California Court of Appeal Jul 16, 2013 No. D061622Unpublished
Filed 7/16/13 P. v. Salih CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061622
Plaintiff and Respondent,
v. (Super. Ct. No. SCE314667)
MUAYED SALIM SALIH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.
Brannigan, Judge. Affirmed.
R. Clayton Seaman, Jr., for Defendant and Appellant, under appointment by the
Court of Appeal.
Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,
Assistant Attorneys General, Melissa Mandel and Warren Williams, Deputy Attorneys
General.
Muayed Salim Salih appeals his jury convictions for assault with a deadly weapon
other than a firearm (Pen. Code,1 § 245, subd. (a)(1)), and exhibiting a deadly weapon
other than a firearm (§ 417, subd. (a)(1)). The court imposed a $154 booking fee on Salih
under Government Code section 29550.1. It placed him on probation for three years and
ordered him to serve one year in jail. The court awarded him 26 conduct credits under
within approximately one hour at the same store]; People v. Haynes (1998) 61
Cal.App.4th 1282, 1294-1296 [no unanimity instruction required because the defendant
twice robbed the victim of "the same property" "just minutes and blocks apart"].)
Here, the jury based its conviction on a continuous, approximately 22-minute
incident during which Salih used the same instrument—his car—and targeted the same
victim—Almaleki—throughout. Likewise, Salih cannot show that the brief, insubstantial
geographical and temporal separations disrupted continuity between the parking lot and
stoplight encounters. Salih harbored the same assaultive intent during the entire pursuit.
Thus, the court did not err in failing to instruct on unanimity.
Even if the trial court erred, it was harmless beyond a reasonable doubt under the
heightened prejudice standard set forth in Chapman v. California (1967) 386 U.S. 18, 24.
" 'Where the record provides no rational basis, by way of argument or evidence, for the
jury to distinguish between the various acts, and the jury must have believed beyond a
reasonable doubt that defendant committed all acts if he committed any, the failure to
give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury
resolved the basic credibility dispute against the defendant and therefore would have
convicted him of any of the various offenses shown by the evidence, the failure to give
the unanimity instruction is harmless.' " (People v. Curry (2007) 158 Cal.App.4th 766,
783.) Here, the jury did not have any reason to distinguish between the stoplight and
parking lot encounters; instead, the jury must have concluded beyond a reasonable doubt
that Salih assaulted Almaleki throughout the incident.
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II.
Salih contends the court should have calculated his custody credits at two different
rates because he served time both before and after the October 2011, amendment to
section 4019 subdivision (h) became effective. Salih cites People v. Brown (2012) 54
Cal.4th 314, 322-323 (Brown) for the proposition that prisoners "earn[] credit at two
different rates" when their "custody overlap[s] the statute's operative date."
However, Brown, supra, 54 Cal.4th 314 interpreted a different version of section
4019. Under the current version of section 4019 subdivision (h), defendants who commit
crimes after October 1, 2011, are entitled to presentence conduct credit at a full, day-for-
day rate, "but these new credits are expressly available only to defendants who
committed their crimes after October 1, 2011. (§ 4019, subd. (h).)" (People v. Hull
(2013) 213 Cal.App.4th 182, 186.) "Any days earned by a prisoner prior to October 1,
2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h).) Thus,
the trial court correctly calculated Salih's custody credits.
We also reject Salih's equal protection claim because we are bound by Brown,
which held that equal protection does not require a retroactive application of section
4019. (Brown, supra, 54 Cal.4th at pp. 328-329; see Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
III.
Finally, Salih argues the court erred by imposing the booking fee without finding
he had an ability to pay. Salih further argues Government Code section 29550.1 violates
his constitutional right to equal protection by not requiring a court find an ability to
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pay—unlike Government Code sections 29550 and 29550.2. During this appeal's
pendency, the California Supreme Court held defendants forfeit their right to appeal a
booking fee when they fail to object in the trial court. (People v. McCullough (2013) 56
Cal.4th 589, 597.) Salih did not object to the booking fee in the trial court and thus
forfeited this claim.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in failing to provide a unanimity instruction for a continuous criminal incident, correctly calculated presentence custody credits, and that the defendant forfeited his challenge to the booking fee by failing to object at trial.
Issues
Did the trial court err by failing to provide a sua sponte unanimity instruction?
Did the trial court miscalculate presentence custody credits?
Did the trial court err by imposing a booking fee without an ability-to-pay finding, and does the statute violate equal protection?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the jury based its conviction on a continuous, approximately 22-minute incident during which Salih used the same instrument—his car—and targeted the same victim—Almaleki—throughout.”
“Salih did not object to the booking fee in the trial court and thus forfeited this claim.”