People v. Mirzai
| Decision Date | 17 April 2019 |
| Docket Number | B288370 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. SHAPOUR MIRZAI, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA142320)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Remanded with directions.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Scott A. Taryle, Supervising Deputy Attorneys General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
Shapour Mirzai was convicted following a jury trial of attempted premeditated murder, aggravated mayhem and assault with a deadly weapon. The jury also found true allegations Mirzai had personally inflicted great bodily injury during the attempted murder and the assault and had used a dangerous weapon, a knife, during the attempted murder and the aggravated mayhem. On appeal Mirzai contends his counsel improperly conceded his guilt at trial in violation of his Sixth Amendment right to control his defense. Mirzai also argues the court erred by failing to instruct the jury on the defense of unconsciousness and by imposing fines and fees without considering his ability to pay. We affirm the convictions and remand for the trial court to give Mirzai the opportunity to request a hearing to present evidence demonstrating his inability to pay the applicable fines, fees and assessments.
On November 7, 2016 Mirzai was charged by amended information with attempted premeditated murder (Pen. Code, §§ 664, 187, subd. (a)),1 aggravated mayhem (§ 205) and assault with a deadly weapon (§ 245, subd. (a)(1)).2 The amended information specially alleged Mirzai had personally inflicted great bodily injury during the commission of the attemptedmurder and the assault (§ 12022.7, subd. (a)) and had used a "box cutter knife" during the attempted murder and the aggravated mayhem (§ 12022, subd. (b)(1)).
During a pretrial conference on March 29, 2017 Mirzai addressed the court directly and requested the court replace the deputy alternate public defender representing him. (See People v. Marsden (1970) 2 Cal.3d 118.) Explaining his request at an in camera conference, Mirzai expressed frustration that his counsel had not kept him informed of his pretrial investigation and preparation. Mirzai also said he believed his counsel thought he was guilty, stating, The motion to replace counsel was denied.
At a pretrial conference one month later Mirzai's counsel informed the court Mirzai wished to represent himself. Mirzai explained he had not adequately expressed himself during the prior Marsden hearing and "begged" the court to conduct another in camera hearing. The court reluctantly agreed. Mirzai expressed concern his counsel had delayed in retrieving papers held by Mirzai's friend, which Mirzai stated were important for his defense. After a discussion regarding the contents of the documents, their purported importance and a recounting of the defense investigator's unsuccessful attempts to locate them, thecourt denied the Marsden motion and resumed the pretrial conference. Back in the presence of the prosecutor Mirzai reiterated he did not want to represent himself but could not go forward with his current counsel. After a lengthy colloquy and a recess for Mirzai to review a waiver-of-representation form, the court denied Mirzai's request for self-representation, finding Mirzai "is not making it clear as to whether or not he wants to represent himself."
On August 23, 2017 defense counsel informed the court he was ready for trial, but Mirzai protested, stating he wanted to obtain a forensic expert to testify. Mirzai also explained he wanted to move to disqualify the trial judge, but his attorney refused to file the motion. For these reasons, Mirzai stated, he wished to represent himself. The court advised Mirzai of the serious disadvantages of self-representation and confirmed that he wanted to proceed without an attorney. Immediately after defense counsel was excused, Mirzai moved to disqualify the judge; and the case was reassigned. (See Code Civ. Proc., § 170.6.)
At the next pretrial conference, five days later, Mirzai told the court, Mirzai expressed concern over representing himself but still refused to be represented by his prior counsel because, "[M]y own attorney believes I am guilty." At that point a discussion was held off the record during which it appears Mirzai was informed his prior counsel would declare a conflict if reappointed. Accordingly, Mirzai agreed to have counsel reappointed, the alternate public defender's office declared a conflict; and counsel from the bar panel was appointed to represent Mirzai.
Mahendra Ahir was the live-in manager of a hotel in Bell Gardens where many of the occupants were long-term residents. Mirzai lived in the hotel from 2010 to July 2016. At some point in late 2011 or early 2012 Mirzai was unable to pay his rent and volunteered instead to assist with minor repair work and maintenance around the hotel. Ahir agreed, and Mirzai continued to live in the hotel until 2016 without paying rent. Ahir testified he had considered Mirzai to be "a good family friend" and they got along very well.
The relationship changed in 2013 when Mirzai "got very upset" about the rate Ahir charged one of Mirzai's friends. Ahir stopped interacting with Mirzai and no longer gave him work to do around the hotel. Around the same time Mirzai claimed he was owed approximately $50,000 for the work he had done. In March 2016 Mirzai suggested Ahir evict him so that they could resolve the dispute in court. Ahir began eviction proceedings the same day. In April 2016 Ahir's attorney served Mirzai with a 60-day eviction notice. Mirzai ignored the notice and told Ahir it was "not [a] real notice." Ahir testified he could not interact with Mirzai at that point without Mirzai getting upset and telling him, "'you're going to pay for it' or things like that."
On the morning of July 2, 2016 the final eviction notice arrived in the mail, and Ahir slid it under Mirzai's door. Later that day Ahir observed Mirzai
At approximately 3:00 p.m. on July 2, 2016 Ahir and his son, Prit Ahir,3 were in one of the hotel's rooms fixing a toilet. Ahir testified that, as he was sitting on the ground in front of the toilet, Ahir tried to fight back but was too weak from blood loss. Mirzai repeatedly cut Ahir on his face, neck and shoulder. Eventually Ahir was able to push Mirzai away long enough that Prit could grab Mirzai and pull him out of the bathroom. Ahir testified Mirzai then walked away calmly and said, "You will pay for this."
Ahir was in the hospital for two days after the attack and received approximately 300 stitches on multiple cuts on his face, neck and shoulder. He stated that, at the time of trial, two and a half years after the attack, he still did not have full sensitivity near his ear, could not completely close his mouth, had trouble speaking and eating and did not have full range of motion in his neck. He anticipated having surgery to remove scar tissue in hope of increasing his neck mobility.
Pallavi's testimony corroborated Ahir's regarding their relationship with Mirzai. She testified that on July 2, 2016, after receiving the eviction notice, Mirzai began acting "crazy," "upset" and "completely different." At the time of the attack Pallavi heard her son screaming and came into the hallway to see whatwas happening. She saw Mirzai, bleeding, walk down the hall and sit on the steps in the lobby. When she walked past him, Mirzai said "I play my game" or "I play my card."
Prit testified he had seen his father and Mirzai arguing earlier in the day on July 2, 2016. At the time of the attack he was standing behind Ahir in the doorway of the bathroom. Prit testified he saw Mirzai walk up and down the hallway multiple times, each time looking into the room where he and his father were fixing the toilet. After a few mintues Mirzai came into the room, "nudged" Prit aside and grabbed Ahir by the neck. Ahir screamed, and Prit saw blood on the floor. Prit recounted that Mirzai "kept cutting at him and hitting—he kept on elbowing my dad on the shoulder area." Prit yelled at Mirzai to stop and tried to pull him off Ahir, but he was not strong enough. Mirzai...
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