People v. Grigoryan CA2/1 ( 2023 )

Filed 7/31/23 P. v. Grigoryan CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322129
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA092744)
v.
AZNAUR GRIGORYAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Hayden A. Zacky, Judge. Affirmed.
Sally Patrone, 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, Idan Ivri and Nikhil Cooper, Deputy Attorneys
General for Plaintiff and Respondent.
Aznaur Grigoryan appeals from an order summarily
denying his petition to vacate his manslaughter conviction and
be resentenced under Penal Code section 1172.6.1 Because he
has failed to provide us with an adequate record to review, we
affirm the court’s order. In any case, even if a complete record
would support his factual assertions, he is not entitled to relief
under section 1172.6.
FACTUAL AND PROCEDURAL SUMMARY
On May 8, 2019, Grigoryan drove a car while intoxicated.
His car and a car driven by Arotin Mahmoudian collided, which
caused Mahmoudian’s car to hit and kill a pedestrian, Raymond
Allen, and Allen’s dog.
In June 2021, the Los Angeles District Attorney filed a
second amended information charging Grigoryan with: murder
of Allen (count 1; § 187); hit and run driving resulting in injury
to another (count 2; Veh. Code, § 20001, subd. (b)(1)); driving
under the influence of alcohol causing injury (count 3; Veh.
Code, § 23153, subd. (a)); gross vehicular manslaughter (count 4;
§ 191.5, subd. (a)); assault upon Angela Llernas (a passenger
in Mahmoudian’s car) with a deadly weapon (count 5; § 245,
subd. (a)(1)); cruelty to an animal (count 6; § 597, subd. (a);
and resisting, delaying, or obstructing a peace officer (§ 148,
subd. (a)(1)). The People further alleged that in the commission
1 Subsequent unspecified statutory references are to the
Penal Code.
Grigoryan filed his petition for resentencing under former
section 1170.95, which the Legislature later renumbered
section 1172.6 without substantive change. (Stats. 2022, ch. 58,
§ 10.) We hereafter refer to section 1172.6 for ease of reference.
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of count 3 (driving under the influence), Grigoryan personally
inflicted great bodily injury on Raymond Allen. (Pen. Code,
§ 12022.7, subd. (a).)
On June 9, 2021, pursuant to a plea agreement, Grigoryan
pleaded no contest to counts 2 through 7; that is, all counts other
than murder, which the court dismissed.2 He also admitted the
personal infliction of great bodily injury enhancement allegation
as to count 3. The court found that there is a factual basis for the
plea, accepted the plea, and found Grigoryan guilty of counts 2
through 7. The court sentenced Grigoryan to one year in jail,
for which he was credited the same amount for time served, plus
14 years in prison.
On January 31, 2022, Grigoryan filed a petition for
resentencing under section 1172.6. Grigoryan alleged: (1) an
information was filed against him that allowed the prosecution to
proceed under a theory of murder under the natural and probable
consequences doctrine; (2) he was convicted of manslaughter
following a plea offer in lieu of a trial at which he could have been
convicted of murder; (3) he “could not presently be convicted of
murder because of changes to [sections] 188 or 189[,] effective
[January 1, 2019].” Grigoryan requested the appointment of
counsel.3
2 A transcript of the plea hearing is not included in our
record. Our references to the facts concerning the plea are based
on a minute order in the record.
3 In addition to arguments pertinent to resentencing
issues under section 1172.6, Grigoryan, in documents filed
prior to the appointment of counsel, asserted that a prosecution
expert testified falsely at his preliminary hearing, and that the
3
Grigoryan, acting in propria persona, submitted a
document, to which he attached a written statement that
Mahmoudian had given to law enforcement, and a document
prepared by a traffic accident reconstructionist, dated January
23, 2020. (Capitalization omitted.) According to Grigoryan,
Mahmoudian “made an unsafe lane change” into Grigoryan’s lane
of traffic, struck Grigoryan’s car, “swerved out of control,” and hit
Allen, causing Allen’s death. In his filing he included numerous
citations to the transcript of his preliminary hearing in support
of his factual assertions.
On February 2, 2022, without appointing counsel, the court
summarily denied Grigoryan’s petition on the ground that the
People’s theory of murder was implied malice under People v.
Watson (1981) 30 Cal.3d 290 (Watson), not felony murder or the
natural and probable consequences doctrine.
On February 23, 2022, Grigoryan, still without counsel,
filed a motion for reconsideration on the ground, among others,
that the court failed to appoint counsel for him.
In response to the motion, the court appointed counsel for
Grigoryan, directed the People to file a response to the petition,
and allowed Grigoryan’s counsel to file a reply to the People’s
response.
The People’s response argued that Grigoryan is ineligible
for relief under section 1172.6 because he “was the actual driver
prosecution failed to preserve and produce exculpatory evidence
in violation of principles established in California v. Trombetta
(1984) 467 U.S. 479, and Brady v. Maryland (1963) 373 U.S. 83.
These points are not asserted on appeal, and we do not address
them.
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of the vehicle that was the proximate cause of the death of
Raymond Allen.”
On June 30, 2022, Grigoryan substituted retained counsel
in place of the public defender’s office. On the same day,
Grigoryan’s new counsel filed a reply to the People’s response.
According to the reply, “there is no evidence that [Grigoryan]
acted with malice aforethought,” and that “malice is being
imputed upon [him] due to the allegations that he was driving
under the influence or violating a speed law[, which] is improper
and contrary to Penal Code [section] 188.”
At a hearing held on July 1, 2022, the court concluded
that Grigoryan is not eligible for relief under section 1172.6,
and denied the petition. The court stated that it “considered
everything in the court file, [including] the preliminary hearing
transcript,” and explained that Grigoryan “was convicted of
second degree murder for killing a person under a theory of
actual implied malice, . . . not malice imputed under the natural
and probable consequences doctrine.”
Grigoryan timely appealed.
Our record does not include the transcripts of the
preliminary hearing or the hearing on Grigoryan’s plea.
DISCUSSION
A. Section 1172.6
In 2018, the Legislature enacted Senate Bill No. 1437
(Stats. 2018, ch. 1015, § 2, p. 6675), which “eliminated natural
and probable consequences liability for murder as it applies to
aiding and abetting, and limited the scope of the felony-murder
rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
Among other changes, the law now provides that “[m]alice
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shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) The changes
are intended “to ensure that murder liability is not imposed on
a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony
who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, p. 6674; see People v. Gentile (2020) 10 Cal.5th 830,
842.)
Senate Bill No. 1437 did not affect liability for implied
malice murder under Watson, supra, 30 Cal.3d 290. (People v.
Carr (2023) 90 Cal.App.5th 136, 143 (Carr); People v. Roldan
(2020) 56 Cal.App.5th 997, 1004–1005.) Under Watson, a person
may be found guilty of murder if he drives while intoxicated,
knows that his conduct endangers the life of another, and acts
with conscious disregard for life. (Watson, supra, 30 Cal.3d at
p. 300.) The Watson theory of murder remains valid because it
“does not involve the imputation of malice. It requires proof—
in addition to the mere fact that the defendant killed someone
while driving intoxicated—that the defendant personally
harbored implied malice.” (Carr, supra, 90 Cal.App.5th at
p. 144.)
Senate Bill No. 1437 also enacted the predecessor to
section 1172.6. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)
As amended in 2021 and renumbered in 2022, section 1172.6
authorizes an individual convicted of murder based on the
felony-murder doctrine, the natural and probable consequences
doctrine, “or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime”
to petition the superior court to vacate the conviction and be
resentenced on any remaining counts if the petitioner could not
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now be convicted of murder because of the changes made by the
new law. (§ 1176.2, subd. (a); Stats. 2021, ch. 551, § 2; Stats.
2022, ch. 58, § 10.)
A petition under section 1172.6 must state, among other
allegations, that the “petitioner could not presently be convicted
of murder or attempted murder because of changes” Senate Bill
No. 1437 made to the law of murder. (§ 1172.6, subd. (a)(3).)
When, as here, a petitioner files a facially sufficient petition, the
trial court must appoint counsel for the petitioner, if requested,
and determine, after the opportunity for briefing and a hearing,
whether the defendant has made a prima facie case for relief
under section 1172.6. (§ 1172.6, subd. (c); People v. Hurtado
(2023) 89 Cal.App.5th 887, 891; People v. Flores (2022) 76
Cal.App.5th 974, 985 (Flores).)
In determining whether the defendant has made the
requisite prima facie showing, the court may review and rely on
the record of the petitioner’s conviction. (Lewis, supra, 11 Cal.5th
at p. 970; People v. Williams (2022) 86 Cal.App.5th 1244, 1251.)
The “record of conviction,” our Supreme Court explained, “will
necessarily inform the trial court’s prima facie inquiry under
section [1172.6], allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) Although, in reviewing the record of
conviction, courts “should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion’ ” (id. at p. 972),
when the record establishes as a matter of law that petitioner
is ineligible for resentencing, the court may deny the petition
at the prima facie stage (People v. Garcia (2022) 82 Cal.App.5th
956, 969–971; Flores, supra, 76 Cal.App.5th at p. 987).
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Where the petitioner’s conviction resulted from a guilty
plea rather than a trial, the record of conviction includes the
transcript of the defendant’s preliminary hearing testimony
to the extent the transcript “reliably reflect[s] the facts of the
offense for which the defendant was convicted.” (People v.
Reed (1996) 13 Cal.4th 217, 223; see People v. Patton (2023)
89 Cal.App.5th 649, 657, review granted June 28, 2023,
S279670 [summary denial of section 1172.6 petition affirmed
based on uncontroverted testimony at preliminary hearing];
Flores, supra, 76 Cal.App.5th at p. 989, fn. 11 [rejecting
contention that preliminary hearing transcript is not part of
the record of conviction for purposes of evaluating prima facie
showing under section 1172.6]; People v. Houck (1998) 66
Cal.App.4th 350, 356–357 [preliminary hearing transcript is
not part of record of conviction when conviction resulted from a
jury verdict]; see generally Couzens et al., Cal. Practice Guide:
Sentencing Cal. Crimes (The Rutter Group 2022) § 23.51(J)
(rev. Aug. 2022); cf. People v. Solis (2001) 90 Cal.App.4th 1002,
1018–1019 [preliminary hearing transcript is part of record of
conviction and may be relied on to prove conduct underlying prior
felony conviction for purposes of Three Strikes law]; People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1531 [same].) The
reliability of the preliminary hearing transcript for this purpose
may be supported by the record of the defendant’s plea when
it discloses that the defendant stipulated to the preliminary
hearing transcript as a factual basis for the plea. (People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1161; see also People v.
Davenport (2021) 71 Cal.App.5th 476, 481 (Davenport) [rejecting
petitioner’s section 1172.6 argument that the preliminary
hearing transcript is never part of the record of conviction, but
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concluding the court erred by denying the petition where
defendant’s plea record did not show that he stipulated to the
preliminary hearing transcript as the factual basis for his plea].)4
Grigoryan relies on Flores, supra, 76 Cal.App.5th 974, for
the assertion that the “trial court was prohibited from relying
on the preliminary hearing to deny relief.” Flores does not so
hold. In that case, the Court of Appeal independently reviewed
the record and considered the preliminary hearing transcript,
which included evidence that the petitioner’s accomplice actually
killed the victim; the petitioner may have merely aided and
abetted the actual killer without the intent to kill. (Id. at
pp. 981–982, 991.) Thus, the evidence “[did] not exclude the
possibility that petitioner was, or could have been, convicted
under the imputed malice theories eliminated by Senate Bill
No. 1437.” (Flores, supra, at p. 991.) The Flores court therefore
concluded that the preliminary hearing transcript does not
establish petitioner is ineligible for resentencing as a matter
of law. (Id. at p. 991.) Contrary to Grigoryan’s argument, the
Flores court did not hold that courts are precluded from relying
on the preliminary hearing transcript in evaluating petitioner’s
section 1172.6 prima facie showing—indeed, the court expressly
rejected that argument (Flores, supra, at p. 989, fn. 11)—and held
4 In Davenport, the court stated that the trial court, in
evaluating the prima facie showing under section 1172.6, cannot
rely on the preliminary hearing transcript unless the petitioner
had stipulated that the transcript provided a factual basis for his
plea. (People v. Davenport, supra, 71 Cal.App.5th at p. 481.) We
do not need to reach this issue in this case and express no view
on the correctness of this aspect of Davenport.
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only that the preliminary hearing transcript in that case did not
establish the petitioner’s ineligibility as a matter of law.
B. Failure to Provide an Adequate Record for
Review
We independently review the trial court’s determination
that the petitioner failed to make a prima facie showing for relief.
(People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon
(2021) 68 Cal.App.5th 967, 975.)
“On appeal, we assume a judgment is correct and the
defendant bears the burden of demonstrating otherwise.”
(People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11.)
The burden of demonstrating error requires the appellant to
provide “an adequate record to permit review of a claimed error.”
(People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) “Where the
appropriate record is missing or incomplete, [appellant] must
see that the defect is remedied, by requesting augmentation
or correction of the appellate record [citation] or by other
appropriate means [citation].” (People v. Barton (1978) 21 Cal.3d
513, 519–520.) When the defect is not remedied, we will presume
that the missing or omitted part of the record supports the
challenged ruling “unless there is something in the record to
overcome the presumption.” (In re Silva (1931) 213 Cal. 446,
448.)
Here, Grigoryan cited to the preliminary hearing transcript
in support of his petition below, and the trial court, without
objection, expressly considered the transcript in denying the
petition. Our record, however, does not include the preliminary
hearing transcript or the transcript of Grigoryan’s plea hearing.
Nor does it appear that Grigoryan made any effort to augment
the record to include the omitted transcripts or that such an
10
effort would have been futile. We therefore presume that
the omitted transcripts support the court’s order, and there
is nothing in our record to overcome that presumption.
Accordingly, Grigoryan has failed to satisfy his burden of
demonstrating error.
Even if we assume that the complete record, if it
had been provided to us, would support Grigoryan’s version of
the incident—that is, that Mahmoudian, not Grigoryan, caused
Allen’s death—he would still not be entitled to relief under
section 1172.6. Section 1172.6 provides relief for persons
who “could not presently be convicted of murder or attempted
murder because of changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a)(3), italics added.) Under
Grigoryan’s version of the incident, the reason he could not now
be convicted of murder or attempted murder is not because of
changes to the law of murder made by Senate Bill No. 1437, but
because he could not have been convicted of murder or attempted
murder under the law in effect before or after the enactment of
Senate Bill No. 1437. Section 1172.6, however, is not a vehicle
for relitigating issues unaffected by the recent changes in the
law of murder. (See People v. Strong (2022) 13 Cal.5th 698, 715;
People v. Allison (2020) 55 Cal.App.5th 449, 461, disapproved on
another point in Strong, supra, at p. 718, fn. 3.)
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DISPOSITION
The order denying Grigoryan’s petition for resentencing
is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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