People v. Karapetyan

Full title: THE PEOPLE, Plaintiff and Respondent, v. GAGIK KARAPETYAN, Defendant and…

Court: Court of Appeal of California, Third District

Date published: Jun 27, 2006

140 Cal.App.4th 1172 (Cal. Ct. App. 2006)

45 Cal. Rptr. 3d 245

Opinion

No. C048289.

June 27, 2006. [CERTIFIED FOR PARTIAL PUBLICATION^_]

_ Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II through IV.

Appeal from the Superior Court of Sacramento County, No. 03F07499, James L. Long, Judge.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

NICHOLSON, J.

On September 2, 2003, at approximately 11:00 p.m., Sacramento Police Officer Barry Lee responded to a reported stabbing. Upon arrival, he found the victim Andrey Tsurkanu already dead, with six men surrounding the body. Several days later, defendant Gagik Karapetyan walked into a sheriff's department substation and confessed to killing Andrey. He was tried and convicted of second degree murder.

Defendant appeals contending the trial court erred: (1) when it instructed the jury that an aider and abettor to assault could be liable for murder if death was a natural and probable consequence of the assault, (2) when it admitted evidence of a prior incident, (3) when it admitted defendant's statement that he used a knife, and (4) by not instructing the jury on imperfect defense of others. We affirm.

FACTS AND PROCEDURE

On September 2, 2003, Andrey Tsurkanu and his cousin Sergey Melnichuk went to Pavel Tveretinov's auto auction to pick up a friend who worked there.¹ The friend was not there when they arrived, so Andrey and Sergey waited. Defendant, his son-in-law Ararat Manakyan, and Isaak Ambaryan were barbequing in the area. Sergey peeked into defendant's motor home, which was near the barbeque, and defendant became upset, telling him not to look in. Isaak told Sergey to tell Andrey, "[W]ho does he think he is to let you look inside." Sergey did as instructed, and Andrey confronted Isaak about the statement. They argued and, shortly thereafter, defendant joined in. Pavel told everyone if they wanted to fight they would have to leave the auction.

1 To minimize confusion, the people who played a lesser role will not be named.

Andrey and his friends left and went to a lot near the auto auction. Andrey called Kolya Bagdasaryan, a friend of his, so that he could witness the ensuing confrontation between Andrey and defendant. Kolya arrived, and about five minutes later, Isaak, Ararat, defendant, and defendant's two sons, arrived in three different cars.² Ararat greeted Kolya. About the same time, Isaak ordered defendant's sons to hit Andrey and a fight ensued.

2 At the time of trial, the whereabouts of defendant's sons, Yegi and Daniel, was unknown.

Defendant, his sons, and Isaak chased Andrey, who ran after he saw that none of his friends were going to help him. Andrey was not armed. Defendant and his son Yegi were carrying sharp metallic items. Defendant, both his sons, and Isaak all struck Andrey. Ararat testified that he remembered making statements to the police that defendant told him he stabbed Andrey, that Ararat had seen defendant hitting Andrey with the metallic object, and that defendant had both a gun and a knife. He also remembered telling police that defendant had done something really bad, was the only one to chase Andrey across the street, and told everyone to leave after Andrey fell. Andrey died on the scene from a fatal stab wound to the chest. He also had a possibly fatal wound to his back, as well as some more superficial stab wounds and other smaller puncture wounds caused by a screwdriver.

About a week after the stabbing, defendant approached a public counter of a Sacramento County Sheriff's Department substation, placed his driver's license on the counter, and told the security officers he killed Andrey. Followup questions from a security officer revealed that defendant used a knife.

Defendant testified he is a "peaceful person." He stated he had a hernia when he turned himself in at the sheriff's substation. The hernia kept him from being able to run more than a few steps. Defendant took Andrey to defendant's mother's house for dinner on more than one occasion and considered him a friend. The day of the incident, he warned Andrey and Sergey not to go into the motor home because he had meat marinating inside and was afraid that they would spill it.

Defendant further testified that Pavel convinced him to go to the lot where Andrey was by telling him he would be safe and informing him that defendant's sons were already there. Defendant stayed in the car because he was afraid they would attack him. He got out after the fight began and tried to separate Andrey and his son but fell to the ground. Defendant denied chasing Andrey, stabbing him, or hitting him with a gun. He stated he got up and returned to the barbeque at the auction.

Defendant went to the river, where he stayed for five or six days, looking for his sons. He learned his sons were fugitives from the community. In an attempt to protect them, he went to the sheriff's department substation and turned himself in for the murder. Because of language difficulties he felt that he could not explain the whole situation. Defendant maintained he did not kill Andrey.

The jury convicted defendant of second degree murder, but found the firearm enhancement to be false.³ The trial court sentenced him to state prison for 15 years to life.

3 This was the second jury trial in this case. The first trial ended in a mistrial because of a hung jury.

DISCUSSION I Instruction on Aider and Abettor Liability

Defendant contends the trial court erred when it instructed the jury that an aider and abettor to assault could be liable for murder if death was a natural and probable consequence of the assault. While the jury instructions included several theories of liability, defendant presumes, because of a question asked by the jury during deliberations, that the jury probably found him guilty based upon this theory. Whether or not this is true, the argument fails.

A. Sufficiency of the Evidence

The natural and probable consequence theory of liability requires a finding by the jury that death was reasonably foreseeable under the circumstances. ( People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [ 26 Cal.Rptr.2d 323].) Defendant contends the instruction was given in error because there was insufficient evidence that death was a reasonably foreseeable result of the assault. We conclude there was sufficient evidence that death was reasonably foreseeable and, therefore, reject this assertion.

On the issue of foreseeability, the "question is not whether the aider and abettor actually foresaw the . . . crime, but whether, judged objectively, it was reasonably foreseeable." ( People v. Mendoza (1998) 18 Cal.4th 1114, 1133 [ 77 Cal.Rptr.2d 428, 959 P.2d 735], original italics.) Assuming the jury believed that defendant aided and abetted his sons in assaulting Andrey, the jury also could have believed it was reasonably foreseeable that death was a natural and probable consequence of that assault.

The evidence showed a group of men challenging a single unarmed victim with an assortment of weapons available for their use. Furthermore, the assailant stabbed Andrey with a knife, a deadly weapon. The assailant did not stab Andrey in an insignificant area of his body; instead, the assailant stabbed Andrey in his heart. Defendant denies that this attack on Andrey was a fight to the death. This, however, was an argument for the jury. The jury could infer from the circumstances of the fight that Andrey's death was a foreseeable consequence of the assault.

B. Ireland Rule

Defendant contends that the finding of murder based on aiding and abetting an assault is really just felony murder, which is barred by People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188, 450 P.2d 580] ( Ireland). Defendant's argument fails, as these facts do not trigger application of the Ireland rule.

In Ireland, supra, 70 Cal.2d 522, the court held that felony-murder instructions were improper when they were based upon a felony that was an integral part of the homicide. To allow otherwise "would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides." ( Id. at p. 539.) Because a homicide generally results from the commission of an assault, every felonious assault ending in death would be elevated to murder, relieving the burden of the prosecutor to prove malice in most cases. ( People v. Hansen (1994) 9 Cal.4th 300, 311-312 [ 36 Cal.Rptr.2d 609, 885 P.2d 1022].) This would frustrate the Legislature's intent to punish certain felonious assaults resulting in death more harshly than other assaults that happened to result in death but were committed without malice aforethought. ( Ibid.)

The facts of this case do not implicate the merger doctrine discussed in Ireland. As the Attorney General points out, defendant's argument would be viable if the law stated that anyone who aided and abetted an assault that ended in death would be guilty of murder, whether or not the death was a natural and probable consequence of the assault. That would be a merged felony murder based on assault and would be prohibited by Ireland. ( Ireland, supra, 70 Cal.2d at p. 539.) However, the natural and probable consequences doctrine operates independently of the second degree felony-murder rule. ( People v. Culuko (2000) 78 Cal.App.4th 307, 322 [ 92 Cal.Rptr.2d 789].) The natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. Rather, it is a theory of liability for murder that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. ( People v. Brigham (1989) 216 Cal.App.3d 1039, 1052-1054 [ 265 Cal.Rptr. 486].)

"An aider and abettor's derivative liability for a principal's criminal act has two distinct prongs: First, the aider and abettor is liable for the particular crime that to his knowledge his confederates are contemplating. Second, the aider and abettor is also liable for the natural and probable consequences of any criminal act he knowingly and intentionally aids and abets. . . . [¶] . . . The law's policy is simply to extend criminal liability to one who knowingly and intentionally encourages, assists, or influences a criminal act of another, if the latter's crime is naturally and probably caused by (i.e., is the natural and probable consequence of) the criminal act so encouraged, assisted, or influenced." ( People v. Brigham, supra, 216 Cal.App.3d at pp. 1052-1053, italics omitted.) Accordingly, the logical and legal impediments to felony-murder liability discussed in Ireland are inapplicable and do not limit the liability of an aider and abettor. (See People v. Luparello (1986) 187 Cal.App.3d 410, 438 [ 231 Cal.Rptr. 832].)

II-IV^_

_ See footnote, ante, page 1172.

Uncharged Misconduct Evidence A. Background At trial, defendant moved for exclusion of evidence of a prior incident pursuant to Evidence Code section 352.⁴ On appeal, defendant asserts this was an abuse of discretion. We conclude the trial court did not abuse its discretion. The evidence of a prior incident involved a stabbing that occurred two years before the charged crime. Defendant's son, Yegi, had a verbal dispute with a former friend named Garib. The argument escalated into a brief fistfight, and then the boys parted ways. Twenty minutes later, Garib received a phone call instructing him to go to the parking lot of a certain auto parts store. Garib went to the parking lot with two friends. An additional 10 to 15 men were present, including defendant and defendant's sons. Defendant's sons approached Garib, and Yegi and Garib began to fight. Nine men eventually attacked Garib, including defendant and defendant's other son, Daniel. Garib fell to the ground and the men kicked and punched him for approximately five minutes. During the beating, Garib was stabbed in the leg. After the fight, defendant ordered Garib to get into a car with him and another man. They drove to a park, where several men were waiting, including both of defendant's sons. Yegi pulled Garib from the car. Defendant said to Yegi, "[D]o what you have to do," and stood to the side as Yegi fought Garib. Eventually, Garib managed to escape. Before the prosecutor introduced the evidence, the court gave the jury a limiting instruction. It stated that if the jury believed the evidence, it could not consider the evidence to prove that defendant is a person of bad character or that he has a disposition to commit crimes. The court stated that the evidence could be considered only for the limited purposes of determining whether it tended to show: (1) a characteristic method, plan, or scheme, (2) a motive, (3) intent, or (4) that defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged. B. Analysis Evidence of other crimes generally is not admissible to show bad character and a propensity or disposition to commit the crime charged. (§ 1101, subd. (a).) Such evidence, however, is admissible to establish some other fact at issue, such as intent, motive, plan, or knowledge, provided: (1) the uncharged misconduct and the charged offense are sufficiently similar to support the inference for which the prior conduct is being introduced and (2) the probability that the evidence will create substantial danger of undue prejudice does not substantially outweigh its probative value. (§ 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402, 406.) The trial court has broad discretion in ruling on the Evidence Code sections 1101 and 352 objections. ( People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) An appellate court reviews the trial court's rulings on evidence under sections 1101 and 352 for abuse of discretion. ( People v. Harrison (2005) 35 Cal.4th 208, 230.) Unless the trial judge acted capriciously and beyond the bounds of reason, we must affirm. ( People v. Muldrow (1988) 202 Cal.App.3d 636, 643-644.) Pursuant to section 1101, subdivision (b), the evidence of the prior incident was admissible for the purposes given in the court's limiting instruction. There were sufficient similarities to support the inferences for which the prior conduct was introduced. Both incidents involved a family member getting into a verbal dispute, then other family members showing their support through their presence and action in an attack upon the victim. Both incidents involved a group of people, including defendant and his sons, significantly outnumbering their chosen victim, organizing to fight in a secluded but public location in the evening hours. In both incidents, the victim was overcome and stabbed with a knife. These similarities showed a characteristic method of operation, and thus, the evidence was probative of whether defendant committed the act charged. The evidence of defendant's action in the prior incident was probative evidence that he was not just a passive bystander in the charged crime. The evidence also showed a motive in that defendant and his family protect one another through violence, with defendant acting as the directing patriarch. Additionally, defendant's role in the prior incident supported the inference that defendant probably harbored the same intent in each instance — that is, to direct a violent attack on a person perceived to have shown a lack of respect for his family. (See People v. Ewoldt, supra, 7 Cal.4th at p. 402.) Accordingly, the evidence made defendant's theories of self-defense and defense of others less likely. It also supported the inference that death was a foreseeable result in the charged crime, because it showed that defendant either used a knife or knew that a knife would be used when he and his sons fought. Finally, the evidence was probative of how defendant's family operated, and showed that defendant had knowledge or possessed the means useful or necessary for some one or more of his criminal entourage to commit the crime charged. Defendant knew he and his sons could launch an attack on Andrey by organizing with others at a secluded location, outnumber the victim, beat the victim, and stab the victim with a knife. In light of this record, it was no abuse of discretion to admit evidence of the prior incident for these limited purposes. The trial court instructed the jury that it could not use the fact of defendant's participation in the beating to prove that the defendant is a person of bad character or that he had a disposition to commit crimes. Absent indications to the contrary, we presume juries follow the instructions. ( People v. Pinholster (1992) 1 Cal.4th 865, 919.) The evidence was probative of defendant's intent, motive, knowledge, and characteristic method. Given these probative features, any prejudicial effect did not substantially outweigh the probative value of this evidence. Defendant further contends the jury was improperly instructed that it could use the prior incident evidence to find that defendant had a character trait inconsistent with nonviolence. This instruction came after the evidence had already been introduced for the limited purposes described above, and after the defense put on good character evidence of defendant's nonviolent characteristics. Defendant does not present the jury instruction argument as a separate point of error but, instead, claims that it contributed to the prejudice caused by admitting the evidence of the prior incident.⁵ Defendant's argument that giving the instruction, even if we assume without deciding that the instruction was erroneous, contributed to the asserted prejudice under the section 352 analysis is without merit. Evidence of the prior incident had already been admitted for four valid purposes. The legitimate inferences the jury could draw based on these purposes included: (1) defendant and his sons protect one another through violence, (2) defendant uses or assists others in using a knife when fighting, and (3) defendant joins others to outnumber the victim and participate in a group beating. In other words, these limited purposes alone allowed the jury to infer that defendant engaged in violent behavior. The instruction did not add to any potential prejudice under the section 352 analysis.

III

Defendant's Statement at the Sheriff's Substation Defendant contends his statement at the sheriff's substation regarding use of a knife should have been suppressed because he was not advised prior to being questioned of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694] (hereafter Miranda). We disagree. On September 10, 2003, about one week after Andrey was killed, defendant walked into a sheriff's substation where security officers Debbie Lissy and Alvin Lynch were on duty as front lobby security. Defendant put his driver's license on the counter. Defendant spoke with an accent and said, "I want to turn myself in for killing Andrey." Officer Lissy asked when this occurred. Defendant said, "Five days ago." Officer Lissy told defendant to wait with Officer Lynch and that she would be right back. Officer Lissy went to the back of the station. Meanwhile, Officer Lynch asked defendant if he had any weapons and defendant said he did not. Officer Lynch patted defendant down for weapons. Officer Lynch asked, "Where did you kill this person?" Defendant replied, "At an auction." Officer Lynch asked where the auction was but he was unable to understand defendant's response. Officer Lynch asked, "How did you kill him?" Defendant replied, "With a knife." A detective, a deputy sheriff, and a sergeant then arrived and escorted defendant to another area of the station. At the first trial, the court excluded the knife statement, finding defendant was in custody for Miranda purposes and that the statement was in response to interrogation. Testimony that defendant walked in and volunteered that he had killed Andrey was not excluded. At the second trial, the court, another judge presiding, reviewed the police reports and admitted the entire exchange. After a mistrial, a new judge assigned to the case may overrule the previous judge's pretrial ruling on the defendant's motion to suppress, as long as (1) the defendant is given notice and opportunity to be heard and (2) the revised ruling is not arbitrary or made without reason. ( People v. Riva (2003) 112 Cal.App.4th 981, 992.) Defendant contends he was in custody and that Officer Lynch's question, "How did you kill him," was interrogation. Because defendant was not in "custody" for Miranda purposes, his argument fails, and we need not determine whether a custodial interrogation occurred. Even though "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, . . . police officers are not required to administer Miranda warnings to everyone whom they question. . . . Miranda warnings are required only when there has been such a restriction on a person's freedom as to render him `in custody.'" ( Oregon v. Mathiason (1977) 429 U.S. 492, 495 [ 50 L.Ed.2d 714, 719].) That is, "[t]he procedural safeguards set forth in Miranda `come into play only where "custodial interrogation" is involved, and by "custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."' [Citation.]" ( In re Eric J. (1979) 25 Cal.3d 522, 527.) To determine whether a person is "in custody" for Miranda purposes, courts make two discrete inquiries. "`[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . [T]he court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.' [Citation.]" ( Yarborough v. Alvarado (2004) 541 U.S. 652, 663 [158 L.Ed.2d 938].) "`In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under [ Miranda], we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence.' [Citation.]" ( People v. Haley (2004) 34 Cal.4th 283, 299.) "`[T]he trial court's ruling on a Miranda issue may not be set aside by us unless it is " palpably erroneous." A ruling palpably erroneous is one lacking support of substantial evidence.'" ( In re Eric J., supra, 25 Cal.3d at p. 527, italics in original.) Substantial evidence supported the trial court's finding that defendant was not in custody. Defendant voluntarily walked into the sheriff's substation. Defendant voluntarily placed his driver's license on the counter between himself and the two security officers, neither of whom had authority to arrest. Defendant initiated contact with the officers. The officers were not aggressive, confrontational, or accusatory, and the officers did not use interrogation techniques to pressure defendant into speaking. The officers never told defendant he was under arrest, in custody, or not free to leave. When defendant made the statement about the knife, he stood unrestrained, in the same front lobby that he had voluntarily entered just moments before. Further, only one of the officers was present when defendant made the statement about the knife. There was no probable cause to arrest defendant, regardless of his apparent "confession," because the security officer was unaware that an actual crime had been committed or when it may have occurred. Under these circumstances, a reasonable man would objectively believe that he was not under arrest. Thus, defendant was not in custody for Miranda purposes. Defendant argues that no one would feel free to leave in these circumstances and that when Officer Lissy said she would be right back, this "obviously" implied a statement that defendant should not leave. A conclusion defendant was not free to leave is not obvious. Defendant entered the substation seeking to talk about an incident about which the security officers apparently had no previous knowledge. The security officer was simply obliging defendant by going to get someone to whom defendant could talk. Although we independently determine whether the challenged statements were illegally obtained, we give great weight to the conclusions of a lower court that has previously reviewed the same evidence. ( People v. Wash (1993) 6 Cal.4th 215, 235-236.) The trial court's ruling was supported by substantial evidence and cannot be disturbed on appeal unless "palpably erroneous." Defendant also argues we should find he was in custody because "it would be a dereliction of duty" if defendant's license had been returned and he had been allowed to leave. However, an officer's unarticulated plan is not relevant to whether a suspect was in custody. The only relevant inquiry is how a reasonable person in defendant's position would have understood his situation. ( Berkemer v. McCarty (1984) 468 U.S. 420, 442 [ 82 L.Ed.2d 317, 336].) "[A]n officer's evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry." ( Stansbury v. California (1994) 511 U.S. 318, 325 [ 128 L.Ed.2d 293, 300].) Accordingly, we find the trial court properly concluded defendant was not in custody and appropriately admitted defendant's statement.

IV

Failure to Instruct on Imperfect Defense of Others Defendant argues the court erred in failing to instruct the jury on defense of others when the defendant has an actual but unreasonable belief in the need to defend another from great bodily harm or death. We reject this argument because no evidence in the record supports his claim he had an actual belief in the need to defend another from great bodily harm or death. ( People v. Roldan (2005) 35 Cal.4th 646, 715 [no duty to instruct on theories not supported by substantial evidence].) Defendant did not testify that he believed Andrey would inflict great bodily injury or use deadly force, or that he believed either of his sons was in danger. His testimony was limited to the fact that he remained in the car because he was personally afraid of being attacked and he joined the fight to divide Andrey and his sons. Thus, we reject this assignment of error.

DISPOSITION

The judgment is affirmed.

Scotland, P. J., and Hull, J., concurred.

Appellant's petition for review by the Supreme Court was denied October 11, 2006, S145529.