v. Super. Ct.
Filed 2/1/13 Harutyuntan v.
Super. Ct. CA2/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
ALBERD HARUTYUNTAN,
Petitioner,
v.
THE SUPERIOR
COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
B244711
(Super. Ct.
No. BA382866)
ORIGINAL
PROCEEDINGS. Petition for Writ of
Prohibition. Kathleen Kennedy,
Judge. Petition granted in part; denied
in part.
Ronald L.
Brown, Los Angeles County Public Defender, Albert J. Menaster, Rebecca Bernhart
and Robin Bernstein-Lev, Deputy Public Defenders, for Petitioner.
No
appearance on behalf of Respondent.
Jackie
Lacey, Los
Angeles County District Attorney, Irene Wakabayashi, Patrick D. Moran and
Shirley S.N. Sun, Deputy District Attorneys for Real Party in Interest.
Defendant, Alberd Harutyuntan,
challenges the denial of his Penal Code
995 motion to dismiss a section
190.2, subdivision (a)(10) witness killing special circumstance. We issued an alternative writ of prohibition
limited solely to the section 190.2, subdivision (a)(10) witness killing
special circumstance issue. We grant
defendant’s prohibition petition solely as it relates to the section 190.2,
subdivision (a)(10) witness killing special circumstance allegation.
This case involves four homicides
directed at three members of one family and a prostitute. The chronological order of the killings is as
follows. Counts 2 and 3 charge defendant
with two murders on December 11, 2008.
Count 2 charges defendant with the murder of Khachik Safaryan who was
found dead in a family residence’s bedroom.
Mr. Safaryan is the husband of Karine Hakobyan and the father of
Lusine Safaryan. Count 3 charges
defendant with the Lusine Safaryan’s murder. Count 3 contains the following special
circumstance allegation concerning Lusine’s murder, “It is further alleged as
to Count 3 that the murder of Lusine Safaryanwas committed by
defendant . . . and that Lusine Safaryan was a witness
to a crime who was intentionally killed for the purpose of preventing her
testimony in a criminal proceeding, but that said killing was not committed
during the commission and attempted commission of the crime to which she was a
witness, within the meaning of Penal Code section 190.2(a)(10).†Lusine was discovered shot to death in
the family residence’s living room. It
is this special circumstance allegation that is the subject of this opinion.
Count 4 charges defendant with the
murder of Julie Kates on March 11, 2010.
Ms. Kates was a prostitute shot to death at the corner of Kingsley
Avenue and Sunset Boulevard. Count 1
charges defendant with the March 26, 2010 murder of Ms. Hakobyan. As noted, Ms. Hakobyan is
Mr. Safaryan’s spouse and Lusine’s mother. Ms. Hakobyan
was shot to death in her car in a parking space behind her apartment. Other special circumstance allegations are
alleged but they are not pertinent to this extraordinary writ proceeding.
Section 190.2, subdivision (a)(10)
states in part, “The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal . . . proceeding, and the killing was not
committed during the commission or attempted commission, of the crime to which
he or she was a witness . . . .†The witness killing special circumstance has
three elements: the victim witnessed a
crime prior to and separate from his or her killing; the killing was
intentional; and the purpose was to prevent the victim from testifying about
the crime he or she had witnessed. (
801; People v. Garrison (1989) 47
Cal.3d 746, 792.) At issue here is the
first element which our Supreme Court has defined thusly: “As to the first element, a crime is not
“‘prior to, and separate from,†the killing’ if it is part of “‘one continuous
transaction†or “the same continuous criminal transaction.â€â€™ [Citations.]â€
(People v. San Nicolas (2004)
34 Cal.4th 614, 655, citing People v.
Benson (1990) 52 Cal.3d 754, 785.)
The limited scope of the witness
killing special circumstance was described in San Nicolas as follows: “In
[People v.] Silva [(1988) 45 Cal.3d 604],
the defendants kidnapped and robbed a couple, Kevin and Laura. They killed Kevin, repeatedly raped Laura,
and then decided that Laura ‘would have to be killed because she would know too
much.’ (Silva, supra, 45 Cal.3d
at p. 631.) We reversed the
witness-killing special-circumstance allegation, because the kidnapping,
robbery, and murder were ‘part of the same continuous criminal transaction.’ (Ibid.) In Benson, defendant killed a mother
who lived with her three children, killed her son, molested her two young
daughters for two days, and ultimately killed them as well ‘“to protect [the
defendant’s] freedom.â€â€™ ([
Cal.3d at pp. 767-768) As in Silva,
we found that the murder of the mother and the murder of the daughters ‘were
integral parts of a single continuous criminal transaction against the entire
family.’ (Id. at p. 785.)†(People
v. San Nicolas, supra, 34
Cal.4th at pp. 614, 655.)
The
foregoing is the controlling authority.
The evidence indicated: defendant
had been a longtime friend of the two victims shot to death on December 11, 2008;
defendant was drawn romantically to Ms. Hakobyan, Mr. Safaryan’s spouse;
defendant had advised Mr. Safaryan to leave town in response to a note and a photograph;
the photograph was of a woman Mr. Safaryan was seeing; by contrast, Mr. Safaryan’s father suggested the
police be contacted; defendant tried to talk Mr. Safaryan out of calling the police;
the next day both Mr. Safaryan and his daughter, Lusine,
were found shot to death in the family residence; and the note and the
photograph which were last seen in Mr. Safaryan’s possession on the evening
of December 10, 2008, were never found after he was shot the following morning
and his body discovered later in the afternoon.
There is no evidence as to who was shot first,
Mr. Safaryan or Lusine. Mr. Safaryan was found shot to death in
a family bedroom. Lusine was discovered
dead in the living room. Thus, the
section 190.2, subdivision (a)(10) witness killing special circumstance must be
dismissed. (People v. Benson, supra, 52 Cal.3d at pp. 767-768;
People v. Silva, supra, 45 Cal.3d at p. 631.)
In
the respondent court and here, the prosecution relies upon the facts in
v. San Nicolas, supra, 34 Cal 4th
at pp. 651-657.) But
different. In San Nicolas, there was evidence the defendant stabbed one
victim. The defendant then got up and
walked into a bedroom still with the knife in his hand. As he stood in front of the mirror, he
noticed the second victim standing behind him.
The defendant then stabbed the second victim in her chest. The defendant was asked by the authorities
why he stabbed the victim. The defendant
said he could not exactly remember why he stabbed the second victim, but said
he probably killed her because she was a witness. (Id.
at p. 652.) Our Supreme Court concluded
there was substantial evidence more than one criminal transaction took
place. (Id. at p. 656.) Our Supreme
Court cited as substantial evidence of the accused’s motivation his admission
that he probably killed the second victim to prevent her from being a
witness.
One California Supreme Court
case was decided after San Nicolas
which discusses the witness-murder special circumstance. In People
v. Clark (2011) 52 Cal.4th 856, 873-876, 952-953, one of the victims
survived and testified as to the following facts. The defendant took two minors to a lake
intending to engage in consensual sexual intercourse with one of them. Eventually, the defendant attacked one of the
minors. Both minors became frightened
and decided they would lie to their parents about having got into a fight at a
movie theater. The defendant returned
and one of the minors explained how they were going to explain the injuries to
their parents. According to the
occurred: “When Laurie informed
defendant about how they planned to explain to their parents what happened,
defendant responded, ‘No, I don’t trust you.
You’ll tell like you did last time.’â€
(Id. at p. 953.) The defendant killed one of the minors and
was convicted of the attempted murder of the other. In our case, there
is no substantial evidence of defendant’s intention to silence a witness as in
Other
than the section
190.2, subdivision (a)(10) witness killing special circumstance issue,
defendant’s contentions have no merit.
Our order limiting the scope of the alternative writ of prohibition to
the section 190.2, subdivision (a)(10) witness killing special circumstance
constituted our ruling on the other contentions’ merits. (Cf. In
re Price (2011) 51 Cal.4th 547, 559; In
re Lugo (2008) 164 Cal.App.4th 1522, 1542.)
Defendant has failed make a prima facie showing of entitlement to any
relief on any other issue. (§ 939.71;
677, 682-683.)
The
prohibition petition is granted to the limited extent discussed in this
opinion. Upon remittitur issuance, the
respondent court is to grant defendant’s section 995 dismissal motion as to the section 190.2, subdivision
(a)(10) witness killing special circumstance.
The prohibition petition is denied in all other respects.
TURNER,
P. J.
We concur:
KRIEGLER,
J.
FERNS, J.
name="_ftn1" title="">[1]
Future statutory references are to the Penal Code.
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
