People v. Hashemi CA2/2

Filed 12/31/20 P. v. Hashemi CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301470 (Consolidated with
B302906)
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. PA081437)
SEYED HASHEMI,
Defendant and Appellant.
APPEAL from a judgment, and a petition for writ of habeas
corpus, of the Superior Court of Los Angeles County, Ronald S.
Coen, Judge. The judgment is affirmed; petition denied.
Seyed Hashemi, in pro. per.; Thomas Owen, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Seyed Hashemi (defendant) was convicted of a series of
crimes against his ex-wife that culminated in him kidnapping
and carjacking her at gunpoint, all the while threatening to kill
her. On appeal, he challenges (1) the trial court’s ruling limiting
one aspect of his cross-examination of his ex-wife, and (2) the
sufficiency of the evidence underlying his conviction for
kidnapping for carjacking (Pen. Code, § 209.5, subd. (a)).1
Defendant also filed a petition for a writ of habeas corpus. None
of defendant’s arguments has merit, so we affirm the judgment
and deny the petition.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Marriage and divorce
Defendant and Mahsan S. (Mahsan) met in 2010 and
started dating. After defendant’s second arrest for driving under
the influence over the summer of 2011, defendant and his family
started “calling [her] all the time” and “pressur[ing]” Mahsan to
marry defendant to “help him get out of jail” and to “prevent him
from being deported.” In September 2011, she succumbed to the
pressure and married him at the jail despite feeling that “he
[was] not right for [her].” Although they continued to be intimate
after the marriage ceremony, they did not live together and she
did not tell her family.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Mahsan filed for divorce in March 2012, and the divorce
was finalized in September 2012.
B. Defendant’s campaign of unwelcomed contact
and threats
Between September 2013 and March 2014, defendant
would park outside of a gated apartment complex where Mahsan
lived. From time to time, he would also follow her when she left
and, at times, would confront her. When he confronted her,
defendant promised that he would never leave her alone,
threatened to ruin her life, and threatened to kill her.
C. The March 2014 incident
On March 22, 2014, defendant approached Mahsan—in
violation of a newly issued restraining order—as she was jogging
at Warner Center Park, physically assaulted her by pulling on
her hair and then biting her nose, demanded that she have the
restraining order lifted, and then threatened to kill her.
D. The July 2014 incident
On July 30, 2014, while defendant was out on bail and
subject to pending charges arising from the March 2014 incident,
defendant approached Mahsan in the parking lot outside the L.A.
Fitness she used. Wearing a bulky sweatshirt with the hood
down to conceal his identity, defendant walked up to her when
she was just “a few feet” from her car, took her car keys, grabbed
her hair and put a gun to her head, and ordered her to get back
into her car. An off-duty FBI agent saw the incident unfolding,
approached, and asked, “What’s going on?” Defendant pointed the
gun at him, and the FBI agent backed away with his hands up.
Defendant then pushed Mahsan into the driver’s seat, got into
the front passenger’s seat, put the gun to Mahsan’s head, and
ordered her to “drive away.” When she reminded him that he had
the car keys, he threw them at her.
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Before Mahsan pulled away, the off-duty FBI agent
returned, displayed his badge and his gun, and ordered
defendant to “leave [Mahsan] alone.” When defendant refused,
the FBI agent opened fire. Mahsan testified that defendant
returned fire. The People’s criminologist testified that, based on
analysis of damage to the car’s windshield, the FBI agent shot
into the car and damaged defendant’s gun, and there was also
one shot out of the car.
After all shots were fired, defendant ordered Mahsan to
“start the car and drive away.” When Mahsan offered to drive
defendant to the hospital because he was bleeding, he got “more
mad and angry,” grabbed her by her hair, struck her in the back
of her head with his gun, and repeatedly yelled at her that he
was going to kill her. When defendant ordered Mahsan to turn
the car from a busy street onto a quiet cul-de-sac, Mahsan
jumped out of the driver’s seat mid-turn and fled on foot.
Defendant then slid over to the driver’s seat and led law
enforcement on a high-speed chase during which he blew through
stoplights and sometimes drove in excess of 100 miles per hour.
Defendant abandoned the car near Malibu Bluffs Park, waved his
gun at police, and fled on foot. He was apprehended a few hours
later.
II. Procedural Background
A. Charges
In the operative information, the People charged defendant
with 14 counts. For his harassment of Mahsan between
September 8, 2013 and March 20, 2014, the People charged
defendant with stalking (§ 646.9, subd. (b)). For his March 22,
2014 attack on Mahsan, the People charged defendant with (1)
injuring a former spouse after suffering a conviction for the same
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(§ 273.5, subd. (f)(2)), and (2) making criminal threats (§ 422).
For the July 30, 2014 incident, the People charged defendant
with (1) two counts of assault with a semi-automatic firearm, for
assaulting Mahsan and the FBI agent (§ 245, subd. (b)), (2) being
a felon in possession of a firearm with a prior (§ 29800, subd.
(a)(1)), (3) making criminal threats to Mahsan (§ 422), (4)
kidnapping Mahsan (§ 207, subd. (a)), (5) carjacking Mahsan
(§ 215, subd. (a)), (6) kidnapping Mahsan in the commission of a
carjacking (§ 209.5, subd. (a)), (7) injuring a former spouse after
suffering a prior conviction for the same (§ 273.5, subd. (f)(2)), (8)
two counts of attempted premeditated murder, against Mahsan
and the FBI agent (§§ 187, subd. (a), 664, subd. (a)), and (9)
evading a peace officer with willful disregard (Veh. Code,
§ 2800.2, subd. (a)). For many of these counts, the People further
alleged that defendant personally used a firearm (§§ 12022.53,
subd. (b), 12022.5), that he personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)), and that he was on
bail when he committed those counts (§ 12022.1).
B. Verdict
A jury found defendant guilty of all of the crimes and found
true all of the enhancements except the attempted murder of
Mahsan and the FBI agent and the enhancements for personally
and intentionally discharging a firearm.
C. Sentencing
The trial court sentenced defendant to state prison for life
plus 33 years and four months. As the base time, the court
imposed a 19-year prison sentence for assaulting Mahsan with a
firearm (comprised of a base term of nine years plus 10 years for
the firearm enhancement). Consecutive to that sentence and to
one another, the court imposed eight months (calculated as one-
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third of the two-year midterm sentence) for criminally
threatening Mahsan on July 30; one year for stalking Mahsan
(calculated as one-third of the three-year midterm sentence); four
years and four months for injuring a former spouse on July 30
(comprised of one-third of the midterm base sentence of three
years and one-third of the midterm firearm enhancement of 10
years); five years and four months for assaulting the FBI agent
with a firearm (comprised of one-third of the midterm sentence of
six years and one-third of the midterm firearm enhancement of
10 years); eight months for being a felon in possession (comprised
of one-third of the two-year midterm sentence); eight months for
evading an officer (comprised of one-third of the two-year
midterm sentence); one year for injuring a former spouse on
March 22 (comprised of one-third of the three-year midterm
sentence); eight months for criminally threatening Mahsan on
March 22 (comprised of one-third of the two-year midterm
sentence); and life plus 12 years for kidnapping in the
commission of carjacking, comprised of a life sentence plus 10
years for the firearm enhancement plus two years for being out
on bail at the time of the offense.2
D. Appeal
Defendant filed this timely appeal.
E. Petition for a writ of habeas corpus
Defendant also filed a petition for a writ of habeas corpus.
We subsequently issued an order by which we would consider the
petition concurrently with defendant’s appeal.
2 The trial court dismissed the kidnapping and carjacking
counts because they are lesser included offenses to the crime of
kidnapping in the commission of a carjacking.
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DISCUSSION
Direct Appeal
I. Limitation on Cross-Examination of Mahsan
The trial court allowed defendant to cross-examine Mahsan
regarding the reasons she married defendant (that is, to help him
get out of jail and to prevent him from being deported), that they
dated but maintained separate residences after the marriage
ceremony, and that she “wasn’t even sure if this marriage [was]
right or wrong.” However, the court did not allow defendant to
elicit that “it’s a federal offense to enter into a marriage for false
pretenses for immigration purposes.” In its ruling, the court
assumed for purposes of argument that Mahsan’s conduct evinced
moral turpitude, but concluded that “the fact [her conduct] would
[have been] violative of federal law [was] of such slight probative
value that it [was] outweighed by [the] undue consumption of
time[, a]nd, more importantly, will confuse the jury.” Defendant
contests this ruling. Our review is solely for an abuse of
discretion. (People v. Ayala (2000) 23 Cal.4th 225, 273 [trial
courts enjoy “broad discretion” in deciding whether to admit prior
conduct to impeach].)
The court grounded its ruling in Evidence Code section 352.
That provision empowers a trial court to “exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
Where, as here, a party seeks to admit misconduct falling short of
a conviction, a trial court weighing the statutory considerations
under Evidence Code section 352 should consider (1) “whether
[the conduct] reflects on the witness’s honesty or veracity,” (2)
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“whether [the conduct] is near or remote in time,” (3) “whether
[the conduct] is for the same or similar conduct as the charged
offense,” (4) that “a misdemeanor—or any other conduct not
amounting to a felony—is a less forceful indicator of immoral
character or dishonesty than is a felony,” and (5) that
impeachment evidence other than felony convictions “generally is
less probative of immoral character or dishonesty” than conduct
that resulted in a conviction, and “may involve problems
involving proof, unfair surprise, and the evaluation of moral
turpitude.” (People v. Clark (2011) 52 Cal.4th 856, 931-933,
citing People v. Beagle (1972) 6 Cal.3d 441, 453; People v. Wheeler
(1992) 4 Cal.4th 284, 296-297.)
The trial court did not abuse its discretion. First, the
probative value of the prohibited testimony was minimal. The
court admitted evidence regarding Mahsan’s allegedly dishonest
conduct—namely, that she agreed to marry defendant in order to
help him get out of prison and avoid deportation. However,
whether that conduct might qualify as a federal crime adds
almost no impeachment value, and thus has very little probative
value. (People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90 [the
precise crime a witness committed by her misconduct “is
meaningless, since there will never be a conviction for any
particular offense arising from the conduct”].) This is especially
true here, where Mahsan explained that she agreed to this “plan”
under duress due to the constant pressure applied by defendant
and his family. Even if the duress she ultimately succumbed to
would not constitute a complete defense to any federal crime,
Mahsan’s willingness to lie to help defendant when pressured by
his family says almost nothing about whether she would be
willing to lie to hurt defendant when no pressure is present.
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Further, inquiry into which federal offense might encompass
Mahsan’s conduct (and, relatedly, whether it was excused by the
duress she experienced) was likely to confuse the jury by
diverting attention to such a collateral issue. What is more,
defendant also sought to elicit what Mahsan said to assist
defendant at his immigration hearing. But this additional
testimony not only had minimal probative value for the reasons
stated above, but would take up additional time. Consequently,
the trial court did not abuse its discretion in concluding that the
minimal probative value of this evidence was substantially
outweighed by countervailing considerations.
Defendant asserts that his constitutional rights to
confrontation, to present a defense and to due process override
Evidence Code section 352, but they do not in this case given the
minimal probative value of the information he sought to elicit.
(People v. Brown (2003) 31 Cal.4th 518, 545-546; cf. People v.
Reeder (1978) 82 Cal.App.3d 543, 553 [where evidence has
“significant probative value” and should not be excluded under
Evidence Code section 352, its exclusion can violate a defendant’s
constitutional rights”], italics omitted.)
II. Substantial Evidence Underlying the Kidnapping for
Carjacking Count
Defendant argues that substantial evidence does not
support his conviction for kidnapping for the purposes of
carjacking. In assessing this claim, we “resolve[ all] conflicting
inferences” in favor of the verdict and ask only whether there is
“substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Casares (2016) 62 Cal.4th 808, 823, overruled in part
9
on other grounds as stated in People v. Dalton (2019) 7 Cal.5th
166, 214.)
Section 209.5 makes it a crime to “kidnap[] another person”
“during the commission of a carjacking and in order to facilitate
the commission of the carjacking.” (§ 209.5, subd. (a); accord,
CALCRIM 1204.) Although the crime requires proof that the
defendant commit the kidnapping “with the intent to facilitate
the carjacking” (CALCRIM 1204), that intent need not be “the
sole, or [even] primary, intent” (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1366 (Ortiz)). Thus, a defendant commits the
crime of kidnapping for carjacking if he kidnaps a person and,
with her in the car, drives away—even if his primary intent for
this conduct was to kidnap the person in order to hold her for
ransom. (Id. at pp. 1365-1366.)
Substantial evidence supports the jury’s finding that
defendant kidnapped Mahsan with the intent to facilitate the
carjacking. Defendant chose to approach Mahsan when she was
just a “few feet” from her car in a parking lot. He also wore
clothing that masked his identity from afar, ostensibly so he
could get close to Mahsan. Upon accosting her, defendant
immediately took her car keys, put a gun to her head and told her
to get into the car. After being approached by the FBI agent the
first time, defendant pushed Mahsan into the driver’s seat and
got into the passenger’s seat. Once there was a pause in the
firefight with the FBI agent, defendant with a gun to Mahsan’s
head instructed her to drive away. And once Mahsan escaped
from the car, defendant slid into the driver’s seat and proceeded
to use the car to lead law enforcement on a dangerous high-speed
chase.
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Defendant’s chief argument on appeal is that his “entire
history of stalking and physically assaulting” Mahsan shows that
he carjacked “for [the] purpose[] of kidnapping” her rather than
kidnapped her “for [the] purpose[] of carjacking.” This argument
lacks merit for two reasons. First, it rests on the incorrect
premise that a defendant commits the crime of kidnapping for
the purpose of carjacking only if his intent to carjack is his
primary intent. But it is enough if it is one of the intents with
which he acted. (Ortiz, supra, 208 Cal.App.4th at p. 1366.) Here,
there is sufficient evidence that defendant acted with two intents
concurrently—namely, to kidnap for the purpose of carjacking
and to carjack for the purpose of kidnapping. Second,
defendant’s argument impermissibly blurs the line between
motive and intent. Motive is “the reason a person chooses to
commit a crime,” and “is different from a required mental state
such as intent.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504.)
Thus, while defendant’s primary motive for his crimes might
have been to kidnap, threaten and kill Mahsan, that is not
dispositive of his intent while committing his crimes.
Petition for Writ of Habeas Corpus
In a separately filed petition for a writ of habeas corpus,
defendant argues (1) that he was forced to begin trial in less than
the minimum time provided by statute in violation of his right to
due process (In re Newbern (1960) 53 Cal.2d 786, 790-792), and
(2) the trial court committed sentencing errors when it incorrectly
calculated (a) the sentences for the firearm enhancements, and
(b) presentence custody credits.
First, defendant contends that he was “never notified” of
the date his trial would start and asserts that he was notified “for
the first time” that he “was to start picking [his jury]” when he
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arrived in court on August 26, 2019. The record forecloses the
factual premise of his argument. By statue, defendant had five
days after the date of his arraignment to prepare for trial.
(§ 1049.) Because defendant was arraigned and pled not guilty
on July 14, 2016, defendant’s trial could begin any time on or
after July 21, 2016. Some 32 months later, on March 22, 2019,
the trial court advised defendant that his trial would begin on
August 19, 2019, or within 10 days thereafter. Defendant’s trial
commenced on August 26, 2019. Because defendant had ample
notice of the trial date, and because that trial date complied with
the pertinent statute, we reject his due process argument.3
Second, defendant asserts the trial court erred in
sentencing him to “34 years of enhancement” because it imposed
the “maximum time where it was to sentence [him] to [one-third]
of the low term or the [midterm]” and because the two section
12022.5 firearm enhancements run afoul of section 654. These
arguments are also belied by the record, which shows that (1) the
trial court correctly imposed a full-term firearm enhancement
only for the principal count of conviction and imposed one-third of
the term for the firearm enhancements attached to all
subordinate counts, and (2) the two section 12202.5
enhancements were imposed for crimes against separate victims
(People v. Vega (2013) 214 Cal.App.4th 286, 296-297 [noting this
is appropriate under section 654]). (See Facts and Procedural
Background, section II.C., ante.)
3 Although defendant represented himself during a brief
window of time between July 13, 2017 and December 12, 2017, he
was represented by counsel at all of the pertinent hearings set
forth in the text.
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Lastly, defendant argues that he is entitled to one day of
conduct credit for each day of actual custody credit. He is wrong.
Conduct credits are limited to 15 percent of the actual period of
confinement for persons convicted of a “violent felony” as defined
in section 667.5, subdivision (c). (§ 2933.1, subd. (c); People v.
Valenti (2016) 243 Cal.App.4th 1140, 1184, superseded by statute
on other grounds as stated in People v. Brooks (2018) 23
Cal.App.5th 932, 946.) Because defendant’s convictions for
assault with a firearm and kidnapping in the commission of a
carjacking constitute violent felonies, the trial court correctly
awarded defendant 282 days of conduct credit, which corresponds
to 15 percent of the 1,882 days of actual custody credit.
DISPOSITION
The judgment is affirmed and the petition for writ of
habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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