Filed 7/21/26 P. v. Davtyan CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B344219
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA230474
v.
KARAPET DAVTYAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed.
Christopher Lionel Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Nicholas J. Webster,
Deputy Attorneys General for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2003, a jury convicted appellant Karapet Davtyan of
assault with a firearm and other crimes related to his scheme to
kidnap Armen Mkrtumyan for ransom. On April 25, 2019,
Davtyan was granted parole. When released from prison, he was
placed in Immigration and Customs Enforcement (ICE)
detention. Because his conviction for assault with a firearm was
an aggravated felony under federal immigration law, an
immigration judge ordered Davtyan—a lawful permanent
resident at the time of his conviction—removed from the United
States under the Immigration and Nationality Act (8 U.S.C.
§ 1101 et seq.) He was subsequently removed to Armenia.
On January 7, 2024, Davtyan returned to the United States
and applied for asylum.1 On August 19, 2024, while his asylum
case was pending, Davtyan filed a motion to vacate his 2003
convictions pursuant to Penal Code section 1473.7, subdivision
(a)(1).2 The superior court denied the motion.
Davtyan appeals the superior court’s denial of his motion to
vacate, contending that it was reasonably probable that he would
have attempted to negotiate an immigration-safe disposition in
lieu of proceeding to trial. Davtyan also argues that the superior
court improperly struck his testimony about his role in the
conspiracy and excluded his trial counsel from testifying at the
hearing. We affirm the superior court’s orders.
1 According to the opening brief, Davtyan has since been
removed again to Armenia.
2 All further undesignated statutory references are to the
Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Defendant’s background and prior criminal history
Davtyan was born in Armenia on August 26, 1972. He
came to the United States in 1991 and became a lawful
permanent resident.
Davtyan’s prior criminal history includes a 1993 conviction
for petty theft (§ 484, subd. (a)), a 1997 conviction for grand theft
(§ 487, subd. (a)), a 1998 conviction for commercial burglary
(§ 459), and a 1999 conviction for petty theft with prior
convictions (§§ 666, 484, subd. (a)).
II. Facts3
In January 2022, while on probation and seeking court-
ordered treatment at the Tarzana Treatment Center, Davtyan
befriended James Patlan, who had recently been released from
prison and was also seeking treatment. Davtyan solicited Patlan
to participate in a conspiracy to kidnap an Armenian
businessman for ransom. Davtyan offered Patlan a weapon and
up to $200,000 to act as the kidnapper. Davtyan, his brother-in-
3 At Davtyan’s request, we take judicial notice of the
nonpublished decision in coconspirator Arutyun Khrayan’s case,
People v. Khrayan (Apr. 2, 2012, B213582). We derive our factual
and procedural background of this case from that nonpublished
opinion, and from the nonpublished opinion affirming Davtyan’s
judgment of conviction, People v. Davtyan (Oct. 5, 2004,
B168441). We reference the factual portions only “for
background purposes and to provide context for the parties’
arguments.” (People v. Flores (2022) 76 Cal.App.5th 974, 978,
fn. 2.)
3
law and codefendant Manvel Davtyan,4 and a third coconspirator
Khrayan (also known as “the fat man” or “Gordo”) gave a 9-
millimeter nickel-plated Smith and Wesson handgun, a taser
gun, and duct tape to Patlan.
On January 27, 2002, Manvel and Khrayan drove Patlan to
a warehouse loading dock owned by Armen Mkrtumyan, their
intended victim. Patlan approached Mkrtumyan, who drew his
own concealed gun. A gunfight ensued. Both Patlan and
Mkrtumyan were shot and injured, and both sought treatment at
the same hospital in Glendale, California. While Mkrtumyan
was speaking with police officers at the hospital, Patlan was
wheeled past his open emergency room door on a gurney, and
Mkrtumyan identified Patlan as the shooter. Patlan was
arrested at the hospital.
On March 20, 2002, Patlan entered into a use immunity
agreement, agreeing to cooperate with the police without any
specific promises being made. He told the police detective about
the kidnapping conspiracy and Davtyan’s and Manvel’s
involvement. Patlan could not provide information about
Khrayan’s identity, since he only knew him by his aliases. The
police knew that a third coconspirator was involved but did not
know his identity.
Patlan pled guilty to conspiracy to commit kidnapping
(§§ 182, subd. (a)(1), 207, subd. (a)) and agreed to a prison term of
14 years.
4 To avoid confusion, Manvel Davtyan will be referred to as
“Manvel.”
4
A. Trial court proceedings
Davtyan and Manvel proceeded to a jury trial. On
February 19, 2003, the jury convicted Davtyan of conspiracy to
commit kidnapping for ransom (§§ 182, subd. (a)(1) & 209, subd.
(a); count 1), attempted kidnapping for ransom (§§ 664, 209,
subd. (a); count 2), solicitation to commit kidnapping for ransom
(§ 653f, subd. (a); count 3), and assault with a semiautomatic
firearm (§ 245, subd. (b); count 4).
On May 30, 2003, the trial court sentenced Davtyan to life
in prison for conspiracy to commit kidnapping for ransom (§§ 182,
subd. (a)(1) & 209, subd. (a)) and nine years for assault with a
firearm (§ 245, subd. (b)).5 On October 5, 2004, the judgment was
affirmed on appeal.6
B. Immigration proceedings
On April 25, 2019, Davtyan was released from prison,
transferred into ICE custody, and placed in removal proceedings.
An immigration judge ordered him removed from the United
States due to his conviction for an aggravated felony and he was
removed to Armenia. In January 2024, he returned to the United
States to apply for asylum, and was detained by ICE.7
5 On the remaining counts, the trial court imposed and
stayed terms pursuant to section 654.
6 People v. Davtyan, supra, B168441.
7 The evidence accompanying Davtyan’s motion to vacate
alleges that on June 4, 2023, he was attacked in Armenia because
of “his non-traditional sexual orientation.”
5
C. Motion to vacate
On August 19, 2024, Davtyan, through counsel, filed a
motion to vacate the conviction pursuant to section 1473.7,
subdivision (a)(1). Davtyan argued that his conviction should be
vacated because he did not meaningfully understand and
knowingly accept the potential immigration consequences of the
charges against him, and his attorney failed to advise him and
failed to defend against adverse immigration consequences. He
claimed that if he had understood, he would have asked his
counsel to pursue additional defenses, alternative strategies
against the charges, or immigration-safe alternatives instead of
risking trial.
Along with his motion, Davtyan submitted, inter alia, a
letter from immigration attorney A. Ashley Gambourian.
Gambourian noted that Davtyan was presently ineligible for
asylum and withholding of removal due to his aggravated felony
convictions. However, she asserted, if Davtyan’s convictions in
this case were vacated, he could file a motion to reopen his
removal proceedings with the immigration court, and if granted,
he could be eligible for asylum and withholding of removal.8
The District Attorney filed an opposition to Davtyan’s
motion. The District Attorney argued that Davtyan failed to
address the second prong of the section 1473.7 analysis, since he
8 Gambourian noted that the Department of Homeland
Security could also find Davtyan removable based on his theft
convictions, and therefore three of his four theft convictions
would also need to be vacated to avoid another charge of
removability. Davtyan stated in his opening brief that his theft
convictions have since been vacated.
6
failed to show prejudicial error. First, the District Attorney
argued that Davtyan failed to show that he would have been
offered an immigration-safe plea had his attorney requested one,
or that the trial court would have accepted such an offer.
Moreover, the District Attorney contended that Davtyan failed to
show an alternate trial tactic that could reasonably have led to a
different result, considering the case against Davtyan “was
strong, with a cooperating codefendant supported by eyewitness
testimony and physical evidence.”
Davtyan filed a reply brief, in which he argued that
according to People v. Carrillo (2024) 101 Cal.App.5th 1, 20
(Carrillo), section 1473.7, subdivision (a)(1), does not require the
defendant to demonstrate a reasonable probability that he would
have taken an “alternate path” that would have resulted in an
immigration-neutral outcome in order to demonstrate prejudice.
Rather, Davtyan argued, Carrillo merely set forth one way that a
defendant can show prejudice. Davtyan asserted that there are
“numerous ways to show prejudice,” and the court must consider
the totality of the circumstances when evaluating prejudice.
Davtyan also argued that there were potentially
immigration-safe options available to him when he chose to go to
trial. For example, he argued that he could have accepted a
guilty plea to multiple counts of accessory after the fact (§ 32), or
conspiracy to be an accessory after the fact (§§ 182, subd. (a)(1) &
32) with consecutive sentences of 364 days or less in county jail;
misdemeanor false imprisonment (§§ 182, subd. (a)(1) & 32); or
solicitation to commit kidnap (§§ 653(f), subd. (a), 209).
Lastly, Davtyan argued that he demonstrated prejudice
through his strong evidence of substantial ties to the United
States. Davtyan noted that at the time of his trial, he had been
7
in the United States for 11 years as a lawful permanent resident,
the majority of his family, including his parents, three of his
siblings, his wife, his daughter, and his newborn son, were living
in the United States, and he had no ties to Armenia.
The prosecutor opposing the motion to vacate introduced
notes from the original District Attorney’s file. Specifically, a
note from July 5, 2002, indicated that the former prosecutor
informed Davtyan’s attorney, Jilbert Tahmazian,9 of the
possibility of a plea offer if he and Manvel were willing to
cooperate with the prosecution and provide Khrayan’s identity.
According to the prosecutor’s notes, in February 2003, she offered
Davtyan and Manvel determinate sentences of 18 years.
At the hearing, Davtyan testified that the prosecutor
offered him 18 years in prison and offered 15 years in prison for
Manvel. He added that the offer was a “package deal,” meaning
both Davtyan and Manvel had to agree to take the offer.
Davtyan testified that Manvel rejected the offer. Davtyan also
testified that he did not know about the possibility of testifying
against any coconspirator in exchange for any offer.10
At the hearing, Davtyan contended that since the District
Attorney was open to settlements, the District Attorney may
9 Davtyan and Manvel were both represented by attorney
Tahmazian. The prosecutor advised the trial court of the conflict
of interest arising from the dual representation. The court
instructed Tahmazian to have his clients execute waivers of the
conflict of interest in writing.
10 Khrayan was later convicted in a separate trial, where
Patlan testified. Patlan negotiated an additional four years off
his sentence in exchange for his testimony.
8
have offered a potentially immigration-safe charge at the time of
trial if Davtyan had agreed to cooperate, especially considering
the District Attorney offered Patlan a lower sentence after he
cooperated.
D. The superior court’s order
On January 31, 2025, the superior court held a hearing on
the motion to vacate. The court found that Davtyan was not
properly advised of his immigration consequences, and had
strong ties to the United States. The court stated that the only
remaining issue was whether Davtyan demonstrated prejudicial
error.
On February 3, 2025, the court issued a memorandum of
decision on Davtyan’s motion to vacate. The court determined
that Davtyan failed to demonstrate that, “in light of the ‘totality
of the circumstances,’ [he] ‘would have done something
differently—that is would have taken another path—and the
alternate path would have resulted in an immigration neutral
outcome.’ ” The court found that the circumstances in Davtyan’s
case were similar to Carrillo, where the court rejected the
petitioner’s claim for relief under section 1473.7 after finding the
petitioner failed to show by a preponderance of the evidence that
his lack of understanding of his immigration consequences
prejudiced his decision to go to trial. The court stated that
Davtyan’s conviction for conspiracy to commit kidnapping carried
a mandatory sentence of life in prison, and Davtyan did not
produce any evidence to establish, in light of the severe penalty
for his conviction, that any plea offer with immigration-neutral
consequences was available to him. The court noted that the plea
offer presented to Davtyan immediately before trial was life in
9
prison.11 Moreover, the court found that Davtyan did not
establish any alternate trial tactics that may have led to a
different result in his case, and failed to show any alternate
options that his trial counsel may have taken both before or
during his trial which would have led to an immigration-safe
outcome. Accordingly, the court determined that Davtyan failed
to show by a preponderance of the evidence that he was
prejudiced by his failure to meaningfully understand the actual
or potential adverse consequences of a conviction of the charges
in his case, and denied Davtyan’s motion to vacate.
Davtyan timely appealed.
DISCUSSION
I. Section 1473.7, subdivision (a)(1)
Under section 1473.7, subdivision (a)(1), a person who is no
longer in criminal custody may move to vacate a conviction on the
ground that the conviction was “legally invalid due to prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a conviction or
sentence.” To establish that a conviction was legally invalid on
this ground, a “defendant must first show that he did not
meaningfully understand the immigration consequences” of his
litigation strategy. (People v. Espinoza (2023) 14 Cal.5th 311,
11 This statement appears to be incorrect, since the plea offer
presented to Davtyan was for 18 years. The superior court’s error
was inconsequential, since 18 years is still significantly more
than the 364 days that would be required to avoid immigration
consequences.
10
319 (Espinoza).) “Next, the defendant must show that his
misunderstanding constituted prejudicial error.” (Ibid.)
Under section 1473.7, subdivision (a)(1), a
misunderstanding of immigration consequences is prejudicial if
there is a “reasonable probability” that, absent the
misunderstanding, the defendant would have adopted a different
strategy. (Espinoza, supra, 14 Cal.5th at p. 319.) Thus, where a
defendant accepts a plea bargain, a misunderstanding is
prejudicial if “ ‘the defendant would have rejected the plea if the
defendant had correctly understood its actual or potential
immigration consequences.’ ” (Ibid.) Similarly, where, as here, a
defendant “decides to go to trial, loses, and is sentenced, [the
defendant] can establish prejudice” under section 1473.7 “by
showing there is a reasonable probability that (1) he or she would
have done something differently—that is, would have taken
another ‘path’ [citation]— and (2) the alternate path would have
resulted in an immigration-neutral outcome.” (Carrillo, supra,
101 Cal.App.5th at p. 20.) “A reasonable probability does not
mean more likely than not.” (Id. at p. 19.) Instead, a reasonable
probability is “merely a reasonable chance, which is more than an
abstract possibility”—that is, a “probability sufficient to
undermine confidence in the outcome.” (Ibid.)
In determining whether there was a reasonable probability
that a defendant would have adopted a different strategy, courts
“weigh all relevant circumstances.” (Espinoza, supra, 14 Cal.5th
at p. 321.) Such circumstances include not only the defendant’s
ties to the United States, but also “whether alternative,
immigration-safe dispositions were available” and, in particular,
“whether the defendant would have had reason ‘to expect or hope’
that a plea deal without immigration consequences ‘would or
11
could have been negotiated.’ ” (Id. at pp. 323– 324.) As the
moving party, the petitioner in a section 1473.7 proceeding bears
the burden of proof by a preponderance of the evidence.
(§ 1473.7, subd. (f)(1); see also People v. Vivar (2021) 11 Cal.5th
510, 534 (Vivar).)
II. Standard of review
An appeal from the denial of a motion to vacate under
section 1473.7 is subject to independent review. (Espinoza,
supra, 14 Cal.5th at p. 319.) Under this standard, “ ‘ “an
appellate court exercises its independent judgment to determine
whether the facts satisfy the rule of law.” ’ ” (Id. at pp. 319–320.)
We “give deference to the trial court’s factual determinations if
they are based on ‘ “ ‘the credibility of witnesses the [superior
court] heard and observed.’ ” ’ (Ibid.)
III. Davtyan has not established prejudicial error
We have no reason to dispute the superior court’s
determination that Davtyan did not meaningfully understand the
immigration consequences of his litigation strategy. Nor do we
have any reason to dispute the superior court’s finding that
Davtyan had strong ties to the United States at the time of his
trial. (Espinoza, supra, 14 Cal.5th at p. 323 [noting “a
defendant’s deep and long-standing ties to the United States are
among the totality of circumstances that can support an inference
that immigration consequences were of paramount concern at the
time of the defendant’s guilty plea”].)
But strong ties to the United States alone are insufficient
to demonstrate prejudicial error. It is Davtyan’s burden to
establish under the totality of the circumstances a reasonable
probability that “his lack of understanding of immigration
12
consequences prejudiced his decision to go to trial or the
presentation of his defense at that trial.” (Carrillo, supra, 101
Cal.App.5th at p. 22.) To meet this burden, Davtyan can show “a
reasonable probability,” that is “more than an abstract
possibility” that he “would have taken another ‘path’
[citation] . . . and . . . the alternate path would have resulted in
an immigration-neutral outcome.” (Id. at pp. 19–20.) Applying
this principle, the court examines “what decisions [Davtyan]
could have made differently to avoid ‘the actual or potential
adverse immigration consequences of a conviction’ or the
combination of a conviction and sentence.” (Id. at p. 20.)
Davtyan argues that it was reasonably probable that if he
had known the immigration consequences of a conviction, he
would have cooperated with the prosecution and attempted to
negotiate an immigration-safe plea instead of going to trial.
However, there is no evidence in the record demonstrating a
reasonable probability that an immigration-safe negotiated
disposition was possible at the time of his 2003 convictions. Nor
does the evidence support that Davtyan “had reason to believe an
immigration-neutral negotiated disposition was possible.” (Vivar,
supra, 11 Cal.5th at p. 530.)
First, as his immigration attorney noted, even without
considering Davtyan’s 2003 convictions, Davtyan had already
been convicted of four separate crimes that were considered
“crimes involving moral turpitude” under federal immigration
law.12 Therefore, at the time of his trial in 2003, Davtyan was
12 Davtyan’s immigration attorney explained that Davtyan’s
1992 conviction for petty theft (§ 484, subd. (a)), his 1997
conviction for grand theft (§ 487, subd. (a)), his 1999 conviction
13
already removable from the United States for having been
convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct. (8 U.S.C.
§ 1227(a)(2).) Accordingly, even in the highly unlikely scenario
that the District Attorney had offered Davtyan an immigration-
safe plea for the kidnapping charges, Davtyan would have still
been removable from the United States in 2003 based on his
previous theft convictions.
In any event, the record does not demonstrate a reasonable
probability that Davtyan could have obtained an immigration-
safe plea agreement in lieu of going to trial, since it is extremely
unlikely that the District Attorney would have offered Davtyan a
plea to a charge supported by a factual basis that would not be
considered an aggravated felony for immigration purposes.
An aggravated felony conviction renders a noncitizen
removable from the United States. (8 U.S.C. § 1227(a)(2)(A)(iii).)
Under the Immigration and Nationality Act, the term
“aggravated felony” means “a crime of violence (as defined in
section 16 of title 18, but not including a purely political offense)
for which the term of imprisonment [is] at least one year.”
(8 U.S.C. § 1101(a)(43)(F).) Title 18 United States Code
section 16, in turn, defines the term “crime of violence” as: “(a)
an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or (b) any other offense that is a felony and that, by its
for commercial burglary (§ 459), and his 1999 conviction for petty
theft with prior convictions (§ 666) were all crimes involving
moral turpitude for immigration purposes. These four
convictions have since been vacated. Nevertheless, they were
still valid in 2003, when Davtyan chose to go to trial.
14
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.”
The record shows that before the trial, the District
Attorney extended two separate plea offers on unspecified
charges—one consisted of a life term, and the other consisted of
18 years in state prison. Although the offers did not specify
charges, kidnapping was generally considered an aggravated
felony. (Delgado-Hernandez v. Holder (9th Cir. 2012) 697 F.3d
1125, 1127–1128 (Delgado-Hernandez) [holding kidnapping
under § 207, subd. (a) is a crime of violence under 18 U.S.C.
§ 16(b) because kidnapping presents a “ ‘substantial risk that
physical force . . . may be used.’ ”].)13
Davtyan argues that the District Attorney’s offer to Patlan
to plead guilty to a lesser charge is evidence that he “could have
reasonably expected or hoped to cut a deal with the prosecution if
13 Although Delgado-Hernandez was decided nine years after
Davtyan’s conviction, its holding expressly affirmed the Ninth
Circuit’s prior long-standing conclusion that kidnapping was
considered a crime of violence because it “generally presents a
risk of substantial force.” (Delgado-Hernandez, supra, 697 F.3d
at pp. 1127–1128, 1133, citing United States v. Lonczak (9th Cir.
1993) 993 F.2d 180, 181–183 [child stealing under California law,
a similar offense to kidnapping, is a crime of violence under the
United States Sentencing Guidelines even if it is committed by
“fraudulently” “enticing” a child away from the child’s parent
because of the risk of “physical injury” to the victim]; see also
United States v. Williams (9th Cir. 1997) 110 F.3d 50, 52–53
[kidnapping committed by deception, rather than force,
constituted a crime of violence because kidnapping “by its very
nature, involves a substantial risk of physical violence”].)
15
he testified against [Khrayan].” However, Patlan’s plea
agreement included a conviction for an aggravated felony. Patlan
was originally charged with the same offenses as Davtyan. After
cooperating with the prosecution, he accepted an offer to plead
guilty to conspiracy to commit kidnapping (§§182, subd. (a)(1) &
207, subd. (a)). His sentence was reduced to 14 years for
testifying against Davtyan and reduced further to 10 years for
testifying against Khrayan. The disposition for Patlan was not
an immigration-safe alternative. (Delgado-Hernandez, supra,
697 F.3d at pp. 1127–1128.)
The totality of the evidence—including the two offers that
the District Attorney extended to Davtyan, the disposition offered
to Patlan after cooperating with the prosecution, the gravity and
sophistication of the crimes and Davtyan’s significant role in
planning them, his extensive and escalating criminal history, his
probationary status at the time the crimes were committed, and
his lack of demonstrated rehabilitation—indicates that the
District Attorney would not have been amenable to a plea for a
significantly lesser charge in this case.14 (Espinoza, supra, 14
14 Davtyan suggests that the following offenses would be
immigration-safe: conspiracy to commit accessory after the fact
(§§ 182, subd. (a)(1) & 32) without specifying the underlying
offense, with a sentence of less than a year; misdemeanor false
imprisonment (§ 236); or solicitation to commit kidnapping
(§§ 653f, subd. (a) & 209). The record does not support that the
District Attorney would have considered offering any of these
options. (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 665
[“[defendant’s] counsel now engages in speculation that he could
have pled to burglary, without any citation from the record
indicating that disposition would have been entertained by the
prosecutor”].)
16
Cal.5th at p. 323 [noting the factors relevant to whether the
prosecutor would offer a plea include “the defendant’s criminal
record, the strength of the prosecution’s case, the seriousness of
the charges or whether the crimes involved sophistication, the
district attorney’s charging policies with respect to immigration
consequences, and the existence of comparable offenses without
immigration consequences”].)
The instant case is readily distinguishable from People v.
Avena (2026) 119 Cal.App.5th 624, where Division Two of the
Fourth District concluded the appellant demonstrated a
reasonable probability that he could have obtained an
immigration-safe plea agreement in lieu of going to trial. In
Avena, a change of law occurred before the appellant’s jury trial
that rendered the possibility of an immigration-safe plea that
was supported by a factual basis. (Id. at p. 633.) The appellant
testified, and his trial attorneys confirmed that he was not
informed of this possibility. (Ibid.) The appellant also
demonstrated a reasonable probability that both the court and
the prosecutor would have agreed to this possible immigration-
safe plea. (Id. at pp. 633–634.) The appellant offered the
prosecutor’s testimony about what parameters he had for any
plea offer, demonstrated that the immigration-safe theoretical
option met those parameters, and showed that the potential
sentence would have been equal to the prosecutor’s original plea
offer. (Ibid.) Under these circumstances, the court concluded the
appellant established “a reasonable probability that he would not
have proceeded to a jury trial had he understood the immigration
consequences [and] . . . a reasonable probability that such a path
would have resulted in an immigration-neutral outcome.” (Id. at
p. 632.)
17
In contrast, Davtyan fails to demonstrate more than an
“abstract possibility” that he would have adopted a different
strategy, or that he “had reason ‘to expect or hope’ that a plea
deal without immigration consequences ‘would or could have
been negotiated.’ ” (Carrillo, supra, 101 Cal.App.5th at p. 20;
Espinoza, supra, 14 Cal.5th at p. 323.)
Nor can we simply presume that the trial court would have
automatically approved a plea bargain for a lesser charge
negotiated between the District Attorney and Davtyan. “In
exercising their discretion to approve or reject proposed plea
bargains, trial courts are charged with the protection and
promotion of the public’s interest in vigorous prosecution of the
accused, imposition of appropriate punishment, and protection of
victims of crimes. [Citation]. For that reason, a trial court’s
approval of a proposed plea bargain must represent an informed
decision in furtherance of the interests of society . . . .” (In re
Alvernaz (1992) 2 Cal.4th 924, 941.)
IV. Davtyan forfeited his claims relating to the superior
court’s evidentiary rulings at the section 1473.7
hearing
Lastly, Davtyan argues that the superior court erred by not
permitting his trial counsel, Tahmazian, to testify at the section
1473.7 hearing and by stopping Davtyan from testifying about
the details of his role in the conspiracy. The Attorney General
responds that Davtyan forfeited his claims by failing to properly
raise them in his opening brief and by failing to object before the
superior court. We conclude that Davtyan has forfeited his
claims.
First, in his opening brief, Davtyan raised these issues in a
perfunctory manner, without argument or legal analysis, and
18
therefore, he failed to properly present them on appeal. (People
v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court need
not review undeveloped, perfunctory claims]; Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellate court
need not address issues presented “without pertinent argument
or an attempt to apply the law to the circumstances of th[e]
case”].)
Furthermore, Davtyan failed to make an offer of proof
showing why this testimony was relevant. “The proponent of
proffered testimony has the burden of establishing its
relevance . . . . [Citations.] Evidence is properly excluded when
the proponent fails to make an adequate offer of proof regarding
the relevance or admissibility of the evidence. [Citations.]”
(People v. Morrison (2004) 34 Cal.4th 698, 724.) “[A] reviewing
court may not consider a claim that the trial court erroneously
excluded evidence unless ‘[t]he substance, purpose, and relevance
of the excluded evidence was made known to the court by the
questions asked, an offer of proof, or by any other means . . . .’
(Evid. Code, § 354, subd. (a).)” (People v. Hardy (2018) 5 Cal.5th
56, 103.) Because Davtyan failed to make an offer of proof
showing why Tahmazian’s testimony and his own testimony
about his role in the conspiracy were relevant, he forfeited his
appellate claims.
Lastly, the trial court did not abuse its discretion in
excluding Tahmazian’s testimony, as well as Davtyan’s additional
testimony about the facts of the underlying case. Tahmazian’s
testimony would have been cumulative to his declaration.
Davtyan’s testimony about the underlying facts of the case was
not necessary to determine the issue of prejudice for his motion to
vacate.
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DISPOSITION
We affirm the order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
EGERTON, Acting P. J.
ADAMS, J.
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