People v. Ahmed
| Decision Date | 23 December 2016 |
| Docket Number | D068459 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MAHAD AHMED, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Lynn G. McGinnis, Eric A. Swenson and Michael Mongan, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mahad Ahmed of murder in the second degree (Pen. Code,1 § 187, subd. (a)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). As to the assault, it found true allegations that Ahmed personally inflicted great bodily injury, and inflicted great bodily injury causing a coma due to brain injury under section 12022.7, subdivisions (a) and (b). The trial court sentenced Ahmed to 15 years to life for the murder. It stayed execution of a four-year upper term for the assault, and also stayed five- and three-year enhancements for the section 12022.7, subdivision (a) and (b) allegations.
Ahmed contends the trial court prejudicially erred by instructing the jury with CALCRIM No. 520 on implied malice without stating that implied malice requires that the act causing death be one that has a high degree of probability it would result in death. He argues the deficiency in the implied malice jury instruction makes the standard void for vagueness as applied to him in violation of his Fifth and Fourteenth Amendment rights to due process. Ahmed further contends the court erred by admitting uncharged acts to show his conduct in the present case was dangerous to human life. Finally, Ahmed contends the evidence is insufficient to prove his acts were sufficiently dangerous to constitute implied malice. We affirm the judgment.
On June 14, 2014, brothers Michael and Phillip Beaver,2 along with their friend Dan Devito, planned to go to the Gaslamp area of downtown San Diego to have drinks, hang out and play pool, then take a cab home. That evening, the men each had a beer and a couple shots of whisky at Devito's house, and eventually were dropped off downtown at about 9:00 or 9:30 p.m. They first went to a bar where Michael had previously worked; they drank beer and received several shots of alcohol on the house from the bartender. The men then went to the Double Deuce bar, had another beer and received more complimentary drinks there from workers who knew Michael. Phillip and Dan followed Michael to other places where Michael had friends and consumed more drinks. Later in the evening, the men returned to the Double Deuce bar where the manager told them they were too drunk and turned them away. Up to that point the evening was without problems; everyone was happy to see Michael and greeted him with hugs.
The men walked across the street toward the Encore bar entrance, where Phillip vomited. Both Devito and Michael acknowledged they needed to get a cab and leave; that Phillip had drunk too much. Devito was able to flag two taxis down but the cars left when they saw Phillip was sick. After the Encore bouncer asked them to leave, the men started to move down the sidewalk while Devito continued to try to hail a taxi. Michael,who was smoking a cigarette, was holding Phillip against some metal railing on the sidewalk and talking to him while Devito tried to clean him up.
While this was going on, a group of four or five people approached, including Edward Manier, who had long dreadlocks, and Ahmed. A woman in the group saw Phillip vomiting and exclaimed it was "disgusting" and "nasty," to which Michael responded that this was his brother and he was sick. Devito spoke directly to Ahmed and told him Phillip was sick; that "we drank a little too much" and they were trying to leave.
While Michael engaged with the woman, she became agitated and "backhanded" him in the face, causing Michael to raise his hands. Manier then punched Michael "right in the face." Michael turned toward Manier and put his arms up as if he were going to defend himself, when Ahmed suddenly came from the side and punched Michael in the head. The punch connected, and Michael "flew," hitting his head on the metal railing.
That morning, Meghan Carter was with Megan Gabrio and other friends in the Gaslamp area near Encore, and came upon the scene right after Michael had been first hit by Manier. She saw Michael in a fight position, but not fighting back, in a "stunned state" and he looked like he was being "victimized." When Ahmed hit Michael, Carter heard Michael's head hit the railing, and a loud "ping" sound. As Carter described it, Michael "got hit really hard" and the blow "was pretty intense."3 According to Carter, Michael It appeared to Carterthat there had been a fight between two individuals and "then [Ahmed] got involved by punching him and it just—it appeared to blindside him." Carter was concerned about the amount of force because it "wasn't a standing punch" but "[t]here was an approach that went into it . . . and it looked really hard." Carter did not hear Ahmed call out or say anything before he threw the punch. She saw that Michael was not fighting back; he was not a threat to anybody, and the punch was "uncalled for." Afterwards, Michael was on the ground for a "little bit" and it took some time for him to get up, requiring assistance.
Gabrio, who is a nurse, saw Michael fall over backwards and hit his head on the rail "very hard," with "some force." When she saw his head hit, she felt Michael was going to need some help. As her group got closer, she saw Michael stumbling and having a hard time maintaining consciousness; it seemed to her he was declining and unable to keep himself upright. Gabrio called 911. She saw his respirations were erratic and he was bleeding profusely from his nose and mouth. Gabrio administered a "sternal rub" to see if Michael would respond to painful stimuli, but he did not. According to Gabrio, the sound of Michael's head hitting the railing was a "crack" that was "shocking" and "just sickening."
The security guard at Encore that evening observed that Michael was drunk that night; he "definitely had some drinks in him." The Encore guard saw Ahmed "pretty much just run up and sucker punch [Michael]." According to the security guard, the punch connected because Michael "obviously flew." Ahmed and his group then left quickly up the street.
Paramedics dispatched to the scene began CPR on Michael, who was unconscious, not breathing on his own, and "clinically dead." While in the ambulance Michael's heart stopped beating and on arrival at the emergency room, he had no vital signs and showed signs of severe neurologic damage. He was pronounced dead after doctors were unable to resuscitate him or start his heart. Michael's blood alcohol level was later determined to be .16 percent, twice the legal alcohol limit for driving, and tests from his vitreous fluid showed a level of .20 percent, possibly reflecting Michael's alcohol level an hour or two before his death.
Officers patrolling the North Park area of San Diego arrested Ahmed in the early morning of June 15, 2014, after coming upon him and others involved in an unrelated disturbance. The area is less than five miles away from the Gaslamp. Detectives eventually connected Ahmed to Michael's murder through a "crime stoppers" tip.
At trial, the People proceeded on the second degree murder theory that Ahmed acted with implied malice. They presented evidence that Michael's death was caused by blunt force injury to the head. They also presented evidence of three uncharged acts involving Ahmed, arguing they showed Ahmed's prior awareness of the power of his fists, intent to take advantage of an unsuspecting victim, and knowledge that a punch to the head could be dangerous to human life.
At trial, the medical examiner explained the type of subarachnoid hemorrhage Michael suffered was most frequently seen in people who have had an impact to the head or face with lateral rotation of the head, or a head blow resulting in hyperextension in relation to the neck; it was "very frequently associated with punches." The examineropined Michael's brain injury was caused by Ahmed's punch, as she observed after that punch a "very dramatic shift in [Michael's] mental status and function." And it was much more likely that his hemorrhage was caused by that punch, not from Michael's head hitting the metal railing, as hitting a railing would not cause that type of injury.
The People's neurosurgeon expert, Dr. Alexander Khalessi, viewed Michael's autopsy photographs as well as the surveillance video. Looking at Michael's hands, he found it significant that they showed Michael made no effort to brace or break his fall, which is uncommon for someone who falls to the ground. This implied to the expert that Michael had sustained substantial neurological injury even before he hit the ground. Dr. Khalessi observed that Michael had a "massive" subarachnoid hemorrhage filling up all of the fluid spaces in his brain, which would lead to catastrophic high pressure in the head. He testified that a sucker punch was an unprotected blow to the head that made a person "much more vulnerable" because he or she would not have the benefit of the protective mechanisms people exhibit when they are aware of a blow coming toward them. As for Ahmed's...
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