Filed 2/10/21 P. v. Manjikian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Gregory A. Dohi, Judge. Affirmed.

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Defendant and appellant Zareh Manjikian was convicted of first degree murder with a Penal Code section 12022.53, subdivision (d)[1] firearm enhancement, and conspiracy to commit assault by means of force likely to produce great bodily injury. He appeals the trial court’s order denying his motion to strike or dismiss the firearm enhancement. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

1. The murder and Manjikian’s convictions

On November 18, 2009, Khatun Vardanian learned that the victim, Gombert “Mike” Yepremyan, had referred to her as a “bitch” in a text message sent to one of Vardanian’s friends. Angry, Vardanian told the friend that her brother would “ ‘kick [Yepremyan’s] ass.’ ” There followed a series of phone calls between Vardanian, her brother Hovik Dzhuryan, their cousin Vahagn Jurian, and Yepremyan. Yepremyan agreed to meet with Jurian at a Sears store parking lot in North Hollywood. Anticipating a fight, five friends accompanied Yepremyan at the meeting: Ohan Barsamian, Ali Hosseini, Jonathan Bezjian, Gevork Pashayan, and Edgar Asaturyan. Bezjian brought a shotgun with him, but he complied with the other men’s insistence that he leave it in the trunk and not use it during the encounter.

Jurian, accompanied by his friend, appellant Manjikian, also arrived at the Sears parking lot. The two groups exited their respective vehicles and discussed Yepremyan’s insult to Vardanian. The evidence at trial was not entirely consistent regarding what happened next, but eyewitness testimony established that Manjikian and Yepremyan argued; someone—either Manjikian or Jurian—slapped, punched, or shoved Yepremyan; Yepremyan may have shoved or punched back; and Manjikian moved as if throwing a punch to the back of Yepremyan’s head, but instead shot him in the back of the head at point-blank range.

Manjikian flew to Puerto Rico the morning after the shooting. Jurian did not return to his home for six months. The men were eventually brought to trial, and a jury convicted both men of the first degree murder of Yepremyan. The jury further found true the allegation that Manjikian personally and intentionally used and discharged a firearm, proximately causing great bodily injury and death. (§ 12022.53, subds. (b), (c), (d).) The trial court denied Manjikian’s new trial motion and sentenced him to 25 years to life in prison for the murder, plus 25 years to life for the firearm enhancement.

2. Appeal and habeas petitions

Manjikian appealed. Concurrently with his opening brief, he filed a petition for writ of habeas corpus, in which he argued that false evidence was offered at trial and new evidence demonstrated his innocence or reduced culpability. He argued that two trial witnesses—Pashayan and Asaturyan—had recanted a portion of their trial testimony. In depositions related to a wrongful death suit brought by the victim’s family, they stated that Yepremyan came to the meeting armed with a gun, and it accidentally fired when Yepremyan and Manjikian struggled over it. The petition also averred that Armond Aladadyan—who was not present when the shooting occurred—told a defense investigator that the victim was armed with a gun. This court issued an order to show cause returnable in the trial court, which thereafter conducted a six-day evidentiary hearing. In a thorough written decision, the trial court denied the habeas petition, finding that Pashayan’s and Asaturyan’s recantations, and Aladadyan’s testimony at the hearing, lacked credibility for a variety of reasons and were inconsistent with the physical evidence presented at trial. Manjikian then filed a second habeas petition in this court raising the same claims.

During the pendency of Manjikian’s direct appeal, the Legislature enacted Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620). Effective January 1, 2018, that legislation “gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5 and 12022.53.” (People v. Baltazar (2020) 57 Cal.App.5th 334, 337.) These amendments apply retroactively to cases in which the judgment was not final when Senate Bill 620 went into effect. (Ibid.)

In an opinion filed on February 28, 2018, we affirmed Manjikian’s convictions, but remanded to the trial court for the limited purpose of allowing it to determine whether or not to strike or dismiss the section 12022.53, subdivision (d) firearm enhancement pursuant to Senate Bill 620, and for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261.[3] (People v. Jurian et al. (Feb. 28, 2018, B244575 [non-pub. opn.].) On the same date, we summarily denied Manjikian’s habeas petition.

3. Proceedings on remand

On remand, Manjikian opted to forgo a Franklin hearing, but filed a written motion requesting that the trial court strike the section 12022.53, subdivision (d) firearm enhancement. He argued as follows. The court should be guided by the factors listed in California Rules of Court, rules 4.409, 4.410, 4.423, and 4.425. In light of evidence presented in regard to his new trial motion and habeas petition, the prosecution’s trial evidence was not reliable and should be discounted. Instead, the court should give weight to the defense theory that the victim brought the gun and it fired accidentally as he and the victim fought. He was 22 years old when the shooting transpired; had no prior record; had no personal stake in the dispute with the victim; had been pursuing a career opportunity in Puerto Rico and had hoped to patent an invention; and had married and had a child. He had not been subject to significant discipline while in prison. He had taken steps to better himself while incarcerated, including pursuing a college degree and taking parenting, stress management, and other classes. He would be subject to a lengthy sentence even if the court struck the enhancement, and doing so would effectuate the Legislature’s intent in enacting Senate Bill 620. Attached to the motion were numerous documents reflecting his behavior, activities, and educational accomplishments while incarcerated.

The People opposed the motion, arguing that the court should not ignore the jury’s verdicts or adopt the “fanciful tales” the defense “continue[d] to spin,” and there was no basis upon which the court could exercise its discretion to strike the enhancement.[4]

The trial court conducted a hearing on the motion on September 10, 2019. Manjikian was present and represented by counsel. After considering argument from the parties, the court took the matter under submission. It issued a written ruling on September 20, 2019, denying the request to strike the firearm enhancement.

The court acknowledged that it had “wide discretion” to strike an enhancement under section 1385. The majority of mitigating circumstances listed in California Rules of Court, rule 4.423 were inapplicable: Manjikian was not a passive participant in the crime; the victim was not the aggressor; the crime did not occur due to unusual circumstances; and Manjikian did not exercise caution to avoid harm to other persons, was not motivated by a desire to provide necessities for his family or himself, was not the victim of abuse, did not voluntarily acknowledge wrongdoing at an early stage, and had not yet made restitution. Two factors listed in aggravation in rule 4.421 existed: the crime involved great violence and the victim was particularly vulnerable. As to the mitigating factors Manjikian identified, the court explained, “While Defendant Manjikian’s youth, lack of serious criminal history, and exemplary conduct in prison deserve consideration, those factors do not tip the scales.”

As to Manjikian’s argument that the trial evidence had been cast into doubt and his culpability “was somehow lessened by” the victim’s conduct, the court explained that, even if it could consider the post-trial statements of Pashayan, Asaturyan, and Aladadyan, “the Defendant would still not prevail. In denying the habeas petition, the Court specifically found that those statements ‘were so problematic that they failed to create a reasonable probability of a different outcome.’ In other words, Defendant is asking the Court to consider things that the Court believes never happened.”

Finally, as to Manjikian’s legislative intent arguments, the trial court explained it was “sensitive to the pointlessness of draconian sentences and the pressures created by prison overpopulation,” but also noted that according to the legislative history, the bill’s author had stated that a “ ‘defendant who merits additional punishment for the use of a firearm in the commission of a felony would receive it.’ ” Summing up, the court concluded: “The evidence . . . show[s] that Defendant Manjikian brought a loaded gun to that Sears parking lot, concealed it, and shot Mr. Yepremyan in the head with it in a dispute over a single word in a text message that offended somebody that Defendant Manjikian didn’t even know. Time and time again, the Court has taken note of the sheer senselessness of this killing. The senselessness of the crime is reason enough to deny the relief sought.”

Manjikian filed a timely notice of appeal.

DISCUSSION

After review of the record, Manjikian’s court-appointed counsel filed an opening brief that raised no issues, and requested that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was advised that he had 30 days to submit by brief or letter any contentions or argument he wished this court to consider. We have received no response.

We review a trial court’s discretionary decision to strike or dismiss a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373; People v. Pearson (2019) 38 Cal.App.5th 112, 116.) “ ‘In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” [Citation.] Second, a “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ ” (People v. Pearson, at p. 116.)

No abuse of discretion is apparent here. The court expressly recognized it had discretion to strike the firearm enhancement. It considered the aggravating and mitigating circumstances, including Manjikian’s age, prior record, and prison accomplishments. It further considered the rules of court and legislative history as Manjikian requested, and reasonably balanced the relevant criteria. The court’s ruling was neither arbitrary nor irrational.

We have examined the relevant portions of the record, and are satisfied no arguable issues exist and Manjikian’s attorney has fully complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125–126; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J. DHANIDINA, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] At Manjikian’s request, we have taken judicial notice of portions of the record, including our prior opinion in his direct appeal. (Evid. Code, §§ 451, 452, 459.)

[3] People v. Franklin authorized postjudgment evidence preservation proceedings, to ensure that a defendant has a sufficient opportunity to make a record of information relevant to his or her eventual youth offender parole hearing. (In re Cook (2019) 7 Cal.5th 439, 449–450.)

[4] The People also argued that the court lacked jurisdiction to consider the motion because the judgment was final. The trial court properly rejected this argument in light of the fact that this court had remanded the matter to allow it to exercise its discretion on the issue.