Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Ct. No. SA058852, James R. Dabney, Judge
Geragos & Geragos, Mark J. Geragos and Shepard S. Kopp for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Supervising Deputy Attorneys General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Rafael Martirosyan appeals a judgment after his conviction of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and shooting from a motor vehicle (§ 12034, subd. (c)) with findings that he personally used and discharged a firearm (§§ 12022.53, subd. (b), 12022.53, subd. (c)). We conclude, among other things, that the trial court did not err by denying Martirosyan's challenges for cause to prospective jurors. We affirm.
FACTS
Martirosyan was leaving the Habibi Cafe in Westwood. He started to argue with a large bodyguard at the entrance of that establishment. Martirosyan walked away and got into the passenger side of an automobile. He then looked back at the bodyguard and yelled, "Hey, bitch. I'm here," and then Martirosyan pulled a gun.
The bodyguard saw the gun and said to Martirosyan, "What's up, bitch? Are you going to shoot me?" Martirosyan aimed and fired a shot at him. The bullet missed the bodyguard, shattered a window and hit another man in the head.
In the defense case Martirosyan testified that he brought the gun with him for protection. He left it in the car. He entered the cafe and became intoxicated after consuming an alcoholic beverage.
Martirosyan noticed that a celebrity, Suge Knight, was in the cafe with his bodyguards. He had heard that those guards were armed and "very dangerous." One of them approached Martirosyan as he was leaving the cafe and said, "what the fuck are you looking at, you little punk?" Martirosyan responded, "I'm leaving. What do you want from me? I'm leaving." The bodyguard said to him, "I'm gonna fuck this motherfucker up right now." Martirosyan testified, "I got really scared at that time."
As Martirosyan left the cafe, the bodyguard followed him. Martirosyan got into the passenger side of the car. He was frightened because the bodyguard "was coming towards [him]." Martirosyan grabbed the gun from under the seat and fired a shot at him.
Voir Dire
During voir dire Martirosyan's trial counsel asked prospective jurors, "If someone felt their life was threatened and they were under the influence of alcohol . . . do you think they should pick up a gun if available . . . ? Prospective juror number 10 said, "No."
Prospective juror number 11 said, "I think no - -citizens should not have guns." Martirosyan's counsel asked, "So they shouldn't pick it up under any circumstances? Prospective juror number 11 responded, "Right."
Prospective juror number 12 said, "I feel the same way he does. They shouldn't pick it up."
Martirosyan's counsel asked this question to other prospective jurors who gave similar responses.
The trial court stated, "a number of you expressed some pretty strong personal feelings about how you would react to a given situation . . . for someone to use a gun if they've been having any alcohol, even if faced with a life-threatening situation." "And I just want to make sure that . . . regardless of . . . how you believe you would react to a given situation, that you'll follow the law as I instruct you. So does anybody think they would have any problem with that?" None of the prospective jurors raised their hands.
Martirosyan's counsel moved to excuse 13 prospective jurors for cause on the ground that they said it is wrong to pick up a gun "if one has imbibed an intoxicating beverage." He claimed that because of their answers to the hypothetical question they "cannot fairly apply the instructions" the court would later give on self-defense. The 13 included prospective jurors number 10, 11 and 12.
The trial court denied the motion. It found that none of the jurors he challenged for cause said that they would hesitate to follow the court's instructions because of their personal opinions.
As voir dire proceeded, most of the 13 prospective jurors Martirosyan had challenged for cause were excused for a variety of reasons. Martirosyan used peremptory challenges to disqualify several of them including prospective juror number 10. Prospective juror number 11 was excused after the prosecutor made a peremptory challenge.
Martirosyan's counsel did not exercise a peremptory challenge to prospective juror number 12. He told the court, "we'll accept the jury as presently constituted." At that time prospective juror number 12 was seated in the jury box and Martirosyan had available peremptory challenges that he had not utilized.
Later, after Martirosyan had exhausted his peremptory challenges he requested additional ones. The trial court denied the request. Martirosyan moved for a mistrial on the ground the court erred by denying the request for more peremptory challenges. The court denied the mistrial motion.
DISCUSSION
I. Denying the Challenges For Cause
Martirosyan contends that the trial court erred by denying his challenges for cause to the prospective jurors.
A. Waiver
The Attorney General claims that Martirosyan waived this issue because: 1) he did not use his peremptory challenges to excuse the jurors he claims should have been removed for cause, and 2) his counsel told the court that he was satisfied with the jury as finally constituted. The Attorney General is correct.
In order to preserve this issue on appeal the defendant must: 1) "have employed a peremptory challenge to excuse the juror or jurors in question," 2) "exhausted [his] peremptory challenges" and 3) "communicated to the trial court [his] dissatisfaction with the jury ultimately selected." (People v. Cunningham (2001) 25 Cal.4th 926, 976.)
Martirosyan claims that he used peremptory challenges to remove most of the jurors he had unsuccessfully challenged for cause. He states, however, that he was not able to remove all of them. He claims that he unsuccessfully challenged prospective jurors number 10 and 12 for cause and they served as trial jurors. But prospective juror number 10 was excused after Martirosyan exercised a peremptory challenge.
Moreover, as the Attorney General correctly notes, Martirosyan had peremptory challenges that he could have used to disqualify prospective juror number 12. Yet, instead of using them, he advised the court, "we'll accept the jury as presently constituted." The "presently constituted" jury included prospective juror number 12. Because of this Martirosyan has waived this issue. (People v. Cunningham, supra, 25 Cal.4th at p. 976.)
Martirosyan notes that he moved for a mistrial on the ground that the court would not grant him additional peremptory challenges. But that occurred only after he had twice told the court that he had accepted the jury as presently constituted. Yet even on the merits, the result is the same.
B. The Merits
"An appellate court applies the abuse of discretion standard of review to a trial court's sustaining or overruling of a challenge for cause against a prospective juror." (People v. Waidla (2000) 22 Cal.4th 690, 715.) A challenge for cause should be granted where a prospective juror's views are so inflexible that they would " . . . ' prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.'" (Ibid.)
Martirosyan contends the jurors he challenged for cause had fixed and biased views about intoxicated people who handle firearms which showed that they would not follow the law. We disagree.
Here the trial court found that these jurors had the proper state of mind to impartially decide this case based exclusively on the law and the evidence. Martirosyan has not shown that the court's findings are not supported by the record. "'" . . . [W]e will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous.' [Citations.]"'" (People v. Cunningham, supra, 25 Cal.4th at p. 975; People v. Bittaker (1989) 48 Cal.3d 1046, 1089 [trial court's finding that juror would follow instructions was binding on appellate court even though juror made prior inconsistent statement that she "could not fairly judge" the case and had prejudged defendant's guilt from a newspaper article].)
Martirosyan claims the jurors were unfit and biased because they shared the view that "if a person had consumed alcohol they should not pick up a firearm." But such a view is not necessarily evidence of bias or unfitness. Nor is it the equivalent of a prejudgment of the defendant's guilt on the charged offense. (People v. Pride (1992) 3 Cal.4th 195, 229.) It only shows that in responding to a general hypothetical, and relying on commonsense, prospective jurors felt the combination of alcohol and weapons was dangerous.
Moreover, as the Attorney General notes, a personal belief about using firearms while intoxicated does not mean jurors would disobey instructions on a different issue, a defendant's right of self-defense. Martirosyan was not charged with using a firearm while intoxicated. Nor has he shown that any of the trial jurors felt they would be hindered in their ability to follow instructions on self-defense because of their personal views about intoxication and firearms. (People v. Pride, supra, 3 Cal.4th at p. 229 [denial of challenge for cause upheld where trial court found jurors who prejudged defendant's guilt from media reports would put aside those opinions and follow its instructions].)
Martirosyan suggests the court ignored the bias of prospective jurors. We disagree. The trial court made careful and proper inquiries about whether prospective jurors would not follow the law because of their personal beliefs. It excused a prospective juror who would not follow the law because of a "fixed and settled opinion" that use of firearms was always inappropriate. It excused another who had a bias against drinkers and had stated, "you're drinking, you're out the door." It excused one for cause because her views on the burden of proof were prejudicial to the defense and another because her son had been shot.
Martirosyan claims prospective juror number 12, who served as a trial juror, had fixed and inflexible views which prevented her from accepting his claim that he used a gun in self-defense. We disagree.
Prospective juror number 12 felt intoxicated people should not handle firearms. She said she did not own a firearm because she had small children and was afraid they might be injured in a gun accident. She had equivocal views about gun ownership. Martirosyan's counsel asked her, "How do you feel about people who do have handguns? Do you think this is a bad mistake on their part?" She responded, "Maybe it is."
But when he asked her about self-defense with firearms she had a different response. She was asked, "Do you think that on some occasions when people shoot at another person, it might be legally defensible; or do you think that there could be no defense to something like that?" She responded, "I think it's defensible." She also testified that she had no "emotional reaction" against Martirosyan because he had been charged with shooting at someone. Martirosyan may question her credibility and the consistency or ambiguity of her statements. But the trial court's determination that she had the requisite state of mind to follow the law is supported by the record and is therefore binding. (People v. Cunnigham, supra, 25 Cal.4th at p. 975; People v. Mendoza (2000) 24 Cal.4th 130, 169 ["'we defer to the trial court's evaluation of a prospective juror's state of mind . . . .'"].)
We have carefully reviewed Martirosyan's remaining contentions and we conclude that he has not shown reversible error.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.