P. Dernigoghossian CA2/1 ( 2021 )

Filed 3/18/21 P. Dernigoghossian CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304672
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476675)
v.
ABRAHAM JOSH
DERNIGOGHOSSIAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Laura R. Vavakin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Charles J. Sarosy, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Abraham Dernigoghossian appeals from the
judgment following his conviction for cruelty to an animal, with
an enhancement for personal use of a dangerous or deadly
weapon. Defendant contends the trial court wrongly instructed
the jury on the elements of the enhancement, and further erred
by allowing the prosecution to impeach defendant with evidence
of six prior convictions. We conclude the trial court did not err or,
alternatively, any error was harmless. Accordingly, we affirm
the judgment.
FACTUAL BACKGROUND
We limit our factual summary to the information relevant
to the issues on appeal.
1. Prosecution evidence
On March 13, 2019, defendant was working as a handyman
at a residential property rented by Evelyn Gutierrez and her
family. While defendant and Gutierrez chatted in the yard
outside the home, Gutierrez’s eight-year-old pit bull, Bear,
approached and sniffed at defendant. Suddenly, and without
provocation, Bear bit defendant on the buttocks. The bite was
quick, perhaps two or three seconds, and Bear released defendant
on his own. Bear then walked back to his kennel, as he had been
trained to do when he misbehaved. Gutierrez’s teenage daughter
followed Bear and locked the kennel after Bear went in.
Defendant cursed and was upset. Gutierrez apologized and told
him Bear was vaccinated.
Defendant walked to his truck. Gutierrez assumed
defendant was photographing his injury, because while he was at
his truck, she received a text from her landlord telling her
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defendant was bleeding and would need to go to the emergency
room.
Defendant returned from his truck with a pocketknife in
his hand. He went to Bear’s kennel and loudly called for the dog
while pounding on the kennel. Bear came out of his doghouse
inside the kennel and started to growl and bark. Defendant
jabbed at the kennel fence three times with his pocketknife.
Then he said to Gutierrez, “Now your fucking dog is going to die,”
and walked away. Gutierrez called 911 and asked defendant to
remain, but he left.
Bear was bleeding profusely. It took several hours before
he would come out of his doghouse so Gutierrez could take him to
the veterinarian. The veterinarian testified that Bear had a
single injury, a one-inch laceration on the side of his face. The
wound was deep and had penetrated through skin and muscle.
The veterinarian estimated Bear had lost 25 to 30 percent of his
blood volume. Bear survived.
A police officer and an animal control officer both testified
they saw blood inside the kennel but none outside.
2. Defense evidence
Defendant testified that he saw Bear circling him and
Gutierrez as they chatted in her yard. Bear nudged defendant’s
calf with his nose, then lunged at defendant. Defendant jumped
away and avoided the bite. Bear then lunged a second time and
bit defendant on the left buttock. Defendant pulled out his
pocketknife to defend himself, stabbing at Bear, who let go.
Defendant estimated the blade of the knife was four inches long.
Defendant ran to his truck and used his phone to take a
video of his injury. He then returned to the kennel and hit it
3
with his hand, asking Bear why he had bitten him. Defendant
did not have his knife in his hand at that point.
Defendant saw that Bear was bleeding. He said to
Gutierrez, “Your dog is about to fucking die.” His intention was
to warn her that Bear needed help.
PROCEDURAL BACKGROUND
An information charged defendant with one count of cruelty
to an animal (Pen. Code1, § 597, subd. (a)), and alleged that in
the commission of that offense defendant personally used a
deadly or dangerous weapon (§ 12022, subd. (b)(1)). The
information further alleged that defendant had suffered six prior
convictions for serious and/or violent felonies, subjecting him to
enhanced sentencing under the “Three Strikes” law (§§ 667,
subds. (b)–(j), 1170.12), as well as enhancements under
section 667, subdivision (a)(1).
The jury found defendant guilty of the animal cruelty
charge and further found the weapon allegation true. On the
prosecution’s motion, the trial court dismissed three of the six
prior conviction allegations, and defendant admitted to the
remaining three.
At sentencing, on defendant’s motion the trial court struck
two of the three prior convictions for purposes of the Three
Strikes law. The trial court selected the high term of three years
for the animal cruelty conviction, doubled to six because of the
prior strike, and added a one-year weapon-use enhancement and
a five-year prior conviction enhancement, for a total of 12 years.
The trial court also awarded credits and imposed fines and fees.
1 Unspecified statutory citations are to the Penal Code.
4
Defendant timely appealed.
DISCUSSION
A. The Trial Court Properly Instructed the Jury on the
Weapon Enhancement
Defendant claims the jury instruction for the weapon
enhancement under section 12022, subdivision (b)(1) was
erroneous.
Section 12022, subdivision (b)(1) provides, “A person who
personally uses a deadly or dangerous weapon in the commission
of a felony or attempted felony shall be punished by an additional
and consecutive term of imprisonment in the state prison for one
year, unless use of a deadly or dangerous weapon is an element of
that offense.” In instructing the jury on this enhancement, the
trial court used CALJIC No. 17.16, stating, in relevant part, “If
you find the defendant guilty of the crime thus charged, you must
determine whether the defendant personally used a deadly or
dangerous weapon in the commission of that crime. [¶] ‘A deadly
or dangerous weapon’ means any weapon, instrument or object
that is capable of being used to inflict great bodily injury or
death, and it can be inferred from the evidence, including the
attendant circumstances, namely, the time, or place, destination
of the possessor, the alteration, if any, of the object from its
standard form, and any other relevant fact, that the possessor
intended on that occasion to use it as a weapon should the
circumstances so require. [¶] The term ‘personally used a deadly
or dangerous weapon,’ as used in this instruction, means the
defendant must have intentionally displayed a weapon in a
menacing manner or intentionally fired it or intentionally struck
or hit an animal with it.”
5
Defendant claims that this instruction omitted a necessary
element of the enhancement, namely that the alleged weapon not
only be capable of causing great bodily injury or death, but also
be likely to cause great bodily injury or death. He contends the
trial court instead should have provided the instruction from
CALCRIM No. 3145, defining “a deadly or dangerous weapon” as
“any object, instrument, or weapon that is inherently deadly or
dangerous or one that is used in such a way that it is capable of
causing and likely to cause death or great bodily injury.”
The Attorney General argues defendant forfeited this
argument by not objecting to the instruction in the trial court.
Defendant disagrees. Because we conclude that even if arguendo
the trial court’s instruction was erroneous, the error was
harmless, we decline to decide the forfeiture issue.
As recently as 2019, our Supreme Court has stated, “ ‘ “In
order to find ‘true’ a section 12022(b) allegation, a fact finder
must conclude that, during the crime or attempted crime, the
defendant himself or herself intentionally displayed in a
menacing manner or struck someone with an instrument capable
of inflicting great bodily injury or death.” ’ ” (People v. Beck and
Cruz (2019) 8 Cal.5th 548, 630.) This statement of the law
does not include a requirement that the instrument be likely to
cause great bodily injury or death, only that it be “capable” of
doing so. CALJIC No. 17.16 is consistent with the elements of
section 12022, subdivision (b)(1) as articulated in Beck and Cruz.
We acknowledge, however, that beyond stating the elements,
Beck and Cruz did not analyze the definition of “deadly
or dangerous weapon” for purposes of section 12022,
subdivision (b)(1). Rather, the issue in that case was whether the
6
defendant “personally use[d]” the weapon for purposes of the
enhancement. (Beck and Cruz, at pp. 629–631.)
In arguing that CALJIC No. 17.16 misstates the elements
of the enhancement under section 12022, subdivision (b)(1),
defendant relies on In re B.M. (2018) 6 Cal.5th 528 (B.M.) and
People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), both of which
predate Beck and Cruz. B.M. addressed the meaning of “deadly
weapon” for purposes of section 245, subdivision (a)(1), defining
the offense of assault with a deadly weapon. (B.M., at p. 530.) In
that context, the Supreme Court emphasized that “for an object
to qualify as a deadly weapon based on how it was used, the
defendant must have used the object in a manner not only
capable of producing but also likely to produce death or great
bodily injury.” (Ibid.) Applying that standard, the court
concluded there was insufficient evidence of assault with a deadly
weapon when the perpetrator used a butter knife to stab at
his sister’s legs, which were covered with a blanket. (Id. at
pp. 536–537.)
In addition to being factually dissimilar to the instant case,
B.M. did not address section 12022, or purport to overrule the
precedents on which Beck and Cruz relied in stating the elements
of the section 12022, subdivision (b)(1) enhancement. Thus, it
is not clear to us that the statement of the law in Beck and Cruz
is inconsistent with B.M.
Aledamat, unlike B.M., did involve an enhancement under
section 12022, subdivision (b)(1), in addition to a conviction for
assault with a deadly weapon. (Aledamat, supra, 8 Cal.5th at
p. 6.) The trial court in that case used the instruction from
CALCRIM No. 3145, the instruction advocated by defendant in
the instant case, which, again, defines “ ‘a deadly or dangerous
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weapon’ ” as one “ ‘that is inherently dangerous, . . . or one that is
used in such a way that it is capable of causing or likely to cause
death or great bodily injury.’ ” (Aledamat, at p. 4.)
Aledamat, however, did not discuss the significance of the
phrase “likely to cause death or great bodily injury,” or whether
CALCRIM No. 3145 was preferable to CALJIC No. 17.16.
Rather, the issue in that case was that the weapon, a box cutter,
was not an inherently deadly or dangerous weapon, and the
instruction therefore presented an invalid theory under which the
jury could find the allegation true. (Aledamat, supra, 8 Cal.5th
at pp. 6–7.) Aledamat did not address the authorities upon which
Beck and Cruz relied, and does not compel the conclusion that
the characterization of the elements of section 12022,
subdivision (b)(1) in Beck and Cruz was deficient.
It therefore is not clear that the trial court erred in
instructing the jury using CALJIC No. 17.16, which, again,
appears to be consistent with the statement of the law as
articulated in Beck and Cruz. We, however, need not determine
whether CALJIC No. 17.16 remains a valid instruction.
Assuming arguendo that section 12022, subdivision (b)(1)
requires proof that the instrument was likely to cause great
bodily injury or death, any error in omitting that element from
the instruction was harmless beyond a reasonable doubt.
(People v. Merritt (2017) 2 Cal.5th 819, 821, 831 (Merritt) [failure
to instruct on elements of charged crime harmless if “it is clear
beyond a reasonable doubt that a rational jury would have
rendered the same verdict absent the error.”].)2
2 Defendant argues against applying harmless error
analysis, citing concurring or dissenting opinions from justices on
the United States and California Supreme Courts. We of course
8
Instructive is People v. Stutelberg (2018) 29 Cal.App.5th
314 (Stutelberg). That case, like Aledamat, involved a challenge
to CALCRIM No. 3145 in the context of a box cutter and an
enhancement under section 12022, subdivision (b)(1).
(Stutelberg, at p. 317.) As in Aledamat, it was undisputed that a
box cutter is not an “ ‘inherently deadly or dangerous’ ” weapon
under CALCRIM No. 3145, and thus the only valid theory under
which the jury could find the enhancement allegation true was
that the defendant “ ‘used’ ” the box cutter “ ‘in such a way that it
[was] capable of causing and likely to cause death or great bodily
injury.’ ”3 (Stutelberg, at p. 317.) Because CALCRIM No. 3145
provided the jury with both the invalid inherently-dangerous
theory and the valid dangerous-as-used theory, the instruction
was erroneous. (Stutelberg, at p. 317.)
The Court of Appeal concluded the error was harmless
beyond a reasonable doubt as to one of the charges to which the
enhancement was applied.4 (Stutelberg, supra, 29 Cal.App.5th
are bound by the majority opinion in Merritt, which endorsed a
harmless error analysis in the context of an improper jury
instruction. (Merritt, supra, 2 Cal.5th at p. 831.)
3 Like Aledamat, Stutelberg did not discuss the
significance of the phrase “likely to cause death or great bodily
injury,” or whether CALCRIM No. 3145 was preferable to
CALJIC No. 17.16.
4 As noted in Aledamat, the Stutelberg opinion at one point
appears to conflate the “no reasonable doubt” harmless error
standard with the more lenient “no reasonable probability”
standard applicable to errors of state law. (Aledamat, supra,
8 Cal.5th at p. 9, fn. 4; Stutelberg, supra, 29 Cal.App.5th at p. 322
[concluding “there is no reasonable probability [the jury] would
have rejected the deadly weapon enhancement on count 1.
9
at p. 322.) The evidence showed the defendant sliced or stabbed
the back of the victim’s head with the box cutter—indeed, the
defendant conceded he lacerated the victim but argued he did so
in self-defense. (Id. at p. 321.) The court stated, “Using a sharp
box cutter to stab a victim’s head undoubtedly qualifies as using
the item ‘in such a way that it is capable of causing and likely to
cause death or great bodily injury,’ ” particularly given “the
bodily injury that resulted,” which soaked the victim’s shirt with
blood, caused residual nerve damage, and required stitches.
(Id. at p. 322.) Thus, the court concluded, had the jury not been
instructed on the invalid “ ‘inherently deadly weapon’ ” theory,
but only on the valid “ ‘deadly or dangerous as used’ ” theory, it
nonetheless would have found the weapon enhancement true.
(Ibid.)
Just as “[u]sing a sharp box cutter to stab a victim’s head
undoubtedly qualifies as using the item ‘in such a way that it is
capable of causing and likely to cause death or great bodily
injury’ ” (Stutelberg, supra, 29 Cal.App.5th at p. 322), defendant’s
undisputed stabbing of Bear in the face with the four-inch blade
of his pocketknife, causing a deep wound that bled profusely, also
“undoubtedly” meets the test for a deadly or dangerous weapon
under CALCRIM No. 3145. Had the trial court given that
instruction, as defendant argues it should have, rather than
CALJIC 17.16, “it is clear beyond a reasonable doubt that a
Therefore, the instructional error was harmless beyond a
reasonable doubt.”].) Apart from that one instance, the
Stutelberg opinion otherwise unambiguously applies the stricter
“no reasonable doubt” standard, and we conclude that is the
standard the court intended to apply.
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rational jury would have rendered the same verdict.” (Merritt,
supra, 2 Cal.5th at p. 831.)
Defendant argues the prejudice from the trial court’s
purportedly erroneous instruction was compounded when the
prosecutor, in closing, suggested a pocketknife was an inherently
deadly or dangerous weapon by stating, “a knife is, obviously, an
example of a deadly or dangerous weapon.” Again, to the extent
this was error, it was harmless under the reasoning of Stutelberg,
which unequivocally involved an erroneous instruction of
inherent deadliness. Simply put, no rational jury could conclude
the pocketknife in the instant case was not dangerous or deadly
for purposes of section 12022, subdivision (b)(1), even under the
definition endorsed by defendant.
B. The Trial Court Did Not Abuse its Discretion In
Admitting Evidence of Prior Convictions for
Purposes of Impeachment
Defendant argues the trial court abused its discretion by
allowing the prosecution to impeach defendant with evidence of
his prior convictions. We disagree.
a. Relevant proceedings below
Before trial, the prosecution informed the trial court of
defendant’s prior convictions with which the prosecution intended
to impeach him should he testify. The trial court excluded three
convictions from 1999 as too remote in time. Over defense
counsel’s objection, the trial court ruled the prosecution could
impeach defendant with six convictions from 2002: residential
burglary, felony vandalism, escape by a prisoner in custody, and
three counts of carjacking.
11
During cross-examination of defendant at trial, the
prosecutor listed the six 2002 convictions by name and defendant
confirmed he had suffered those convictions. On redirect,
defendant testified that he committed all six offenses on the same
day, and they were part of a single case.
In closing argument, defense counsel stated, “Now, we
heard that he had a 2002 conviction of six counts, six ugly counts.
Are we judging him by this? Is that what we’re judging him by,
his 18—20-year-old convictions? That’s 18 years ago.”
In rebuttal, the prosecutor stated, “Now, the defense
attorney also says don’t judge his client based on his criminal
convictions you heard about. I agree. That would be improper.
You’re not supposed to just judge him on that. But you can
consider those convictions in considering his testimony. There’s a
reason why you were allowed to hear that he suffered those six
prior convictions.” Shortly thereafter, the prosecutor said, “Now,
the defendant got up here under oath and lied to you. Oh, and by
the way, those convictions—you all heard what they were—three
convictions for carjacking, one for escape from jail, one for first-
degree residential burglary, and one felony vandalism.”
After closing arguments, the trial court instructed the jury
that “[i]n determining the believability of a witness,” the jury
could consider “the witness’s prior conviction of a felony.” The
trial court further instructed, “The fact that a witness has been
convicted of a felony, if this is a fact, may be considered by you
only for the purpose of determining the believability of that
witness.”
b. Analysis
Evidence Code section 788 provides, “For the purpose of
attacking the credibility of a witness, it may be shown by the
12
examination of the witness or by the record of the judgment
that he has been convicted of a felony . . . .” Similarly,
Article I, section 28, subdivision (f)(4) of the California
Constitution provides in pertinent part that “[a]ny prior felony
conviction of any person in any criminal proceeding, whether
adult or juvenile, shall subsequently be used without limitation
for purposes of impeachment . . . .”
In criminal cases, the felony conviction must involve a
crime of moral turpitude, and is subject to the trial court’s
discretion to exclude the prior conviction under Evidence Code
section 352.5 (People v. Clark (2011) 52 Cal.4th 856, 931.) “When
determining whether to admit a prior conviction for impeachment
purposes, the court should consider, among other factors,
whether it reflects on the witness’s honesty or veracity, whether
it is near or remote in time, whether it is for the same or similar
conduct as the charged offense, and what effect its admission
would have on the defendant’s decision to testify.” (Ibid.) We
review the trial court’s ruling regarding the admissibility of a
defendant’s prior convictions for impeachment purposes for abuse
of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.)6
5 Evidence Code section 352 provides, “The court in its
discretion may exclude evidence 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.”
6 Defendant argues we should apply a de novo standard of
review, citing People v. Seijas (2005) 36 Cal.4th 291. Seijas held
that an appellate court should review de novo a trial court’s
ruling concerning a witness’s assertion of the privilege against
13
The parties dispute whether defendant preserved this issue
for appeal. Again, given our conclusion that the challenge fails
on the merits, we decline to address the forfeiture dispute.
Defendant argues that the undue prejudice of introducing
evidence of his prior convictions outweighed any probative value.
As to undue prejudice, he argues that his prior convictions
“involved particularly heinous crimes” of violence that were
“similar in nature to the charged offense.” He contends that,
upon learning of them, the jury would see him “as a violent
person, with a violent history,” and would therefore conclude he
must have committed the charged offense as well. Defendant
further contends the prior offenses were too remote in time to be
probative of his honesty.
Although we do not intend to diminish the seriousness of
defendant’s prior offenses, we do not view them as particularly
“heinous” compared to other felonies that might be introduced for
impeachment purposes. Nor are they similar to the charged
offense of animal cruelty, in which the perpetrator “maliciously
and intentionally maims, mutilates, tortures, or wounds a living
animal.” (§ 597, subd. (a).) Although some of defendant’s prior
crimes, such as carjacking, potentially involve violence or the
threat of violence, none of them is a crime the primary intent of
which is to harm another living being.
We also disagree that the offenses were too remote in time.
As the trial court noted, and defendant does not dispute,
defendant was incarcerated for more than 12 years after those
2002 convictions. Thus, defendant cannot be credited with
self-incrimination. (Id. at p. 304.) That holding has no
application here.
14
17 years of crime-free behavior, but only the approximately
five years between his release from prison and the instant
offense. Viewed in that light, his prior offenses are not too
remote to be probative on the issue of his honesty.7
Defendant argues that even if the trial court did not err in
admitting some of his prior convictions, the court could have
ameliorated the prejudice by admitting only one, or by sanitizing
the offenses by prohibiting the prosecution from stating the
number of offenses or identifying each offense by name.
We cannot say the trial court unduly prejudiced defendant
by not taking these actions. Defendant was able to clarify for the
jury during his testimony that the crimes were all committed on
a single day, thus countering any implication that his multiple
convictions indicated a long criminal history, and reducing the
prejudice that might otherwise arise from the admission of
evidence of six prior offenses. Further, as discussed, the prior
offenses were dissimilar from the charged offense and were
relatively less heinous, and therefore there would be little benefit
in concealing from the jury the nature of those offenses.
Indeed, had the prosecution not informed the jury of the
specific offenses, the jury might well have speculated that
defendant had committed far more heinous crimes than was
actually the case. In People v. Little (2012) 206 Cal.App.4th 1364,
7 Defendant argues there was no evidence he engaged in
misconduct in prison, “a particularly hostile environment, ripe
with violence, drugs, and theft.” We note there is no evidence in
the record one way or the other concerning defendant’s conduct
while incarcerated. Regardless, the trial court was within its
discretion not to credit defendant for his ability to avoid
additional felony convictions while in custody.
15
the Court of Appeal rejected the argument that the trial court
erred by declining to “ ‘sanitize” a prior theft-related conviction
by identifying it only as a ‘crime of moral turpitude.’ ” (Id. at
p. 1379.) The appellate court explained, “Murder and torture are
crimes of moral turpitude. It might be far safer to tell the jury
what the crime was than to let the jury speculate.” (Ibid.) That
reasoning applies equally here.
In his reply brief, defendant further argues that admission
of evidence of his prior convictions adversely impacted his
decision to testify. Given that defendant actually testified, it is
unclear how admission of his prior convictions could have
adversely impacted the decision to do so. (See People v. Mendoza
(2000) 78 Cal.App.4th 918, 926–927 [admission of prior
convictions cannot adversely impact right to testify when
defendant “actually took the stand and suffered impeachment
with the priors”].) We certainly accept that the evidence of his
prior convictions may have undercut the force of his testimony,
but that is the very purpose of impeachment and Evidence Code
section 788.
C. Defendant’s Counsel Did Not Render Ineffective
Assistance
Defendant argues that to the extent he forfeited his challenges
on appeal for failure to object below, he was denied his
constitutional right to effective assistance of counsel. To
demonstrate ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. (People v. Dowdell
(2014) 227 Cal.App.4th 1388, 1406.) As set forth ante, defendant
has not made this showing and his claim of ineffective assistance
of counsel thus fails.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
17