People v. Dermesrobian CA2/6 ( 2014 )

Filed 8/5/14 P. v. Dermesrobian CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B250719
(Super. Ct. No. PA070550)
Plaintiff and Respondent, (Los Angeles County)
v.
VAHE DERMESROBIAN,
Defendant and Appellant.
Vahe Dermesrobian appeals from a judgment after conviction by jury of
attempted premeditated murder with personal use and discharge of a firearm (Pen. Code,
§§ 664/187, subd. (a), 12022, subd. (a), 12022.53, subd. (b), 12022, subd. (c)), and after
plea of guilty to four counts of making criminal threats (§ 422) and one count of stalking.
(§ 646.9.) The trial court sentenced Dermesrobian to 32 years to life plus five years,
eight months in prison.
Dermesrobian contends that his conviction for attempted murder must be
reversed because the trial court diluted the prosecutor's burden of proof when, during voir
dire, it said, "the People have to prove the case beyond a reasonable doubt, not beyond all
doubt." He also contends the court diluted his rights when it referred to his "privilege"
not to testify instead of his "absolute constitutional right" not to do so. We affirm.
PROCEDURAL BACKGROUND
Mario Gamez got into a car with Demresrobian, David Arutyunyan and
Karen Bezidzhyan in order to sell them heroin. Dermesrobian revealed a gun and Gomez
fled. Dermesrobian shot him several times in the back.
Gamez identified Dermesrobian in a photographic lineup. He did not
identify Dermesrobian at trial. Gamez testified under a grant of immunity.
Cell phone records placed Dermesrobian within .8 miles of the shooting.
Police officers found photos of a .22 caliber rifle, and ammunition for it, in
Dermesrobian's house.
Police officers found an identical .22 caliber rifle in Ari Sahnazoglu's car.
In a recorded telephone call, Sahnazoglu told his girlfriend it was the rifle Dermesrobian
used. At trial, Sahnazoglu said it was not. No tests were conducted on the rifle.
Sahnazoglu testified that Dermesrobian's friend said they had been robbing
drug dealers using a gun. According to Sahnazoglu, Dermesrobian was present and "just
smiled." The friend contradicted Sahnazoglu's testimony at trial. Sahnazoglu was a
convicted felon and a member of the Armenian Power gang.
During voir dire, the trial court read the standard instruction on reasonable
doubt and then explained, "What that means is if I were to ask you how you will vote
right now, your vote would not be guilty. Why? Because as the defendant sits there he's
presumed to be innocent. This means the defendant doesn't need to present any evidence.
Mr. Newton can sit there and not ask any questions. He doesn't have to call any
witnesses because the burden is on the prosecution.
"Again, the People have to prove the case beyond a reasonable doubt, not
beyond all doubt. Okay? And again, the attorneys will talk to you about those different
standards of proof.
"A lot of times people come in the courtroom and they look around, see
who everybody is and sometimes they look at the defendant and say what did he do.
Again, that is not the right way to look at it. The right way to look at it is what he is
accused of doing.
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"Another important concept is that a lot of times people say, well, I need to
hear from both sides before I make a decision. A criminal case doesn't work like that.
The defendant has a privilege against self-incrimination. If he chooses not to testify you
cannot consider that fact for any reason whatsoever. Again, that's an instruction that I'll
give you and it's an instruction that I will ask you to follow. You are required by law to
follow my instructions as I give them to you."
DISCUSSION
Reasonable Doubt Instruction
Dermesrobian contends the trial court's explanation of the reasonable doubt
instruction impermissibly reduced the prosecutor's burden of proof. We disagree.
The trial court gave the standard reasonable doubt instruction three times.
(CALCRIM No. 220.) In voir dire, it correctly stated that proof beyond a reasonable
doubt does not require proof beyond all doubt. (CALCRIM No. 220 ["the evidence need
not eliminate all possible doubt because everything in life is open to some possible or
imaginary doubt"; People v. Pierce (2009) 172 Cal.App.4th 567, 572 [CALCRIM No.
220 correctly states the law].)
In contrast to the cases upon which Dermesrobian relies, the trial court here
did not suggest that the jurors should use the same deliberative process they use for
everyday decision-making. In People v. Johnson (2004) 119 Cal.App.4th 976, 985-986,
the trial court impermissibly lessened the prosecutor's burden when it likened the
deliberative process to the "kind of decisions you make every day in your life," such as
the decision to have children, to go to college, or to go to a particular restaurant. (Id. at
pp. 982.) It told the jurors that they are "'brain dead'" if they have "'no doubt.'" (Id. at p.
980.) The prosecutor repeated the court's comments in closing argument. (Id. at p. 983.)
Reversing the conviction, the appellate court urged trial judges not to explain CALCRIM
No. 220: "Let it be." (Id. at p. 986.) Similarly, in People v. Johnson (2004) 115
Cal.App.4th 1169, 1170-1171, the court reversed a conviction where the trial court
likened the deliberative process to vacation planning. Here, the trial court did not use
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everyday decisions to explain proof beyond a reasonable doubt. Its instructions
accurately stated the law.
Right Not To Testify
Dermesrobian contends the trial court erred when it referred in voir dire to a
"privilege" not to testify instead of an "absolute constitutional right" not to testify. He
relies upon CALCRIM No. 355 ["a defendant has an absolute constitutional right not to
testify"] and People v. Ibarra (2007) 156 Cal.App.4th 1174, 1191-1192 [CALCRIM No.
355 upheld]. The claim has no merit.
The trial court correctly instructed the jury, pursuant to CALCRIM No.
355, that Dermesrobian had an "absolute constitutional right" not to testify. (CALCRIM
No. 355.) Its additional use of the word "privilege" during voir dire did not contradict
this instruction and was consistent with the law. (e.g. Carter v. Kentucky (1981) 450 U.S.
288, 301-301 [a "no-adverse-inference" instruction protects a defendant's constitutional
"privilege" not to testify].) Dermesrobian offers no contrary authority.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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David B. Gelfound, Judge
Superior Court County of Los Angeles
______________________________
Sally Patrone Brajevich, under appointment by the Court of Appeal, for
Defendnat and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
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