People v. Hosein CA3

Filed 4/28/16 P. v. Hosein CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078668

Plaintiff and Respondent, (Super. Ct. No. 14F05248)

v.

AZEEM HOSEIN,

Defendant and Appellant.

Defendant Azeem Hosein was charged with assault with intent to commit oral copulation with an enhancement for being armed with a deadly weapon and felony false imprisonment with an enhancement for using a deadly weapon. A jury found him guilty of both counts and found both enhancement allegations to be true, but the jury was erroneously instructed that the enhancements on both charges were arming enhancements instead of being instructed that the enhancement on the false imprisonment charge was a use enhancement. This error extended to the verdict forms.

1

On appeal, defendant argues that the sentence for the enhancement attached to the false imprisonment charge should be stricken because the instructional error was not harmless beyond a reasonable doubt. We agree and will reverse the sentence enhancement. FACTUAL AND PROCEDURAL BACKGROUND On July 30, 2014, the victim, a homeless woman, was in a public bathroom at a park when a man entered the bathroom. The victim testified that the man entered the bathroom stall she occupied, put a folding knife up to her side, then her neck, and told her she was going to perform oral sex on him. The victim could feel the knife point in her side. The victim screamed for help and the man left the bathroom. The victim ran out of the bathroom and yelled for someone to call the police. A woman heard her and did. Then the man returned to the bathroom, forced the victim into a bathroom stall, and began to choke her. He repeated his earlier statements and at some point hit the victim on the head with his knife, which was closed at the time. Park Ranger John Rice arrived at the park in response to a police call, heard the victim screaming for help, and entered the bathroom. Ranger Rice ordered defendant out of the bathroom stall and apprehended him. Defendant did not have a knife in his hands when apprehended. Afterwards, Ranger Rice found a pocketknife in the stall amongst other items. Officer Gina Truesdale of the Sacramento Police Department arrived shortly after receiving a call about a woman screaming for help in the park bathroom. Officer Truesdale testified that during her conversation with the victim there were indications that the victim might have trouble recollecting events. Officer Truesdale did not notice any visible injuries to the victim. She offered medical assistance to the victim, but the victim declined. Instead, the victim checked herself into a mental hospital. The victim has a history of mental health issues, including bipolar and schizoaffective borderline personality disorders. The victim testified that on the day of