Filed 6/4/14 P. v. Fazel 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C069689

                   Plaintiff and Respondent,                                     (Super. Ct. No. 05F10182)

         v.

NAZIR AHMAD FAZEL,

                   Defendant and Appellant.




         Defendant Nazir Ahmad Fazel appeals from his conviction of first degree murder.
His sole contention on appeal is prosecutorial misconduct. He claims the prosecutor
impugned defense counsel’s integrity and committed misconduct during closing
argument when he suggested defense counsel had asked a witness a particular question
without any factual basis. We disagree and affirm the judgment.
                                                         FACTS
         Rabia and Mohammad Samimi were married in Afghanistan in 1973 when she
was 14 years old and he was 29. They and their three children immigrated to California


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in 1981 and settled first in Hayward and then in Newark. They opened a pizza restaurant
called Super Pizza. Their oldest son was killed in a car accident in 1993.
       The Samimis became acquainted with defendant and his family in late 1993 or
early 1994, and the two families became friends. Defendant worked as a videographer,
making videos of weddings and special occasions. Unknown by Rabia, defendant had
taken many pictures of her. He showed them to her and told her he was obsessed with
her. He began calling her, and told her if she would not see him, he would “take” her
remaining son. Rabia believed he was capable of doing something to her son. The two
began a sexual affair.
       Defendant continued to threaten Rabia. In 1996, defendant and Mohammad had
committed insurance fraud. They intentionally vandalized the Samimi’s Super Pizza
restaurant, and they recovered $43,000 in insurance proceeds. Rabia was aware of the
fraud, and she lied to the insurance agent to protect her family.1 Defendant threatened to
expose the fraud unless Rabia continued to have sex with him.
       Unknown by Rabia, he had secretly recorded the two of them having sex. He was
in need of money, and he threatened to show the video to Mohammad unless she gave
him money and continued to have sex with him.
       Defendant left his wife and children. The affair with Rabia continued until about
2000, when defendant moved to Germany. He lived there for two years. He called her
often during the first year, but not during the second.
       The Samimis moved to Elk Grove in 2001. They opened a market, and Rabia also
worked at a department store. In 2002, defendant appeared at Rabia’s work. He told her
he loved her and could not be without her. Their affair resumed.




1      Rabia testified under a grant of immunity concerning the insurance fraud.

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       Defendant wanted Rabia to leave Mohammad. Rabia told him she never wanted
to leave her husband. At one point in 2003 or 2004, defendant was upset over not having
enough money for rent, and he asked Rabia for it. She told him she did not have any
money. Defendant grabbed an object wrapped in a yellow towel and told Rabia to look at
it. She opened the towel and saw a small gun and a box of bullets. Defendant said if she
did not leave her husband, he would kill her, her husband, and himself.
       In May 2005, Rabia and Mohammad separated. Rabia had caught Mohammad in
an affair. Defendant forced her to file for divorce, which she did that month. On October
12, 2005, Rabia confessed her affair with defendant to Mohammad, and the two agreed to
reconcile.
       Defendant was employed part-time in a Fremont restaurant owned by his friend,
Abdul Andesha. Defendant helped with waiting tables and catering. When he helped
with catering, he would use the restaurant’s Ford van.
       Defendant was very upset that Rabia had reconciled with Mohammad. He told
Andesha he had lost his life, his marriage, and his prestige because of Rabia. On October
13, 2005, he drove to the Samimi’s home in Elk Grove. After seeing defendant at her
home, Rabia decided to obtain a restraining order against him. She received a hearing
date of November 10, 2005.
       On October 14, 2005, defendant met with Mohammad and showed him a
videotape of defendant and Rabia having sex. He hoped that by showing the videotape,
Mohammad would let Rabia go. Mohammad, however, said he did not want a divorce.
Defendant was shocked at Mohammad’s response.
       Defendant called Rabia every day from October 13 through November 10, 2005,
but she did not speak with him.
       On November 8, 2005, Andesha reported to police that his restaurant’s Ford van
was missing. He suspected defendant had taken it, and he told the police defendant was



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desperate. On November 9, 2005, defendant asked Andesha if the police had found his
van. Andesha noticed defendant had lost weight and grown a “black and white beard.”
       On the morning of November 10, 2005, the day scheduled for Rabia’s hearing for
a restraining order against defendant, Mohammad and Rabia were outside in front of their
home when defendant ran up to Mohammad, and the two men started fighting.
Defendant shot Mohammad three times. He then walked quickly to the street corner and
drove away in a “painted-over” black utility van. Mohammad died from gunshot wounds
to his chest and left arm.
       Later that month, Andesha received a package in the mail that included the key to
his van and a note written by defendant. In the note, written in native Dari or Farsi,
defendant asked for forgiveness and told Andesha where he could find his van in Tracy.
Sheriff’s deputies found inside the van a disposable razor and a sales receipt for its
purchase as part of a set of disposable razors. The receipt was from a Sacramento retail
store and was dated November 10, 2005, at 5:14 p.m. Deputies also noticed the words on
the van had been painted over.
       On March 5, 2010, more than four years later, an FBI agent took defendant into
custody in the nation of Georgia and accompanied him to the United States. A jury
convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)), and it found
defendant had intentionally and personally discharged a firearm in the commission of the
offense, causing death. (Former Pen. Code, § 12022.53, subds. (b), (c), and (d).) The
trial court sentenced defendant to state prison for 50 years to life: 25 years to life on the
murder count and a consecutive 25 years to life on the firearm allegation.
                                       DISCUSSION
                                 Prosecutorial Misconduct
       Defendant contends the prosecutor committed prejudicial misconduct during
rebuttal argument. He asserts the prosecutor impugned defense counsel’s integrity when
he discussed why counsel may have asked Rabia Samimi about having an Iranian

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boyfriend prior to Mohammad’s death. Defendant asserts the prosecutor’s comments
accused counsel of asking the question in bad faith and of fabricating evidence. We
disagree and find no misconduct.
       Additional background information
       While cross-examining Rabia Samimi, defense counsel introduced the notion of an
Iranian boyfriend. He asked Rabia:
       “Q Any time in 2004 or particularly in 2005, did you become interested in an
Iranian gentleman as a perhaps friend or love interest?
       “A Iranian gentleman?
       “Q Yes.
       “A No.
       “Q Not at all?
       “Q Not at all.”
       During his rebuttal closing argument, the prosecutor addressed defendant’s
theories of the case, and he highlighted defense counsel’s question about an Iranian. The
reporter’s transcript records the argument as follows:
       [THE PROSECUTOR]: “Now, of course, that’s not the defense version of events.
[Defense counsel], during the course of his argument, says that there’s three possible
contexts here: His guy did it. [Defense counsel] is admitting the obvious, which is that
there’s just a ton of evidence to disregard.
       “He also says another possibility is that he did it but he was put up to it by Rabia
Samimi, which is a fascinating argument because it does not mean that his client is not
guilty of anything, and if anything, that he is guilty of first degree murder. But, of
course, it’s not what his client testified to.
       “And the last version is this: SODDI, which constitutes: Some other dude did it.
Not this guy, some other dude.



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       “Now, of course, [defense counsel], during the course of his argument, indicates
that the burden is not on him to say who this is. The burden is always on the People. He
doesn’t have to say one way or the other, which is an interesting argument.
       “But if you remember one part of his cross-examination of Rabia Samimi, he
actually made a suggestion on who that other person might be: It was the Iranian.
       “Now, it’s funny if you think about it. This was for poor Rabia Samimi, probably
the only point in time during the course of her entire direct and cross-examination where
she cracked anything like a sad smile.
       “Do you remember that question by [defense counsel]: In 2004 and 2005, did you
have a relationship with an Iranian man?
       “And, of course, she says no. That’s just sheer nonsense.
       “But if you think about it, if you were going to come up with a villain from central
casting, what better thing to do than to pull up the Iranian? Scary people, these Iranians.
We all know from these guys. These are the sorts of people you could be dreading in
your sleep, the guys who are building atomic bombs in the Middle East and are someday
going [to] cause havoc all over the world. Who better to throw out as a possible villain
than the Iranian?
       “But if you think about it, there is some method to the madness here, because
what? Because [defense counsel] knows that you are not going to buy that Rabia Samimi
pulled the trigger. That makes no sense at all.
       “This crime was so brazen, it was committed in broad daylight in a residential
street, with all kinds of people in their homes, who saw, what? A Middle Eastern man
running in, a Middle Eastern man running away, a Middle Eastern man driving away.
       “Okay. So he’s got to think to himself: I have got to come up with something
that’s going to make sense that is not my client: I know. It’s an Iranian.
       “[DEFENSE COUNSEL]: I object. Counsel’s not arguing the evidence. He’s
inferring that I made up the question out of the air.

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       “THE COURT: All right. Again, ladies and gentlemen, counsel are afforded
some degree of latitude in argument. You should understand that the arguments of
counsel are simply their interpretations of the evidence and the law.
       “Go ahead.
       “[THE PROSECUTOR]: The bottom line is this: He’s got to come up with
somebody who looks at least like his client and a man in order to proffer this SODDI
defense. So this is what he does. He throws out the Iranian as the person who could be
responsible for this.
       “To which we can only say: Where is the evidence of this?
       “You can’t just speculate yourself out of this. You must base your evaluation,
your verdict on evidence, not speculation.
       “We don’t even have any evidence from any source that she was dating an Iranian.
That was a question thrown out to us by [defense counsel]. Nobody came in and testified
to anything along those lines. There is no evidence from any source whatsoever that
Rabia Samimi had a relationship with any other man at that point in time.
       “Think about the context in which [defense counsel’s] argument is being made.
He’s got to be saying that not only did Rabia Samimi falsely accuse his client of the
murder of her husband, she knew who the real killer was, and she lied about it, okay?
She didn’t want that person held to justice. She was perfectly willing that the guilty party
should get away with the murder of her husband just so she could frame the defendant.
       “Well, that’s an awful lot of speculation, frankly, ladies and gentlemen. There is
no evidence to support any of this.
       “It is the sheerest speculation. SODDI is not going to work or should not work in
this case.”
       While the prosecutor was making this argument, he showed the jury a photo of the
Ayatollah Khomeini and the former Iranian president, Mahmoud Ahmadinejad.



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       After the jury had been excused to deliberate, defense counsel asked the court to
cite the prosecutor for misconduct, admonish the jury, and declare a mistrial. Counsel
contended the prosecutor had impugned his integrity by suggesting to the jury he had
asked the question about the Iranian without a good faith basis and had used the word
“Iranian” because it was “loaded.” Counsel stated he had a good faith belief for asking
the question that he derived from the victim’s family.
       The trial court denied counsel’s motion for mistrial and his request for an
admonishment. It believed the prosecutor had intended to attack counsel’s credibility,
but it was not a direct attack on counsel’s integrity. In the court’s view, the prosecutor’s
argument was “simply a suggestion to the jury why that series of questions may have
been asked.”
       Analysis
       “The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ”
(Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144]; see People v. Cash
(2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a fundamentally unfair
trial.’ (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) ‘In order to preserve a claim of
misconduct, a defendant must make a timely objection and request an admonition; only if
an admonition would not have cured the harm is the claim of misconduct preserved for
review.’ (Ibid.) When a claim of misconduct is based on the prosecutor’s comments
before the jury, ‘ “the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.” ’
(People v. Smithey (1999) 20 Cal.4th 936, 960, quoting People v. Samayoa (1997) 15
Cal.4th 795, 841.)” (People v. Friend (2009) 47 Cal.4th 1, 29.)

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       “It is generally improper for the prosecutor to accuse defense counsel of
fabricating a defense (People v. Perry (1972) 7 Cal.3d 756, 789-790; People v. Bain
(1971) 5 Cal.3d 839, 845-847), or to imply that counsel is free to deceive the jury (People
v. Bell (1989) 49 Cal.3d 502, 538.) Such attacks on counsel’s credibility risk focusing
the jury’s attention on irrelevant matters and diverting the prosecution from its proper
role of commenting on the evidence and drawing reasonable inferences therefrom.
(People v. Sandoval (1992) 4 Cal.4th 155, 183-184, citing People v. Thompson (1988) 45
Cal.3d 86, 112.)
       “Nevertheless, the prosecutor has wide latitude in describing the deficiencies in
opposing counsel’s tactics and factual account. (See People v. Frye (1998) 18 Cal.4th
894, 977-978 [no misconduct where prosecutor accused counsel of making an
‘ “irresponsible” ’ third party culpability claim] [overruled on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22]; People v. Medina (1995) 11 Cal.4th 694, 759
[no misconduct where prosecutor said counsel can ‘ “twist [and] poke [and] try to draw
some speculation, try to get you to buy something” ’].) In so doing, the prosecutor may
highlight the discrepancies between counsel’s opening statement and the evidence. (E.g.,
People v. Gionis [(1995)] 9 Cal.4th 1196, 1217.) Misconduct claims also have been
rejected where . . . the prosecutor criticizes the defense theory of the case because it lacks
evidentiary support (e.g., People v. Fierro (1991) 1 Cal.4th 173, 212 & fn. 9 [overruled
on another ground in People v. Thomas (2012) 54 Cal.4th 908, 941].)” (People v.
Bemore (2000) 22 Cal.4th 809, 846.)
       The prosecutor’s comments here were not a deceptive or reprehensible method to
persuade the jury. They aggressively, but not inappropriately, attacked the lack of
evidence supporting a potential defense theory of the case. They did not personally
attack defense counsel’s integrity or cast aspersions on him.
       Defense counsel raised the theory of a different killer. In his opening statement,
counsel asserted the evidence would show that someone other than defendant killed

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Mohammad. He stated Rabia had a motive to kill Mohammad, and that the evidence
could show she had other love interests in the fall of 2005. Counsel stated the evidence
would show Rabia was “capable of devising a nefarious scheme or plan.”
       In cross-examination, and pursuant to this theory, defense counsel asked Rabia
whether she had had an Iranian boyfriend in 2005, the same year her husband was
murdered. And despite Rabia’s denial, counsel again mentioned the theory in his closing
argument. Summarizing his theories, counsel stated: “I think the evidence could either
be interpreted to show my client killed Mohammad Samimi, perhaps he killed
Mohammad Samimi at the behest of Rabia Samimi, or that he did not kill Mohammad
Samimi at all, that Rabia Samimi somehow orchestrated his demise.”
       The prosecutor was entitled to address counsel’s theory that Rabia arranged for
someone else to perform the murder and, in particular, to address the discrepancies
between that theory and the evidence. The theory lost significant evidentiary support
when Rabia denied having an Iranian boyfriend, and the prosecutor was free to place
defense counsel’s question in the context of counsel’s theory for the jury to consider. His
argument was aimed at the lack of supporting evidence, not counsel’s integrity. We find
no prosecutorial misconduct.
                                      DISPOSITION
       The judgment is affirmed.


                                                       NICHOLSON             , J.

We concur:


      BLEASE                , Acting P. J.


      BUTZ                  , J.



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