and infliction of great bodily injury in the
commission of both the attempted murder and the assault
(§ 12022.7, subd. (a)). The information alleged that defendant
suffered a prior conviction for murder within the meaning of the
“Three Strikes” law.2
The trial court initially found defendant incompetent to
stand trial, and he spent time at Patton State Hospital. Trial
ultimately occurred, and the jury convicted defendant of both
counts and found the enhancement allegations true. The trial
court found defendant previously had been convicted of murder in
1974. The trial court denied defendant’s motion for a new trial.
The trial court sentenced defendant to life in prison on the
attempted murder count, with a five-year enhancement for the
prior conviction under section 667, subdivision (a)(1), and a
three-year enhancement for infliction of great bodily injury. The
trial court stayed the deadly and dangerous weapon
enhancement. The trial court stayed rather than pronounce
sentence on the assault charge under section 654, and did not
pronounce sentence on the accompanying bodily injury
enhancement.
1 Unspecified statutory citations are to the Penal Code.
2 The information contained other allegations that the
trial court dismissed on the prosecution’s motion.
3
In defendant’s first appeal, we modified the judgment to
impose, then stay, the sentence for the assault charge and its
accompanying bodily injury enhancement, and to strike, rather
than stay, the deadly weapon enhancement. As modified, we
affirmed the judgment. We remanded, however, for the
trial court to exercise its newly enacted discretion whether to
strike the five-year enhancement under section 667,
subdivision (a)(1).
On remand, the trial court held a hearing with defendant
and his counsel present, and declined to exercise its discretion to
strike the five-year enhancement “[b]ased on the facts of the
current case” and “the nature of the prior [conviction].”
Regarding our modification of the judgment, the trial court
noted that, although our disposition stated that the judgment on
the assault count “is modified by imposing and staying sentence,”
we did not specify a particular term. The trial court stated, “If it
is sufficient for the clerk’s purposes and the abstracts of
judgment to just have what the Court of Appeal has done, then
that’s fine. Otherwise, if that is insufficient and they do require
the [trial] court to specify a term as to [the assault count], the
[trial] court would select the middle term on [that count]. That
would be doubled due to the strike prior and there would be an
additional three years for the great bodily injury allegation. [¶]
That entire sentence, however, as to [the assault count], would be
stayed pursuant to Penal Code section 654.”
Consistent with our instructions, the trial court also struck
the deadly weapon enhancement.
Defendant timely appealed.
4
DISCUSSION
Defendant’s appointed appellate counsel filed a Wende brief
raising no issues on appeal and requesting that we independently
review the record. (Wende, supra, 25 Cal. 3d 436.) We advised
defendant of the opportunity to file a supplemental brief, which
he did.
In his supplemental brief, defendant argues that when the
trial court declined to strike the five-year enhancement, it did not
take into account that the prior conviction on which the
enhancement was based was committed many years earlier, and
that defendant committed no further crimes until the attack
underlying the instant case. Defendant further contends the
trial court failed to consider defendant’s record of public service,
including a plaque from Sheriff Sherman Block for outstanding
community service. Finally, defendant argues the trial court
failed to consider defendant’s exemplary record in the six years
he has been incarcerated.
“We review a court’s decision to deny a motion to
strike a five-year prior serious felony enhancement for an
abuse of discretion.” (People v. Shaw (Oct. 26, 2020, D076124)
[2020 Cal.App.Lexis 1007, at p. *7].) We note the record does not
reflect that defendant or his counsel raised any of the above
arguments in the trial court. “As a general rule, ‘complaints
about the manner in which the trial court exercises its sentencing
discretion and articulates its supporting reasons cannot be
raised for the first time on appeal.’ ” (People v. Baker (2018)
20 Cal. App. 5th 711, 720.) Regardless, given the brutality of the
crime underlying the instant case, and the fact that defendant’s
prior conviction was for murder, the trial court was well within
its discretion to leave the enhancement in place.
5
Defendant raises additional issues in his supplemental
brief, but they are not cognizable in this appeal. He objects to the
trial court sending him to Patton State Hospital before trial,
where he claims he was subjected to mind-altering drugs against
his will. He complains that his appointed trial counsel did not
present the defense requested by defendant, or investigate his
treatment at Patton State Hospital or his claims that he was
being targeted by the United States Department of Homeland
Security. He claims law enforcement officers threatened him
while he was in custody prior to trial. He contends the trial court
admitted hearsay evidence at trial, and wrongly denied his
motion for a new trial based on evidence that one of the officers
who testified against him had a history of dishonesty and
misconduct. He challenges his sentence under the Three Strikes
law, contending his prior conviction was too old to qualify. He
asks for conditional release from prison out of concern that he
will contract Covid-19.
Apart from the request for conditional release, these
additional arguments all pertain to matters that were or could
have been addressed in defendant’s first appeal, and cannot be
challenged now. As for the request for conditional release, that
issue is beyond the scope of anything addressed by the trial court
upon our limited remand following defendant’s first appeal, and
is not properly before us.
We have reviewed the record and find no arguable issue.
Appointed counsel has fully complied with counsel’s
responsibilities and no arguable issue exists. (People v.
Kelly (2006) 40 Cal. 4th 106, 126; Wende, supra, 25 Cal.3d
at pp. 441–442.)
6
There are, however, two clerical errors in the abstract of
judgment that we must correct. First, both the trial court’s oral
pronouncement of judgment and the minute order from the
hearing reflect that the trial court did not strike the five-year
enhancement under section 667, subdivision (a)(1), yet that
enhancement does not appear in the abstract of judgment.
Second, the abstract of judgment does not indicate the
sentence the trial court orally imposed on count 2, the assault
count; instead it merely notes that the sentence was stayed. As
set forth above, the trial court imposed the midterm, which for
assault with a deadly weapon is three years (§ 245, subd. (a)(1)),
doubled because of the prior strike, for a total of six years.3
Because the trial court did not specify whether the sentence on
the assault charge was to run consecutively or concurrently with
the sentence on the attempted murder charge, the sentence by
default is concurrent. (§ 669, subd. (b) [“Upon the failure of the
court to determine how the terms of imprisonment on the second
or subsequent judgment shall run, the term of imprisonment on
the second or subsequent judgment shall run concurrently”].)
“Where there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract
of judgment, the oral pronouncement controls.” (People v.
Zackery (2007) 147 Cal. App. 4th 380, 385.) We direct the
trial court to amend the abstract of judgment to reflect its oral
pronouncement of judgment.
3 The abstract of judgment accurately reflects the
trial court’s imposition and staying of the bodily injury
enhancement to the assault charge under section 12022.7,
subdivision (a).)
7
DISPOSITION
The judgment is affirmed. The trial court is directed to
amend the abstract of judgment to include a five-year
enhancement under section 667, subdivision (a)(1), and to
indicate a sentence of six years on count 2, concurrent with the
sentence on count 1, and stayed pursuant to section 654. The
trial court shall forward a copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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