P. v. Khajarian

Filed 10/22/07 P. v. Khajarian CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed.

Robert S. Gerstein, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Defendant appeals his conviction for second-degree murder (Pen. Code,  187, subd. (a)), arson with great bodily injury (Pen. Code,  451, subd.(a)), arson of an inhabited structure (Pen. Code,  451, subd. (b)), and possession of a flammable material (Pen. Code,  453, subd. (a)).[1] He contends his conviction must be reversed because the trial court erroneously instructed the jury that it could find him guilty of both second-degree murder and arson. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant, who was 37 years old at the time of the offense, set fire early one morning to his grandmothers bedroom while she slept, resulting in her death.[2] The evidence at trial established the following:

On March 1, 2005, defendant lived in Glendale with his parents Panos and Armine Khajarian and his grandmother Arpine.[3] Defendants grandmother was in poor health, unable to move on her own, and used a wheelchair. She slept on the first floor in a hospital bed with railings. Arpine went to bed every night around 10:00 p.m. She had an electric heater in the room that was kept about 10 to 15 inches from her bed that was turned on at night. Defendants bedroom was on the first floor near his grandmothers room. Defendant got along with his grandmother.

Defendants family, which was Armenian, had lived in Syria before moving to the United States in 1995. A psychiatrist in Syria gave defendant some medication, which defendant no longer took. Defendant had completed sixth grade, and flunked seventh grade. A few months before the fire, defendants family noticed he was behaving strangely. He would laugh at nothing and forget things; he would leave for days and they would not know where he was; he lost his luggage and his car; he took all the furniture from his room and put it in the street; and he called 911 one time for his grandmother although nothing was wrong with her. Defendants mother was upset with his behavior, and after defendant lost his car, his brother-in-law suggested defendant get help.

Defendant worked for his brother Kevork, who ran a precious metals business. Defendant worked from 9:00 a.m. to 5:00 p.m., five days a week picking up checks from customers and depositing them in the bank. Kevork noticed that defendant had begun to act strangely. Defendant began forgetting orders. In December 2004, defendant stopped working. Kevork asked him to come back, but defendant would work only for a couple of hours once or twice a week. Kevork had urged defendant to go to the doctor.

On February 5, 2005, the Glendale Fire Department received a 911 call from defendants house. When Captain Niall Foley arrived on the scene, he encountered defendants parents, who told him they had not called 911. Foley asked if there was an 85-year old female at the address, and after being told there was, Foley asked to check on her. Foley found that defendants grandmother was not in distress and seemed surprised to see the fire department. Defendant was there, and told Foley that he had called 911 because his grandmother was sick and bothering me. He asked them to take his grandmother to the hospital.

On the night before the fire, Armine saw defendant about 7:00 p.m. He was not normal. She offered him something to eat and he stated he did not feel well. Defendant left through the front door and went to his car. Armine saw him holding a red container in his hand and saw that he was filling the gas tank of his car. She asked him why he did not go to the gas station, but defendant did not respond and left.

After putting her mother to bed, Armine and her husband went to sleep. Armine heard the smoke detector in the middle of the night. She did not smell anything, but called Kevork, who lived nearby, to come over. Armine looked out the window and saw defendants car leaving. She went towards her mothers room and saw smoke coming from the room. She went out into the yard, where she could see a small fire in her mothers room.

Kevork lived a block from his parents home, about a four minute walk. When he arrived at the house, his parents were in the front yard. It was too smoky to go into the front of the house, so he went into the backyard. He could see through the sliding glass door into his grandmothers bedroom, and saw that she was lying in bed and there was a fire next to the interior door to the room. He tried to break the glass door, but could not. Glendale police officer Patrick Hamblin arrived, and Kevork told him that his grandmother was trapped inside. Hamblin could see flames in the room. Kevork kicked the door down, but could not enter the room because it was too hot. Hamblin retrieved a fire extinguisher from his car, but it did not work. Hamblin also tried to enter the room, but the heat was too intense. They waited outside for the fire department to arrive.

The Glendale Fire Department arrived on the scene about 3:03 a.m. The house was slightly elevated from the street, and Battalion Chief Donald Wright of the Fire Department could see a thick column of black smoke rising from the back of the house. The firefighters went to the back of the house, where they could see a fire contained in a room that was open to the rear patio of the house. After about 10 minutes, the fire department knocked down the fire and discovered Arpine had died during the fire. Chief Wright learned that accelerant had been found at the scene, so he changed his tactics to preserve evidence for the investigative process, and notified his arson investigator. The fire department found a red plastic gas container, which appeared to be slightly melted on top, in one of the bathrooms. The arson investigator concluded that the fire had been started intentionally, either with the space heater or an open flame. It burned rapidly and there were burn patterns consistent with a flammable pour showing the fire was accelerated.

The victim died from burns and smoke inhalation. Police found a black gasoline can nozzle in the trunk of defendants car. They were unable to obtain fingerprints from it.

During an interview with police, defendant stated that he had a problem with work and with his family, but claimed he got along well with his parents. He denied setting the fire, claiming he was not home when the house was on fire, and that he had gone to Irvine, Mexico, and Malibu.

Ronald Markman, a forensic psychiatrist, examined defendant. Dr. Markman gave defendant the MMPI-2, a personality inventory. The test showed that defendant had poor social skills and idiosyncratic thinking, and tended to act irrationally under stress. Dr. Markman reviewed a report from a doctor in Syria, who had diagnosed defendant as having psychosis, not otherwise specified. Dr. Markman could not make a clear diagnosis of defendant, but was of the opinion that in addition to possibly having schizophrenia, defendant had a borderline personality disorder and schizotypal personality disorder. Dr. Markman explained that a borderline is a fish out of water, and is a person who has difficulty controlling their emotions, while a schizotypal personality is close to schizophrenia but the delusional thought processes are not as ingrained. The jail psychologist reported that defendant was hearing voices, had difficulty remembering and his thought processes were confused.

Defendant told Dr. Markman that he purchased gasoline and placed it in a plastic container; he also told Dr. Markman he had consumed alcohol earlier in the evening of the fire. Defendant had a problem with his brother concerning money, and was hearing voices that told him to do things. Dr. Markman concluded that defendant was competent to stand trial and sane at the time of the incident.

The jury acquitted defendant of first degree murder on count 1, and convicted defendant of second degree murder, as a lesser included of count 1, arson causing great bodily injury (count 4), arson of an inhabited structure (count 5), and possession of flammable material (count 6).

DISCUSSION

Defendant argues that his conviction must be reversed because although the jury instructions correctly stated that a guilty verdict on the arson count compelled a first degree murder verdict, in response to a jury question, the court advised the jury it could return a guilty verdict on the arson count and a guilty verdict of second degree murder. Further, he contends the error was not harmless because the jury, in necessarily rejecting first-degree felony murder, would have returned a verdict of manslaughter in the absence of the instruction. (See, e.g., People v. Chavez (2004) 118 Cal.App.4th 379; People v. Harris (1994) 9 Cal.4th 407.)

A.                 Factual Background.

The court instructed the jury with CALJIC No. 8.10 (murder),[4] No. 8.21 (first degree felony murder),[5] No. 8.30 (unpremeditated second degree murder),[6] No. 8.31 (second degree murder, killing resulting from an unlawful act dangerous to life),[7] No. 8.40 (voluntary manslaughter), and No. 8.45 (involuntary manslaughter), as well as instructions on the lesser included offenses of murder.[8] The prosecution argued in its closing argument that at a minimum the facts established second degree murder because the natural consequences of defendants conduct in pouring gasoline in the vicinity of a heat source was dangerous to human life. Defendant argued that the jury could find him guilty of manslaughter because he did not intend to kill his grandmother, and poured gasoline in her room without realizing the danger to her.

During deliberations, the jury sent the court a note asking, Can we find defendant guilty of second degree murder and guilty of arson? The court consulted counsel; the prosecution argued the answer was no because if the murder was first degree, it would necessarily be based on arson, and for second degree felony murder, the jury would have to find second degree murder and reckless and unlawful use of flammable materials. The defense agreed, but added that I dont know that you need to tell [them] they would have to find reckless . . . . The court interjected, You dont think that they can just have an inconsistent verdict? Both the defense and prosecution stated that they did not believe the jury could make such a finding, but that the jury did not need an explanation in response to their question.

The court advised counsel that it did not believe it could tell the jury what to do, but noted that each side agreed that the jury could consider second-degree. If theyve come up with a theory that allows them [to find] that it can be second degree, I dont see how I can tell them they cant do it. Defense pointed out that the difficulty is they also want to convict of arson. Arson is an intentional act[;] second degree, unpremeditated requires an intent to kill. If arson is the means of killing, which the only evidence that they have before them, that would mean that it would be a first-degree [murder] because they [have] arson and they [have] a killing.

The court pointed out the jury might have another theory, and that in any event, they had a right to enter an inconsistent verdict. However, the defense argued that the jury did not have a right to enter a legally inconsistent verdict, and that the courts function was to guide the jury in that regard. Over defense counsels objection, the court advised the jury that it could find defendant guilty of arson and second degree murder.

The jurys verdict form indicated that they found defendant guilty of second

degree murder on count 1, a lesser included offense.

B. Although The Courts Instruction Was Improper, The Error is Harmless.

Section 189 provides in relevant part that all murder . . . which is committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies, including [arson], is murder of the first degree . . . . The felony murder rule dispenses with the showing of malice (express or implied) ordinarily required to establish first and second degree murder, and artificially imposes malice as to one crime because of the defendants commission of another. (People v. James (1998) 62 Cal.App.4th 244, 277-278.) Thus, [t]he mental state required [for felony murder] is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. (People v .Gutierrez (2002) 28 Cal.4th 1083, 1140-1141.)

Here, under the felony-murder doctrine set forth in section 189, if the jury found defendant committed arson, they must necessarily have found him guilty of first-degree felony murder. The trial court therefore improperly instructed the jury that they could find defendant guilty of second-degree murder if they found him guilty of arson. An instructional error that improperly describes or omits an element of an offense, such as the instruction here, violates the federal constitution and is subject to review under the standard of Chapman v. California (1967) 386 U.S. 18, 24, the error is harmless only if it appears beyond a reasonable doubt that it did not contribute to the jurys verdict. (People v. Flood (1998) 18 Cal.4th 470, 504; see also People v. Calderon (2005) 129 Cal.App.4th 1301, 1306.)

The jurys questioning here, and ultimately its verdict of guilty on all three arson counts, indicates its clear finding that defendant was guilty of arson. Because the jury made that finding as to three separate counts, had they followed the proper instructions, they would have convicted defendant of first-degree felony murder, and could not properly have found defendant guilty of any lesser offense in the instruction set (second degree murder, manslaughter, or involuntary manslaughter). As a result, the trial courts erroneous instruction to the jury benefited defendant. It was, therefore, harmless beyond a reasonable doubt, and cannot be the basis for reversal.

Defendants reliance on People v. Chavez, supra, 118 Cal.App.4th 379 does not aid him because Chavez involved a felony not specifically enumerated in section 189 for purposes of the first degree felony-murder rule. The portion of section 189 at issue in Chavez provides, any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. As the Chavez court held, although premeditation is not required to establish first degree murder under this clause, proof of a specific intent to kill -- express malice -- is required for a drive-by-shooting to be found to be first degree murder. (Id. at p. 386.) Yet in instructing the jury on felony murder, the trial court in Chavez had said it was irrelevant whether the killing was intentional, unintentional, or accidental, thereby removing the element of specific intent from the jurys consideration. (Id. at pp. 386-387.) No similar error occurred in this case because arson is an enumerated felony. At most, the courts instructional error led the jury to find malice where no such finding was required

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All further statutory references herein are to the Penal Code unless otherwise noted.

[2] Defendant was charged in a six-count information with (1) murder ( 187, subd. (a)), (2) two counts of attempted murder ( 187, subd. (a), 664; (3) arson causing great bodily injury ( 451, subd. (a)), (4) arson of an inhabited structure or property ( 451, subd. (b)), and (5) possession of flammable material with intent to willfully and maliciously set fire and burn a structure, forest land, or property ( 453, subd. (a)). Prior to trial, the court granted defendants motion to dismiss counts 2 and 3 alleging the attempted murder of his parents.

[3] To avoid confusion, we refer to the members of defendants family by their first names.

[4] CALJIC No. 8.10 provided in relevant part with respect to felony murder that the jury could find defendant guilty of murder if it found that the killing was done with malice aforethought or occurred during the commission of or attempted commission of Arson, a felony inherently dangerous to human life.

[5] CALJIC No. 8.21 instructed in relevant part, The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of Arson is murder of the first degree when the perpetrator had the specific intent to commit the crime of Arson.

[6] CALJIC No. 8.30 instructed, Murder of the second degree is also the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.

[7] CALJIC No. 8.31 instructed, Murder of the second degree is also the unlawful killing of a human being when: []  1. The killing results from an intentional act, [] 2. The natural consequences of the act are dangerous to human life, and []  The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. []  When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.

[8] CALJIC No. 8.71 instructed, If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree as well as a verdict of not guilty of murder in the first degree.

CALJIC No. 8.75 instructed the jury how to fill out the verdict forms. In relevant part, the instruction provided that If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime of first degree murder as charged in Count 1 and you unanimously so find, you may convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of the lesser crime. No. 8.75 further provided that, Murder in the second degree is a lesser crime to that of murder in the first degree.