P. v. Atshemyan

Filed 1/6/10 P. v. Atshemyan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Dorothy L. Shubin, Judge. Affirmed.

Geragos & Geragos and Mark J. Geragos for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Defendant Andranik Manukovich Atshemyan appeals from the judgment entered after a jury found him guilty of leaving the scene of an automobile accident (Veh. Code, 20001, subd. (a); count 1) and second degree murder (Pen. Code, 187, subd. (a); count 2) and found true the allegation, as to count 1, that defendant personally inflicted great bodily injury upon two victims (id.,  12022.7, subd. (a).) The trial court sentenced defendant to state prison for 15 years to life. This appeal followed.

Defendant contends (1) the court improperly denied his request to order a new panel of prospective jurors due to juror misconduct; (2) there was no evidence to support a finding of guilt on count 1 for leaving the scene of an accident; (3) his conviction for second degree murder should be reversed, in that the prosecution failed to meet its burden of proof on the element of implied malice; and (4) the court erroneously refused to provide jury instructions which would clarify the requirements of gross negligence and implied malice. Concluding there is no merit to defendants contentions, we affirm.

FACTS

Prosecution

On the night of November 19, 2005, defendant drove his black Range Rover through a Glendale neighborhood at a high rate of speed. Defendant traveled southbound on Columbus Avenue at a speed of 60 to 70 miles per hour, ignoring the stop signs at the intersections of Columbus and Vine Street and Columbus and Lomita Avenue. Defendant also ignored the stop sign and the traffic circle at the intersection of Columbus and Riverdale Drive. Defendants SUV hit the curb of a traffic circle, flew up into the air and crashed into an occupied Nissan 240SX parked on the corner of Columbus and Riverdale.

Allen Dombrowski, who heard the crash and saw defendant running away from the scene of the collision, gave chase. When Dombrowski caught defendant, a struggle ensued. Defendant asked Dombrowski to let him go. Defendant scratched Dombrowskis arm, attempted to bite his arm and bent his fingers. Dombrowski released defendant, who then ran away.^[1] Defendant, who thereafter left the country, was apprehended later in the month.

Paramedics arrived to help the occupants of the Nissan. The driver, Oscar Torres, died as a result of multiple blunt force injuries. The passenger, Jason Patricio, sustained serious injuries and spent a month in the hospital, after which he had memory loss, pain and trouble learning.

On January 18, 2006, Glendale police officers conducted five test drives at different speeds with another Range Rover at the scene of the accident. They did so in an attempt to ascertain the speed at which defendant had been driving at the time of the collision.^[2]

Defense

On the night in question, Ronald Estrada (Estrada) was standing on the corner of Columbus and Riverdale in Glendale when he heard the sound of an accelerating engine and saw defendants Range Rover travelling southbound on Columbus at a high rate of speed65 to 68 miles per hour. Estrada then saw the Range Rover hit a traffic circle, go airborne, fall to the ground, hit a parked car, and roll once before coming to a stop. Defendant was ejected from his vehicle, after which he sat up, looked around, ran around his vehicle and then left the scene.

On the night of January 18, 2006, Estrada and two others were present for the Glendale Police Departments re-creation of the accident. Officer Patrick Magtoto conducted five test runs with a vehicle similar to that driven by defendant on the night of the crash. The purpose of the tests was to elicit feedback from the witnesses as to whether defendant had driven his Range Rover faster or slower than the test vehicle. The police did not tell the witnesses how fast the test vehicle was being driven.

In Estradas view, the speed at which the test vehicle was driven during the fourth and fifth test runs was pretty much right on target. The speed during the fifth test run was perfect. Estrada estimated the speed of the fifth test run to be about 65 to 70 miles per hour. In actuality, Officer Magtoto drove the test vehicle at a speed of 45 miles per hour during the fourth test run and at a speed of 55 miles an hour on the fifth test run.

Rebuttal

After the fifth test run at 55 miles per hour, Officer Magtoto was requested to drive faster. He declined because he did not feel it was safe to do so. During the re-creation, Officer Magtoto slowed the test vehicle down before it reached the traffic circle at Columbus and Riverdale.

DISCUSSION

Request for a New Panel of Jurors

After the trial court inquired into any hardships individuals in the jury venire might have, it commenced the substantive portion of voir dire. Because the courtroom was too small to accommodate all the prospective jurors, the court divided them into Group A and Group B, with the jurors in the latter group directed to wait in the jury assembly room.

During the third day of jury selection, the court and counsel learned that prospective juror number 4367 had distributed outside material to other prospective jurors. The material contained racist and hateful blogs about Armenians,^[3]an article about a Glendale man who had pled not guilty to a fatal hit and run accident in an unrelated case and a printout of an inmate information document.

The trial court thoroughly questioned the offending prospective juror, as well as other prospective jurors who either viewed the material or overheard someone talking about it. The court dismissed juror 4367 and others from the panel and released all prospective jurors in Group B. Finally, the court denied defendants request to start voir dire anew with a new panel of jurors but only after assuring itself, through extensive questioning, that those remaining had not seen the material, had not heard about the material, or could serve as fair and impartial jurors. Voir dire thereafter continued and a jury was selected.

Defendant contends the trial courts refusal to order a new panel of prospective jurors on the basis of juror misconduct occurring during voir dire violated his rights to due process and a fair trial. Defendants failure to cite any legal authority to support this contention justifies its outright rejection. (People v. Cates (2009) 170 Cal.App.4th 545, 552.) In any event, our review of the record reveals there is no merit to this contention.

Leaving the Scene of an Accident

On count 1, the jury returned the following verdict: We, the Jury in the above-entitled action, find the Defendant, ANDRANIK MANUKOVICH ATSHEMYAN, GUILTY of the crime of LEAVING THE SCENE OF AN ACCIDENT in violation of Vehicle Code Section 20001(a)(b)(2), a Felony, as charged in Count 1 of the information.

Defendant contends there was no evidence to support a finding of guilt on count 1. We disagree and observe that in making this contention, defendant fails to distinguish between the facts necessary to establish the crime under subdivision (a) and the facts necessary to justify imposition of the punishment delineated in subdivision (b)(2) of section 20001.

At the time of accident in this case, Vehicle Code section 20001, subdivision (a), commanded that [t]he driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004. These latter statutory provisions require the driver to render reasonable aid to the injured person and furnish identification to the victim and law enforcement officials. (People v. Braz (1998) 65 Cal.App.4th 425, 427.)

The evidence in this case establishing a violation of Vehicle Code section 20001, subdivision (a), is uncontroverted. Defendant was involved in an automobile accident that resulted in injury to Jason Patricio and in the death of Oscar Torres. Defendant fled from the scene of the accident, without rendering aid of any kind to the occupants of the Nissan or furnishing identification to the victims or law enforcement personnel. Defendants conviction for leaving the scene of an accident under subdivision (a) of section 20001 is unassailable.

Subdivision (b) of section 20001 of the Vehicle Code delineates the punishment that may be imposed for a violation of subdivision (a). When the instant accident occurred in 2005, subdivision (b) provided: (1) Except as provided in paragraph (2), any person who violates subdivision (a) shall be punished by imprisonment in the state prison, or in a county jail for not more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars $10,000), or by both that imprisonment and fine. [] (2) If the accident described in subdivision (a) results in death or permanent, serious injury, any person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine. However, the court, in the interests of justice and for reasons stated in the record, may reduce or eliminate the minimum imprisonment required by this paragraph. (Italics added.) Here, the jury determined that the accident resulted in death or permanent, serious injury.

Defendant challenges the jurys determination, relying on People v. Braz, supra, 65 Cal.App.4th 425. Inasmuch as Braz involved a version of subdivision (b)(2) of section 20001 that is outdated, defendants reliance on Braz is wholly misplaced.

Defendant Braz committed her crime in 1996. At that time, subdivision (b)(2) of section 20001 in pertinent part provided, Any violation of subdivision (a) which results in death or permanent, serious injury shall be punished by imprisonment in the state prison for two, three, or four years . . . . Given the plain language of the then extant statute, the court in Braz held that a court may not impose the penalties set forth in subdivision (b)(2) unless the defendants failure to stop and present identification and render aid causes permanent, serious injury to the accident victim. (People v. Braz, supra, 65 Cal.App.4th at p. 432.)

In 1999, however, the Legislature impliedly abrogated the holding of Braz by amending section 20001, to require that a causal connection between the accident and the serious injury or death.^[4]Specifically, it amended subdivision (b)(2) of section 20001 to provide: If the accident described in subdivision (a) results in death or permanent, serious injury, any person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years . . . . (Stats. 1999, c. 854 (S.B. 1282)  1, eff. Oct. 10, 1999.) It is this version of the statute that governs in this case.

Inasmuch as defendants claim of insufficient evidence is based upon an outdated version of the statute, it is rejected. Defendant does not otherwise challenge the sufficiency of the evidence supporting the jurys determination of a causal connection between the accident and Torress death and Palacios injuries.

Second Degree Murder

Next, defendant contends his conviction for second degree murder must be reversed because substantial evidence does not support the jurys finding of implied malice. Again, we disagree.

In assessing the sufficiency of the evidence, we review the record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We further presume in support of the judgment the existence of every fact the trier of fact reasonably could construe from the evidence. (People v. Davis (1995) 10 Cal.4th 463, 509.)

At least since 1981, when our Supreme Court affirmed a conviction of second degree murder arising out of a high speed, head-on automobile collision by a drunken driver that left two dead, California has followed the rule in vehicular homicide cases that when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied. . . .  [Citation.] In such circumstances, a murder charge is appropriate. [Citation.] So called implied malice second degree murder . . .  is committed when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life . . . . [Citations.] Phrased in a different way, malice may be implied when [a] defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.] [A] finding of implied malice . . . , depends upon a determination that defendant actually appreciated the risk involved, i.e., a subjective standard. (People v. Ortiz (2003) 109 Cal.App.4th 104, 109-110, quoting People v. Watson (1980) 30 Cal.3d 290, 298, 300, 296-297, italics & fn. omitted.)

Although many implied malice second degree murder cases involve an intoxicated defendant,^[5]the absence of intoxication . . . does not preclude a finding of malice. (People v. Contreras (1994) 26 Cal.App.4th 944, 955.) Defendants lack of intoxication in this case, therefore, does not alone provide him with any solace. Indeed, it suggests that he caused the accident without any impairment of his faculties. In any event, the ultimate question is whether defendant appreciated the risk involved. Substantial evidence supports the jurys determination that he did.

Defendants accident, which occurred in a Glendale neighborhood on November 19, 2005, was witnessed by several people, who testified that defendant drove his vehicle at a high rate of speed, failed to stop at stop signs, failed to slow down, hit a traffic circle and crashed into the Nissan, which resulted in Oscar Torress death and Jason Palacios serious injuries. Also pertinent, is defendants prior driving record.

On July 31, 2004, defendant received a speeding citation for driving 70 miles per hour in a 40 mile per hour zone. A few months later on October 20, 2004, defendant was cited for impeding traffic. The following year, on April 19, 2005, he was involved in a traffic collision: he hit a van while driving 60 to 70 miles per hour. On July 21, 2005, defendant received another speeding ticket for driving 84 in a 65 mile per hour zone, and he got yet another speeding ticket for driving 54 in a 40 mile per hour zone on August 21, 2005, a mere three months before the accident. Defendant also completed traffic school on the Internet. Defendant received instruction about the dangers of speeding and traffic safety, among other things.

Defendants abysmal driving record, together with his conduct on the night in question, substantially supports the jurys finding of implied malice. Three speeding tickets, a traffic accident and traffic school did nothing to curb defendants utter disregard of California speeding laws. On the night in question, and without regard to anyones safety, defendant again sped through a neighborhood, this time, killing one person and seriously injuring another. His deplorable and deliberate conduct indubitably reflects a conscious disregard for life.

As the California Supreme Court observed in People v. Knoller (2007) 41 Cal.4th 139, [m]alice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citation.] In short, implied malice requires a defendants awareness of engaging in conduct that endangers the life of anotherno more, and no less. (Id. at p. 143.) Defendants conviction for implied malice second degree murder will not be disturbed.

Clarifying Jury Instruction

Under appropriate circumstances, a trial court may be required to give a requested instruction that pinpoints the defense theory of the case. The court need not give a pinpoint instruction that is argumentative, duplicative or not supported by the evidence, however. (People v. Bolden (2002) 29 Cal.4th 515, 558.)

Here, defendant asked the court to give a pinpoint instruction entitled Defense Proposed Jury Instruction Implied Malice. Although this proposed instruction is not contained in the record on appeal, we are able to ascertain from the courts characterization of the instruction that the first part defined malice and later paragraphs discussed gross negligence.^[6] With regard to implied malice, an element of second degree vehicular murder, the court concluded that other instructions adequately defined element of malice. With regard to the notion of gross negligence, the court aptly noted that gross negligence was not in issue and thus refused to give the pinpoint instruction.

Gross negligence is an element of gross vehicular manslaughter, not murder. (People v. Watson, supra, 30 Cal.3d at pp. 296-297.) Inasmuch as the People did not charge defendant with gross vehicular manslaughter, and the trial court ruled that gross vehicular manslaughter is not a lesser included offense of murder,^[7] there was no basis for instructing the jury about gross negligence.^[8] Because the evidence did not support the giving of an instruction on gross negligence and the instruction was duplicative to the extent it defined malice, the trial court correctly refused to give the jury defendants pinpoint instruction. (People v. Bolden, supra, 29 Cal.4th at p. 558.)

DISPOSITION

The judgment is affirmed.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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^[1] Dombrowski did not smell alcohol on defendants breath.

^[2] Additional facts will be incorporated into the legal discussion where relevant.

^[3] Defendant is Armenian.

^[4] The Legislative Counsels Digest to Chapter 854 of Senate Bill 1282 states: Existing law requires the driver of any vehicle involved in an accident resulting in injury or death to another person to immediately stop the vehicle at the scene of the accident and to fulfill specified requirements. [] Under existing law, a violation of this provision is punishable as either a felony or a misdemeanor if the violation results in death or permanent, serious injury. [] This bill would recast this provision to make a violation of this provision either a felony or a misdemeanor if the accident in which the driver was involved, rather than the failure to immediately stop the vehicle at the scene of the accident and fulfill specified duties, results in death or permanent, serious injury. (Legis. Counsels Dig., Sen. Bill No. 1282 (1999 Reg. Sess.).)

^[5] See People v. Watson, supra, 30 Cal.3d 290; People v. Talamantes (1992) 11 Cal.App.4th 968; People v. Jarmon (1992) 2 Cal.App.4th 1345; People v. David (1991) 230 Cal.App.3d 1109; People v. Murray (1990) 225 Cal.App.3d 734; People v. Olivas (1985) 172 Cal.App.3d 984.

^[6] We do observe, however, that defendants failure to include his pinpoint instruction in the record on appeal alone justifies the rejection of defendants claim of instructional error, as it is defendants responsibility to provide this court with an adequate record from which his claims of error can be reviewed. (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.)

^[7] Defendant does not challenge this ruling on appeal.

^[8] It is particularly noteworthy that the trial court at no time precluded defense counsel from urging the jury to acquit defendant of murder if the People failed to prove more than negligence or recklessness on the part of defendant. In fact, the trial court informed defense counsel that he was entitled to urge the jury to conclude that the People proved something less than implied malice and therefore failed to meet their burden of proof on the murder count. The court continued: You are entitled to do that but not by basically saying that there is some other crime, defining the crime, and arguing that what they have shown is the other crime, rather than the crime in this case. [] I think if you want to say that in a more colloquial kind of way, that the most the People have shown here is that my client was negligent without making it a term of art, like gross negligence or vehicular manslaughter, that you have to have some way to make your analogy. But when you start getting into gross negligence or some other crime, I think that is inappropriate. In response to an inquiry by the prosecutor, the court clarified that defense counsel could use a common term and argue that what the People have shown here is someone who was driving negligently or recklessly, but that it was improper to discuss an uncharged crime. Thus, although defendant could not argue he was guilty of a crime that was not charged, he was free to argue that the People failed to prove implied malice and thus the crime of second degree murder. Nowhere in his opening brief does defendant contend otherwise.