Opinion
2d Crim. No. B163257.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. SARGIS GEGHAMYAN, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Erin M. Pitman, Deputy Attorneys General, for Plaintiff and Respondent.
Sargis Geghamyan appeals from the judgment following his jury trial conviction for second degree murder of his daughter Susanna (Pen. Code, §§ 187, subd. (a), 189). The jury also found true allegations that he personally used and discharged a firearm, causing great bodily injury and death (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b) — (d)). He was sentenced to a state prison term of 40 years to life, consisting of 15 years to life, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. He contends the trial court erred in allowing the jury to view a videotape of the crime scene, and in giving CALJIC No. 2.21.2. We affirm.
FACTS AND PROCEDURAL HISTORY
Susanna Geghamyan, her husband, and their four children immigrated to the United States from Armenia around 1988. Approximately 10 years later, appellant came from Armenia to live with Susanna, his daughter.
Appellant, who was in his early 70s when he arrived in the United States, was strict and demanding. He disapproved of Susannas divorce from her husband, and sought to control her dating choices. In February 2001, he purchased a .25-caliber handgun from a pawnshop, which he later exchanged for a .25-caliber Beretta handgun.
In April 2001, appellant threatened to kill Susannas daughter Nazan. In May 2001, Nazan witnessed appellant pointing a gun at Susanna and saying, "I am going to kill you," to which Susanna responded, "If you are going to do it, just do it right now. If you are going to kill me, kill me. I cant take this anymore." After appellant put the gun down, Nazan pulled Susanna away. Appellant later told Nazan that he was angry at Susanna for dating a man named Rafic. Susanna decided that appellant should not live with her anymore, but changed her mind because she felt sorry for him. About a week later, appellant went to visit family in Fresno. When he returned, he was angry and demanded that Susanna stop dating Rafic.
At about 9:00 p.m. on July 18, Anet Tahmasbi heard a man and woman arguing outside her apartment, then heard two gunshots followed by screaming. After hearing a third shot, Tahmasbi looked out her bathroom window and saw appellant pacing around two cars while holding something in his hand. Susanna was lying on the ground between the cars. The argument and gunshots were also heard by Razmik Estepanian, who saw appellant walking away from the scene and asked him if he had heard the shooting. Appellant responded that he had seen everything and would tell the police what had happened.
Matthew Meza came upon Susanna lying on the pavement after hearing the shots. He saw appellant leaving the area and initially followed him, but returned to assist Susanna. She was moaning and could not speak. The police arrived approximately five minutes later. Later that night, Susanna died as a result of her injuries. An autopsy revealed that she had been shot four times.
Appellant admitted to the police that he shot Susanna. When asked why he did so, he said that she was not a good girl and did not deserve to live. The gun was in his possession when he was arrested. In a taped interview, he told police that Susanna had been driving him to his friends house that night when she stopped in a parking lot on Central Avenue in Glendale. When he asked why they had stopped, Susanna told him it was none of his business. This response angered him, so he shot her. When told that Susanna had died, appellant shrugged and said in Armenian, "What can I do?"
Appellant testified that he had raised his children to follow Armenian culture and tradition, and that he would not have come to the United States had he known that Susanna was dating different men. In Armenia, it is a disgrace to date more than one person at a time.
According to appellant, Susanna gave him the money to purchase a gun after he was attacked two different times. Both attacks occurred after appellant had attempted to intervene in his daughters affairs. The assailant in the first attack, which allegedly took place after a family meeting in a park, told appellant "dont become nosey, dont become involved in everything." The second attack was purportedly perpetrated in Susannas apartment by one of her acquaintances. Appellant testified that he was bedridden for two months after the first attack, and claimed that Susannas son, Gor, had witnessed the second attack. The May 2001 incident in which he pointed the gun at Susanna was prompted by Susannas claim that her sister Jannas husband had returned to Armenia because Janna was dating another man. He had the gun with him that day because he planned to commit suicide if Susannas claim was true.
On the day of the shooting, Susanna was supposed to drive appellant to his friend Harouts house. According to appellant, Harout had a daughter who behaved similarly to Susanna, and he brought the gun to scare both women if necessary. On the way there, Susanna stopped, got out of the car, and began talking to a man appellant did not recognize. After the man left, Susanna told appellant that she would marry the man if appellant did not approve of her marriage to Rafic. Appellant took out his gun, intending to shoot Susanna. He shot her three to four times, but claimed he did not intend to kill her. He also claimed that he had intended to shoot himself with the fourth shot, but had missed and hit Susanna.
In rebuttal, Gor testified that he had not witnessed any assault as described by appellant. He also denied that appellant had been incapacitated for two months as the result of another attack, as he had claimed.
DISCUSSION
Admission of Crime Scene Videotape
Over appellants objection, the jury was shown a police videotape of the crime scene. The tape, which was shown without sound, depicts Susanna lying on the ground while the paramedics treated her. The tape also shows officers removing Susannas identification from her purse and displaying it to the camera. Witnesses and physical evidence are also depicted, and appellant is seen as he is apprehended and presented to Susanna for identification. The trial court concluded "that the position of the victim and the crime scene itself is relevant to what occurred." Appellant contends the trial court abused its discretion under Evidence Code section 352 in admitting the tape because its probative value was substantially outweighed by the probability of undue prejudice.
"In ruling on the admissibility of photographs and videotapes under Evidence Code section 352, the court enjoys broad discretion in deciding whether prejudice substantially outweighs probative value. [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 532.) Appellant nevertheless claims that the court was compelled to exclude the videotape because it was cumulative of other evidence. The fact that the evidence was cumulative of testimonial evidence did not require its exclusion, however, "`[ b]ecause the photographic evidence could assist the jury in understanding and evaluating the testimony. [Citation.]" (Ibid. )
Because the prejudicial effect of the videotape does not clearly outweigh its probative value, the trial court acted within its discretion in admitting it. Although the tape depicts graphic images, "victim photographs and other graphic items of evidence in murder cases always are disturbing." (People v. Crittenden (1994) 9 Cal.4th 83, 134.) Moreover, "the jury is entitled to see details of the victims bodies to determine if the evidence supports the prosecutions theory of the case." (People v. Gurule (2002) 28 Cal.4th 557, 625.) Where, as here, the images are not unduly gruesome or inflammatory, it cannot be said that their probative value is substantially outweighed by the potential for prejudice. (People v. Lewis (2001) 25 Cal.4th 610, 642.)
In any event, any error in admitting the tape was harmless. The jury acquitted appellant of first degree murder. His own testimony, statements to the police, and other evidence fatally undermined his defense that the crime was committed in the heat of passion. Under the circumstances, it is not reasonably probable that the jury would have convicted appellant of voluntary manslaughter had the videotape been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
CALJIC No. 2.21.2
CALJIC No. 2.21.2 provides: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." Appellant also contends the trial court erred in giving this instruction because there was no evidence that a witness may have fabricated testimony, and because the instruction lowers the prosecutions burden of proof.
Respondent contends that the error is waived because appellant failed to object to the instruction below. Instructions that affect the defendants substantial rights, however, are reviewable on appeal even in the absence of an objection. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)
It is well settled that CALJIC No. 2.21.2 is a correct statement of the law and is properly given where there is an evidentiary basis to support it. (See People v. Maury (2003) 30 Cal.4th 342, 428-429.) There was a sufficient basis for the instruction in this case because the jury could infer that one witness had been willfully false in his or her testimony. For example, appellant and Gor gave conflicting testimony: appellant testified that he had been attacked on two different occasions, that Gor had witnessed the second attack, and that he had been incapacitated as a result of the first. Conversely, Gor testified that he did not witness any attack and that appellant was never incapacitated. One of them thus testified falsely, and the jury could infer that the falsehood was willful.
In any event, any error in giving the instruction was harmless. "The instruction at no point requires the jury to reject any testimony; it simply states circumstances under which it may do so. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 95.) By acquitting appellant of first degree murder and convicting on the lesser charge of second degree murder, the jury apparently accepted his version of the events instead of the prosecutions claim that the murder was premeditated.
The judgment is affirmed.
We concur: GILBERT, P.J., and YEGAN, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise noted.