People v. Moustafa

1

THE PEOPLE, Plaintiff and Respondent, v. AHMAD MOUSTAFA, Defendant and Appellant.

H047359

California Court of Appeals, Sixth District

August 3, 2023

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. B1368888

LIE J.

Following a court trial, appellant Ahmad Moustafa was convicted of multiple offenses-including torture, sexual penetration criminal threats, human trafficking, and spousal battery-against his fiancee and her brother. On appeal Moustafa argues that his jury trial waiver was inadequate and that the trial court should have excluded his prior statements to the police as involuntary or obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Moustafa also argues that his trial counsel was ineffective because he failed to investigate and present evidence of Moustafa's mental disorder, failed to investigate and present evidence of Moustafa's character for nonsexual deviancy and nonviolence, and failed to seek sanctions for the police's failure to retain the victims' cell phones. He further argues that the trial court erred under Evidence Code section 352 by excluding the defense's proposed expert witness on "black magic" ritual Islamic practices and evidence that his fiancee's brother once said that he deserved to be beaten and that the cumulative impact of his claims of ineffective assistance and the multiple trial errors require reversal of his convictions. And finally, in a supplemental brief, Moustafa argues that if the judgment is not otherwise reversed, he is entitled to resentencing under Senate Bill No. 567 (2021-2022 Reg Sess.).

We consider unreasonable trial counsel's failure to investigate Moustafa's known history of mental illness, given the nature of the charged offenses, but conclude on this record that Moustafa has not established prejudice. Except for his claim that he is entitled to resentencing under Senate Bill No. 567, we reject Moustafa's claims of error. We reverse the judgment for the limited purpose of resentencing.^[1]

I. BACKGROUND

A. The Information and Jury Trial Waiver

On February 26, 2015, the Santa Clara County District Attorney filed an information charging Moustafa with torture (Pen. Code, § 206; count 1)^[2], two counts of sexual penetration by force, violence, duress, menace, or fear of bodily injury (§ 289, subd. (a)(1)(A); counts 2 and 3), human trafficking (§ 236.1, subd. (a); count 4), two counts of criminal threats (§ 422; counts 5 and 7), and inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); count 6). As to counts 2 and 3, it was alleged that Moustafa inflicted aggravated mayhem and torture and personally inflicted great bodily injury within the meaning of the "One Strike" law (§ 667.61, subds. (a) &(d)). Moustafa was alleged to have committed counts 1 through 5 against victim John Doe (S.D.) and counts 6 and 7 against victim Jane Doe (A.D.). On November 2, 2017, Moustafa waived his right to a jury trial and the matter proceeded by way of court trial.

B. The People's Case 1. S.D.

S.D. was born in the United States, though his family was originally from Pakistan. S.D. met Moustafa in 2009 when S.D. was still in high school and living with his parents in Santa Maria. At the time, Moustafa was dating S.D.'s older sister, A.D.

Moustafa told S.D. and A.D.'s family that he was from Egypt, but he had previously lived in France. Moustafa claimed he was a "self-made millionaire" and was from a prominent family. He said he was the nephew of former Egyptian President Hosni Mubarak, and he had worked for the Egyptian military and the United States Air Force specializing in interrogating terrorists. He also said he was a United States diplomat and had diplomatic immunity. Moustafa claimed that he frequently had undercover "men" surveilling him that protected him and those he cared about. Moustafa described his "men" as Middle Eastern men who drove SUV's with black-tinted windows.

S.D. believed Moustafa's claims about his family background and employment. Moustafa sometimes showed him items as proof: a flight suit with Moustafa's name on it, a box of M&M's that had a government seal, and videos of the Egyptian military and torture. Sometimes, Moustafa would gesture or nod toward men who wore suits, and S.D. believed that the men made similar hand gestures or nodded back at Moustafa.

S.D. initially felt some hesitation toward Moustafa-at one point, he falsely claimed he was in a gang so he could put Moustafa "on guard." Yet by early 2010, S.D. started to respect Moustafa and saw him as a mentor or older brother. Moustafa gave S.D. advice about his personal life and shared that he was then in the process of divorcing his ex-wife, Lauren.

After S.D. graduated from high school, he received a scholarship to attend college in Irvine. During his freshman year in college, S.D. noticed that Moustafa's "tone" started to change. Moustafa and A.D. frequently broke up and got back together, and Moustafa seemed angrier-sometimes directing his anger toward S.D. Tensions also arose between Moustafa and S.D.'s extended family, and Moustafa once threatened to put a bullet in S.D.'s uncle's head. Moustafa was violent with S.D. once in November 2011, when S.D. accompanied Moustafa to an out-of-state marathon. Moustafa became angry when S.D. failed to meet him at all the marathon checkpoints and, during the drive back, grabbed S.D.'s neck and slapped him.

S.D. dropped out of college after a year. His grades were poor, and Moustafa sometimes lectured S.D. about how he was a disappointment.

In 2012, Moustafa and A.D., who had graduated from college, moved north to an apartment in Mountain View. In August of that year, S.D. moved in with Moustafa and A.D. At the time, Moustafa told S.D. that he was working for the government at the NASA Ames Research Center and was required to take many trips.

S.D. initially shared a bedroom with A.D. The room had two beds on opposite sides of the room. Moustafa slept in a separate room. Over time, S.D. noticed that A.D. spent more time sleeping in Moustafa's room instead of in the shared room with S.D.

Moustafa told S.D. to get a job; otherwise, Moustafa threatened to both kick S.D. out of the apartment and also keep him under surveillance by Moustafa's "men." S.D. managed to find several jobs, but Moustafa verbally increased his financial pressure on S.D. He showed S.D. credit card statements and said that S.D. was a burden. All of S.D.'s paychecks went to Moustafa, and Moustafa started to exercise more control over S.D., including over his food intake. S.D. was required to call Moustafa "sir," and "saeka," which Moustafa said was an Arabic word for thunder or lightning. Moustafa called S.D. "Susu," which Moustafa said meant urine.

One time, Moustafa force-fed S.D. and afterwards told S.D. he was weak and should move home. S.D. returned to Santa Maria and lived with his parents for several weeks. While there, Moustafa called S.D., asked him what he was doing, and told S.D. that his "men" were watching him. Moustafa then told S.D. he was willing to give S.D. a second chance if S.D. wrote him an apology letter. After S.D. wrote the letter, Moustafa told S.D. to return to Mountain View, and S.D. complied.

In January 2013, S.D. came back from work and started to watch a show on his computer in the room he shared with A.D. S.D. saw that A.D. was sleeping, so he started to watch pornography and masturbated. When S.D. stood up to change his shorts, Moustafa opened the door, looked at S.D., and asked him what he was doing. S.D. replied that he was changing. Moustafa told S.D. to go to bed and closed the door.^[3]

In February 2013, Moustafa accused S.D. of sexually abusing A.D. He also claimed that S.D. had "spread[] [S.D.'s] genitals all over [the] living room area," which caused Moustafa to develop cancer.^[4] Moustafa told A.D. to bring him all of S.D.'s important documents, such as his report cards and identification cards, and shredded them. Later that same month, Moustafa accused S.D. of having raped A.D. the night that he saw S.D. changing shorts. After making the accusation, Moustafa punched S.D. in the chest, abdomen, and ribs. The next day, Moustafa repeated the abuse, which became his "daily exercise." Around that time, Moustafa forced S.D. to move out of the bedroom with A.D. and into the apartment's second bedroom.

In March 2013, Moustafa started using tools such as pliers and ratchets to harm S.D. Moustafa would direct S.D. to remove his clothes or would take them off. He focused his attacks on S.D.'s genitals. Moustafa used pliers to grab S.D.'s penis and used his other hand or another tool to squeeze S.D.'s testicles or the shaft of his penis, including the tip. Moustafa aimed specifically for S.D.'s urethra. Moustafa also used paper matches or lighters to burn parts of S.D.'s body, including his nipples, penis, anus, buttocks, pubic hair, chest hair, fingers, and toes. Afterwards, Moustafa applied bleach to S.D.'s wounds. Moustafa also used a hammer to hit S.D.'s toes and fingers, and he once poured hot wax from candles onto S.D.'s chest.

Moustafa told S.D. that he was trying to burn S.D.'s urethra so he could "seal" it because Moustafa believed that S.D. had raped A.D. Moustafa also told S.D. that he wanted to make sure that S.D. could never have kids or be able to urinate again.

One time, Moustafa had S.D., who was undressed, hunch over an office chair. Moustafa told S.D. that since S.D. "like[d] putting your dick in my girl," he was going to show S.D. "how it feels." Moustafa then grabbed either a Statute of Liberty or Eiffel Tower figurine and inserted it into S.D.'s anus.

Another time, Moustafa became upset with the way S.D. cleaned the kitchen stove, so he turned on one...