People v. Mumin

• Court: California Court of Appeals
• Writing for the Court: GUERRERO, J.
• Citation: People v. Mumin, 68 Cal.App.5th 36, 282 Cal.Rptr.3d 836 (Cal. App. 2021)
• Decision Date: 19 August 2021
• Docket Number: D076916
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ahmed MUMIN, Defendant and Appellant.

68 Cal.App.5th 36

282 Cal.Rptr.3d 836

The PEOPLE, Plaintiff and Respondent,

v.Ahmed MUMIN, Defendant and Appellant.

D076916

Court of Appeal, Fourth District, Division 1, California.

Filed August 19, 2021

Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

GUERRERO, J.

A jury convicted Ahmed Mumin of first degree murder ( Pen. Code, §§ 187, subd. (a), 189 ),¹ burglary (§ 459), and robbery (§ 211). It found true the special circumstance allegations that the murder was committed during the commission of a robbery and a burglary. (§ 190.2, subd. (a)(17).) The jury also convicted Mumin on two counts of premeditated attempted murder of a peace officer ( §§ 187, subd. (a), 189, 664 ), two counts of assault on a peace officer with a semiautomatic firearm ( § 245, subd. (d)(2) ), two counts of assault with a semiautomatic firearm (id. , subd. (b)), and one count each of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)). The jury found true various firearm enhancements. (§§ 1192.7, subd. (c)(23), 12022.5, subd. (a), 12022.53, subds. (b), (c), (d).) The trial court sentenced Mumin to life imprisonment without the possibility of parole, plus an additional consecutive indeterminate term of 55 years to life imprisonment and a consecutive determinate term of 41 years four months.

Mumin appeals. He contends (1) the evidence did not support a jury instruction on the kill zone theory of attempted murder liability, (2) the trial court committed prejudicial misconduct by questioning Mumin's counsel about her closing argument in the presence of the jury, and (3) his convictions for assault with a semiautomatic firearm should be vacated because they are lesser included offenses of assault on a peace officer with a semiautomatic firearm. The Attorney General concedes the two assault convictions should be vacated or reversed, and we accept this concession. Mumin's two remaining contentions are without merit. We therefore modify the judgment to vacate the two assault convictions (and the stayed sentences thereon) and affirm the judgment as modified.

FACTS

On April 15, 2015, a clerk was working the night shift at a convenience store in San Diego. A regular customer, Eric Schade, came into the store around 11:00 p.m. and bought a can of beer. He returned a few hours later and asked to borrow a lighter. The clerk thought Schade may have been intoxicated.

As Schade and the clerk talked, a man walked into the store and started yelling. He said, "Everybody get down," and the clerk immediately recognized that he was being robbed. The clerk removed the tray from a cash register and placed it on the counter. The tray contained small bills, since the clerk put larger bills into the safe.

The clerk crouched behind the counter and saw that the man was holding a large silver semiautomatic handgun. The man was pointing the handgun at Schade and telling him to get down. Schade did not respond, and the clerk thought there may have been a struggle. The man shot Schade, took money from the cash register tray, and left the store. The clerk called police and checked on Schade, who was unconscious on the floor of the store.

When the man entered the store, he was wearing a bandana around his face. During the robbery, the bandana began to come loose, and the clerk could see the man's face. The clerk later identified Mumin as the man who robbed the store and shot Schade.

Police arrived and found Schade lying face down, surrounded by blood. Paramedics took him to a hospital, where he later died. A medical examiner determined that his cause of death was a single gunshot wound to the chest.

A San Diego Police Department criminalist performed expedited, same-day DNA testing on a nine-millimeter cartridge casing found at the scene, as well as a knit cap found nearby. Based on that testing, the criminalist identified Mumin as a potential source of DNA obtained from the items.²

Homicide detectives provided Mumin's information to the police department's special investigations unit. The special investigations unit focuses on tracking, locating, and arresting felony suspects. They work in plain clothes, often undercover. Detectives with the special investigations unit identified two addresses that might be associated with Mumin. One detective, Luke Johnson, made contact with Mumin on social media using an assumed identity. Based on that contact, detectives believed Mumin was at an apartment complex on Winona Avenue in San Diego. Johnson attempted to set up a meeting with Mumin using his assumed identity, but he was unsuccessful.

Nonetheless, the detectives gathered at the apartment complex and began surveillance. The complex consisted of several buildings, pedestrian walkways, and a parking lot.

Mumin was at the complex. He encountered a relative and asked him for a ride. The relative asked where he wanted to go, and Mumin replied, "Anywhere." Mumin also asked whether there were police outside the complex, which made the relative hesitant to help him. They talked for a little while. To avoid giving Mumin a ride, the relative told Mumin he had to leave behind a backpack he was carrying, but Mumin was "very adamant" about keeping it. Eventually the relative told Mumin he would give him a ride, but the relative did not intend to follow through. The relative went out to his car, got a drink, and came back. He did not see Mumin again.

Meanwhile, the detectives had information that one of Mumin's family members might live in a specific apartment, so they decided to send one detective into the complex to locate it. Several detectives, along with a number of uniformed police officers, waited outside.

The detective walked into the complex on foot. He was not wearing anything that would identify him as a police officer. He saw one individual, who gave him an unfriendly look. The detective continued walking and saw a second individual, likely Mumin, who was holding a dark colored backpack. Mumin noticed the detective and looked startled or scared. He backed away and then turned and ran. The detective told his sergeant about the encounter, and the sergeant told the detective to leave the complex while they formulated a plan.³

Police surveillance of the apartment complex continued. Over the radio, the detectives heard that a person in another apartment had reported a burglary in progress. Several uniformed officers went into the complex to investigate. The officers found a backpack near the apartment. The backpack contained Mumin's identification card, several rounds of nine-millimeter ammunition, and a cell phone. The officers broadcast their discovery over the radio.

Based on that information, the detectives were more confident Mumin was in the complex somewhere. They decided to conduct a search. They gathered in the parking lot and put on tactical vests identifying themselves as police officers. The vests have a police badge on the front and the word "police" in large white letters on the back. Some vests have the word "police" in white letters on the front as well. The five detectives were joined by more than a dozen uniformed officers.

The detectives and uniformed officers went apartment-by-apartment loudly identifying themselves as police and directing the residents to come outside. It was nighttime and dark. A police helicopter flew overhead to assist in the search for Mumin. It spent approximately an hour over the complex.

Eventually two detectives, Johnson and James Mackay, walked over to a building with four doors closely spaced together on the first floor and apartments above. Police officers had just cleared the apartments on the upper floor.

All four doors on the first floor led to a large community room, although the detectives did not know that at the time. The doors were closed. Mackay approached the right-most door (Door 1). It had hinges on the right and its handle was on the left. Mackay stood slightly to the right, in front of the hinges, and reached for the handle. Johnson followed Mackay and positioned himself approximately 25 feet behind and to the left, in front of a neighboring door (Door 2). They appear to have been double doors; the handle of Door 2 was approximately 12 to 18 inches away from the handle of Door 1.

Mackay turned the handle and began to open the door. Mumin was hiding inside the community room and responded with gunfire. He fired three shots. Mackay and Johnson both moved to the right, toward the corner of the building, and took cover. Johnson shot five times through Door 1. Mackay tripped and fell over a short wall, recovered, and shot three times at Door 1. Mackay injured his left hand and suffered some scrapes when he fell.

Numerous police officers converged on the community room. After the gunfire stopped, police commanded Mumin to exit the room. Mumin complied. He had been shot, and he was transported to a hospital for medical treatment. Police recovered a nine-millimeter semiautomatic handgun from the community room, as well as a handgun magazine with blood on it.

Forensic analysis revealed that Mumin shot once through the opening in Door 1 and twice through the closed, neighboring Door 2. The latter two bullets apparently penetrated through Door 2. All three struck near a trash area some distance away. The three bullets, as well as the bullet that killed Schade earlier, were fired by the handgun recovered from the community room. Mumin used hollow-point ammunition, which has a cavity in the nose portion of the projectile. When a hollow-point projectile hits its target, the cavity fills and causes the rest of the material to expand into a mushroom...