People v. Sankikian CA2/3 ( 2021 )

Filed 8/11/21 P. v. Sankikian CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE, B308441
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA442828)
v.
MAGGIE S. SANKIKIAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edmund Willcox Clarke, Jr., Judge. Affirmed as
modified.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
This case has returned to us following a remand to the trial
court to exercise its discretion whether to strike a five-year prior
that had been imposed on Maggie S. Sankikian. On remand and
at the resentencing hearing, the trial court made statements and
referred to matters that Sankikian now argues were not in
evidence and demonstrated the trial judge’s bias. Sankikian
therefore contends in this latest appeal that her sentence must
again be vacated and the matter remanded for another
sentencing hearing. We disagree. Therefore, although we modify
the judgment to correct credits, we otherwise affirm the
judgment.
BACKGROUND
As we detailed in our prior opinion, People v. Sankikian
(June 20, 2019, B282229) [nonpub. opn.], Sankikian was an
admitted member of the Mara Salvatrucha gang (MS-13) known
as Goofy. After being found in an apartment with marijuana,
methamphetamine, and drug paraphernalia, she was arrested
and tried for possessing marijuana and methamphetamine for
sale. At her trial, evidence of Sankikian’s prior drug-related
arrests and wiretapped phone calls between Sankikian and MS-
13 gang members was admitted. Those phone calls included
conversations Sankikian had with two MS-13 gang members, one
a shot caller and another a foot soldier or enforcer. In those calls,
she asked for drugs to sell and referred to a man who was
“crossing a fucking line” and was “going to turn into a rat.”
Sankikian said the man was a problem that needed to be “fixed.”
A jury found Sankikian guilty of possessing
methamphetamine for sale (Health & Saf. Code, § 11378; count 1)
and of possessing marijuana for sale (id., § 11359; count 2) and
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found true a gang allegation (Pen. Code,1 § 186.22,
subd. (b)(1)(A)). In 2017, the trial court, after denying
Sankikian’s Romero2 motion, sentenced her on count 1 to two
years doubled to four years based on the prior strike, three years
for the gang enhancement, five years for a prior serious felony
(§ 667, subd. (a)), and two 3-year terms for prior drug convictions
(Health & Saf. Code, § 11370.2, subd. (a)). Her total prison term
was therefore 18 years.
Sankikian appealed the judgment, raising claims of
instructional and evidentiary errors. We rejected those claims
but remanded for resentencing so that the trial court could
consider whether to strike the five-year prior under then
recently-enacted Senate Bill No. 1393. (People v. Sankikian,
supra, B282229.) We also directed the trial court to strike the
two 3-year terms imposed under Health and Safety Code section
11370.2.
On August 27, 2020, the trial court resentenced Sankikian.
After commenting at length on MS-13 and Sankikian, which
comments we detail post, the trial court denied Sankikian’s
renewed Romero motion and declined to strike the five-year prior.
The trial court sentenced Sankikian on count 1 to the upper term
of three years doubled to six years due to the prior strike, five
years for the prior serious felony, and the upper term of four
years for the gang enhancement. The trial court imposed a
concurrent term on count 2. Her total prison term therefore was
15 years.
1
All further undesignated statutory references are to the
Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
DISCUSSION
I. Sentencing issues
Sankikian makes two arguments about her sentence. First,
the trial court abused its discretion by failing to consider her
individual circumstances and relying on facts outside the record.
Second, the trial court’s bias violated Sankikian’s due process
rights. After setting forth the relevant additional facts, we
address, and reject, each argument.
A. Additional facts regarding the resentencing hearing
At the resentencing hearing, the prosecutor advocated a
sentence of 16 years four months, which included a consecutive
sentence on count 2. However, the trial court noted that it had
not originally imposed a consecutive sentence on count 2 and was
not inclined to do so now. Rather, the trial court said it knew
what it was doing when it had made that choice at the original
sentencing hearing, just as it knew what it was doing when it had
said Sankikian associated with high-level people in MS-13, a
gang the trial court described as “murderous” and “destructive”
and would “be better off removed from the face of the earth by
some means.”
The trial court then described a letter Sankikian wrote in
support of resentencing in which she failed to acknowledge “what
horrible people she has helped in the past. [¶] When I say
murderers and people that are subversive to our society, that’s
not hyperbole. That’s actual fact. [¶] I saw her picture in the
paper among MS members rounded up by the federal
government. So let’s not kid ourselves. She’s not some court [sic]
bobbing on the seas of society. She’s part of a major evil criminal
enterprise, at least was in the past, and as far as I know, she
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hasn’t disowned it or helped anyone disassemble it and she may
still be down with them. And that’s her choice, but at sentencing
I don’t see what she’s going to say that would make a difference.
[¶] Now, if you think she’s got something to say that will make a
difference, I will hear from her.”
When defense counsel asked to argue and to have her client
speak, the trial court said they could, but it had telegraphed its
thinking, so counsel should not hope that what they said would
“have traction with me.” Sankikian spoke and said she realized
what she had done was wrong, but her childhood and that she
was “in domestic” led her “to do what I did.” She regretted a lot
of the things she had done and would not go back to her old
behaviors when she got out of prison. She had family support,
would go into sober living, had a job, would relocate out of Los
Angeles, and was getting her G.E.D. and having her tattoos
removed.
The trial court thanked Sankikian for her statement but
told her that it had presided over another trial in which two MS-
13 gang members smirked at the brother of the man they had
killed. “So MS-13 is not a joke. It’s not something that’s caused
from being raised by parents who are economically deprived or
underserved by the community. It’s an organized international
gang that does evil and kills people. And for anybody to fund
that and participate in it and not realize that they’re doing
something horribly wrong, to me, is inconceivable. [¶] So this is
not a sentence that based on Ms. Sankikian’s substance use
issues or her desire to rehabilitate, whether drugs that she sold
affected her life. [¶] When she pledged herself to the goals of
that gang, she gets to share with them accountability of the gang.
So that affects the sentence in a way that is so profound that all
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the rehabilitation and all the speech making and nobilities in
prison are unlikely to erase it. And I noticed in that statement
she didn’t say one thing negative about that group.” The trial
court recognized that Sankikian could suffer consequences if she
said something negative about the gang, but that’s what happens
“when you associate with evil criminal like [sic]; that is, you
expose yourself to accountability.”
When defense counsel argued that her client got involved
with the gang at a young age without realizing what she was
getting herself into, and the gang became a second family to her,
the trial court rhetorically asked if it had joined ISIS as a second
family, would that absolve it from “the murdering” ISIS supports
or does? At some point, the trial court asked, “don’t we have to
notice what we’re doing and hold ourselves accountable?” The
trial court went on to note that Sankikian had been involved with
a group “doing evil,” and she was on the phone with shot callers.
So, she was not just “some young woman who fell on hard times.
[¶] No. She’s a gangster. She’s a major criminal. She could be
Al Capone if you had the right time frame. [¶] So why should I
give sympathy and mercy to someone like that?”
Responding, defense counsel pointed out that the people
Sankikian had been arrested with in a federal case were charged
with murder-related crimes, whereas this case involved
possession for sale with a gang enhancement. So, this case did
not involve injuries or “physical victims.” Also, Sankikian was
now older, had been availing herself of services in prison, and
was trying to distance herself from the gang.
The trial court countered that the more “powerful
demographical is she’s a woman, and I can’t tell you how . . . few
women I’ve seen who have risen to these heights in a gang. I
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could count them on one hand. [¶] I’ve seen plenty of men who
are stupid enough to join gangs and do the stupid things they do,
but the number of women who join and rise to her level, very
rare. She so broke the glass [ceiling] in that regard and she
stands out to me because of it, but it’s not in a favorable way.”
Defense counsel then asked the trial court to consider “the
facts of this crime itself, the circumstances under which it
occurred.” The trial court said it was considering the facts of the
case, including that the people Sankikian talked to in the
wiretapped calls were prosecuted for murder and that they had
discussed murdering a person who was working for them. Thus,
the more the trial court considered the case, the less it helped
Sankikian.
Still, defense counsel asked the trial court to strike the five-
year prior, because Sankikian was an older defendant (39 years
old) and did not have the same stature as men in the gang but
instead was a minor drug dealer. The trial court, however, found
that Sankikian’s familiarity with MS-13 gang members showed
she was a powerful person in the hierarchy, “which was a bad
choice, and she is going to spend time in prison because of that
bad choice. [¶] But you will not persuade me that she was just
some local dime bag seller who happened to know the phone
numbers of all these powerful men that ran this criminal entity,
and there are wire taps that prove it.”
The trial court accordingly denied the Romero motion,
declined to exercise its discretion to strike the five-year prior, and
imposed the upper terms on count 1 and the gang enhancement.
In selecting the upper term, the trial court referred to the
“seriousness of the conduct overall, the criminal history of the
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defendant, [and] the collateral information about her conduct
relative to the gang.”
B. The trial court did not abuse its discretion.
Sankikian contends that the trial court abused its
discretion by refusing to strike the five-year prior and imposing
the upper terms on count 1 and the gang enhancement because it
did not fashion an individualized sentence and relied on facts
outside the record. We disagree.
A trial court has broad discretion in its sentencing choices.
(People v. Sandoval (2007) 41 Cal.4th 825, 847.) This discretion
includes choosing between the upper, middle, and low terms and
weighing aggravating and mitigating circumstances. (§ 1170,
subd. (b); People v. Lai (2006) 138 Cal.App.4th 1227, 1258; Cal.
Rules of Court, rule 4.420(b).) A single aggravating factor will
support an upper term sentence, subject to the requirement the
aggravating factor be reasonably related to the decision. (People
v. Weber (2013) 217 Cal.App.4th 1041, 1064.) Similarly, in
deciding whether to strike a five-year prior, a trial court should
evaluate all relevant circumstances to ensure the punishment fits
the offense and the offender. (People v. Shaw (2020) 56
Cal.App.5th 582, 587.)3
We review a trial court’s sentencing choices for an abuse of
discretion and reverse only if there is a clear showing the choice
was arbitrary or irrational. (People v. Sandoval, supra, 41
Cal.4th at p. 847.) A court abuses its discretion if it relies on
3
Shaw, at pages 585 to 586, noted that few published cases
have defined the scope of a trial court’s authority to strike a prior
serious felony enhancement in the furtherance of justice under
section 1385 but concluded that it was at least clear that such
authority is reviewed for an abuse of discretion.
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circumstances that are irrelevant to the decision or that
otherwise constitute an improper basis for decision. (Ibid.) The
burden is on the party attacking the sentence to clearly show the
trial court’s decision was irrational or arbitrary. (People v.
Pearson (2019) 38 Cal.App.5th 112, 116.)
Sankikian’s contention that the trial court abused its
discretion in its sentencing choices relies primarily on its
reference to matters outside the record: a photograph of
Sankikian being arrested with other gang members, that two
gang members smirked at a victim’s brother in another trial this
judge presided over, and Sankikian was a high-ranking MS-13
gang member. We agree that at least the photograph and what
happened in another trial were not in evidence. Even so, that the
trial court referred to these matters does not mean that the trial
court relied on them improperly in making its sentencing choices.
Rather, where a trial judge’s statements as a whole disclose
a correct concept of the law and its application, secondary
remarks will not be deemed to have impeached the judge’s
determination. (People v. Lichens (1963) 59 Cal.2d 587; People v.
Cartier (1960) 54 Cal.2d 300, 313.) In Lichens, for example, the
trial judge, in denying probation, referred to matters outside the
record. The appellate court, in finding no abuse of discretion,
observed that trial judges often read newspapers, hear radio
reports, and receive other information relative to a cause they are
hearing but are capable of disregarding such irrelevant evidence.
(Lichens, at p. 588.) Therefore, the trial judge’s allusion to
“matters of knowledge outside the record concerning defendant’s
pattern of conduct was merely a brief introduction to his clear
statement that his order to deny probation was based upon a
weighing” of matters in the record. (Id. at p. 589.)
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This is true here, too. The totality of the record shows that
the critical aggravating factor driving the trial court’s sentencing
decisions was Sankikian’s MS-13 gang membership. Aside from
any matter outside the record, this fact was undisputed and well-
established. Sankikian admitted she was an MS-13 gang
member; Sankikian had access to a high ranking MS-13 gang
member; and Sankikian used her access to request that a
problem with a potential snitch be taken care of. Thus, not only
did Sankikian sell drugs for MS-13, but she also used its violent
resources to do so.
This evidence also supported the other aggravating factor
the trial court cited, albeit in not so many words, that Sankikian
occupied a position of leadership or dominance in committing the
crime. (See, e.g., Cal. Rules of Court, rule 4.421(a)(4).) While the
record does not establish that Sankikian was a high-ranking MS-
13 gang member on par with Al Capone, neither does it establish
that she was a mere lackey. She had access to leaders in the
gang and called an MS-13 shot caller with national influence. In
those calls, she asked for drugs and that a “problem” with a man
be taken care of. This evidence therefore supports the trial
court’s finding that she was not just a minor drug dealer.
In addition to this, the trial court cited Sankikian’s
criminal record as an aggravating factor to justify imposing the
upper terms. (See, e.g., Cal. Rules of Court, rule 4.421(b)(2)
[prior convictions are numerous or of increasing seriousness].)
That criminal record included a 2005 attempted robbery,
convictions in 2006 and 2011 for transporting or selling controlled
substances, and convictions in 2015 for possessing a controlled
substance and for carrying a concealed dirk or dagger. This
criminal background, coupled with the substantial and troubling
10
evidence surrounding Sankikian’s MS-13 membership and
willingness to use the gang’s violent tactics, shows the
increasingly serious nature of her crimes.
We therefore conclude that the totality of the record shows
that the trial court’s sentencing decision was not arbitrary and
capricious and was based on an individualized consideration of
the offense, the offender, and the public interest. (See, e.g.,
People v. Sandoval, supra, 41 Cal.4th at p. 847.) No abuse of
discretion occurred.
C. Judicial bias
Just as we cannot find that the trial court abused its
discretion, we cannot agree with Sankikian’s related contention,
that the trial court’s comments evidenced bias and a lack of
impartiality so as to constitute a deprivation of her due process
rights.4
The constitutional right to due process “requires a fair trial
in a fair tribunal before a judge with no actual bias against the
defendant or interest in the outcome of the case.” (People v.
Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on another
ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) A party
claiming bias has a high hurdle to overcome, as the facts must
objectively establish bias. (People v. Chatman (2006) 38 Cal.4th
344, 363.) Although actual bias is not required for judicial
disqualification under the due process clause, the mere
appearance of bias is also not sufficient. (People v. Freeman
4
Although Sankikian did not object to the alleged judicial
misconduct and has therefore forfeited the issue on appeal (see,
e.g., People v. Seumanu (2015) 61 Cal.4th 1293, 1320), we
nonetheless address the merits of the issue.
11
(2010) 47 Cal.4th 993, 996.) “Instead, based on an objective
assessment of the circumstances in the particular case, there
must exist ‘ “the probability of actual bias on the part of the judge
or decisionmaker [that] is too high to be constitutionally
tolerable.” ’ ” (Ibid.) A due process violation will be found only in
the exceptional case presenting extreme facts. (Id. at p. 1005.)
We assess whether any proven misconduct or bias was so
prejudicial as to deprive the defendant of a fair trial. (People v.
Guerra, supra, 37 Cal.4th at p. 1112.) Even if the trial judge’s
conduct “ ‘left something to be desired,’ ” we still must determine
whether that conduct was so prejudicial as to deny the defendant
a fair, as opposed to a perfect, trial. (People v. Snow (2003) 30
Cal.4th 43, 78.)
Even were we to agree that the trial judge’s comments here
left something to be desired, we would not find either that the
trial judge was actually biased against Sankikian or that
Sankikian was deprived of a fair trial. Rather, the totality of the
record shows that the trial judge’s concededly exacting and harsh
comments flowed from his familiarity with MS-13 both generally
and based on the evidence in this case and not from actual bias
against Sankikian. The trial court clearly based its sentencing
choices on Sankikian’s intimate involvement with high ranking
MS-13 gang members and willingness to use that relationship to
sell drugs.
II. Custody credits
At Sankikian’s original sentencing hearing, the trial court
awarded her 402 days of actual custody credits and 402 days of
conduct credit. At the resentencing hearing, the trial court
awarded her 1,675 actual days of custody credit and 1,674
conduct credits. However, as the People point out and Sankikian
12
concedes, Sankikian was not entitled to additional conduct credit.
That is, a convicted felon once sentenced and committed is not
restored to presentence status for the purposes of sentence-credit
statutes by virtue of a limited remand. (§ 4019, subd. (a); People
v. Buckhalter (2001) 26 Cal.4th 20, 23.) Any credits earned
beyond actual custody time are under any worktime system.
(Buckhalter, at p. 23.) The abstract of judgment must therefore
be modified to reflect that Sankikian had 2,077 days of custody
credit (1,675 actual days plus 402 days of conduct credit).
DISPOSITION
The trial court is directed to modify the abstract of
judgment to reflect 2,077 days of custody credit and to forward
the modified abstract of judgment to the Department of
Corrections and Rehabilitation. The judgment is otherwise
affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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