Filed 10/9/13 P. v. Mohamed CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062414

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD240372)

EBRAHIM MUSSA MOHAMED,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed and remanded with directions.



         Michael Anthony Hernandez, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         Ebrahim Mussa Mohamed (aka Ebrahim Mohamed Mussa) appeals a judgment

following his jury conviction on five counts of assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)1) and one count of stalking (§ 646.9, subd. (a)). On appeal, Mohamed

contends: (1) the trial court erred by not obtaining his express waiver of his right to

testify; (2) the court erred by receiving the jury's verdict in his absence; and (3) the

abstract of judgment must be amended to correctly reflect his convictions.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Mohamed dated Kalkidan Gebremichael from 2009 through February 2012, when

she ended their relationship. On March 13, 2012, she obtained a temporary restraining

order against him based on threats he made against her.

       At about 11:00 p.m. on April 13, 2012, Gebremichael drove her coworker, Jose

Reynosa, to his home after work. She parked her car in front of his house and they talked

for a while. Mohamed approached Gebremichael's car and repeatedly struck the driver's

side window and windshield with an anti-theft steering wheel club. The windshield

shattered. Gebremichael started her car and drove away with Reynosa, going eastbound

on University Avenue. At the intersection of 35th Street and University Avenue, her car

was struck from behind by another vehicle. Her car was struck from behind three more

times at the 38th Street, 40th Street, and 41st Street intersections. San Diego Police

Officer Derrick Young saw Gebremichael's car and a white Honda Accord drive through

a red light at the intersection of University Avenue and Chamoune Avenue. The cars

were travelling about 60 miles per hour. As he turned to initiate a traffic stop,

Gebremichael's car immediately pulled over, while the Honda continued eastbound on


1      All statutory references are to the Penal Code unless otherwise specified.

                                               2
University Avenue until making a left turn onto 46th Street. The Honda parked in a

parking lot and Mohamed jumped out of it and ran toward Young. Young ordered

Mohamed to stop, but he continued to approach Young with his hand in his jacket. He

then turned around, returned to his car, reentered it, and reached into the back seat.

Young ordered him to exit the car and get on the ground. Mohamed eventually complied

and was arrested.

       During a search of Mohamed's car, officers found an anti-theft vehicle club on the

floorboard behind the driver's seat and blood on the shifting column. Mohamed's right

hand was bleeding. When officers spoke with Gebremichael, she appeared to be terrified

of Mohamed and described that evening's events. She feared for her life.

       An amended information charged Mohamed with five counts of assault with a

deadly weapon (§ 245, subd. (a)(1)) and one count of stalking (§ 646.9, subd. (a)). It

further alleged he had been convicted of a prior "strike" (i.e., serious or violent felony)

(§§ 667, subds. (b)-(i), 1170.12, 668), and had a prior stalking conviction (§ 646.9, subd.

(c)(2)). At trial, after the close of the prosecution's case, the defense elected not to

present any evidence. The jury found Mohamed guilty on all six counts. In a bifurcated

proceeding, the trial court found true the prior strike allegation. The court sentenced

Mohamed to a term of eight years in prison for count 1 and concurrent six-year terms for

counts 2, 3, and 4. It imposed a consecutive two-year term for count 5. It imposed a

five-year term on count 6 (stalking conviction), but stayed its execution pursuant to

section 654. Mohamed was sentenced to a total term of 10 years in prison. He timely

filed a notice of appeal.

                                               3
                                       DISCUSSION

                                              I

                        Mohamed's Waiver of His Right to Testify

       Mohamed contends the trial court erred by not obtaining his express waiver of his

right to testify.

                                             A

       Outside the jury's presence during trial, Mohamed was present when his counsel

agreed with the trial court that if he (Mohamed) testified, his prior stalking conviction

would be admissible for impeachment purposes. At that time, Mohamed made no

statement indicating he wanted to testify.

       Later that day, the prosecution rested its case. The trial court then asked

Mohamed's counsel how she wanted to proceed. His counsel rested without calling any

witnesses or presenting any evidence. Mohamed again made no statement indicating he

wanted to testify. The jury later returned a verdict finding him guilty on all charges.

       In support of his motion for new trial, Mohamed argued he was denied effective

assistance of counsel when he asked his counsel if he could testify and she advised him

not to because his prior conviction would then be admissible. The trial court explained to

Mohamed that he did not have to follow his counsel's advice and could have testified if

he wanted to. The court denied the new trial motion and found the advice of Mohamed's

counsel not to testify was "sound advice."




                                              4
                                               B

         A criminal defendant has a constitutional right to testify on his or her own behalf.

(People v. Gutierrez (2009) 45 Cal.4th 789, 821; People v. Frierson (1985) 39 Cal.3d

803, 813.) A defendant can exercise the right to testify despite his or her counsel's advice

or objection not to do so. (People v. Lucas (1995) 12 Cal.4th 415, 444; People v. Lucky

(1988) 45 Cal.3d 259, 282.) In the event of an express conflict between a defendant and

his or her counsel regarding testifying, a trial court does not have any duty to admonish

and secure the defendant's waiver on the record unless that conflict comes to the court's

attention. (In re Horton (1991) 54 Cal.3d 82, 95.) "A trial court has no duty to give such

advice or seek an explicit waiver, unless a conflict with counsel comes to its attention."

(People v. Enraca (2012) 53 Cal.4th 735, 762.)

                                               C

         Mohamed asserts the trial court erred by not obtaining an express waiver of his

right to testify. He argues his right to testify is a fundamental constitutional right and

therefore, like a Miranda2 waiver, any waiver of his right to testify must be affirmatively

shown to be knowing, intelligent, and voluntary. However, Mohamed does not cite any

federal or state case so holding and we are not persuaded that a Miranda-type procedure

is required before a defendant can be found to have waived his or her right to testify at

trial.




2        Miranda v. Arizona (1966) 384 U.S. 436.

                                               5
       Citing U.S. v. Nichols (2d Cir. 1995) 56 F.3d 403, Mohamed alternatively argues

there at least needs to be some evidence that he understood the right he was waiving and

the consequences of doing so. However, he does not cite any precedent of the United

States Supreme Court or California Supreme Court so holding. Because we are not

bound by a decision of a lower federal court, we need not follow Nichols. Furthermore,

we are not persuaded by Mohamed's argument that a waiver of a defendant's right to

testify can be found only if there is evidence showing the defendant understood that right

and the consequences of doing so.

       We conclude that, absent a conflict between a defendant and his or her counsel

that is evident to the trial court, a court need not obtain an express waiver of the

defendant's right to testify and there does not need to be evidence showing the defendant

understood that right and the consequences of waiving it. (In re Horton, supra, 54 Cal.3d

at p. 95; People v. Enraca, supra, 53 Cal.4th at p. 762.) In the circumstances of this case,

there is no evidence in the record, and Mohamed does not assert, there was any conflict

between him and his counsel regarding his testifying at trial. Furthermore, there is no

evidence in the record showing Mohamed wanted to testify. He did not notify the trial

court of any wish to testify and there is no evidence in the record showing he wanted to

exercise his right to testify before or at the time the defense rested. The trial court did not

err by not obtaining on the record Mohamed's express waiver of his right to testify.3


3      Also contrary to Mohamed's assertion, any error by the trial court in not obtaining
his waiver of his right to testify in the circumstances of this case would not constitute
structural error requiring reversal per se. (Cf. Arizona v. Fulminante (1991) 499 U.S.
279, 310; People v. Flood (1998) 18 Cal.4th 470, 493.)
                                                6
Based on the record, the trial court could, and presumably did, reasonably conclude

Mohamed implicitly waived his right to testify at trial.

                                                II

                Mohamed's Absence When the Jury's Verdict Was Received

       Mohamed contends the trial court erred by receiving the jury's verdict in his

absence.

                                                A

       On June 26, 2012, after the close of evidence but before closing arguments, some

of the jurors saw Mohamed, apparently ill, fall to the floor. Outside the presence of the

jury, the trial court discussed the incident with counsel. The court described the incident,

stating:

           "[Mohamed] has been evacuated from the courtroom due to some
           sort of an illness or seizure or some sort of an incident wherein he
           passed out as the jurors were about to come in before . . . the next
           stage of the hearing. [¶] They're taking him to the hospital
           currently. I think when he was leaving, he was desirous of staying,
           so I'm not sure how serious the medical emergency is; but
           nonetheless, we are deprived of his presence because of the medical
           emergency."

The prosecutor commented that the jurors saw Mohamed fall as they were about to go to

their seats. In the jury's presence, the trial court stated:

           "Ladies and gentlemen, you can see that the defendant is not present,
           and I think many of you, as you were coming in after the last break,
           saw that the defendant was unwell and had an episode. [¶] We've
           called the paramedics. He's been taken away. He was conscious and
           alert as he was being taken away, but we can't proceed without him
           being here, so that's going to end the day today."



                                                7
The court dismissed the jury until the next morning. Outside the jury's presence, the

court stated that it was proceeding as if there were a legitimate medical emergency and

had no evidence to suggest otherwise. The court expressed its concern because the bailiff

had earlier reported to the court that Mohamed had been talking about suicide.

Nevertheless, the court expressed some concern that he might be trying to manipulate the

proceedings. The prosecutor commented there had been no indications of any medical

concerns prior to the incident and that Mohamed made a "remarkably quick recovery."

       At the hospital, a medical evaluation was performed and no apparent physical

cause for the seizure or fainting was found. Mohamed was released from the hospital that

day and returned to jail, where another examination was performed and no physical cause

for the episode was found.

       On June 27, Mohamed fell to the ground in jail. The jail's medical staff could not

determine any reason for that episode.

       On June 28, Mohamed returned to the courtroom and closing arguments were

presented. The jury retired for deliberations. Later that afternoon, the jury sent a note to

the trial court indicating it had reached a verdict. Apparently about the same time as the

court received that note, Mohamed fell to the floor. Paramedics arrived and rendered aid

to him. Mohamed's vital signs were normal and he was transported to a hospital for

evaluation. Outside the presence of the jury, the court described on the record what had

occurred and discussed with counsel how to proceed. Mohamed's counsel stated that she

observed him breathing rapidly, begin to shake, and appear to drift off. She stated

Mohamed was aware only that the jury had sent a note and not that it had reached a

                                             8
verdict. His counsel argued his episode may have been more anxiety-related than

something physical.

       The trial court found Mohamed had "feign[ed] the symptoms and the attacks in

order to disrupt the proceedings." The court stated Mohamed was conscious, understood

what was happening, and was trying to manipulate the proceedings. The court found

Mohamed's conduct resulted in an implied voluntary waiver of his presence at trial within

the meaning of section 1043, subdivision (b)(2). His counsel requested the court not

make such a finding and objected to the court's receiving the jury's verdict without his

presence. Citing People v. Davis (2005) 36 Cal.4th 510, the court noted that although a

defendant has a constitutional right to be present at trial if his or her presence bears a

reasonable and substantial relation to the defendant's full opportunity to defend against

the charges, the court's receipt of the jury's verdict in Mohamed's absence would not

involve that right. The court further found Mohamed's actions that day were taken with

the intent to disrupt the proceedings and, as a result of that disruption, it had him

removed. In the jury's presence, the court then proceeded to receive its verdict.

                                               B

       "Under the Sixth Amendment's confrontation clause, a criminal defendant does not

have a right to be personally present at a particular proceeding unless his appearance is

necessary to prevent 'interference with [his] opportunity for effective cross-examination.'

[Citations.] [¶] Similarly, under the Fourteenth Amendment's due process clause, a

criminal defendant does not have a right to be personally present at a particular

proceeding unless he finds himself at a 'stage . . . that is critical to [the] outcome' and 'his

                                               9
presence would contribute to the fairness of the procedure.' [Citation.] [¶] Under section

15 of article I of the California Constitution, a criminal defendant does not have a right to

be personally present 'either in chambers or at bench discussions that occur outside of the

jury's presence on questions of law or other matters as to which [his] presence does not

bear a " ' "reasonably substantial relation to the fullness of his opportunity to defend

against the charge." ' " ' [Citations.] [¶] Lastly, under sections 977 and 1043 of the

Penal Code, a criminal defendant does not have a right to be personally present where he

does not have such a right under section 15 of article I of the California Constitution."

(People v. Waidla (2000) 22 Cal.4th 690, 741-742.)

       Section 1043 provides:

           "(a) Except as otherwise provided in this section, the defendant in a
           felony case shall be personally present at the trial.

           "(b) The absence of the [defendant] in a felony case after the trial
           has commenced in his presence shall not prevent continuing the trial
           to, and including, the return of the verdict in any of the following
           cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not
           punishable by death in which the defendant is voluntarily absent."
           (Italics added.)

Section 1148 provides: "If charged with a felony the defendant must, before the verdict is

received, appear in person, unless, after the exercise of reasonable diligence to procure

the presence of the defendant, the court shall find that it will be in the interest of justice

that the verdict be received in his absence. . . ." (Italics added.)

       "An appellate court applies the independent or de novo standard of review to a

trial court's exclusion of a criminal defendant from trial, either in whole or in part, insofar



                                               10
as the trial court's decision entails a measurement of the facts against the law." (People v.

Waidla, supra, 22 Cal.4th at p. 741.)

                                              C

       Mohamed asserts that he did not voluntarily absent himself from the proceedings

under section 1043 because it was the actions of paramedics, not him, that removed him

from the courtroom and transported him to the hospital before the verdict was received.

He argues the trial court erred by concluding he acted to disrupt and delay the

proceedings. He further argues the record does not contain sufficient facts to support the

court's finding that he was disruptive and voluntarily waived his right to be present under

section 1043.

       Following the June 28, 2012, courtroom incident, the trial court found Mohamed

had "feign[ed] the symptoms and the attacks in order to disrupt the proceedings." The

court stated Mohamed was conscious, understood what was happening, and was trying to

manipulate the proceedings. The court found his conduct resulted in an implied

voluntary waiver of his presence at trial within the meaning of section 1043, subdivision

(b)(2). The court further found Mohamed's actions that day were taken with the intent to

disrupt the proceedings and, as a result of that disruption, it had him removed. In the

jury's presence, the court then proceeded to take its verdict.

       We conclude the record contains sufficient facts to support the trial court's

findings that Mohamed's symptoms were feigned with the intent to disrupt the

proceedings and therefore he voluntarily absented himself from the proceedings pursuant

to section 1043, subdivision (b)(2). "[A] trial judge may rely on reliable information,

                                             11
such as statements from jail or court personnel, to determine whether a defendant has

waived the right to presence." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1205.) In

this case, the court relied on its own observations, statements of the prosecutor and

defense counsel regarding their observations, statements by paramedics, and other

reliable information. The record shows Mohamed had a prior incident during which he

appeared to faint and/or fall in the courtroom. On June 26, he appeared to faint as the

jury was returning to the courtroom to hear closing arguments. The prosecutor observed

that he recovered quickly. Medical examinations revealed no apparent physical cause for

any seizure or fainting. During the instant incident on June 28, Mohamed appeared to

faint again after the court received a note from the jury during deliberations. Paramedics

found his vital signs were normal. The trial court presumably observed both incidents.

       Based on the foregoing facts, the court could reasonably infer Mohamed feigned

both fainting spells and did so with the intent to disrupt the proceedings. Furthermore,

the court reasonably found that by feigning the June 28 fainting spell that resulted in his

removal by paramedics, Mohamed voluntarily absented himself from the proceedings

and, in particular, the receipt of the jury's verdict within the meaning of section 1043,

subdivision (b)(2). To the extent Mohamed cites facts or inferences contrary to those

relied on or made by the court, he either misconstrues and/or misapplies the applicable

standard of review.

       Mohamed also asserts the trial court erred by not expressly finding under section

1148 that it was in the interest of justice to proceed in receiving the jury's verdict in his

absence. However, he does not cite any case or other authority setting forth any

                                              12
requirement for a trial court to make an express finding under section 1148 before

receiving the jury's verdict in his absence. On the contrary, the California Supreme Court

held in the circumstances of one case that a trial court did not err by making an implicit

finding under section 1148 that the interest of justice required it to receive a verdict in the

defendant's absence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1043.) Based

on our review of the record in this case, we conclude the trial court made an implied

finding under section 1148 that in the interest of justice it should receive the jury's verdict

in Mohamed's absence. In so doing, we conclude it did not err. Mohamed also has not

carried his burden on appeal to show the trial court failed to take diligent measures to

ensure he appeared in court for the verdict. By feigning a fainting spell that resulted in

his subsequent removal by paramedics, Mohamed voluntarily absented himself from the

proceeding.

       To the extent Mohamed argues the trial court also violated his federal and state

constitutional rights to be present when it received the jury's verdict, his conclusory

arguments to that effect are waived and, in any event, are insufficient to persuade us the

court so erred. "The burden of affirmatively demonstrating error is on the appellant."

(Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)

"An appellant must provide an argument and legal authority to support his contentions.

This burden requires more than a mere assertion that the judgment is wrong. 'Issues do

not have a life of their own: If they are not raised or supported by argument or citation to

authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or

arguments to undermine the judgment and defeat the presumption of correctness. When

                                               13
an appellant fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived." (Benach v. County of

Los Angeles (2007) 149 Cal.App.4th 836, 852; Landry v. Berryessa Union School Dist.

(1995) 39 Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported by pertinent or

cognizable legal argument it may be deemed abandoned and discussion by the reviewing

court is unnecessary"]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105

[conclusory claims did not persuade appellate court].)

       Assuming arguendo Mohamed did not waive his constitutional arguments, we

nevertheless would conclude he has not persuaded us that in the circumstances of this

case either the federal or state Constitution required his presence when the trial court

received the jury's verdict. Assuming there is a constitutional right for a defendant to be

present at the reading of a verdict, we conclude that right is not absolute and in the

interest of justice the verdict could be read in Mohamed's absence due to his voluntary

absence from the proceedings. (Cf. People v. Lewis and Oliver, supra, 39 Cal.4th at

p. 1040.) Furthermore, assuming arguendo the court erred by receiving the jury's verdict

in Mohamed's absence, we nevertheless would conclude that error was harmless under

both the federal and state standards of prejudice. (Chapman v. California (1967) 386

U.S. 18, 23-24; People v. Watson (1956) 46 Cal.2d 818, 836; cf. People v. Davis, supra,

36 Cal.4th at pp. 532-534.) We agree with the People that such an error does not rise to

the level of a structural error for which per se reversal of the judgment is required. (Rice

v. Wood (9th Cir. 1996) 77 F.3d 1138, 1141.)



                                               14
                                            III

                          Amendment of the Abstract of Judgment

       Mohamed contends, and the People agree, that the abstract of judgment must be

amended to correctly reflect the offenses of which he was convicted. He correctly argues

the abstract erroneously shows that his count 6 conviction was for assault with a deadly

weapon (§ 245, subd. (a)(1)). The jury's verdict and the court's judgment show he was

convicted of stalking on count 6. Accordingly, we direct the trial court to amend the

abstract of judgment to correctly reflect the count 6 stalking offense of which he was

convicted (i.e., § 646.9, subd. (a)).

                                        DISPOSITION

       The case is remanded to the superior court with directions to amend the abstract of

judgment in accordance with the views expressed in this opinion. The court is directed to

forward a certified copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


O'ROURKE, J.




                                            15
