P. v. Vartanyan
Filed 9/23/13 P. v. Vartanyan CA2/7
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
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
AVETIS VARTANYAN,
Defendant and Appellant.
B240976
(Los Angeles
County
Super. Ct. No. BA348894)
APPEAL from
a judgment of the Superior Court of
County, Sam Ohta, Judge. Affirmed.
George
Gevork Mgdesyan for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
As part of a negotiated
agreement, Avetis Vartanyan pleaded no contest to one count of voluntary
manslaughter and admitted a firearm-use enhancement. Prior to sentencing, Vartanyan moved to
withdraw his plea. The trial court denied
the motion and imposed a 16-year state
prison term pursuant to the plea agreement.
On appeal, Vartanyan contends the court coerced him to enter a guilty
plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1
Preliminary Hearing Evidence
On the evening of May 20, 2008, a group of men were
arguing in the parking lot of a shopping center. Shots were fired, killing Artak Karamyan and
Paylak Harutyunyan. Vartanyan was seen
running from the shopping center through a residential neighborhood. The police found Vartanyan in the backyard of
a house and recovered the handgun used to kill Karamyan from the backyard of a
nearby house.
2. The
Information
On October 28, 2009, Vartanyan was charged by information
with the murders of Karamyan and Harutyunyan (Pen. Code, § 187, subd. (a))
allegations he had personally and intentionally discharged a firearm causing
great bodily injury or death in committing the murders (§ 12022.53, subd. (d))
and had personally and intentionally discharged a firearm in committing the
murders (§ 12022.53, subd. (c)). It was
also specially alleged Vartanyan had previously served two separate prison
terms for felonies (§ 667.5, subd. (b)).
Represented by retained counsel,
not guilty and denied the special allegations.
3.
The trial
court heard and denied Vartanyan’s motion to dismiss the information
(§ 995) and granted the
People’s motion to dismiss the second count, the murder of Harutyunyan, in
furtherance of justice.
4. Vartanyan’s
No Contest Plea and Related Proceedings
On August
6, 2010, during the People’s case-in-chief and outside the presence of the
jury, the trial court told Vartanyan it had discussed with both counsel the
plea offer that had been made to him.
The court engaged in a lengthy discussion with Vartanyan about the
consequences of going to trial, comparing potentional sentences if Vartanyan
was convicted with the offer that had been made. The court explained to Vartanyan he would
face consecutive terms of 25 years to life for first degree murder and personal
use of a handgun, meaning he would not be eligible for parole for 50 years and
would not likely be released on parole because “the facts of the case are so
brazen, what happened is so bad, you know, daylight with people, innocent people
potentially getting hurt,†and Vartanyan purportedly was a gang member.
The court
encouraged Vartanyan to evaluate the prosecutor’s offer objectively and told
Vartanyan the offer of a 10 to 20-year sentence was objectively reasonable from
the prosecutor’s perspective, adding the prosecutor “was not playing hardball
in terms of settlement.†The court
continued, “again from your perspective you may think it’s not reasonable. [‘] I didn’t do it, I don’t want to take the
deal.[’] That’s fine. If that is where you’re at, then roll with
it. Okay?â€
The trial court then told
Vartanyan, “So the bottom line is, if you wanted to resolve this case, it’s not
going to make you happy. It’s not going
to be something you’re going to be, you know, yelling ‘yippee’ about. You’re going to be unhappy about it. You’re going to say, ‘Dang, that’s a lot of
time.’ You have to understand that, if
you don’t take the deal and you get convicted, which is a possibility, that
you’re going to be really upset to the degree where you’re going to think,
‘Man, my life is over.’â€
The trial
court informed Vartanyan, if convicted, he would be sentenced for first or
second degree murder according to the law to a term of 15 years to life, or 25
years to life, 35 years to life or 50 years to life. A determinate term sentence would not be
possible if Vartanyan were found guilty.
The court inquired whether Vartanyan understood these sentencing
options, and Vartanyan answered he did.
The court then asked if he had any questions, and Vartanyan replied he
knew the consequences. The court then
recessed the trial, during which Vartanyan spoke with his family and defense
counsel.
When trial reconvened, the parties
informed the trial court they had reached a plea agreement that provided Vartanyan
would plead no contest to an amended count of voluntary manslaughter (§ 192,
subd. (a)) for a six-year sentence and admit personal use of a firearm (§
12022.5, subd. (a)) for a 10-year sentence.
In return, the murder count and remaining firearm-use and prior prison
term enhancement allegations would be dismissed.
The record of the plea hearing
established Vartanyan was advised of and waived his constitutional rights, was
advised of and acknowledged he understood the consequences of his plea and indicated
no one had made any promises or threats to make him enter a no contest
plea. Defense counsel joined in the
waivers, concurred in the plea and stipulated to a factual basis for the plea. The trial court found Vartanyan had
knowingly, voluntarily and intelligently waived his
contest plea.
The trial
court agreed to continue sentencing for 60 days, but advised Vartanyan if he
subsequently wanted to withdraw his plea, his motion would require “legal
cause.†The court further stated, “I
also want the record to reflect that we spent an hour and a half talking to the
defendant. He had an opportunity to talk
with his family.†Because sentencing was
continued to October 6, 2010, the court declared a mistrial on the murder
count.
5.
On January 27, 2011, Vartanyan
filed a motion to withdraw his plea
(§1018), asserting that he had been unduly pressured by the trial court to
enter a guilty plea.
name="_ftnref4" title="">[4]
reconsideration.
In his
declaration in support of the motion, Vartanyan stated he had always wanted a trial,
confident he would be acquitted of the murder charge. However, when the court unexpectedly spoke to
him in the middle of trial “about the risks of a murder trial and he can see
how I can end up doing a life sentence in this case, I was overwhelmed and
frightened.†Vartanyan stated, when the
court “was telling me it was better to take the prosecutor’s offer than serve
life†and “I would be younger than he after I served my time[,] I was
terrified, I felt like I lost my strength and the reasons I held onto for two
years.†Vartanyan stated he felt he no
longer had any options because “the most important person in the courtroom, the
judge, thought I was going to lose.â€
Consequently, Vartanyan said he had concluded that if he did not agree
to the negotiated plea, he would be in prison for the rest of his life.
6.
Sentencing Hearing
On March 20, 2012, the same bench
officer who had presided over the plea hearing presided over the
trial court sentenced Vartanyan to an aggregate state prison term of 16 years,
consisting of the middle term of six years for voluntary manslaughter, plus ten
years for the firearm-use enhancement. )~ The court ordered Vartanyan to pay a
$40 court security fee, a $30 criminal conviction assessment and a $ 200
restitution fine. The court imposed and
suspended a parole revocation fine pursuant to section 1202.45. Vartanyan was awarded a total of 1,610 days
of presentence credit (1,400 actual days and 210 days of conduct credit). The remaining count and special allegations
were dismissed on the People’s motion.
Vartanyan
timely filed a notice of appeal, and the court granted his request for a
certificate of probable cause.
Vartanyan appeals from the order
denying his motion to withdraw his plea under section 1018. We review the denial of a motion to withdraw
a plea for abuse of discretion. (
Cal.App.4th 111, 123, People v. Wharton
(1991) 53 Cal.3d 522, 585.) However,
because the trial court relied on facts which are not part of the record on
appeal,
name="_ftnref5" title="">[5]
his claim by failing to provide an adequate record. We construe the appeal as challenging the
voluntariness of his plea.
A plea, like any other waiver of
constitutional rights, “may be accepted by the court only if knowing and
intelligentË—made with a full awareness of the nature of the right being
waived and the consequences of the waiver.
In addition, the waiver must be voluntary.†(People
v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill (2000)
528 U.S. 110, 114 [145 L.Ed.2d 560, 120 S.Ct. 659].) When a
defendant elects to waive the fundamental constitutional rights that accompany
a trial by pleading no contest or guilty “the record must reflect that the
defendant did so knowingly and voluntarily- -that is, he or she was advised of
and elected to refrain from exercising the fundamental rights in
question.†(People v. Collins (2001) 26 Cal.4th 297, 308.)
Under the
governing test, a plea is valid “if the record affirmatively shows that it is
voluntary and intelligent under the totality of the circumstances.†(People
v. Howard (1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31 [27 L.Ed.2d 162, 91 S.Ct. 160].)
In contrast, “guilty pleas obtained
through ‘coercion, terror, inducements, subtle or blatant threats’ are
involuntary and violative of due process. [Citations].†(
Thus, if a guilty plea is induced by promises or threats it
is involuntary. (People v. Collins, supra, 26 Cal.4th 297, 312.) “However, involuntariness is found only if
threats, duress, or coercion overcome the exercise of the defendant’s ‘free
judgment.’†(People v. Sandoval, supra, 140 Cal.App.4th at p. 123.) We review the record independently to
determine the voluntariness of the waiver of rights and entry of the plea. (People
v. Mosby (2004) 33 Cal.4th 353, 360-361.)
The Trial Court Did Not
Coerce Vartanyan To Enter A Plea
Although
California law does not prohibit judicial involvement in plea negotiations, a
judge’s participation in plea discussions may improperly influence a defendant’s
decision to accept a plea agreement.
“[W]hen the trial court abandons its judicial role and thrusts itself to
the center of the negotiation process and makes repeated comments that suggest
a less than neutral attitude about the case or the defendant, then great
pressure exists for the defendant to accede to the court’s wishes.†(People
v. Weaver (2004) 118 Cal.App.4th 131, 150 (Weaver).) Nonetheless, not
every instance of judicial involvement in plea negotiations results in
duress. (Id. at pp. 149-150.) “Judges
can, in appropriate cases and in a reserved manner, play a useful part in that
process.†(Weaver at p. 150.)
Relying on
coerced him to accept the negotiated plea by advocating at length for the prosecution,
causing him to believe he would not be afforded a fair trial.
In Weaver, the defendant pleaded guilty to multiple counts of
trial court to induce a plea, and after the trial court indicated it would
admit potentially prejudicial evidence that, in the trial court’s stated view,
indicated the defendant would be convicted, and that the crimes were the result
of a “particular and dangerous mental disorder†(pedophilia). (Weaver
at p. 149.) The Court of Appeal
reversed the denial of his motion to withdraw his plea based upon the coercive
comments of the trial judge during plea negotiations. (People
v. Weaver, supra, 118 Cal.4th at
p. 136.)
Unlike the trial judge in
case did not express an opinion that Vartanyan was guilty, advocate on behalf
of the victim or make derogatory comments about Vartanyan. Nonetheless, Vartanyan argues the pressure
brought to bear on him was greater than that described in Weaver because the trial judge identified himself as a former
prosecutor, commented on the evidence, suggesting it would lead the jury to
view Vartanyan unsympathetically, and stated Vartanyan would be sentenced to
the term prescribed by law if convicted and would not likely be granted
parole.
After examining the totality of the
circumstances, Vartanyan’s proffered, coercive interpretation of the trial
court’s comments as advocating for the prosecution and pressuring him to accept
a negotiated plea, does not fairly characterized the events, or indicate that
the plea was not entered voluntarily and intelligently. (People
v. Mosby, supra, (2004) 33 Cal.4th at pp. 360-361.)
The record suggests the trial court
became involved in plea discussions only after Vartanyan indicated an interest
in entering a plea in return for a seven-year sentence. The trial court explained to Vartanyan his
potential prison exposure in matter-of-fact terms, comparing the maximum sentence
he faced if he were convicted by a jury as opposed to the actual sentence being
contemplated by the prosecutor as part of a negotiated plea. Indeed, Vartanyan does not claim the trial
court exaggerated when it told Vartanyan he could be sentenced to a term of 50
years to life under the law and would probably not be granted parole if he were
found guilty. These comments must be
interpreted in context as accurately advising Vartanyan of the realistic
alternatives he had to assess in determining whether to proceed with the trial,
given the fact the prosecutor was not offering Vartanyan a seven-year prison
term as part of a negotiated plea. The
trial court never urged Vartanyan to accept the plea offer or advised Vartanyan
the negotiated plea was in his best interests.
Rather, the trial court told Vartanyan if he decided to reject the
prosecutor’s offer, “If that’s where you’re at, then roll it. Okay?†Although the trial court could well have
avoided commenting on the evidence and its effect on the jury, the court
thereafter acknowledged to Vartanyan the outcome of the trial was uncertain,
“So you don’t have a slam dunk case either way.†In sum, the trial court accurately explained,
albeit at length, the possible consequences of a guilty verdict and pointed out
the benefits that could naturally accrue from the entry of a plea. (See People
v. Ray (1996) 13 Cal.4th 313, 339-341.)
The trial
court then recessed the proceedings to allow Vartanyan to discuss the matter
with his family and his attorney. When
the parties returned to court, Vartanyan told the trial court he wanted to
accept the prosecutor’s offer of a negotiated plea. At the plea hearing, Vartanyan orally
acknowledged he understood the nature and consequences of the plea and was
entering his plea “freely and voluntarily†because he thought “it was in his
best interests to do so. Vartanyan’s
defense counsel joined in the waivers and concurred in the plea. We presume counsel properly reviewed the
terms of the plea agreement and advised Vartanyan of his rights, because
Vartanyan is not claiming ineffective assistance of counsel, and there is no
evidence that counsel neglected his duties.
Thus, Vartanyan has failed to show that he entered his negotiated plea
involuntarily, as the result of judicial
coercion.
DISPOSITION
The judgment is affirmed.
ZELON,
J.
We concur:
PERLUSS, P. J.
WOODS, J.
name="_ftn1" title="">[1] Because Vartanyan entered into a plea agreement midway
through trial, we rely upon the preliminary hearing transcript to summarize the
facts.
name="_ftn2" title="">[2] Statutory references are to the Penal
Code.
