P. v. Khrayan
Filed 4/2/12 P. v. Khrayan CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ARUTYUN KHRAYAN,
Defendant and Appellant.
B213582
(Los Angeles
County
Super. Ct.
Nos. BA255474, BA255302)
APPEAL from
a judgment of the Superior Court
of
County. Kathleen
Kennedy, Judge. Affirmed.
Geragos
& Geragos and Mark J. Geragos for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Linda C. Johnson,
Robert David Breton and Michael Katz, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________
A jury convicted appellant Arutyun Khrayan of conspiracy
to commit the crime of kidnapping for
ransom in violation of Penal Code section 182, subdivision (a)(1);
of sections 664 and 209, subdivision (a); and assault with a semiautomatic
firearm in violation of section 245, subdivision (b). The jury found that in the commission of the
counts, a principal was armed with a firearm within the meaning of section
12022, subdivision (a)(1). Appellant
admitted a prior conviction of a serious or violent felony within the meaning
of sections 667, subdivision (a); 667, subdivisions (b) through (i); and
1170.12, subdivisions (a) through (d).
The trial
court sentenced appellant to life with the possibility of parole for the
conspiracy to commit the crime of kidnapping and doubled this term pursuant to
the Three Strikes law. The trial court
imposed the high term of nine years, doubled to 18 years, for the assault with
a semiautomatic firearm. The trial court
stayed appellant’s sentence in the attempted kidnapping pursuant to section
654. The trial court imposed a
consecutive term of five years under section 667, subdivision (a) for the prior
serious felony conviction. At the time
of the instant offenses, appellant had been on probation in case No. GA047435,
in which a four-year term had previously been imposed and suspended. The trial court imposed one-third the midterm
doubled, i.e., one year four months in that case, to be served
consecutively. Finally, the trial court
imposed one-third the midterm doubled in case No. BA255302, in which appellant
had admitted a violation of section 12021, subdivision (a)(1) with a strike
prior.
Appellant
appeals on the grounds that: (1) the trial
court erred in denying his motion for a
new trial based on newly discovered evidence; (2) the prosecution committed
severe misconduct in failing to timely disclose and provide exculpatory
evidence to the defense; and (3) the prosecution committed misconduct by
destroying and/or failing to preserve material evidence.
I. Facts Pertaining to
Appellant’s Convictions in the Kidnapping Plot
Prosecution Evidence
In
accordance with the usual rule on appeal, we recite the evidence in the light
most favorable to the judgment below.
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In January 2002, James Patlan met Karapet “Gary” Davytyan, Gina Geraci,
and Angela Lewin at the Tarzana Treatment Center, where they were all being
treated for addictions. Patlan was on
parole for burglary at the time. Karapet
talked Patlan into joining him in a kidnapping scheme.
Karapet and
Patlan checked out of the treatment center on January 18, 2002. Karapet’s brother picked them up and drove
them to Glendale. There they met with
Karapet’s brother-in-law, Manvel, who was also known as Mike. Manvel, Karapet, and another Armenian named
Jilbert spoke to each other in Armenian, which Patlan, who is not Armenian, did
not understand. Patlan, Karapet, and
Manvel later met with a man called Gordo at Manvel’s apartment. Karapet said that Gordo had “done [prison]
time before.” Patlan later identified
appellant as Gordo at the preliminary hearing and at trial. In 2002, appellant’s hair was longer than at
trial and worn in disarray, and he was “quite overweight.” Patlan also said Gordo was balding. Appellant was much slimmer and looked very
different at trial. Patlan also
identified a photograph of appellant taken near the time of the offenses in
this case. Appellant was much fatter in
the photograph than he was at trial (Peo. exh. 9). Patlan never knew Gordo by any other name. Angela Lewin also positively identified
appellant in a photographic lineup and at trial.
The kidnapping
target was a wealthy Armenian named Armen Mkrtumyan, the owner of the Bender
Baking Company in Glendale. Karapet,
Manvel, and Patlan spent several days surveilling the site of the kidnapping,
which was the warehouse for the bakery.
Karapet’s family owned a grocery store named Partez Deli on Central
Avenue in Glendale. On Sunday night,
January 20, 2002, Patlan went with Manvel to Partez Deli to pick up the Smith
and Wesson handgun he was to use. That
night, Patlan participated in an aborted attempt to kidnap Mkrtumyan. Mkrtumyan drove out of his warehouse parking
lot before the kidnapping could take place.
On Tuesday
night, January 22, 2002, Gina, who was “interested” in Patlan, left the Tarzana
center and met Karapet and Patlan in Glendale.
Karapet introduced Gina to Manvel.
Gina spent the next few nights with Patlan at motels in Glendale. During that week, Gina lent her cell phone to
Patlan and sometimes to Karapet to use in her presence. Whenever she was not with Patlan and wanted
to reach him, she would call Karapet and ask if he knew where Patlan was or to
give Patlan a message. At one point, she
was given another phone number to contact Karapet. Angela joined them on January 25, 2002. They all stayed in a motel until Sunday
morning, January 27, 2002. Patlan, Gina,
and Angela used a lot of drugs during that week.
Patlan saw
appellant at Karapet’s residence on Thursday, January 24, 2002. On the following evening, Patlan was at
Karapet’s residence in Glendale when Manvel arrived in a black Mercedes. Appellant was sitting in the front passenger
seat. Karapet and Patlan got into the
backseat, and the four men drove around.
Appellant asked Patlan to call a businessman who owned a chain of gas
stations, but Patlan refused, saying that setting up meetings was “not part of
[his] job [description].” On Saturday,
January 26, 2002, Karapet and Patlan went to the Partez Deli and met with
appellant and Manvel. Appellant gave
some instructions to Karapet, after which Karapet dropped Patlan off at his
motel.
On Sunday
afternoon, January 27, 2002, Patlan, Gina, and Angela drove around to various
places in Gina’s car and then went to the Partez Deli after dark. Karapet arrived with his wife and a small
child. Patlan went inside the deli and
spoke with Karapet and Manvel. Karapet
came out and left with his family.
Appellant arrived at the Partez Deli in a silver Mercedes-Benz S500 to
speak with Manvel and Patlan. Appellant
told Patlan the kidnapping would take place that night. Appellant asked Patlan if he had the
nine-millimeter handgun. Patlan had the
gun in his waistband, but he did not say so.
Manvel called Karapet and confirmed that Karapet had given Patlan the
gun. Patlan then showed appellant the
gun.
At
approximately 9:18 p.m., appellant announced that they were going to do the
kidnapping. Appellant and Manvel drove
Patlan to Mkrtumyan’s baking company in an Astro van that belonged to Karapet’s
and Manvel’s family. Patlan got out of
the van and appellant said, “Go and see if [you] can get this guy.” The plan was for Patlan to accost Mkrtumyan
at gunpoint. Patlan would then force
Mkrtumyan to drive them both out of the parking lot in Mkrtumyan’s own car. Patlan would order Mkrtumyan to follow
appellant and Manvel’s van. Appellant
would negotiate for ransom while Karapet and Manvel held Mkrtumyan hostage.
Because of
a prior unsuccessful kidnap attempt by Karapet and Manvel, Mkrtumyan was
carrying a loaded .25-caliber Beretta handgun for protection. As Patlan began to climb the stairs of the
bakery loading dock, he passed two men descending the stairs. These two men happened to be Mkrtumyan and
his brother. Patlan suddenly realized
that one of the men he had just passed on the stairs was Mkrtumyan. Patlan turned and was surprised to see that
Mkrtumyan had drawn his gun at Patlan.
Mkrtumyan fired at Patlan and hit him once on the leg and once in the
arm. Patlan fired back and hit
Mkrtumyan. Although both men were
wounded, neither knew he had hit the other due to the darkness and the rain.
Patlan
jumped off the loading dock and eventually made his way toward the street. He cut himself on some razor wire on a
fence. Patlan stashed the gun under a
trash can and went to the street to look for the Astro van. The van was gone, but appellant and Manvel
eventually drove up in a Lexus SUV.
Patlan told them what had occurred, although he did not know that he had
hit Mkrtumyan.
Appellant
and Manvel drove Patlan to the Partez Deli.
Appellant begged Angela, who was still at the deli, to take Patlan to
the hospital. Appellant and Manvel said
they were “going to retaliate the individual that shot [him].” Appellant gave Angela some money and the
directions to the hospital. Angela drove
Patlan to Glendale Memorial Hospital. On
the way, Patlan told her that “something went really bad.” When she dropped off Patlan, Angela asked him
not to give her name to anyone because there was a misdemeanor warrant out for
her arrest.
Patlan
entered the emergency room and told a security officer that he had been shot as
he was walking down the street. He said
he had then walked to a friend’s store and asked a friend named Michelle to
give him a ride to the hospital.
Mkrtumyan had been taken to Glendale Memorial Hospital as well. Mkrtumyan had been shot in the right
leg. Mkrtumyan and Patlan were thus in
the emergency room at the same time.
Glendale Police Officer Renae Kerner was speaking with Mkrtumyan when
Mkrtumyan saw Patlan being wheeled past him on a gurney. Mkrtumyan pointed at Patlan and exclaimed,
“That’s the one who shot me.” Patlan saw
Mkrtumyan as he was wheeled past his room.
Patlan then realized he must have hit Mkrtumyan.
Detective
William Currie of the Glendale Police Department arrived and spoke with
Mkrtumyan. Mkrtumyan gave Detective
Currie the Beretta .25-caliber handgun he had shot that evening. Detective Currie returned the gun to
Mkrtumyan after having it examined and photographed. There were still two rounds left in the gun’s
magazine.
At an
interview at the police station, Angela told Officer Kerner about having been
with Karapet, Manvel, Patlan, and another big-bellied Armenian male in his 40’s
whose name she did not know. Angela told
Officer Kerner that Karapet’s nickname was Gary, and she provided some phone
numbers. She also assisted Detective
Currie by placing pretext phone calls.
Patlan was
arrested at the hospital just after midnight on January 28, 2002, and taken to
the Glendale Police Station. Since
Patlan was on parole, he was placed on a parole hold. In the early morning hours, Detective Currie
interviewed Patlan. Detective Currie did
not make any promises or threats to Patlan in exchange for his
cooperation. Patlan told the detective
that his accomplices were Karapet, Manvel, and a male Armenian who was overweight
and short and was named Gordo. Patlan
described the vehicles that had been involved in the plot.
Patlan told
Detective Currie where he had hidden the gun.
At 3:00 a.m. on January 28, 2002, two officers found the loaded
nine-millimeter Smith and Wesson under a Glendale city trash can at 425
Fernando Court. That same Monday
morning, between 8:00 and 10:00 a.m., Detective Currie interviewed Gina. Gina agreed to make a recorded telephone call
to Karapet in order to get him to make admissions and to verify Karapet’s cell
phone number.
During the
afternoon of January 28, 2002, Detective Currie arranged for an Officer Jimenez
to pretend to be Patlan during a pretext phone call to Karapet. The recording was played for the jury. A record of the call showed on the Davtyan’s
phone bill for the month of January. The
bill was found during a search of the Partez Deli. During the conversation, Karapet made several
incriminating statements to the officer who he thought was Patlan, although he
was very wary. When the officer
pretending to be Patlan insisted that he still wanted to be paid off. Karapet replied, “I’m gonna pay you off” and
“You know who said who gonna pay you off
Not me and [Manvel]. Look, you
talked to the guy alone. The fat guy,
him alone. And he’s gonna buy you a car,
any car you want, okay Not me.”
On February
20, 2002, after corroborating the preliminary details provided by Patlan,
Detective Currie interviewed Patlan at the county jail. Detective Currie did not promise or offer
Patlan anything. In February, Patlan
told Detective Currie “everything.”
Detective Currie obtained a search warrant for the Partez Deli and for
Karapet’s and Manvel’s residence on Lexington Avenue in Glendale.
Detective
Robert Breckenridge searched Karapet’s bedroom and found a black leather
organizer containing photos, phone numbers, and addresses. Inside the organizer (Peo. exh. 28) was the
name “Harut Gogor,” with the phone number (213) 923-2442. Police did not realize that the phone number
(213) 923-2442 was appellant’s cell number.
On March
20, 2002, Patlan entered into a proffer and use-immunity letter of
agreement. Patlan understood that for
the use immunity to be operative, he was required to answer all questions
truthfully, and he fully acknowledged that he was not being promised any
specific disposition in exchange for his cooperation and testimony, although he
was hoping that eventually he might be offered some kind of deal
Patlan
again admitted that he confronted Mkrtumyan with the intention of kidnapping
him at the request of the three Armenian males who had recruited him and who
had met with him in person several times:
Karapet Davtyan, Manvel Davtyan, and a bald, short, fat Armenian, known
to Patlan only as Gordo, who drove a silver Mercedes Benz. Later that day, when shown photographs of a
car, Patlan recognized the car and identified it as the silver Mercedes-Benz
S500 that Gordo drove.
Patlan was
offered a plea bargain pursuant to which he would receive a 14-year state
prison sentence if he pleaded guilty and testified truthfully “one time”
against Karapet and Manvel Davtyan at their preliminary
hearing and trial.
name="_ftnref4" title="">[4] The police still did not know the identity of
Patlan’s third accomplice, since Patlan could not provide Gordo’s real name or
any place where he might be found.
Detective Currie had asked Mkrtumyan if he knew any balding, fat
Armenian men. Mkrtumyan thought of one
person who fit that description—a man named Ashot Harutyunyan. Mkrtumyan did not say he had any problems with
Harutyunyan.
Detective
Currie obtained a photograph of Harutyunyan from his driver’s license. When he showed the photograph of Harutyunyan
to Patlan on March 20, 2002, Patlan said that he looked like the man that he
knew as Gordo. Detective Currie obtained
an arrest warrant for Mr. Harutyunyan and a search warrant for his residence on
April 23, 2002. While executing the
search warrant, Detective Currie realized that Harutyunyan could not be the man
known to Patlan as Gordo. Harutyunyan
did not appear to speak or know any English.
The numbers corresponding to the telephones in Harutyunyan’s apartment
did not correspond to any of the phone numbers on the phone bills obtained from
the Partez Deli or Gina, and there was nothing in Harutyunyan’s apartment that
linked him in any way to the attempted kidnapping. Harutyunyan drove a Lincoln Town car and a
Cadillac and did not own a Mercedes-Benz that could be connected to the
conspiracy to kidnap Mkrtumyan.
While
searching Harutyunyan’s apartment, Detectives Currie and Breckenridge found
business cards for the Partez Deli, American Bakery Products, Continental
Bakery (which belonged to Mkrtumyan’s brother, Raphael Mkrtumyan), and Sassoon
Sales (owned by Mkrtumyan’s attorney and business partner). None of these cards cast any suspicion on
Harutyunyan, since Harutyunyan owned a bakery in the same, close-knit
community. It was not unusual for him to
know other Armenians in the baking business.
In
Harutyunyan’s apartment, Detective Currie found a photograph of Mkrtumyan and
Harutyunyan standing together. It was
clear that they knew each other, and they appeared to be friends. Detective Currie also found a photograph of
Mkrtumyan’s brother with Harutyunyan.
There were no photos of Karapet and Manvel in the apartment. When shown photographs of Karapet and Manvel,
Harutyunyan did not recognize them.
Ultimately Detective Currie found nothing in the search of Harutyunyan’s
apartment or in the detective’s entire investigation that tied Harutyunyan to
the kidnapping or suggested that he was the man known as Gordo. Moreover, Harutyunyan had no criminal record
and was extremely cooperative with Detective Currie. And, although he had a “big belly,” he was
not short. He was big and “broad-boned”
in stature, measuring five feet seven inches tall. No one called Harutyunyan by the nickname of
Gordo. Therefore, Detective Currie did
not arrest Harutyunyan, and he did not arrange for a live lineup.
In order to
find new leads to the identity of Gordo, Detectives Currie and Breckenridge
analyzed the telephone records of Gina, Angela, the Tarzana Treatment Center,
Karapet, and Manvel. In April 2003,
Detectives Currie and Breckenridge compiled and compared all the January 2002 toll
calls listed on these telephone records.
The detectives’ examination of the phone calls made from Karapet’s
number (Peo. exh. 21), revealed a particular recurring number, i.e., (213)
923-2442. This number was salient
because it was the first number Manvel called after Angela took Patlan to the
hospital. It was also the first number
that Karapet dialed after he hung up from Officer Jimenez’s pretext call (in
which the officer pretended to be Patlan.
The
detectives found that, in January 2002, there were frequent phone calls among
Karapet, Manvel and the person at the (213) 923-2442 phone number. The frequency of calls increased during the
days immediately preceding and following the January 27, 2002 kidnapping attempt. The same number was in Karapet’s address and
phone book found in his bedroom and shown to be the number for someone called
“Harut.”
In April
2003, the detectives subpoenaed the records for the number (213) 923-2442 from
Nextel Communications. The detectives
discovered that the number belonged to a cell phone registered to an Andranik
Musaulyan who owned a market at 10700 Long Beach Boulevard in Lynwood. A photograph of Musaulyan did not bear any
resemblance to the man called Gordo, as described by Patlan and Angela. The detectives analyzed the frequency and
consistency of calls made to a land line from the number and found that the
land line frequently called belonged to a subscriber listed as Laura
Khrayan. It was later discovered that
she was appellant’s mother. The
residence for the land line was at 6701 Fulton Avenue, apartment No. 2, in Van
Nuys. The utilities at that apartment
were under the name “Ruben Khrayan,” who was appellant’s brother. A photograph of Ruben showed he did not fit
the description of Gordo.
Using county
records, the detectives found another male with the last name Khrayan. This man was appellant. Because the detectives did not know where
this Khrayan resided, they could not obtain a search warrant or arrest
warrant. The detectives obtained
appellant’s driver’s license information from the Department of Motor Vehicles
(DMV) and saw that appellant’s photograph was similar to that of
Harutyunyan. Significantly, appellant
was shorter and fatter, measuring five feet one inch tall and weighing 225
pounds.
The
detectives ascertained that appellant had been the passenger in a silver
Mercedes-Benz during a traffic stop on September 10, 2001, and they retrieved a
photograph taken of the Mercedes-Benz during the traffic stop. Detectives Currie and Breckenridge obtained a
booking photograph taken of appellant in September 2001 when he was still
overweight. They placed appellant’s
photograph in a photographic lineup. On
June 3, 2003, Patlan identified appellant’s photograph. Patlan also identified the photograph of the
silver Mercedes-Benz in which appellant was seated during the 2001 traffic stop
(Peo. exh. 15) as the one Gordo drove.
Angela also identified appellant’s photo as being that of the fat man
who had given her the money in the Partez Deli parking lot to drive Patlan to
the hospital. She recognized appellant’s
face and weight.
In 2003,
appellant’s probation officer was Deputy Probation Officer Jimmy Stewart. During appellant’s regular visit to probation
on June 18, 2003, Stewart asked appellant to provide an alternate number to the
area code 818 number he provided that day.
Appellant gave Stewart his cell phone number. Stewart turned that cell phone number over to
two detectives from the Glendale Police Department on the same day.
On the same
evening as appellant’s probation visit, June 18, 2003, a surveillance team
including Detective Tim Feeley followed appellant as he drove a gold Dodge
Stratus. The lead vehicles lost
appellant on the freeway, and Detective Feeley exited the freeway and began
searching surface streets. He found the
gold Dodge parked on a street. He tried
to radio the other police vehicles. He
made a U-turn and saw appellant entering a Black Mercedes with other
occupants. The black Mercedes pulled up
next to Detective Feeley’s car, which was unmarked, and appellant and another
man got out of the Mercedes. The second
individual was Levon Termendzhyan.
Grigor Termendjian remained in the driver’s seat. Appellant was holding a fanny pack with a gun
inside, and Termendzhyan had a gun at his waist. Another officer who had arrived identified
himself as a police officer. Detective
Feeley then identified himself as a police officer also. Appellant ran away. Detective Feeley managed to tackle appellant,
who was arrested. Just after midnight on
June 19, 2003, Detectives Currie and Breckenridge obtained a search warrant for
the address at 6701 Fulton Avenue, Apartment 2.
After
appellant was arrested, Patlan agreed to a lengthy continuance of his
sentencing and agreed to continue to cooperate with the detectives in this case
with no additional favors. After
appellant was charged in June 2003, the preliminary hearing was continued
numerous times at the request of Mr. Geragos, appellant’s attorney. On April 24, 2004, Patlan went to court
to testify against appellant, but the preliminary hearing was continued yet
again, to May 7, 2004. Patlan became
frustrated and believed it unfair that he was receiving no additional benefit
for his continued cooperation beyond his original agreement. He had already spent two years four months in
county jail. Patlan had someone contact
the prosecutor in this case and he asked for a “better deal.” He now wanted a reduction of his sentence
from 14 to 10 years, or he would refuse to testify. The prosecutor agreed to modify the plea
bargain to allow the four years for the gun-use enhancement to run concurrently
with the 10 years for the attempted kidnapping.
Patlan said
there was absolutely “no doubt in [his] mind” that appellant was the same person
he knew as Gordo during the month of January 2002. Patlan had always described Gordo as being
short and fat, and Patlan had no idea how tall Harutyunyan was from the
photograph he had been shown and had identified.
Before the
events of January 2002, Patlan had never met appellant and had no motive to
falsely accuse appellant of his role in the kidnapping attempt. The modification of the plea bargain in no
way influenced Patlan or caused him to alter his testimony or change his
recollection of the events. Patlan had
already identified appellant in the photo lineup a year before, and even if the
prosecution had not agreed to reduce the negotiated sentence by four years,
Patlan had decided that he “wasn’t going to change [his] testimony,” he “just
wasn’t going to say nothing.” At trial,
Angela positively identified appellant as Gordo.
Defense Evidence
Appellant did not testify and did not present any
evidence.
II. Facts Pertaining to the Procedural History of
the Kidnapping Case
As noted, appellant was arrested on June 18, 2003. On May 21, 2004, the Los Angeles County
District Attorney filed an information in case No. BA255474 charging appellant
in count 3 with conspiracy to commit kidnapping for ransom, alleging 14 overt
acts between January 13 and January 27, 2002 (§ 182, subd. (a)(1)). Appellant was charged in count 4 with
attempted kidnapping for ransom, while a principal was armed with a firearm, on
January 27, 2002, (§§ 209, subd. (a), 664, 12022, subd. (a)(1)), and in count 5
with assault with a semiautomatic firearm on January 27, 2002 (§ 245, subd.
(b)). The same information charged
appellant, Grigor Termendjian, and Levon Termendzhyan with assault with a
firearm against Officer Feeley on June 18, 2003, the offense allegedly
committed during the encounter between Detective Feeley and the three
defendants when appellant was being followed by a surveillance team
investigating the attempted kidnapping.
Appellant was alleged to have personally used a firearm. The same information charged appellant in
count 2 with possession of a firearm after having been convicted of three
felonies (in 1992 of manslaughter, in 1994 unlawful taking of a vehicle, and in
2002 of ex-felon in possession of a firearm).
On June 4, 2004, appellant and the two codefendants pleaded not guilty.
Appellant’s
case was bifurcated because Mr. Geragos was representing two of the three
codefendants, i.e., appellant and Grigor Termendjian. The People agreed to sever appellant’s case
to avoid the conflict of interest created by Mr. Geragos’s dual representation.
The trial
of the two brothers, Grigor and Levon, for the assault on Officer Feeley was
held between March 7 to March 28, 2005.
The jury acquitted Grigor, but deadlocked as to Levon. The trial court declared a mistrial and
dismissed the case against Levon Termendzhyan on April 14, 2005. The prosecutor stated she would retry the
case against Levon and seek to join appellant in that case. The prosecutor ultimately decided to
re-prosecute the case by means of indictment rather than information.
On June 24,
2005, a grand jury returned a bill of indictment in Los Angeles County Superior
Court case No. BA255302. The indictment
charged two of the counts that had been charged in the May 21, 2004
information: count 1 charged appellant
and Levon Termendzhyan with committing an assault with a firearm on
June 18, 2003 (§ 245, subd. (a)(2)), and count 2 charged appellant
with possessing a firearm on June 18, 2003, after having been convicted of
three felonies. The indictment was later
amended to add appellant’s prior conviction of a serious or violent felony.
On
September 22, 2005, appellant pleaded not guilty, still represented by
Mr. Geragos. On January 4, 2006,
the People moved for joinder of case Nos. BA255302 (the assault on Detective
Feeley) and BA255474 (the kidnapping).
The People’s joinder motion was denied, and the trial court ordered the
trial in case No. BA255474 (the kidnapping) to trail the trial in case No.
BA255302 (the assault on Detective Feeley).
Levon Termendzhyan retained Mr. Geragos to represent him in the
trial of case No. BA255302. Appellant
retained another attorney to represent him solely in case No. BA255302. On January 19, 2007, appellant addressed the
court and declared that, for tactical purposes, he was seeking leave to plead
guilty to count 2 in case No. BA255302 (ex-felon in possession of a firearm)
and to admit the priors alleged as to count 2.
Voir dire resumed, and a jury was impaneled to try count 1 only, the
assault on Officer Feeley.
Appellant
duly pleaded no contest to count 2, admitted a factual basis for the plea, and
admitted the three alleged prior convictions on the next court day, January 24,
2007. Trial proceeded on count 1 in case
No. BA255302, and the jury found appellant not guilty of the assault with a
firearm on Officer Feeley on January 30, 2007.
Mr. Geragos
told the trial court that he would represent appellant in case No. BA255474
(the kidnapping). Sentencing and a
probation-violation hearing regarding count 2 in case No. BA255302, to which
appellant had pleaded guilty, were trailed behind the trial in case No.
BA255474. Counts 3, 4, and 5 were not
re-numbered in the court file, but the numbers were changed to counts 1, 2, and
3 in the jury instructions and on the verdict forms. In the amended information, appellant was
charged in count 3 with conspiracy to commit kidnapping for ransom between
January 13 and January 27, 2002 (§ 182, subd. (a)(1)), in count 4 with
committing the attempted kidnapping for ransom on January 27, 2002, while a
principal was armed with a handgun (§§ 209, subd. (a), 664, 12022, subd.
(a)(1)), and in count 5 with committing an assault with a semiautomatic firearm
on January 27, 2002 (§ 245, subd. (b)).
The information further alleged that appellant had suffered a prior
serious felony conviction for manslaughter within the meaning of section 667,
subdivision (a)(1) and a prior strike conviction for the same manslaughter
within the meaning of section 667, subdivisions (b) through (i) and section 1170.12,
subdivision (a). Appellant was
re-arraigned, and he again pleaded not guilty and denied the special
allegations. Trial of the priors was
bifurcated.
The trial
in case No. BA255474 took place from January 14 to January 22, 2008. On January 23, 2008, the jury found appellant
guilty as charged, found each of the 14 alleged overt acts of the conspiracy to
have been committed, and found true the armed allegation. Appellant waived his right to a jury on the
trial of the priors and on the probation violation, and sentencing was set for
March 28, 2008, in both cases, i.e., in case No. BA255474 and case No.
BA255302. On March 28, 2008, appellant
filed his motion for new trial, the denial of which forms the basis of the
instant appeal.
DISCUSSION
I. Denial of New Trial Motion Based on Newly
Discovered Evidence
A. Relevant Authority
Section 1181,
subdivision 8 provides that a trial court may grant a new trial “[w]hen new
evidence is discovered material to the defendant, and which he could not, with
reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon
the ground of newly discovered evidence, the defendant must produce at the
hearing, in support thereof, the affidavits of the witnesses by whom such evidence
is expected to be given. . . .”
The trial
court’s decision to deny a new trial motion based on newly discovered evidence
is reviewed for an abuse of discretion.
(People v. Musselwhite (1998)
17 Cal.4th 1216, 1251.) “‘“The
determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.”’ [Citations.]”
(People v. Delgado (1993) 5
Cal.4th 312, 328.)
“In ruling
on a motion for new trial based on newly discovered evidence, the trial court
considers the following factors: ‘“1.
That the evidence, and not merely its materiality, be newly discovered; 2. That
the evidence be not cumulative merely; 3. That it be such as to render a
different result probable on a retrial of the cause; 4. That the party could
not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]”
(People v. Delgado,
“To warrant
the granting of a new trial on the ground of newly-discovered evidence it must
be such as to render a different verdict reasonably probable on a new
trial. [Citations.]” (People
v. Long (1940) 15 Cal.2d 590, 608; see also People v. Clauson (1969) 275 Cal.App.2d 699, 706 [“newly discovered
evidence must not be merely cumulative or impeaching; it must be such as to
render a different verdict reasonably probable”]; People v. Huskins (1966) 245 Cal.App.2d 859, 862 [“[o]rdinarily,
evidence which merely impeaches a witness is not significant enough to make a
different result probable”].)
On the date
set for appellant’s sentencing, Mr. Geragos filed a motion to continue. The prosecutor complained that the motion
contained spurious and scandalous accusations.
This motion is not part of the record, and a request to augment the
record with the motion was not successful.
An attorney for Mr. Geragos’s firm told the court that they had received
an anonymous letter contained in an envelope from the Glendale Police
Department. Presumably, the letter
stated that certain items pertaining to appellant’s case were destroyed. Substitute counsel told the court, “Miss
Daniel, to our surprise, said she was aware that there were items destroyed and
that she had advised us of that.” The
trial court stated that the issue would
clearly have to be litigated. A lengthy
evidentiary hearing, filling over 140 pages of reporter’s transcript was held
on August 22, 2008, more than five years after appellant’s arrest.
C. Evidentiary Hearing on New Trial Motion
Maria Perez is
the budget and property supervisor for the Glendale Police Department. Perez had always worked in the property room
in her career, which began in 1990. In
2002 an archiving system called “Quetel” was used to track property associated
with a case. At some time in 2005, the
department began using a different system called Tiburon. The two systems did not interface. When Perez took over the property room in
January of 2007, one of her goals was to get rid of property that was no longer
needed. She worked with investigators on
catching up with dispositions from the court and assessing the status of cases.
The Quetel
system is accessed by a case’s DR number, and Perez identified a report
generated by the Quetel system of all property in a case numbered DR
0201641. The location of some of the
property for that DR number had as its location “DEST,” which meant it was
destroyed. “Owner” as a location meant
it was returned to the owner. One could
not print the screen that showed the date of the destruction or return to
owner.
Perez or
one of her employees would oversee the destruction of property only after
receiving a message in the computer system saying that the property was to be
destroyed. The orders for disposition of
property were located in the case manager, which is part of the Tiburon
system. Upon receiving a destruction
order, the property room employees would find the location of all the items and
begin with the easiest items first, saving any drugs, money, or firearms to the
last. Appellant’s attorney, Mr. Geragos,
never contacted Perez to view any of the evidence in the case numbered DR
0201641.
Kristina
Peterson, a community service officer with the Glendale Police Department,
testified that, after Detective Currie retired, she closed his cases in the
in-house case-management system (RMS) when appropriate. She obtained information from a county data
system regarding the defendants in the cases whose case number she was
researching.
Heather
Howison had been a community service officer with the Glendale Police
Department since 2004 and had worked in the property room since November
2007. She had personally researched in
Quetel each item on the four-page list of property for case No. DR 0201641 and
noted its disposition.
name="_ftnref6" title="">[6] (Peo. exh. 1, § 18.) Detective Breckenridge had requested this
action. Her disposition notes were
handwritten since, as Perez had testified, the screen could not be
printed. Of the items listed as still
being in the property room, she physically had located all the items but one,
which consisted of “‘two Partez Deli receipts.’”
“9/28/07,” that was the date that the item was physically destroyed by one of
the property officers—in this instance, it had been a cadet.
Officer
Esperanza Fernandez of the Glendale Police Department was asked to participate,
along with other detectives, in updating the property department in August
2007. One of the cases assigned to her
was DR 0201641. On August 23, 2007, she
ordered, “Destroy All Property.” Prior
to making that order, she had looked at the status page for that case. (See Peo. exh. 1, § 17, first two pages.) Her review of the status page showed her that
the defendant had entered a plea, was serving time, and “the case was
done.” The case was an “assault felony.” She made no attempt to contact any
investigator associated with the case because the officer assigned to it, Will
Currie, had already retired, and the defendant was serving a prison sentence.
The trial
court denied attorney Mr. Geragos’s request to recess after Detective
Fernandez’s testimony so that he could examine the computer system at the
Glendale Police Department. Mr. Geragos
asserted that someone was “obviously mistaken,” and he believed it was Officer
Fernandez. The prosecutor argued that
Detective Breckenridge could clarify what the exhibits showed.
Detective
Breckenridge testified that he had accessed the Tiburon system, also known as
RMS, and printed certain screens on March 11, 2008. That is why his police identification number
showed up on the screen shown on People’s exhibit 1, section 17.
Detective
Breckenridge found out that some of the property had been destroyed and
returned to owner because he went to the property room on January 16, 2008, to
get certain color photographs belonging to Harutyunyan that the defense had
requested. He had not known about the
destruction and return of certain property before January 16, 2008. When he discovered that the color photographs
had been released back to Harutyunyan, Breckenridge returned to court and told
Mr. Geragos. Shortly thereafter, he
asked the property room employees for Patlan’s phone book and learned that it
and other property had been destroyed.
The defense had not asked for the phonebook—Breckenridge himself wanted
it because he thought it might be useful.
When he found out that the property had been destroyed he notified his
lieutenant and the district attorney.
Detective Breckenridge was officially assigned to the case against
appellant at his own request. He told
the property department to reassign the case to him so that no further property
would be destroyed. Up until that point,
the case had just “followed [him],” since he had worked aspects of the case
prior to that date. Detective
Breckenridge was not instructed to write a report on the destruction. Mr. Geragos had never contacted
Breckenridge to view or test any of the property retained by the Glendale
Police Department since time of appellant’s arrest in June 2003.
Detective
Breckenridge compiled the documents contained in the notebook labeled People’s
Hearing exhibit 1 after Mr. Geragos made a new trial motion. The pages of the notebook showed the property
in appellant’s case from the time it was collected and booked in 2002 and given
a DR number to the time it was returned to its owner or destroyed. A Bates-stamped copy of the property report
was provided to the district attorney’s office after the case was filed. Detective Breckenridge had included in the
notebook the forms on which Detective Fernandez had relied before ordering the
evidence to be destroyed.
Retired
Investigator Will Currie also testified at the motion hearing. When he retired on January 18, 2005, the two
Davtyans and Patlan had gone to prison.
No one had ever consulted him regarding destruction of the property in
that case. He had agreed to release some
of Harutyunyan’s property while he was still on the case because that property
was not evidence, and there was no need to hold it. It was Currie who had investigated the phone
records that led to appellant. He had
not looked through Patlan’s phone book to see if Harutyunyan’s phone number was
written there. While Currie was the
investigating officer on the case, he was never contacted by Mr. Geragos to
view or arrange for testing of any property booked in the case.
Mr. Geragos
renewed his motion to look at the computers at the Glendale Police
Department. He believed this was
essential to his new trial motion. The
prosecutor asked for an offer of proof as to how information so obtained would
have any bearing on the issue before the court.
Mr. Geragos stated he did not for a second believe that Officer
Fernandez ordered the property destroyed.
Investigator Currie “was in the mix then.” The court noted that Currie’s number appeared
merely as the assigned officer. Mr.
Geragos asserted he could show it was either Breckenridge or Currie who ordered
destruction of the property. The trial
court denied Mr. Geragos’s request. He
reiterated his request at the close of evidence, but it was denied.
When the
parties were invited to argue, Mr. Geragos stated that the district attorney
had a duty to notify the defense as soon as she learned that the items had been
destroyed and before moving copies of the items into evidence. Mr. Geragos asserted that he would have
changed his tactics during trial had he known of the destruction. He had assumed that all the copies or
replicas of the items introduced at trial were of items that actually
existed. He argued that the state of the
law and the Evidence Code would have required the exclusion of a number of the
items because the original no longer existed.
If Mr. Geragos had known, he would have asked for a mistrial at that
point, and he believed the court would have granted it.
The
prosecutor argued that not all of the property was destroyed. If Mr. Geragos had believed Patlan’s phone
book important, he had had over four years to look at it. The only phone book that Mr. Geragos had
asked for belonged to one of the Davtyans, and that book had been in a box in
court from the other trial. All of the
relevant evidence had already been booked into the court during the previous
trial.
D. Trial Court’s Ruling
In denying appellant’s new trial
motion under section 1181, subdivision 8, the trial court stated, “You know,
the suggestion that—that Mr. Geragos made during the course of this hearing
that somehow this Detective Fernandez basically came in and perjured herself,
there’s just no support for that anywhere.
There’s no indication that Detective Fernandez had any connection with
the defendant, with anything having to do with this case.” The trial court stated that, unfortunately,
Detective Fernandez was asked to take care of something about which she had
little knowledge, and she did not realize there was a relationship between the
case in which she ordered the destruction of property and appellant’s pending
case. However, the vast majority of the
evidence that was introduced in appellant’s case was evidence that came from
the other trial. The court observed
that, “but it really wasn’t until it came to light that the items were
destroyed that the defense showed any interest in those items at all. They hadn’t shown an interest in those items
during the course of the trial. It was
like—it was almost like, you know, playing monopoly and getting that chance
card of whatever, bank error in your favor, you know, collect $200. I mean, it was like manna from heaven. It really had nothing to do with anything,
but gave the defense an issue that wasn’t an issue. The court doesn’t see it as ever having been
an issue. The court doesn’t see that
there was any malice or intent of the police department to somehow ruin the
defense in this case by destroying this evidence. It appeared to have been done in the ordinary
course of business, and it just—I don’t see it as relevant or I don’t see that
the defendant was denied a fair trial in this case and due process, and I don’t
see that there are grounds to justifiably grant a new trial in this matter.”
E. Appellant’s Argument
Appellant argues that the trial court erred by denying
his new trial motion based upon “newly discovered evidence.” The evidence, which appellant argues was both
newly discovered and material, consisted of “new information” that was not
disclosed to the defense until after the trial had concluded. The new information was that “material evidence
was destroyed by officers connected to this case.”
According
to appellant, the evidence was material because the items destroyed “directly
supported the defense theory that someone other than appellant was responsible
for the alleged crimes.” The defense
theory at trial was that Harutyunyan was Gordo, the coconspirator in the
attempted kidnapping. Appellant alleges
that a “search of Mr. Harutyunyan’s residence in fact confirmed his
participation in the crime.” As an
example, one of many items destroyed consisted of “Documents/papers,” and this
particular item of evidence “could have provided further proof that Mr.
Harutyunyan was Gordo.” Appellant
asserts that, “[h]ad this evidence been available at trial it is probable that
a different result would occur on a retrial.”
According to appellant, based on the materiality of this newly
discovered evidence, this Court should reverse appellant’s conviction.
We disagree
with appellant. The information that
certain items of property had been destroyed was not evidence material to his
defense. In addition, the evidence of
the destruction did not constitute exculpatory evidence, since the jury clearly
rejected appellant’s theory that Harutyunyan was Gordo in any event. This despite intensive cross-examination of
Detective Currie regarding his rejection of Harutyunyan as a suspect and of
Patlan regarding his identifications of Harutyunyan and appellant, in addition
to extensive argument on these subjects.
Mr. Geragos went so far as to continually refer to Harutyunyan as
Patlan’s coconspirator during his cross-examination of Detective Currie. The destroyed property, such as business
cards from Armenian business people in Glendale, had no tendency to prove
Harutyunyan’s guilt and appellant’s innocence, and it certainly did not confirm
his participation in the crime, as appellant boldly asserts.
The fact
that Mr. Geragos represented appellant almost continuously since his arrest on
June 18, 2003, without demonstrating any need for the destroyed property serves
to bolster this conclusion. Mr. Geragos
represented appellant in this case from his arraignment, through his
preliminary hearing in April and May 2004, and on to the date of final judgment
in this case. Mr. Geragos himself
introduced photocopies of the items seized from Harutyunyan’s apartment into
evidence as an exhibit at trial. Mr.
Geragos utilized the photocopied items extensively in his cross-examination of
Detective Currie. These included
Harutyunyan’s driver’s license photograph, a photograph of Harutyunyan and
Mkrtumyan standing together, and business cards for the Partez Deli, American
Bakery Products, Sassoon Sales, and Continental Bakery. Mr. Geragos requested and was given a copy of
the search warrant and search warrant affidavit, which contained Mkrtumyan’s
statement about Harutyunyan. He did not
request that the original of any documents or other items be preserved for his
inspection or produced in court, except for the original photograph of
Mkrtumyan and Harutyunyan, which Mr. Geragos requested about halfway through
the People’s case. Detective Currie even
testified during redirect examination that Harutyunyan’s property was returned
to him, and Mr. Geragos did not react in any way to this information.
Thus, the
property whose destruction was the subject of appellant’s new trial motion was
merely cumulative to the evidence the defense used at trial. The fact that the original items of property
were destroyed or returned to their owner constituted only impeachment evidence
at best. Such impeachment evidence would
not have destroyed the prosecution’s case, since all of the police officers’
motives were thoroughly brought into question at trial. (See People
v. Huskins, supra, 245 Cal.App.2d
at pp. 862-863.) The information thus
does not rise to the level of material evidence. “[E]ach case must be judged from its own
factual background” (People v. Dyer
(1988) 45 Cal.3d 26, 52). Upon
consideration of all the evidence, both old and new (People v. Clauson, supra,
275 Cal.App.2d at p. 706), we conclude that the destruction of the property did
not damage the defense, and it was not reasonably probable that the information
that the property was destroyed would have brought about a different result
upon retrial.
II. Alleged Brady
Violation
title="">[8]
A. Appellant’s Argument
Appellant
argues that the prosecutor was aware that evidence material to the case was
destroyed prior to trial but deliberately chose to continue with the trial
knowing that the defense did not have all the evidence pertinent to the
case. Appellant again asserts that the
evidence is material because it supports the defense theory that Harutyunyan
and not appellant was the real perpetrator of the attempted kidnapping and
conspiracy to kidnap. According to
appellant, the failure to provide this substantial material evidence favorable
to the defense violated the provisions of Brady
and requires this Court to order a new trial to cure the prosecution’s error.
The People
have both a constitutional and statutory duty to disclose information to the
defense. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378;
798, 804 (Bohannon).) The constitutional duty arises under the due
process clause of the United States Constitution and requires the prosecution
to disclose any material evidence exculpatory of the defendant. (Brady,
supra, 373 U.S. at pp. 86-87.) This duty is independent of the statutory
duty. (Izazaga v. Superior Court, supra,
at p. 378; Bohannon, at p. 804.)
Statutory
provisions for reciprocal discovery in criminal
cases are contained in sections 1054 through 1054.8. Section 1054.1 requires the prosecutor to
disclose specified categories of information “if it is in the possession of the
prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies.”
Section 1054.1, subdivision (f) describes the category of “[r]elevant
written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including
the results of physical or mental examinations, scientific tests, experiments,
or comparisons which the prosecutor intends to offer in evidence at the trial.”
Section
1054.7 provides for the timing of the discovery obligation, in pertinent part
as follows: “The disclosures required
under this chapter shall be made at least 30 days prior to the trial, unless
good cause is shown why a disclosure should be denied, restricted, or
deferred. If the material and
information becomes known to, or comes into the possession of, a party within
30 days of trial, disclosure shall be made immediately, unless good cause is
shown why a disclosure should be denied, restricted, or
deferred. . . .”
The United
States Supreme Court has held that the suppression by the prosecution of
evidence favorable to an accused, including impeachment testimony, violates the
Fourteenth Amendment due process clause where it is material either to issues
of guilt or punishment, irrespective of the good faith of the prosecutor. (United
States v. Bagley (1985) 473 U.S. 667, 675-676; Brady, supra, 373 U.S. at
p. 87; People v. Ochoa (1998) 19
Cal.4th 353, 473.) The high court has
stated that evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A
“‘reasonable probability’” is one sufficient to undermine confidence in the
outcome of the trial. (
see also Strickler v. Greene (1999)
527 U.S. 263, 280-281; People v. Ochoa,
at p. 473; In re Brown (1998) 17
Cal.4th 873, 884.) Mere supposition
based on weak premises that an undisclosed item might have helped the defense
or affected the outcome is insufficient.
(Wood v. Bartholomew (1995)
516 U.S. 1, 8.)
We
independently review the issue of whether a Brady
violation has occurred while giving great weight to the trial court’s findings
of fact supported by substantial evidence.
(People v. Letner and Tobin (2010)
50 Cal.4th 99, 176.)
Brady Violation
Brady is
violated only when material exculpatory evidence is suppressed. The evidence here—the information that some
property held in the Glendale police property room was destroyed—was not
exculpatory. Although the suppression of
impeachment evidence can also violate Brady,
in this case, the information was not material.
As we have concluded, there was no reasonable probability of a different
result had the information been told to the defense. It is mere supposition that this information
would have affected the outcome. The defense
had copies of all the property that had been destroyed and never asked for the
originals, except for the color photograph.
“[N]ot every nondisclosure of favorable evidence denies due process. ‘[S]uch suppression of evidence amounts to a
constitutional violation only if it deprives the defendant of a fair
trial. Consistent with “our overriding
concern with the justice of the finding of guilt,” [citation] a constitutional
error occurs, and the conviction must be reversed, only if the evidence is
material in the sense that its suppression undermines confidence in the outcome
of the trial.’ [Citation.]” (In re
Brown, supra, 17 Cal.4th at p.
884, quoting United States v. Bagley,
supra, 473 U.S. at p. 678.) In this case, our confidence in the outcome
of appellant’s trial is not undermined by the prosecutor’s failure to inform
the defense that some property had been destroyed.
III. Alleged Violation of Due Process under
A. Appellant’s Argument
Appellant
asserts the destruction of the items was done in bad faith because the police
knew that appellant would use the evidence to vindicate himself. He states that the police collected
approximately 100 items of property that they believed had evidentiary value to
this case, and more than half of these items were destroyed by officers prior
to appellant’s trial. Appellant claims
the items were material, relevant and exculpatory.
Relevant Authority
In Trombetta,
the United States Supreme Court held the prosecution’s duty to preserve
evidence is limited to matters “that might be expected to play a significant
role in the suspect’s defense.” (467
U.S. at p. 488, fn. omitted; People v.
Beeler (1995) 9 Cal.4th 953, 976; People
v. Zapien (1993) 4 Cal.4th 929, 964 (Zapien).) “‘To fall within the scope of this duty, the
evidence “must both possess an exculpatory value that was apparent before the
evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.”’” (People
v. Catlin (2001) 26 Cal.4th 81, 159-160 (Catlin).) The evidence or
testimony in question must affect the judgment.
(United States v.
Valenzuela-Bernal (1982) 458 U.S. 858, 873-874 (Valenzuela-Bernal) [examining the loss of testimonial evidence due
to Government action]; Trombetta, at
p. 488.)
Although
the state’s good or bad faith in failing to preserve evidence is ordinarily
irrelevant to assessing whether its conduct amounted to a due process violation
(Arizona v. Youngblood (1988) 488
U.S. 51, 57 (Youngblood)), it is of
great significance when the challenge to the state’s conduct is based on the
failure to preserve potentially
exculpatory evidence—that is, “evidentiary material of which no more can be
said than that it could have been subjected to tests, the result of which might
have exonerated the defendant.” (
In such a case, “‘“unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.”’”
(Catlin, supra, 26 Cal.4th at p. 160, quoting Youngblood, at p. 58; see also People
v. Cooper (1991) 53 Cal.3d 771, 810-811 [adopting the standard set forth in
Trombetta and Youngblood to evaluate due process challenge under state law];
accord, Zapien, supra, 4 Cal.4th at p. 964.)
“The
presence or absence of bad faith by the police for purposes of the Due Process
Clause . . . necessarily turn[s] on the police’s knowledge
of the exculpatory value of the evidence at the time it was lost or
destroyed.” (Youngblood, supra, 488
U.S. at pp. 56-57, fn. *; People v.
Beeler, supra, 9 Cal.4th at p.
1000.) A due process violation occurs
when the state is aware that the evidence could form a basis for exonerating
the defendant and fails to preserve it as part of a conscious effort to
circumvent its constitutional discovery obligation. (Trombetta,
supra, 467 U.S. at p. 488;
at p. 964.) Negligent destruction of (or
failure to preserve) potentially exculpatory evidence, without evidence of bad
faith, will not give rise to a due process violation. (Youngblood
| Description | A jury convicted appellant Arutyun Khrayan of conspiracy to commit the crime of kidnapping for ransom in violation of Penal Code section 182, subdivision (a)(1);[1] attempted kidnapping for ransom in violation of sections 664 and 209, subdivision (a); and assault with a semiautomatic firearm in violation of section 245, subdivision (b). The jury found that in the commission of the conspiracy and attempted kidnapping counts, a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). Appellant admitted a prior conviction of a serious or violent felony within the meaning of sections 667, subdivision (a); 667, subdivisions (b) through (i); and 1170.12, subdivisions (a) through (d). |
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