Filed 3/17/14 P. v. Hasan CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B243111
                                                                          (Super. Ct. No. 2010023345)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

HAMEED ABDUL HASAN,

     Defendant and Appellant.



                   Hameed Abdul Hasan appeals from the judgment following his conviction
by jury of battery with serious bodily injury (Pen. Code, § 243, subd. (d))1 and false
imprisonment by violence (§ 236). The trial court suspended the imposition of sentence
and placed appellant on probation for 36 months, subject to serving 240 days in county
jail, among other conditions. Appellant contends the trial court erred by (1) excluding a
nude photograph of the victim; (2) admitting hearsay evidence; (3) instructing the jury
that evidence that acquaintances of a witness did not discuss her character for truthfulness
supports the inference her character for truthfulness is good; (4) failing to instruct the jury
sua sponte with a lesser included misdemeanor false imprisonment instruction; (5)
committing Griffin error by instructing the jury that appellant made a tactical decision not



         1 Unless otherwise indicated, all further statutory references are to the Penal Code.
to testify at the preliminary hearing;2 and (6) denying his new trial motion based on his
claim that trial counsel was ineffective. We affirm.
                     FACTUAL AND PRCEDURAL BACKGROUND
                                    Prosecution Evidence
                Lilia Akhmedjanova testified that she and appellant had a "purely platonic"
relationship. Appellant was a friend of her boyfriend, Christian Smith (Chris). The three
of them "[hung] out . . . as a group." In the summer of 2010, she and Chris "separated."
During that time Lilia still "hung out" with appellant, and sometimes slept on the couch
in his apartment.
                Lilia stayed at appellant's apartment on June 18, 2010. The following
night, she accompanied him to a party hosted by Kathleen Jones. Appellant drove to the
party. Lilia left some of her belongings in his apartment. Appellant had a date with
someone else after the party, but agreed to drive Lilia from the party to her car. During
the party, Lilia met Justin Ussery and agreed to see him later. Appellant drove Lilia to
her car. She returned to the party and waited outside for Ussery. They left and went to a
hotel.
                After midnight, appellant sent Lilia several text messages, including two
that read as follows: "Damn Lil, hope you enjoy that shit. You're a foul ass." "You don't
care who hits it?" In a third message, sent at about 3:00 a.m., he called her a "whore,"
and said, "You obviously do find dick anywhere." She was surprised by the messages.
                Later on Sunday morning, appellant sent Lilia a message asking that she
stop at his apartment for her belongings. She drove there in the early afternoon, parked,
and called him. Then she went to his apartment and entered when he opened the door.
Appellant quickly shut the door, pushed Lilia back into his bedroom, shoved her on the
bed, and punched her in the face. He was much larger than Lilia, who weighed about 100
pounds. Appellant told Lilia she was not going anywhere. He walked out of his bedroom
and closed the door. For a while, Lilia stayed in appellant's bedroom, afraid of

         2 (Griffin v. California (1965) 380 U.S. 609.)
                                               2
encountering him if she tried to leave through the front door. She managed to leave
through a sliding glass door, climb over a low wall on appellant's patio, onto the low roof
of the adjacent parking complex, and over a low wall to the neighbor's patio. The
neighbors were not home. She returned to appellant's bedroom. Some time later, Lilia
went to the living room to get her purse and cell phone. She found her purse, but it was
empty. She asked appellant for her phone and other belongings. He told her she was
"not going anywhere."3 She looked further, found her cell phone between the sofa
cushions, and returned to the bedroom. She called her father, Malik Akhmedjanova,
asked him to drive her home, and gave him directions to the apartment.
              Malik went to appellant's apartment. He found Lilia in the living room
crying and took her home. He discouraged her from calling the police because her injury
did not look that bad, and he feared appellant would retaliate. Lilia hesitated to report the
incident because appellant had been to her home, and the law enforcement system in her
home country was not effective.
              On the following day, Lilia's face was terribly swollen. Her mother, Rima
Akhmedjanova, cried when she saw it. Lilia telephoned the police and met with them.
An officer arranged for an ambulance to transport her to the hospital. Dr. Carlos Reyes,
who treated Lilia, testified there was a fracture on the right side of her face, around her
right eye and nasal bone. Ventura County Sheriff's Deputy Javiar Alcala interviewed
Lilia at the emergency room and photographed her injuries. He observed bruises on her
arm, where appellant had grabbed her. Lilia suffered nerve damage and other injuries
that required medical treatment after she left the emergency room.
              Rima kept the telephone numbers of Lilia's friends, including appellant, in
her cell phone. On Monday, she noticed she had missed a call from appellant. She
returned his call. Appellant said he was wondering how Lilia was doing. Rima
answered, "Not good. You hit my -- it's really bad, and I took her to the hospital." He

       3 Lilia was uncertain about the precise sequence and location of events. She could
not answer whether appellant said she was not going anywhere before or after he hit her,
or whether they were in the bedroom or living room when he said that.
                                             3
was quiet, and then talked briefly. Rima said she had "nothing to do with this," and it
was Lilia's "decision what [she was] going to do about this." Before Rima ended the call,
appellant said, "[he was] sorry, he didn't mean to hurt that little girl."
              A few days later, Ventura County Sheriff's Department Detective Matt
Young met with Lilia at the station. Lilia used the station telephone and recording
equipment to call appellant. During the call, they talked about how they went to the party
together and she left with someone else. She said that was not a reason to hit a woman,
and he said two wrongs do not make it right. He said, "I promise I'll never hurt you
again."
                                      Defense Evidence
              Appellant testified that he and Lilia were friends for several years while she
dated his good friend, Chris. After Chris and Lilia broke up, appellant's friendship with
Lilia became closer and changed into a sexual relationship. She visited his apartment,
drank, and sometimes stayed for several days. At times, her parents picked her up there.
Appellant took nude pictures of Lilia after some of their sexual encounters.
              Lilia stayed at appellant's apartment on June 18, 2010. They drank alcohol
and had sex. Lilia was "guzzling Bacardi" in appellant's kitchen before he took her to a
party at Kathleen Jones' home on June 19. He had a date to meet someone else after the
party. Lilia was drunk before the party, and continued drinking there. Jones and her
husband eventually asked appellant to take Lilia home, and he drove her back to her car.
She called later and asked him to pick her up; he did not. He returned to the party
without her. Someone at the party told him Lilia was meeting Ussery "for sex."
Appellant stayed overnight at the Jones residence.
              Appellant went home on Sunday, about 8:30 a.m. He sent Lilia a text
message telling her to pick up her belongings from his apartment. After calling, she
arrived at his apartment, around 11:30 a.m., intoxicated and smelling of alcohol. She sat
in his living room, drinking vodka and Gatorade. At around 1:45 p.m., he asked Lilia to

                                               4
stop drinking, and she became belligerent. He wanted to call her father to pick her up,
and started using Lilia's cell phone. She tried to get it back, and then went to the
bedroom. After speaking with Malik, appellant went to the bedroom, but Lilia was gone.
He drove around the apartment complex looking for her, and found her on the garage
roof. She fell off and "landed on her butt," with her "[k]nees to the chest area." She
"must have hit her head on her knees." The area where she landed had a wooden fence, a
brick wall and a tree. He helped her, and asked if she was okay. She said she was okay.
He told her Malik was on his way. Malik arrived, and took Lilia to his car. Appellant led
them to the freeway. About 30 minutes later, he called Malik to be sure they "made it
home okay." Malik said he could not talk because he "was still fighting with Lili to get
her into the house."
              Appellant admitted he sent Lilia the text messages. The messages could
not be understood without the "entirety of the conversation." He and Lilia had an open
relationship and he was not jealous about her having spent the night with Ussery.
              Appellant denied that he took Lilia "into the back room and hit her in the
face" when she went to his apartment on Sunday. He also denied he told Rima that he
"hurt that little girl." He told her he would "never harm that little girl."
              Kathleen Jones testified appellant brought Lilia to her party. Jones thought
Lilia was appellant's girlfriend because they attended an event at her home on a prior
occasion, when they had planned to stay overnight in a bedroom there. On June 19, Lilia
was falling down, hugging people, and "petting" children and entering their bedrooms.
Jones and her husband asked appellant to take Lilia home. He left to take her home,
returned without her, and stayed overnight.
              Aneesah Hasan, appellant's mother, testified he was an honest person with a
good character. She also testified he was not at all violent.




                                               5
                                      DISCUSSION
                                    Evidentiary Issues
              Appellant contends the trial court erred by excluding a nude photograph of
Lilia (exhibit K), which deprived him of his constitutional right to confrontation. We
disagree.
              We review a court's exclusion of evidence for abuse of discretion and will
not disturb it unless it exceeds the bounds of reason. (People v. Guerra (2006) 37 Cal.4th
1067, 1113, overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)
The confrontation clause of the federal Constitution guarantees a criminal defendant the
right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.) "That right is
not absolute, however." (People v. Cromer (2001) 24 Cal.4th 889, 892.) "'[T]rial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination.' [Citation.] [N]otwithstanding the
confrontation clause, a trial court may restrict cross-examination of an adverse witness on
the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on
cross-examination pertaining to the credibility of a witness does not violate the
confrontation clause unless a reasonable jury might have received a significantly different
impression of the witness's credibility had the excluded cross-examination been
permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624
(Quartermain).)
              Appellant's counsel sought to cross-examine Lilia with four photographs
depicting her nude body. He argued that Lilia's credibility was at issue, and the
photographs proved she was lying when she testified she did not have a sexual
relationship with appellant. The court asked when the photographs were taken, and
counsel said he "guess[ed] the week preceding the event." The court examined the
photographs and observed they would "evoke[] the emotions of the jury on an issue
which has nothing to do with the elements of [the offenses]." The court also noted
foundational issues surrounding Exhibit K, in which Lilia appeared to be "either asleep or

                                             6
unconscious." For example, appellant could testify he took the photographs, but Lilia
might not "know if she was dressed before the picture [was taken] and then . . . undressed
[involuntarily]." The court excluded the photographs pursuant to Evidence Code section
352 because their prejudicial impact, confusing the issues and misleading the jury,
outweighed their limited probative value. The court further ruled appellant could testify
about the nature of his relationship with Lilia and "even testify that he took pictures."
Appellant testified he took nude pictures of Lilia during and after their sexual encounters.
He also viewed and identified Exhibits K-M as the photographs during cross-
examination.
               The trial court acted within its discretion in excluding the nude photograph
of Lilia. We cannot conclude "a reasonable jury might have received a significantly
different impression of [Lilia's] credibility had the excluded cross-examination [regarding
that photograph] been permitted." (Quartermain, supra, 16 Cal.4th at pp. 623-624.) The
court did not violate appellant's confrontation rights by excluding Exhibit K. (Ibid.)
               Appellant also contends the court committed prejudicial error by admitting
Detective Young's hearsay testimony describing Lilia's "cool call" to appellant. We
conclude any error relating to that testimony was harmless. The evidence concerns
statements appellant made when Lilia telephoned him, while meeting with Detective
Young at the station. At Young's suggestion, Lilia called appellant on a telephone with
recording equipment. Due to a malfunction in the recording equipment, there was no
record of appellant's statements. Over a hearsay objection, Young testified Lilia told him
appellant "admitted to striking her," and "admitted" what he did. The court admitted that
testimony as a prior consistent statement, pursuant to Evidence Code sections 1236 and
791, subdivision (b), because appellant repeatedly implied that her testimony was
fabricated and biased. Evidence Code section 791 authorizes the admission of a prior
consistent statement which is "offered after . . . [a]n express or implied charge has been
made that [the witness's] testimony at the hearing is recently fabricated or is influenced
by bias or other improper motive, and the statement was made before the bias, motive for

                                              7
fabrication, or other improper motive is alleged to have arisen." (At subd. (b).) Here,
appellant was not implying Lilia recently fabricated testimony about his cool call
statements. He implied she lied about them from the outset, in describing them to Young.
The court erroneously admitted Young's hearsay testimony pursuant to Evidence Code
section 791, subdivision (b). However, any error associated with that evidence was
harmless because it was cumulative. Lilia testified that during the cool call, appellant
promised he would "never hurt [her] again." In addition, Rima testified about a similar
admission appellant made to her. There is no reasonable probability the jury would have
reached a more favorable verdict but for the admission of Young's hearsay testimony.
(People v. Watson (1956) 46 Cal.2d 818.)
                                    Instructional Issues
              Appellant claims the trial court erred by instructing the jury that "[i]f the
evidence establishes that a witness's character for truthfulness has not been discussed
among the people who know him or her, you may conclude from the lack of discussion
that the witness's character for truthfulness is good." (CALCRIM No. 226.) He claims
the evidence did not support that instruction, and the error was prejudicial because it
allowed the jury to presume that Lilia's "character for truthfulness was good." We agree
the court erred by giving that instruction but conclude its error caused no harm. The
challenged instruction only allowed the jury to conclude the witness had a good character
for truthfulness if the evidence established her acquaintances did not discuss her character
for truthfulness. In addition, the court instructed the jury with CALCRIM No. 200 that
some of the instructions might be inapplicable. It is presumed the jurors understood and
correctly applied the instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.)
              Appellant also contends the trial court erred by failing to instruct the jury,
sua sponte, that misdemeanor false imprisonment is a lesser included offense of false
imprisonment by violence (felony false imprisonment). We disagree. A trial court must
instruct the jury on a lesser included offense when the evidence raises a question as to
whether all of the elements of the charged offense were present, but not when there is no

                                              8
evidence that the offense was less than that charged. (People v. Koontz (2002) 27 Cal.4th
1041, 1085; People v. Breverman (1998) 19 Cal.4th 142, 154, 162; People v. Matian
(1995) 35 Cal.App.4th 480, 484, fn. 4.) "'Force is an element of both felony and
misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony
only where the force used is greater than that reasonably necessary to effect the restraint.
In such circumstances the force is defined as "violence" with the false imprisonment
effected by such violence a felony.' [Citation.]" (People v. Castro (2006) 138
Cal.App.4th 137, 140.) There is no substantial evidence that Lilia was restrained without
the use of violence or menace. Lilia testified appellant pushed her into his bedroom,
shoved her on the bed, and punched her in the face.
              Appellant further claims that the trial court committed Griffin error by
instructing the jury that appellant made a tactical decision not to testify at the preliminary
hearing. (Griffin v. California, supra, 380 U.S. 609.) We agree but conclude the error
was harmless.
              The court gave the erroneous instruction in response to the following
statements trial counsel made in closing argument: "And I want to thank you for staying
through the entire trial because throughout the entire pendency of this case until now,
until this trial, no one has ever heard from the defendant's side of this case. No one.
They heard from Lilia . . . , and they prosecuted based upon what Lilia . . . told them, but
they never went to the defendant and listened to his side of the story. [¶] So literally you
are the first time the defendant ever had any ability to tell anyone, other than me, his
counsel, what occurred and what transpired."
              The court explained, outside the jury's presence, that counsel had misstated
the law because appellant had the right to testify at the preliminary hearing. Counsel
acknowledged appellant had that right, and indicated he would "acquiesce to the Court
remedying [his misstatement of the law] any way possible." The court instructed the jury
as follows: "A statement was made in argument that this was the first opportunity for the
defendant to tell his story. Actually, during a preliminary hearing, the defendant has an

                                              9
opportunity to tell his or her story. Typically a defendant does not testify during a
preliminary hearing, but he or she has the right to do so. [¶] So since I have to deal with
the law, I wanted to clarify that point of law. This is not the first time that the defendant
has had the opportunity to tell his story, but for whatever reason, tactical reasons, which
we understood he chose not to do so at the preliminary hearing." Appellant did not object
to the court's remedial instruction.
               "In Griffin, the United States Supreme Court held that the privilege against
self-incrimination of the Fifth Amendment prohibits any comment on a defendant's
failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in
the form of an instruction by the court or a remark by the prosecution." (People v. Clair
(1992) 2 Cal.4th 629, 662.) Appellant argues the court's instruction implied that he
remained silent at the preliminary hearing because he was guilty, and fabricated his trial
testimony. We must view a challenged portion of the instructions "in the context of the
instructions as a whole and the trial record" to determine "'whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way' that violates the
Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72; see People v. Reliford (2003)
29 Cal.4th 1007, 1013.) No "reasonable likelihood" of an interpretation amounting to
Griffin error exists here where the court instructed the jury that defendants do not
typically testify at the preliminary hearing.
                   New Trial Motion (Ineffective Assistance of Counsel)
               Appellant further argues the trial court erred in denying his new trial
motion based on his claim he was deprived of the effective assistance of counsel at trial.
We disagree.
               To establish ineffective assistance of counsel, a defendant must establish
that his attorney's representation fell below an objective standard of reasonableness under
prevailing professional norms, and that he suffered prejudice therefrom. (Strickland v.
Washington (1984) 466 U.S. 668, 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)
Prejudice is established by showing there is a reasonable probability of a more favorable

                                                10
result absent his attorney's shortcomings. (Ibid.) A "reasonable probability" is a
probability sufficient to undermine confidence in the outcome. (Ibid.) A reviewing court
may resolve an ineffective assistance of counsel claim by deciding only the question of
prejudice. (Strickland, at p. 697.) Appellant bases his ineffective assistance of counsel
claim on trial counsel's failure to obtain records of his telephone calls from June 18,
through June 20, 2010. He argues those records would have shown he had frequent
contact with Lilia and her parents on their cell phones, and made frequent attempts to
contact them. The records were largely cumulative because the prosecution and defense
both presented evidence that appellant used his phone to communicate with Lilia, her
mother and her father during that time frame. Appellant has not established counsel's
failure to present the telephone records was prejudicial.
                                      DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             11
                                  Brian J. Back, Judge
                            Superior Court County of Ventura
                           ______________________________


             William Paul Melcher, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff
and Respondent.




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