Opinion
H036499 Monterey County Super. Ct. No. SS082030A
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ARMEN YAPUNDAZHYAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
I. INTRODUCTION
After a court trial, defendant Armen Yapundazhyan was convicted of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)) and sodomy in a correctional facility (§ 286, subd. (e)). The trial court also found true the special allegation that defendant had three prior felony convictions within the meaning of the Three Strikes law (§ 1170.12, subd. (c)(2)). At sentencing, the trial court imposed two terms of 25 years to life in the state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court's direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed."
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Charged Offenses
The complaint filed on July 30, 2008, charged defendant with committing two felony offenses on September 8, 2005, including sodomy by use of force (§ 286, subd. (c)(2); count 1) and sodomy in a correctional facility (§ 286, subd. (e); count 2.) The complaint also included the special allegation that defendant had three prior felony convictions within the meaning of the Three Strikes Law (§ 1170.12, subd. (c)(2)) for attempted murder (§§ 664, 187), burglary (§ 459), and terrorist threats (§ 422).
On December 19, 2008, defendant waived the preliminary examination and was held to answer on both counts. The information filed on December 29, 2008, included the same counts and special allegations as the complaint.
B. Competency
During trial court proceedings held on October 15, 2008, defense counsel requested an evaluation under section 1368. The trial court declared a doubt as to defendant's competence, ordered that defendant be evaluated by Taylor Fithian, M.D., and suspended criminal proceedings. Thereafter, Dr. Fithian submitted a report dated November 13, 2008, in which he stated that it was his opinion that defendant was "trial competent." Based on Dr. Fithian's report, the trial court found that defendant was competent and reinstated criminal proceedings on November 19, 2008.
Section 1368 provides in part, "(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court."
C. The Court Trial
On July 15, 2009, the trial court heard and denied defendant's Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) Thereafter, defendant waived his right to a jury trial and the matter proceeded to a three-day court trial in November 2010. According to the trial testimony, the evidence concerning the charged offenses was as follows.
On September 8, 2005, defendant was incarcerated at Salinas Valley State Prison. His cellmate was John Doe. During the two days they were incarcerated together, defendant repeatedly asked Doe to copulate him, but Doe refused to do so unless defendant took an HIV test. Defendant became more aggressive and demanded sex. When Doe tried to get the cell door open, defendant grabbed him and they began fighting. Eventually, Doe fell to the ground and defendant pinned him there by holding his hair and ear. Defendant then pulled Doe's boxer shorts down and penetrated Doe's anus with his penis. When the assault ended, defendant threw water all over the cell and kicked Doe in the back, head, and lower buttocks. Defendant also threatened that he would kill Doe's family if Doe said anything.
Meanwhile, Administrative Sergeant Brian Peterson had been told by other officers during the evening of September 8, 2005, that defendant and his cellmate, John Doe, were going to fight. Sergeant Peterson responded to defendant's cell after a cry of "man down" was heard. When he arrived at defendant's cell, Sergeant Peterson saw John Doe inside the cell, lying face down. Defendant, who was standing at the cell door, told Sergeant Peterson, "I knocked him out." The cell was flooded with water that Sergeant Peterson believed was from the toilet.
Sergeant Peterson had defendant removed from his cell and called for medical help for Doe. At that time, Doe appeared to be unconscious. Doe was removed on a stretcher and taken to the prison hospital. He was then taken to Natividad Medical Center, where he was examined by a SART (sexual assault response team) nurse. During the examination, the SART nurse found that Doe had injuries to the lip, torso, and back, consisting of abrasions, bruises, and redness, which she found to be consistent with the history given. The SART nurse collected two anal swabs and two rectal swabs, as well as head hair and public hair samples. Samples of defendant's blood were also taken.
The samples collected during Doe's SART examination were included in the sexual assault evidence kit that was taken to Salinas Valley State Prison and secured in an evidence locker. Thereafter, the sexual assault evidence kit was sent to the California Department of Justice laboratory in Watsonville, where the evidence was examined. The rectal swabs were forwarded to the Department of Justice laboratory in Richmond for DNA analysis, along with blood samples taken from defendant and John Doe. The DNA analysis revealed that defendant was the major contributor to the sperm recovered from Doe's rectal swabs.
The correctional case records manager for the Department of Corrections and Rehabilitation testified regarding the Los Angeles County Superior Court records that showed defendant's prior convictions in 2002 for burglary, attempted murder and criminal threats, for which he received a total prison term of 11 years.
D. Verdict and Sentencing
After hearing closing arguments on November 19, 2010, the trial court made several findings: (1) the evidence showed that defendant's DNA in the form of sperm was in John Doe's rectum; (2) Doe's injuries were consistent with an attack; (3) Doe was a credible witness; and (4) the alleged sodomy did occur by force and violence and without Doe's consent. The court then found that defendant was guilty beyond a reasonable doubt of the charged offenses of sodomy by force or violence (§ 286, subd. (c)(2); count 1) and sodomy in a correction facility (§ 286, subd. (e); count 2). The court also found true the special allegation that defendant had been convicted of three prior strikes pursuant to section 1170.12, subdivision (c)(2).
During the sentencing hearing held on December 30, 2010, the trial court heard and denied defendant's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, in which defendant requested that the court dismiss his prior strike convictions in the interest of justice. The court then imposed a sentence of 25 years to life on count 1 and a sentence of 25 years to life on count 2, which the court stayed.
As to each count, the trial court ordered defendant to pay a $200 restitution fine (§ 1202.4, subd. (b)) and suspended the imposition of a $200 parole revocation restitution fine (§ 1202.45). Additionally, as to each count, the court ordered defendant to pay a court security fee of $40 (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment fee of $30 (Gov. Code, § 70373). The court found that defendant did not have the ability to pay a sex offender fine of $1,200 (§ 290.3). Defendant was also ordered to register as a sex offender (§ 290).
III. WENDE ANALYSIS
In the opening brief, appointed counsel identifies "several points for review": (1) "Whether the trial court could reinstate criminal proceedings without securing a personal waiver from appellant as to a competency trial, and whether any such error was prejudicial"; and (2) Whether the trial court need redeclare a doubt as to a defendant's competence and appoint another expert if defendant again makes bizarre statements, which reasonably cast doubt upon his competence." Having carefully reviewed the entire record and considered appellant counsel's "points for review," we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: DUFFY, J. WALSH, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.