P. v. Kordian




Filed 6/2/11 P. v. Kordian CA2/2


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. FRAYDUN AHMAD KORDIAN, Defendant and Appellant.

B217993 (Los Angeles County Super. Ct. No. BA291981)

APPEAL from a judgment of the Superior Court of Los Angeles County. Anne H. Egerton, Judge. Affirmed.

Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.


Fraydun Ahmad Kordian (defendant) appeals from a final judgment following his conviction by jury of two counts of murder (Pen. Code, § 187),^[1] two counts of attempted murder (§§ 664 & 187, subd. (a)), and related charges, which are set forth at length below. We affirm the judgment.
CONTENTIONS
Defendant contends that the evidence was insufficient to convict him on count 4, the attempted murder of Maribel Hernandez. In addition, defendant contends that defense counsel was ineffective in conceding that defendant was guilty of count 4 and in failing to request an instruction regarding legal impossibility.
STATEMENT OF THE CASE
On January 2, 2008, the Los Angeles County District Attorney's Office filed an information charging defendant with two counts of murder in violation of section 187, subdivision (a) (counts 1 & 3), and two counts of attempted murder in violation of sections 664 and 187, subdivision (a). It was further alleged as to counts 1 through 3 that defendant personally used a firearm within the meaning of section 12022.53, subdivision (d), which proximately caused great bodily injury or death within the meaning of that section. As to count 4, it was further alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). Additionally, it was alleged that defendant committed the special circumstance of multiple murders within the meaning of section 190.2, subdivision (a)(3).
Defendant pleaded not guilty and denied all special allegations. Trial was by jury. The jury found defendant guilty as charged and found all special allegations to be true.
Defendant was sentenced to state prison for two terms of life without parole for counts 1 and 3, plus two consecutive terms of life for counts 2 and 4; 25 years to life for the section 12022.53, subdivision (d) firearm enhancements to counts 1, 2, and 3; and 10 years for the firearm enhancement to count 4. The court stayed the terms for the other firearm enhancements. It credited defendant with 1,329 days and imposed a $200 restitution fine, an $80 court security fee, and $21,357.72 in restitution to the State Victim's Compensation and Government Claims Board.
Defendant filed a timely notice of appeal on July 22, 2009.
STATEMENT OF FACTS
1. Prosecution case
A. Background
Defendant met Rosalia in Mexico when she was 15 years old. About a year later, when Rosalia was pregnant with defendant's son Sherwan, defendant brought Rosalia to live with him and his wife in San Diego. This was 1988. While Rosalia lived with defendant and his wife, they treated her like a maid and a babysitter for their son Sherzad. Rosalia was not allowed to touch the telephone or open the door to the house. She had to tell others that she was the babysitter. If she did not obey defendant, he would hit or push her.
In approximately 1992, Rosalia and defendant moved to Los Angeles. Defendant divorced his wife and married Rosalia in 1996. During their marriage, defendant monitored Rosalia closely. He had recording devices in their home. He paid people to watch her, followed her by car, and had someone watching her while she was at work. Defendant threatened to make Rosalia's life unbearable if he ever saw her with anyone else or if she ever left him and remarried. When he was angry, defendant would break things and threaten to kill her. Rosalia was afraid of defendant.
Rosalia left defendant in 2002 or 2003. In August 2003, she bought her own house on Ruthelen Street and moved into it with Sherwan. The front of the property had a fence, and the driveway was enclosed by a gate, which was always kept locked. At some point, surveillance cameras were installed outside the house as a general precaution.
After Rosalia left defendant, he tried to reconcile with her. After about seven or eight months, Rosalia decided she did not want to reconcile and sought a divorce. Defendant refused to give Rosalia a divorce and continued to threaten to kill her and her family if he found out she was with another man. Rosalia never obtained a divorce because defendant refused to sign divorce papers and she did not have time to go to court and obtain the divorce.
Weeks before the shooting, defendant told Sherwan that, if he found out that Rosalia was seeing another man, he would not â€