People v. Sarukhanyan CA2/4

Filed 12/4/15 P. v. Sarukhanyan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B260147
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA083238)
v.
ARAM SARUKHANYAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Suzette Clover, Judge. Dismissed.
James Koester, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Aram Sarukhanyan appeals from the judgment
entered following his guilty plea to one count of second degree murder (Pen. Code,
§ 187, subd. (a)) in which he personally and intentionally discharged a firearm
causing the death of the victim within the meaning of section 12022.53,
subdivision (d).1 We dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND2
On the evening of April 29, 2011, as Hilda Engibegian was driving
northbound on the 2 freeway in Los Angeles County with her sister, her attention
was drawn to a struggle occurring between the two occupants of a nearby
automobile, which she thought to be a black Honda or Toyota sedan. The male
driver of the automobile appeared to be engaged in a physical altercation with the
vehicle’s female passenger. Engibegian witnessed “pushing and shoving” as well
as punches being thrown. Fearing this altercation was a serious one, Engibegian
slowed down to follow the black sedan. Engibegian followed the car as it turned
onto the 210 west freeway, all the while witnessing a struggle between the
vehicle’s driver and passenger. Engibegian called 911 and, while she was
reporting the altercation, she and her sister saw the flash of gunfire on the
passenger’s side of the vehicle.
Shortly thereafter, Timothy Campbell and his wife were driving westbound
on the 210 freeway. As Campbell was exiting the freeway, he observed a black
vehicle stopped on the shoulder of the offramp. Campbell saw a man run from the
passenger side of the vehicle to the driver’s door, get in the car, and begin to drive
1
Unless otherwise specified, statutory references are to the California Penal Code.
2
The facts are taken from the preliminary hearing transcript.
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away. Campbell saw a body lying on the side of the road, not moving. This body
later was identified as that of Adrine Arzumanyan.
Concerned that the occupant of the vehicle had “dumped somebody” on the
side of the road, Campbell accelerated to prevent the car from passing him. The
two vehicles were involved in a collision, and both Campbell and the driver of the
second car exited their cars. When he exited his car, Campbell was confronted by
the driver of the second vehicle, described by Campbell as a male Armenian. The
driver pointed a gun at Campbell and yelled that he was “going to kill” him.
Campbell ran around his vehicle to shield himself from the driver. The driver re-
entered his car and sped away. Campbell and his wife called 911 to report the
incident.
Around the same time, Varooj Carybian, a police officer with the City of
Glendale, received a call involving a black sedan indicating that a female possibly
had been shot and thrown out of the vehicle. Officer Carybian responded to the
call and saw a vehicle that matched the description of the car, stopped in the
southbound emergency lane of the 2 freeway. Officer Carybian saw Sarukhanyan
inside the vehicle. After other officers arrived, Officer Carybian ordered
Sarukhanyan out of the car and saw blood on Sarukhanyan’s head. Sarukhanyan
initially told Officer Carybian that his “friend” had shot him, but subsequently told
Officer Carybian that he had shot himself. Officer Carybian searched the vehicle
and found a gun in the driver’s seat.
On March 29, 2013, Sarukhanyan was charged by information with one
count of murder, in violation of section 187, subdivision (a). The People charged
Sarukhanyan with various firearm enhancements (§ 12022.53, subds. (b)-(d)), and
alleged that Sarukhanyan used a firearm in the commission of this offense within
the meaning of section 1203.06, subdivision (a)(1) and section 12022.5,
subdivision (a). The information alleged that the base murder charge and the
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firearm enhancements were serious felonies pursuant to section 1192.7,
subdivision (c)(8), and violent felonies within the meaning of section 667.5,
subdivision (c)(8). Sarukhanyan was charged with a second count of drawing or
exhibiting a firearm in the presence of a motor vehicle occupant, in violation of
section 417.3.
Sarukhanyan pled not guilty to both counts. Sarukhanyan subsequently
made a Marsden motion, which was heard and denied. (People v. Marsden (1970)
2 Cal.3d 118.) Sarukhanyan’s second Marsden motion also was denied.
On September 18, 2014, Sarukhanyan entered into a plea agreement
whereby he agreed to plead guilty to one count of second degree murder (§ 187,
subd. (a)) and admit a firearm allegation (§ 12022.53, subd. (d)). The plea
agreement provided for a term of 15 years to life plus a consecutive term of 25
years to life for the firearm enhancement, for a total of 40 years to life. The
charged violation of section 417.3 was dismissed. The court ordered Sarukhanyan
to pay various fees and restitution.
On November 13, 2014, Sarukhanyan filed his timely notice of appeal, in
which he sought to appeal the 25-year sentencing enhancement he received
pursuant to section 12022.53, subdivision (d). Sarukhanyan did not receive a
certificate of probable cause. After review of the record, Sarukhanyan’s court-
appointed counsel filed an opening brief asking this court to review the record
independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436,
441 (Wende). Sarukhanyan was informed of his right to file a supplemental brief
with the court. No supplemental brief has been filed.
DISCUSSION
Appellant claims that the trial court wrongfully imposed a 25-year
sentencing enhancement pursuant to section 12022.53, subdivision (d). However,
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appellant agreed to this particular sentence as part of his plea agreement. Before
entering his plea, appellant was informed by the prosecuting attorney that he was
being allowed to plead to “second degree murder . . . for the term of 15 years to life
with an additional and consecutive term of 25 years to life for personal use and
discharge of a firearm that caused death to another person.” Appellant accepted
the plea agreement, pled guilty to one count of second degree murder, and admitted
pursuant to section 12022.53, subdivision (d), that he personally and intentionally
discharged a firearm, causing the death of another.
A certificate of probable cause is required for an appeal challenging the
validity of a plea agreement. (People v. Brown (2010) 181 Cal.App.4th 356, 359;
see also § 1237.5.) A defendant’s challenge “‘to a negotiated sentence imposed as
part of a plea bargain is properly viewed as a challenge to the validity of the plea
itself’ and thus requires a certificate of probable cause. [Citation.]” (People v.
Shelton (2006) 37 Cal.4th 759, 766.) “In other words, if the defendant agreed to a
specific sentence as part of his plea agreement the sentence is an issue that arose
before entry of the guilty plea, and in order to challenge that sentence on appeal,
the defendant must obtain a certificate of probable cause.” (People v. Vargas
(2007) 148 Cal.App.4th 644, 652.)
Because appellant seeks to challenge a portion of his negotiated sentence
which was imposed through his plea bargain, he was required to obtain a certificate
of probable cause. (See People v. Panizzon (1996) 13 Cal.4th 68, 78 [where trial
court sentenced the defendant “in accordance with the previously entered plea,” the
defendant required a certificate of probable cause to attack his sentence on
appeal].) We therefore dismiss his appeal. (§ 1237.5; People v. Mendez (1999) 19
Cal.4th 1084, 1099 [explaining that the appellate court “generally may not proceed
to the merits of the appeal, but must order dismissal thereof” where the defendant
has not obtained a certificate of probable cause].)
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We have examined the entire record and are satisfied that no arguable issues
exist, and that, by virtue of counsel’s compliance with the Wende procedure and
our review of the record, appellant has received adequate and effective appellate
review of the judgment entered against him in this case. (Smith v. Robbins (2000)
528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112–113.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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