Opinion
D074553
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. ARNO KHACHATURYAN, Defendant and Appellant.
Russell S. Babcock, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE367368) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed; remanded for resentencing. Russell S. Babcock, by appointment of the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Arno Khachaturyan was convicted of three charges arising out of a physical altercation he had with Jose, his brother-in-law. On appeal, he argues that the trial court improperly excluded testimony about Jose's alleged gang affiliation and his "danger" tattoo. According to Khachaturyan, such testimony was relevant to and would have supported his defense of self-defense, as further evidence that at the time of the altercation he reasonably believed he was in imminent danger of harm from Jose and reasonably believed that punching Jose was necessary to defend against that danger. The trial court admitted testimony related to Jose's long-standing relationship with Khachaturyan as well as his history of boxing and "street fighting." But following its analysis under Evidence Code section 352, the court declined to allow evidence related to Jose's alleged gang affiliation or "danger" tattoo.
We will refer to Khachaturyan's wife Angelica, and Angelica's brother Jose, by their first names, intending no disrespect.
We agree with the trial court's analysis in excluding the evidence. Moreover, even if the trial court erred, the mistake would have been harmless given the ample evidence before the court.
In supplemental briefing filed after oral argument, Khachaturyan requests we remand for resentencing given the recent enactment of Senate Bill No. 1393, which provides courts with discretion to strike a five-year prior serious felony enhancement. The People agree that the case should be remanded for this purpose, as do we.
Accordingly, we remand for resentencing and in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Relevant Individuals
Khachaturyan and his wife Angelica began dating in about 2006 and were married in 2010. He has known Angelica's brother, Jose, since the beginning of their relationship. In roughly 2011 or 2012, Khachaturyan left car sales and started to work in the swap meet business. At some point, he began to informally employ individuals to assist him, paying them by the day. He first hired Jose in about 2013 or 2014. At trial, Khachaturyan described his attitude toward Jose as supportive, but he also alleged threats and incidents of pushing and shoving. On the day in question, Khachaturyan was staying with his parents and was living separately from his wife because of, among other reasons, disagreements about parenting and drug use. B. An Earlier Argument Precipitates an Altercation at the Swap Meet.
Between 6:30 and 7:00 a.m. on a morning in September 2017, Jose was at Angelica's apartment, preparing to go to work together at the Spring Valley Swap Meet when Khachaturyan arrived. Khachaturyan proceeded to argue with Angelica; there was some pushing and shoving; and he left when she called the police. After he left, Angelica and Jose finished packing the items they intended to sell at the swap meet, including shoes, tools, clothes, and kitchen knives.
While Angelica and Jose were setting up their vendor stand at the swap meet about 30 minutes after they arrived, Khachaturyan "showed up, started arguing with [Angelica] again, just screaming, yelling." He left briefly but then returned five to 10 minutes later. When he came back, Jose was kneeling down to retrieve items from a packed box when he heard his sister yell out a warning; he turned to look upward, and "just felt the hit" of a punch on the bridge of his nose. Khachaturyan had delivered a "cheap shot," punching Jose with his fist coiled around a yellow and green tempered glass pipe about five inches long while Jose was looking away. The punch broke Jose's nose and caused immediate bleeding and lasting vision blurriness. At that point, Jose rushed at Khachaturyan, and they both fell on the floor where they exchanged punches. About 19 seconds after the initial punch, Khachaturyan fled the swap meet.
Khachaturyan's account of the altercation differed in a few respects. He testified that when he arrived at the swap meet, Angelica initiated a heated argument that left him embarrassed and "put [him] on the spot" in front of several people whom he knew. He also testified that just before he "thr[ew] a right hand," Jose was unloading kitchen knives and aggressively said that he was "going to book" him, meaning stab him. According to Khachaturyan, Jose "got up in an aggressive manner and . . . grabb[ed] something" out on a table close by where the kitchen knives were. He "kind of gave a little flinch like I'm going to book you," which caused Khachaturyan to feel "threatened" and punch Jose as a means of preempting what he perceived to be an imminent attack. C. Procedural Overview
At one point Khachaturyan testified that Jose "had knives in his hand," but in response to the next question explained that rather than being in his hand, the knives were in a plastic bin that was close by his hands.
Khachaturyan was charged by amended information with three felony charges relating to the altercation at the swap meet: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2); and battery with serious bodily injury (§ 243, subd. (d); count 3). A jury found him guilty of all three charges. He admitted allegations that he had a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12), and had served a prior prison term (§ 667.5, subd. (b)). The court sentenced him to a total term of eight years, including the three-year midterm on count 1, the principal count, and the five-year prior serious felony enhancement. The court stayed the sentences for counts 2 and 3 under the statutory dual punishment ban (§ 654) and struck the strike prior.
All statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
A. The Trial Court Properly Excluded Gang-Related Evidence Under Evidence Code Section 352 .
A trial court may, in its discretion, exclude evidence relevant to the charges "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) In the context of Evidence Code section 352, prejudice refers not only to the provocation of emotional bias against a defendant, but also to the risk of inflaming an emotional response that might engulf the dispassionate logical analysis required for the jury's factfinding duty. (People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin).) On appeal, we review exclusion of evidence under Evidence Code section 352 for abuse of discretion, i.e., whether the trial court made its decision to exclude the evidence in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
In his defense, Khachaturyan admitted that he hit Jose during the altercation at the swap meet but argued he did so in self-defense. Self-defense, as a legal defense to the charges against him, required Khachaturyan to show that he reasonably believed he was in imminent danger of bodily injury (or an unlawful touching) and reasonably believed punching Jose was necessary to defend against that danger. (See People v. Lemus (1988) 203 Cal.App.3rd 470, 478 (Lemus).)
Self-defense also requires that the individual asserting the defense show they used no more force than was reasonably necessary to defend against that danger. (Lemus, supra, 203 Cal.App.3rd at p. 478.)
In pursuit of this defense, Khachaturyan prior to trial sought to allow testimony about Jose's alleged gang affiliation and his tattoo of the word "danger," which Khachaturyan claimed to be his gang moniker. The trial court permitted evidence showing that Jose had been a boxer and liked to spar at the gym, and that Jose and Khachaturyan fought before the charged incident. But it declined to allow testimony about the alleged gang affiliation and the tattoo, explaining that "the prejudicial value of that information so outweighs the probative value when taken in light of the Court's other rulings allowing [the defense to discuss] the relationship between [Jose and Khachaturyan]."
We agree with the trial court's analysis. Evidence relating to an alleged gang affiliation can have varying degrees of probative value depending on the circumstances of the case. With respect to self-defense, it may help the jury evaluate whether the defendant actually feared the victim, whether that fear was objectively reasonable, and whether the victim was the aggressor. (See People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) But the danger of prejudice arising from evidence of gang affiliation can be substantial because, as the People point out, it effectively "appeal[s] to the jury's fear and bias." And although the considerations may be weighed differently, this is true even where, as here, the alleged gang member is a victim rather than a defendant.
Evidence of gang membership, because of the vulgar, violent, and graphic nature of gang-related activity, often provokes an emotional reaction directly at odds with the jury's duty to carefully and critically weigh the evidence using the tools of logic and reason. (See Doolin, supra, 45 Cal.4th at pp. 437-440; People v. Cardenas (1982) 31 Cal.3d 897, 905; People v. Perez (1981) 114 Cal.App.3d 470, 479 ["The word gang . . . connotes opprobrious implications"]; see also People v. Champion (1995) 9 Cal.4th 879, 922-923.) Once the jury has received evidence of a gang affiliation (even where the evidence is otherwise anodyne or the testimony brief), a substantial danger may arise that the jury's dispassionate evaluation will be unduly prejudiced. (See Doolin, at p. 439.) "California courts have long recognized the potentially prejudicial effect of gang membership" and, accordingly, "carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury." (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
In the context of the charges and evidence here, the alleged gang affiliation and "danger" tattoo have minimal probative value, which is easily outweighed by the substantial risk of undue prejudice arising from evidence of gang affiliation. (See Doolin, supra, 45 Cal.4th at pp. 437-440; compare with People v. Montes (2014) 58 Cal.4th 809, 856-860 [affirming trial court's admission of gang-related evidence that "was highly probative" where "the trial court gave a limiting instruction designed to lessen the risk of undue prejudice"].) As the trial court aptly noted, the relationship between Jose and Khachaturyan provided the appropriate context for evaluating the elements of self-defense, including Khachaturyan's subjective fear and the objective reasonableness of the fear. As Jose's brother-in-law, who knew Jose personally and professionally for more than a decade and who had previous physical altercations with him, Khachaturyan had an established relationship with the victim. This direct personal experience provided the jury with several important reference points that render the alleged gang affiliation and tattoo much less significant. Having admitted evidence of their relationship, as well as Jose's history of boxing and their physical fights before the charged incident, to establish the subjective and objective fear components of self-defense, the trial court could properly conclude that the marginal added relevance of Jose's gang affiliation did not outweigh the significant unfair prejudice that would accompany receipt of such evidence. B. Any Error in the Exclusion of Gang-related Evidence Was Harmless.
Despite the court's exclusion of the gang-related evidence, Khachaturyan was able to present all evidence relevant to his defense of self-defense that had significant probative value. (See People v. Thornton (2007) 41 Cal.4th 391, 452-453; People v. Cunningham (2001) 25 Cal.4th 926, 999.) He was permitted to present evidence of Jose's history of boxing and incidents of street fighting, and he testified about previous physical altercations they had. Because the exclusion of the evidence at issue therefore did not altogether preclude his ability to present his case, we review the prejudice under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and reverse only if reasonably probable that Khachaturyan would have obtained a more favorable result had the evidence been admitted. (See Thornton, at pp. 452-453.)
At trial, the jury received extensive testimony from Khachaturyan, Jose, as well as from Angelica, two other eyewitnesses of the altercation, and the deputy sheriff who arrived shortly afterward. The jury also saw a brief video of the incident captured by the swap meet's surveillance cameras. But almost no evidence supported Khachaturyan's version of the events. While Angelica testified that there were knives out on tables at the time of the incident and that Jose made a comment to Khachaturyan just before he was hit (as Khachaturyan had described), the balance of the evidence, including the rest of the testimony and the video, supported Jose's account of the altercation. Moreover, Angelica's testimony corroborating the two points in Khachaturyan's story was contradicted by the two eyewitnesses and the deputy sheriff, who saw no knives set up in the booth when he arrived. Khachaturyan's claim that Jose was holding a knife was not supported by any other evidence, and Khachaturyan himself contradicted it multiple times during his testimony. Likewise, there was no support for Khachaturyan's claim that Jose "flinched" or otherwise moved toward him. Given these facts, we find no reasonable probability that Khachaturyan would have obtained a more favorable result had the jury received testimony of the alleged gang affiliation and related tattoo. C. Remand for Reconsideration of the Prior Serious Felony Enhancement Under Senate Bill No. 1393
In supplemental briefing following oral argument, both parties agree that remand is appropriate in light of Senate Bill No. 1393. Khachaturyan was sentenced to a three-year midterm on the principal count, with a five-year enhancement for the prior serious felony. His case was not final on January 1, 2019, when Senate Bill No. 1393 went into effect, and the change in law has been applied retroactively. (Stats. 2018, ch. 1013, §§ 1-2; see People v. Garcia (2018) 28 Cal.App.5th 961, 973-975; see also In re Estrada (1965) 63 Cal.2d 740, 743.) The record does not indicate that the trial court would have decided against striking the enhancement if it had had the discretion to do so. Therefore, we agree with both parties that Senate Bill No. 1393 applies retroactively to Khachaturyan's conviction and provides the trial court with the discretion to strike the serious felony prior enhancement, which it may or may not choose to exercise on remand.
DISPOSITION
The case is remanded to the trial court to reconsider the prior serious felony enhancement in light of Senate Bill No. 1393 and to resentence as to all counts. (See People v. Buycks (2018) 5 Cal.5th 857, 893.) In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.