P. v. Vardazaryan
Filed 6/21/12 P. v. Vardazaryan CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
THE PEOPLE, Plaintiff and Respondent, v. AKOP VARDAZARYAN, Defendant and Appellant. | B235801 (Los Angeles County Super. Ct. No. BA 363231) |
APPEAL from
a judgment of the Superior Court
of
County, Kathleen Kennedy, Judge. Affirmed.
Carlo A.
Spiga for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B.
Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
A jury
found appellant Akop Vardazaryan guilty of first
degree murder and of an assault with a deadly weapon. Appellant was sentenced to 25 years to life;
the sentence on the assault charge was
stayed under Penal Code section 654. The
appeal is from the judgment.
Vagen Vardazaryan,
South Broadway in Los Angeles with
Delores Gutierrez when Reginald Hendrix, the victim, entered the store to buy a
charger. An altercation erupted between
Vagen and Hendrix over the fact that Vagen asked Hendrix to wait while Vagen
served other customers. When Hendrix
called Vagen names and refused to leave, Vagen started pushing Hendrix out the
door. It came to blows that were
continued outside on the sidewalk. Vagen
called out to Gutierrez to bring him a metal stick, which she did not do. A woman stopped the fight. Words continued to be exchanged as Gutierrez
handed Vagen the metal stick. Hendrix
got on his bike but not before he called Vagen names, said he would bring his
“homeboys†and threatened to burn the store down. Vagen unsuccessfully tried to pursue Hendrix.
Vagen
called for appellant who arrived at the store in about 10 to 15 minutes. Even though both Gutierrez and appellant told
Vagen not to go after Hendrix, the brothers left in Vagen’s red Neon.
There were
two witnesses to the ensuing shooting.
The brothers evidently caught up with Hendrix within a few minutes. Ultimately, they cut off the running Hendrix
by pulling into a driveway. The brothers
got out of the car. Vagen was armed with
a gun and appellant was carrying an 18-inch metal socket wrench. Hendrix ran into the middle of the street,
pursued by the brothers. (There was a
surveillance video that showed Vagen and appellant getting out of the car and
chasing Hendrix.) Vagen fired three or
four shots at Hendrix at a close range, and he fell to the ground. Hendrix died of a single gunshot wound that
perforated his left lung, heart and aorta.
Vagen was
apprehended within minutes by the police, still carrying his gun. Shell casings matching the weapon were
recovered on the scene, together with the socket wrench from a nearby dumpster.
Appellant
presented no evidence in his defense.
1. There Was No Evidence to Support the Giving
of Self-defense Instructions
Appellant
contends his lawyer was ineffective because he did not request
is barren of any evidence that would have warranted such instructions.
Appellant
relies on Hendrix’s threat that he would return with his homeboys; that in fact
Hendrix and Vagen had fought; that Vagen told appellant about the fight and the
threat about the homeboys; and that Hendrix was riding the bike to the store,
meaning that Hendrix was returning to carry out his threat.
“Fear of future
harm ‑‑ no matter how great the fear and no matter how great the
likelihood of the harm ‑‑ will not suffice. The defendant’s fear must be of imminent
danger to life or great bodily injury.â€
(In re Christian S. (1994)
7 Cal.4th 768, 783.) When Hendrix was
shot and killed, he was running for his life, being chased by Vagen with his
gun and appellant with the metal bar.
Being in full flight, Hendrix posed no threat of harm, certainly not
imminent harm. It is true that the two
men had fought and that Hendrix had uttered a threat half an hour before the
shooting; but these events were distant from the shooting both in time and
place, at least as far as self-defense was concerned. The person who was, tragically enough, in
imminent life-threatening danger was Hendrix; the brothers were in no danger of
any kind when they were pursuing Hendrix.
And it isn’t true that Hendrix was on his way to the store on his bike;
he was on foot, fleeing from the pursuing brothers.
Contrary to
appellant’s claim, the facts did not warrant an instruction on imperfect
self-defense. The brothers were clearly
the aggressors and, equivalently clearly, Hendrix was in flight. Thus, there was absolutely no indication that
appellant and his brother subjectively believed that they were acting in
self-defense. (People v. Hill (2005) 131 Cal.App.4th 1089, 1101 [subjective belief
establishes imperfect self-defense].)
Because there was
no evidence that would have supported self-defense instructions, it follows
that defense counsel cannot be faulted
for not requesting them.
2.
The Concession That Appellant Had Assaulted Hendrix Was Sound Strategy
Appellant
complains of the fact that defense counsel conceded that appellant had
assaulted Hendrix.
The defense,
simply put, was that appellant intended to beat up Hendrix but never intended
to kill him.
Considering that
it was undisputed that appellant had been chasing Hendrix with a metal
socket wrench that was a foot and a half long, defense counsel adopted the only
strategy that had the slightest chance of success. There was no way that counsel could undo a
set of facts that put his client in a bad light. A realistic approach that concentrated all
efforts on warding off a murder conviction
was the best strategy.
3. The “Evidence†That Was Not Presented Would
Have Harmed Appellant
Appellant
contends that counsel was ineffective because he did not present evidence that
showed that Vagen held irrational beliefs and had “mental issues.†Appellant also faults counsel for not
presenting evidence that appellant disapproved of Vagen’s actions right after
the crime and that appellant did not know that Vagen had a gun.
If it was
in fact true that Vagen was unstable, appellant certainly did the very opposite
of what he should have done. Evidence of
Vagen’s “mental issues†could only reflect badly on appellant in that appellant
should have taken those issues into account, instead of participating in the
hunt for Hendrix.
That
appellant disapproved of what Vagen did is in stark contrast to appellant’s
actions. If he disapproved of the murder
after it happened, he should have tried to prevent it. Again, the alleged evidence is harmful to
appellant. And that he didn’t know that
Vagen had a gun is flatly contradicted by the record in that he was in Vagen’s
company while chasing Hendrix.
4. The Trial Court Did Not Err in Denying the
Motion for a New Trial
Appellant
contends that his motion for a new trial
should have been granted because his counsel was ineffective. As we have shown, that was not the case;
there was no evidence to support self-defense instructions.
Appellant
also claims the motion should have been granted because there “is simply no
evidence of deliberation in this case.â€
Getting into a car armed with a metal bar, driving until locating the
victim and then getting out of the car with a dangerous weapon and chasing the
victim until he was shot dead is about as sound a case for premeditation and
deliberation as can be made.
Finally, we
see nothing in this record that would have warranted a reduction, by the trial
court, of the first degree murder conviction to a lesser offense. The murder of this unfortunate man was
vicious, brutal and violent; the jury’s verdict was completely appropriate.
The
judgment is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1] We
will refer to the Vardazaryans by their first names for the sake of clarity.
