Filed 10/13/20 P. v. Alsadi CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300818
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA102742)
v.
ABAA ALSADI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed.
Roberta Simon, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General for Plaintiff and Respondent.
INTRODUCTION
Abaa Alsadi appeals from the judgment after a jury
convicted him on five counts of robbery (Pen. Code, § 211)1 and
found true the allegations he personally used a firearm in
committing four of the robberies, within the meaning of section
12022.53, subdivision (b). Alsadi argues the trial court had a sua
sponte duty to instruct the jury on the “lesser included
enhancement” of personal use of a deadly or dangerous weapon
within the meaning of section 12022, subdivision (b), because
“there was evidence sufficient to permit the jury to find that the
gun was not [a] real” firearm. Alsadi also argues his trial
counsel’s failure to request that instruction or a pinpoint
instruction constituted ineffective assistance. We conclude that
the trial court did not have a sua sponte duty to instruct on lesser
included enhancements and that Alsadi has not shown his trial
counsel provided ineffective assistance. Therefore, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A. Alsadi Commits a Series of Robberies
On May 20, 2017 Alsadi entered a liquor store, approached
the cashier, George Khalil, and “put a gun to” his chest. Alsadi
took money from a drawer and left.
On May 23, 2017 Alsadi entered another liquor store as the
cashier, Adeeb Wardeh, was preparing to close. Alsadi pointed a
black gun at Wardeh’s face, pushed him to the floor, and took
money from the cash register before fleeing.
1 Statutory references are to the Penal Code.
2
Minutes later, Alsadi entered another liquor store and
approached the cashier, Nelson Nolasco, while holding a black
gun. Nolasco heard “a weapon being cocked back” as Alsadi
circled the front counter. Alsadi pointed the gun at Nolasco’s
head and took cash from the register and two bottles of alcohol.
On May 26, 2017 Alsadi entered yet another liquor store.
He approached the cashier, George Merrawi, pointed a gun at his
face, told him to open the register, and took money and a carton
of cigarettes.
On January 17, 2018 Alsadi returned to the liquor store he
robbed on May 23, 2017. Alsadi ordered the store owner,
Abdullah Aroush, to open the safe. Aroush complied because he
believed Alsadi “was going to shoot” him. Aroush did not see a
gun but believed Alsadi had one. Alsadi took money and ran out
toward a getaway car. Aroush chased Alsadi, saw him get into
the passenger side of the car, noted the car’s license plate
number, and called the police.
During a subsequent search of Alsadi’s residence, police
officers found clothing matching that of the robber, but they did
not find a gun, nor were they able to discover whether a gun had
ever been registered to Alsadi. Police arrested Alsadi one week
later when they saw him driving the getaway car.
B. The Victims Testify at Trial, and the Trial Court
Instructs the Jury
The People charged Alsadi with five counts of robbery and
alleged he personally used a firearm in the commission of each
offense, within the meaning of section 12022.53, subdivision (b),
served a prior prison term within the meaning of section 667.5,
subdivision (b), and committed four of the offenses while released
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from custody on bail, within the meaning of section 12022.1. The
jury heard testimony from the victims and the investigating
officers and viewed video surveillance footage and photographs
from each robbery.
Khalil testified that the gun Alsadi pointed at his chest was
dark-colored and “reflected light,” but that he never touched it.
Counsel for Alsadi asked Khalil whether he believed “the gun
was real.” Khalil stated that he only looked at it for “a second”
and could not tell, but that he was “scared for [his] life.”
Counsel for Alsadi asked Wardeh whether he had “any
idea” if the gun Alsadi used “was a real gun or a fake gun.”
Wardeh responded, “How can I know?” Wardeh did not recall
whether he touched the gun and stated he looked at it only
briefly, but like Khalil, he said he was “scared” during the
incident.
Nolasco, an ammunition specialist in the military,
described the gun as a black “pistol” and its cocking sound as a
“pop.” Counsel for Alsadi asked Nolasco whether he touched the
gun, whether he had “any idea” what material it was made of,
and whether it had a magazine in it. Nolasco stated that the gun
felt like metal when it touched his head and that the barrel of the
gun “looked real.” Nolasco also stated he feared for his safety
during the robbery.
Aroush, who did not actually see a gun, said he believed
Alsadi had one because Alsadi “had his hand in his pocket, there
was something in his hand [and] the shape looked like a gun,”
and Alsadi “simulated holding a gun.” Aroush stated that Alsadi
told him not to look at his hands and that Alsadi began to count
backward “like he was going to shoot” Aroush if he did not open
the safe.
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A police detective testified he reviewed video surveillance
footage from each incident. He stated that he had experience
handling guns but was “not a gun expert” and that, although the
gun Alsadi used in the robberies appeared “real,” he “could be
wrong.” Another police officer testified some fake guns are “quite
convincing” and can appear “very realistic.”
The trial court instructed the jury on the firearm use
enhancement with CALCRIM No. 3146: “A firearm is any device
designed to be used as a weapon, from which a projectile is
discharged or expelled through a barrel by the force of an
explosion or other form of combustion. [¶] A firearm does not
need to be in working order if it was designed to shoot and
appears capable of shooting. A firearm does not need to be
loaded. [¶] Someone personally uses a firearm if he or
she intentionally . . . [d]isplays the weapon in a menacing
manner. . . . [¶] The People have the burden of proving each
allegation beyond a reasonable doubt.”
C. The Trial Court Denies Alsadi’s Motion for Acquittal,
and the Jury Convicts Him
At the close of evidence and outside the presence of the
jury, counsel for Alsadi made a motion for acquittal under
section 1118.1, arguing there was no evidence the gun Alsadi
used was “real or operational.” Counsel argued that investigators
never recovered the gun, that no witness was “able to make [a]
determination” whether the gun was real, and that during one of
the incidents the witness did not even see a gun. The trial court
denied the motion, ruling there was “sufficient evidence” for the
jury to decide the issue, particularly given that Nolasco, who had
military training and knowledge of weapons, testified he believed
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the gun was real. The court also stated the gun “was the basis” of
the victims’ fear during the robberies. The trial court asked
counsel if they wanted to “request[ ] any instructions that were
not previously given,” and both declined.
During closing argument counsel for Alsadi told the jury:
“There are some fake guns. There’s BB guns. There’s toy guns.
There’s all kinds of guns out there. We don’t know if this was a
real gun or not.” He argued: “The People here are asking you to
guess, make this guess . . . . If you have to guess . . . there’s a
doubt in your mind.”
The jury convicted Alsadi on all five robbery counts. The
jury found that Alsadi personally used a firearm in committing
four of the robberies, but not in committing the fifth (the robbery
of Aroush). Alsadi admitted the prior prison term and on-bail
allegations, which the court later struck. The trial court
sentenced Alsadi to a prison term of 27 years, consisting of the
middle term of three years for the robbery of Khalil, plus 10 years
for the firearm use enhancement; one year (one-third the middle
term) for the robbery of Nolasco, plus three years four months
(one-third the middle term) for the firearm use enhancement; one
year for the robbery of Wardeh, plus three years four months for
the firearm use enhancement; one year for the robbery of
Merrawi, plus three years four months for the firearm use
enhancement; and one year for the robbery of Aroush. Alsadi
timely appealed.
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DISCUSSION
A. The Trial Court Did Not Err in Failing To Instruct
Sua Sponte on Personal Use of a Deadly or Dangerous
Weapon as a Lesser Included Enhancement
Alsadi argues the trial court, even without a request by
counsel, should have instructed the jury on the enhancement for
personal use of a deadly or dangerous weapon under
section 12022, subdivision (b), because it is a lesser included
enhancement of personal use of a firearm under section 12022.53,
subdivision (b), and because “there was evidence sufficient to
permit the jury to find the gun” was not a real firearm. He
contends that a trial court’s sua sponte duty to instruct on a
lesser included offense when “there is substantial evidence the
defendant is guilty of the lesser offense, but not the greater,”
extends to lesser included enhancements and that the trial
court’s failure to instruct on the deadly or dangerous weapon
enhancement violated his “rights to due process of law and a fair
trial.” The law does not support Alsadi’s argument.
Although a “trial court has a sua sponte duty to instruct
the jury on any uncharged lesser offense that is necessarily
included in a charged offense if there is substantial evidence from
which the jury could reasonably conclude that the defendant
committed the lesser included offense but not the charged
offense” (People v. Lopez (2020) 9 Cal.5th 254, 269; see People v.
Vasquez (2018) 30 Cal.App.5th 786, 792), “a trial court’s sua
sponte obligation to instruct on lesser included offenses does not
encompass an obligation to instruct on ‘lesser included
enhancements’” (People v. Majors (1998) 18 Cal.4th 385, 411
(Majors)). (See People v. Garcia (2020) 46 Cal.App.5th 786, 792
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[“the sua sponte judicial duty to instruct on lesser included
offenses” does not apply to lesser included enhancements], review
granted June 10, 2020, S261772.) This is because “the risk the
jury will convict on the charged offense even though one of the
elements remains in doubt because ‘“the defendant is plainly
guilty of some offense”’” (Vasquez, at p. 798) is not present when
the jury considers sentence enhancements. (See Majors, at p. 410
[a “‘sentence enhancement is not equivalent to a substantive
offense, because a defendant is not at risk for punishment under
an enhancement allegation until convicted of a related
substantive offense’”]; People v. Dennis (1998) 17 Cal.4th 468, 500
[same].)
Recognizing Majors is controlling, Alsadi argues the United
States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S.
466 [120 S.Ct. 2348] “implicitly overruled” Majors. It did not. In
Apprendi the United States Supreme Court held “any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Id. at p. 490.) The United States Supreme
Court in Apprendi extended a defendant’s right to a jury trial to
sentencing enhancements, observing that a sentence
enhancement is “the functional equivalent of an element of a
greater offense.” (Id. at p. 494, fn. 19.) The California Supreme
Court, however, has “rejected the notion that the high court’s
‘functional equivalent’ statement requires us to treat penalty
allegations as if they were actual elements of offenses for all
purposes under state law.” (Porter v. Superior Court (2009)
47 Cal.4th 125, 137; see id. at p. 138 [“‘enhancements are not
legal elements of the offenses to which they attach’ under
California law, and . . . Apprendi did not change this aspect of our
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state law”]; People v. Alarcon (2012) 210 Cal.App.4th 432,
437-438 [same].) Here, consistent with Apprendi, the trial court
submitted the firearm use allegations to the jury, and the jury
found them true beyond a reasonable doubt on four counts. (See
People v. Izaguirre (2007) 42 Cal.4th 126, 133 [“To the extent the
firearm-related enhancements in question stood to increase
punishment, Apprendi’s holding . . . requires only that they be
tried to a jury and found true beyond a reasonable doubt, which
they were.”].)
In re A.L. (2015) 233 Cal.App.4th 496, People v. Fialho
(2014) 229 Cal.App.4th 1389 (Fialho), and People v. Dixon (2007)
153 Cal.App.4th 985 (Dixon), all cited by Alsadi, are
distinguishable. None of them involved jury instructions, let
alone whether a trial court has a sua sponte duty to instruct a
jury on a lesser included enhancement. Instead, these cases
applied the general rule that trial courts have the authority to
impose lesser included enhancements where “the original
enhancement allegation [was] either factually unsupported,”
defective, or did “not apply to the offense of conviction under the
applicable statutory provisions.” (Fialho, at pp. 1395-1396; see
ibid. [the Supreme Court “has expressly permitted substitution of
a charged enhancement with an uncharged enhancement that
‘would be applicable in any case’ in which the charged
enhancement applies,” and “Courts of Appeal have similarly
approved the substitution of a charged enhancement with an
uncharged ‘“lesser included enhancement”’ when there is
insufficient evidence to support the greater enhancement”].)
For example, in In re A.L., supra, 233 Cal.App.4th 496 the
court held the juvenile court did not abuse its discretion in
allowing the prosecutor to amend the petition to conform to proof
9
that a minor was armed with a firearm in the commission of a
felony within the meaning of section 12022, subdivision (a)(1),
rather than, as alleged in the petition, the minor personally used
a deadly or dangerous weapon, within the meaning of section
12022, subdivision (b). (In re A.L., at p. 504.) In Fialho the jury
found true the allegation the defendant, in the course of
committing voluntary manslaughter, personally and intentionally
discharged a firearm proximately causing death or great bodily
injury, within the meaning of section 12022.53, subdivision (d),
even though that enhancement did not apply to voluntary
manslaughter. (Fialho, supra, 229 Cal.App.4th at p. 1392.) The
court in Fialho held the trial court “did not err by imposing a
personal firearm use enhancement under former section 12022.5,
subdivision (a) after determining that the section 12022.53,
subdivision (d) enhancement found true by the jury did not apply
to the offenses of which defendant was convicted. Former section
12022.5, subdivision (a) is an enhancement that ‘would be
applicable in any case’ in which a section 12022.53, subdivision
(d) enhancement applies.” (Fialho, at pp. 1398-1399.) And in
Dixon the trial court found the defendant personally used a
deadly weapon, within the meaning of section 12022,
subdivision (b), rather than personally used a firearm, within the
meaning of section 12022.53, subdivision (b), as alleged. (Dixon,
supra, 153 Cal.App.4th at p. 988.) The court in Dixon held that,
because “section 12022, subdivision (b), is included within section
12022.53, subdivision (b), [the defendant] was adequately
apprised that the prosecution was seeking to prove the elements
which comprise a section 12022, subdivision (b), enhancement,”
and therefore “there was no lack of notice or due process
violation.” (Dixon, at p. 1002.)
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Here, the firearm use allegations were not factually
unsupported, defective, or inapplicable. The People alleged them,
the court without objection properly instructed on them with
CALCRIM No. 3146, the jury found them true, and substantial
evidence supported those findings. The jury viewed video
surveillance footage and photographs showing Alsadi committing
each robbery. The jury heard the victims describe the gun Alsadi
pointed at them (“dark,” “black,” “metal,” “pistol”) and recount
the fear they felt. And the jury heard Nolasco testify that, based
on his experience with weapons in the military, the weapon was a
real firearm. (See People v. Monjaras (2008) 164 Cal.App.4th
1432, 1437 [“when . . . a defendant commits a robbery by
displaying an object that looks like a gun, the object’s appearance
and the defendant’s conduct and words in using it may constitute
sufficient circumstantial evidence to support a finding that it was
a firearm within the meaning of section 12022.53, subdivision
(b)”].) That the witnesses could not conclusively state the gun
was real does not mean substantial evidence did not support the
jury’s finding that it was. (See People v. Aranda (1965) 63 Cal.2d
518, 532 [“Testimony by witnesses who state that they saw what
looked like a gun, even if they cannot identify the type or caliber,
will suffice.”], disapproved on another ground in People v.
Silveria and Travis (2020) 10 Cal.5th 195, 280, fn. 20; People v.
Law (2011) 195 Cal.App.4th 976, 983 [“‘Most often,
circumstantial evidence alone is used to prove the object was a
firearm . . . because when faced with what appears to be a gun,
displayed with an explicit or implicit threat to use it, few victims
have the composure and opportunity to closely examine the
object; and in any event, victims often lack expertise to tell
whether it is a real firearm.’”]; Monjaras, at p. 1438, fn. 1 [“Only
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the most foolhardy victim would demand to be looking down the
barrel before understanding that the robber who displays a gun
intends to use it.”].)
B. Counsel for Alsadi Did Not Provide Ineffective
Assistance in Failing To Request an Instruction on
Personal Use of a Deadly or Dangerous Weapon or a
Pinpoint Instruction
Alsadi argues that, if the trial court did not have a sua
sponte duty to instruct the jury on the lesser included
enhancement of personal use of a deadly or dangerous weapon,
his trial counsel provided ineffective assistance by failing to
request such an instruction. Alsadi also argues his trial counsel
was ineffective in not requesting “a pinpoint instruction that an
imitation or fake gun does not qualify as a firearm under . . .
section 12022.53, subdivision (b).” Alsadi argues “[t]here could be
no informed tactical reason for trial counsel’s failure to request
these instructions.”
“To make out a claim that counsel rendered constitutionally
ineffective assistance, ‘the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms.
Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.’” (People v. Hoyt (2020) 8 Cal.5th 892, 958.) “When
examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable
professional assistance.” (People v. Mai (2013) 57 Cal.4th 986,
12
1009.) On direct appeal, “a conviction will be reversed for
ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (Id. at p. 1009.)
We cannot say there can be no satisfactory explanation for
counsel’s decision not to request the two instructions Alsadi
claims counsel should have requested.2 Trial counsel may have
made the quite rational tactical decision that it was better to try
to convince the jury the firearm allegations were not true because
the gun was not a firearm, which would result in no
enhancements, without providing the jury the additional option
of finding that the gun, though not a firearm, was still a deadly or
dangerous weapon, which would result in enhancements. (See
People v. Arredondo (2019) 8 Cal.5th 694, 711 [in evaluating a
claim of ineffective assistance of counsel, “we ‘defer[ ] to counsel’s
reasonable tactical decisions’ and presume that ‘counsel acted
within the wide range of reasonable professional assistance’”].)
Indeed, such a strategy was successful for the firearm allegation
on the fifth robbery, which the jury found not true. (See People v.
Carrasco (2014) 59 Cal.4th 924, 990 [“counsel may not have
wanted an . . . instruction out of concern that it would distract
the jury’s attention from the totality of the evidence that could
create a reasonable doubt”]; People v. Bonilla (2018)
2 Alsadi does not argue that the record affirmatively
discloses trial counsel had no rational tactical purpose for not
requesting the instructions or that his counsel was asked for and
failed to give a reason for failing to do so.
13
29 Cal.App.5th 649, 657 [“[b]y leaving the jury to its own devices
based on the existing instructions, defendants’ counsel could have
believed he was increasing defendants’ chance of an acquittal or
hung jury”].)
Regarding counsel’s failure to request a pinpoint
instruction stating that a fake gun is not a firearm, as mentioned
the trial court instructed the jury that a firearm was a “device
designed to be used as a weapon, from which a projectile is
discharged or expelled through a barrel by the force of an
explosion or other form of combustion.” This instruction, which
Alsadi does not challenge, gave counsel all he needed to argue
that a fake gun was not a firearm and that if Alsadi’s gun was
fake the firearm allegations were not true. (See People v. Lucero
(2000) 23 Cal.4th 692, 729-730 [defense counsel was not
ineffective for failing to “request unnecessary and duplicative
instructions” and “cannot be faulted for not requesting an
instruction that would duplicate the one given by the court”];
People v. Castillo (1997) 16 Cal.4th 1009, 1018 [counsel was not
ineffective in failing to request a pinpoint instruction where
“competent counsel could reasonably conclude that the
instructions adequately advised the jury” on the law]; see also
People v. Nguyen (2015) 61 Cal.4th 1015, 1052 [no ineffective
assistance where the “defendant fails to show that there could be
no conceivable reason for trial counsel not to request . . . a
clarifying instruction”].) For the same reason, Alsadi cannot
show prejudice. (See People v. Smithey (1999) 20 Cal.4th 936,
987 [counsel’s failure to request a pinpoint instruction did not
prejudice the defendant where “the court fully apprised the jury
of the law” and “no additional instruction was necessary”]; People
v. Alcala (1992) 4 Cal.4th 742, 804-805 [counsel’s failure to
14
request additional instructions was not ineffective assistance of
counsel because, where “the instructions given adequately
apprised the jury of all relevant legal principles, any failure by
counsel clearly was not prejudicial”].)
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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