People v. Tumanyan CA2/2

Filed 12/24/20 P. v. Tumanyan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B299502
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA090256)
v.
ABRAHAM TUMANYAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hayden A. Zackey, Judge. Affirmed as modified.
Stephanie L. Gunther, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Abraham Tumanyan (defendant)
appeals from the judgment entered upon his conviction of assault
with a deadly weapon. He contends that the trial court abused
its discretion in denying his motions to strike a five-year
recidivist enhancement pursuant to Penal Code section 667,
subdivision (a)(1),1 and one or both his prior serious or violent
felony convictions alleged under the “Three Strikes” law.
Defendant also contends, and respondent agrees, that the trial
court should have imposed only one of the five-year
enhancements, as the two prior convictions on which they were
based had not been brought and tried separately. Finding no
merit to defendant’s other contentions, we vacate one of the five-
year enhancements, but otherwise affirm the judgment.
BACKGROUND
Defendant was charged with assault with a deadly weapon,
a knife, upon his father, Khachik Tumanyan,2 in violation of
section 245, subdivision (a)(1). Defendant was also charged with
the allegation that he personally inflicted great bodily injury
within the meaning of section 12022.7, subdivision (a). Pursuant
to section 667, subdivision (a)(1), and the Three Strikes law,
sections 667, subdivisions (b)-(j), and 1170.12, subdivision (b), it
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 As defendant and his parents all share the same surname,
we refer to defendant’s parents by their first names to avoid
confusion. We mean no disrespect.
2
was alleged that defendant had suffered two prior robbery
convictions. It was further alleged that defendant had served a
prior prison term within the meaning of section 667.5,
subdivision (b).
A jury convicted defendant as charged with assault with a
deadly weapon, and found true the great bodily injury allegation.
Defendant admitted the prior conviction allegations. On June 24,
2019, the trial court denied defendant’s Romero motion to strike
prior convictions.3 The court also denied defendant’s motion to
strike one of the two section 667, subdivision (a)(1), five-year
recidivist enhancements. Defendant was sentenced to a third-
strike term of 25 years to life in prison, plus three years for the
great bodily injury enhancement, in addition to the two five-year
recidivist enhancements. The trial court struck the prior prison
term allegation, calculated presentence custody credit as a
combined total of 604 days, and ordered defendant to pay the
minimum fine and court fees.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
On January 15, 2018, defendant stabbed Khachik several
times with a kitchen knife, shortly after the two men had a
conversation in the living room, when “all of a sudden” defendant
looked “weird” and “detached.” He shook his head, quickly went
into the kitchen and returned with a knife, screaming, “There is a
3 See People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero).
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snake. There is a snake.” Defendant leaned over the seated
Khachik and stabbed him in the chest while yelling, “Snake.
Snake.” Khachik called for his wife Anait who pulled defendant
back, and slapped his face. Defendant appeared to be startled
and to wake up as though from a dream. Defendant dropped the
knife and ran out of the house through the front door. Anait
called 911. Khachik was taken to the hospital where he
underwent surgery, and remained for 10 days.
Khachik and Anait both testified that defendant had
mental health issues.
Defendant was arrested two days after the stabbing and
was then interviewed by Los Angeles Police Detective Frank
DePerno. A recording of the interview was played for the jury.
During the interview defendant gave rambling answers to the
detective’s questions, some responsive and others not, and he
volunteered thoughts as they came to him. Defendant claimed
not to remember much, because he had consumed “a lot of beers
and stuff.” He had also not been able to take all of his
medications due to insurance issues, and because family
members kept stealing his paperwork, his green card and his
social security card. He was tired of his family, who had money
which they did not give to him. He claimed that they stole
everything he got. Defendant had been released from prison for
the armed robberies of a gas station and a 7-Eleven store, in
April 2017. He asked his family for money, and he claimed that
he was promised $1,000 or $2,000 per month, which was paid for
only two months.
Defendant admitted he “probably stabbed” Khachik, but
did not know how many times. Defendant denied that they had
been arguing, and claimed that they were merely talking. He
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said they had argued a few days earlier about money, but his
description of the argument became a description of the
conversation that led to the stabbing. Defendant told Khachik
that he would not take the family to court if Khachik gave him
$500. When Khachik refused, defendant became upset, and
although he intended to leave, he instead went into the kitchen,
grabbed a knife and returned to the living room, where he
stabbed his father. Defendant explained: “I think my illness
kicked in and made me do what I had to do.” Defendant said he
had been diagnosed with schizoaffective disorder, paranoia type
2, and probably bipolar disorder.
Defendant told Detective DePerno that his father “did that
to himself. He knows that. He knows I have [a] mental illness,
and he’s not supposed to fuck with my head like that. Not only
the money, he did a lot of things.” “He put the snake in my
garage.” Defendant knew his father had put it there and that the
snake did not crawl in by itself, because only his father and uncle
have keys to the garage.
During the interview defendant said that his father had
molested him, had put poison in his closet, had attempted to
manipulate the denial of defendant’s Social Security benefits, and
that everyday he told defendant to “get the fuck out of” there.
Defendant said that his father, uncle, and cousin had all abused
him, and the family had his brother killed. Defendant agreed
that his father deserved what happened. Defendant said he had
wanted to hurt his father “really bad,” and that his thoughts were
racing and telling him he had to do it. Defendant understood
that it was not okay to stab people, but was having commanding
thoughts telling him that he had to do it or he was going to “get
me.” Defendant explained: “He was -- he was having people
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come -- come hurt me, too. They beat me up in my garage one
time really bad. Two people.”
Defendant initially denied, then admitted, that he had
exposed himself to his “hot,” “sexy” neighbor, and had
masturbated in his garage with the door open. He told the
detective that he would not rape anyone and said, “If I wanted to
rape somebody, I would go and do something.” Defendant
admitted having spent 84 days in county jail the previous
October for exposing himself to the nurse who gave him his
medications. Defendant said, “I didn’t touch her, none of that
stuff. We were sitting there.”
Defendant had previously used drugs, and had been caught
having narcotics in prison, but swore he had been clean for 11
years since his cellmate “slammed” some crystal
methamphetamine and got into a fight. Defendant admitted that
he exposed himself “a couple times” in prison, which did not go
over very well, and that he got into a lot of fights in prison.
Sometimes defendant hurt himself. In prison, he cut himself in
the shower with a razor. Defendant said his medication does not
always work; even when he takes everything. He said he tried to
be stable but someone always pushed his buttons. While in
prison he was moved around a lot because of his behavior.
DISCUSSION
I. Motion to dismiss five-year enhancement
Prior to sentencing, defendant filed a motion to dismiss one
or both of the two prior robbery convictions alleged as strikes
under the Three Strikes law, as well as the five-year recidivist
enhancements (§ 667, subd. (a)(1)) imposed due to the robbery
convictions. As defendant acknowledges “a court’s failure to
6
dismiss or strike a prior conviction allegation is subject to review
under the deferential abuse of discretion standard.” (People v.
Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Defendant
notes, however, that “‘[a] trial court abuses its discretion when it
applies the wrong legal standards applicable to the issue at
hand. [Citations.]’” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 85.) Defendant contends that the trial court
abused its discretion by using the wrong legal standard in
making its decision here.
Section 1385, subdivision (a), which gives the trial court the
power to dismiss an action in furtherance of justice, has been
construed to permit the court to strike a prior conviction alleged
under the Three Strikes law. (Romero, supra, 13 Cal.4th at
p. 504.) Section 1385, subdivision (b) gives the trial court power
to “strike or dismiss an enhancement [or] strike the additional
punishment for that enhancement in the furtherance of justice in
compliance with subdivision (a).” Defendant contends that the
trial court erroneously used the same standard for exercising
discretion to dismiss a strike pursuant to Romero, supra, 13
Cal.4th 497.
The trial court expressly applied the factors found in People
v. Williams (1998) 17 Cal.4th 148, 160-161 (Williams), such as
the nature and circumstances of the defendant’s present felony
and prior serious or violent felony convictions, as well as his
background, character, and prospects, to determine whether he
may be deemed outside the spirit of the Three Strikes law, in
whole or in part. Defendant argues however, that the trial court
then summarily denied defendant’s motion to strike the recidivist
enhancements, by stating, “The Court recognizes it does have the
discretion to strike those, and I am going to decline to do so.”
7
Defendant appears to argue that because the court did not
mention a different standard for striking the recidivist
enhancements, the court denied the motion on the ground that
the defendant was not outside the spirit of the Three Strikes law.
We disagree.
The trial court did not summarily deny the motion to strike
the five-year priors. California Rules of Court, rule 4.428(b)
provides that in exercising its discretion under section 1385, the
trial court may consider “the accurate reflection of the
defendant’s criminal conduct on his or her record, the effect it
may have on the award of custody credits, and any other relevant
consideration.” (Italics added.) “Relevant factors enumerated in
these rules must be considered by the sentencing judge, and will
be deemed to have been considered unless the record
affirmatively reflects otherwise.” (Cal. Rules of Court,
rule 4.409.)
The record affirmatively reflects that the court considered
relevant factors set out in California Rules of Court, rule 4.410,
which lists the general objectives of sentencing, and California
Rules of Court, rules 4.421 and 4.423, including circumstances in
aggravation and mitigation. The rules apply to sentencing in
general, and to exercising discretion -- whether to strike
enhancements or punishment for enhancements. (People v.
Pearson (2019) 38 Cal.App.5th 112, 117.) California Rules of
Court, rule 4.421 lists circumstances in aggravation, including, as
relevant here, the infliction of great bodily injury, the use of a
weapon, defendant’s prior violent conduct that indicates a serious
danger to society, defendant’s prior prison terms, and the fact
that defendant was on parole. Rule 4.423 lists circumstances in
mitigation, including, as relevant here, defendant’s mental
8
condition, whether it significantly reduced his culpability for the
crime, and whether defendant voluntarily acknowledged
wrongdoing at an early stage of the criminal process.
It is clear the court considered the relevant factors and
circumstances here, although the court did not name which
particular rule applied to which particular facts. The court also
heard statements from family members about defendant’s mental
illness and their love for him. Defendant’s motion included
attachments of his medical reports, which detailed defendant’s
severe mental illness, treatments, and hospitalization. The court
observed:
“I acknowledge the fact that [defendant] is
mentally ill. Clearly. Clearly, he is. But I also think
that the family has to recognize equally as much that
he is a violent person as well. [¶] I saw his father
testify during the course of the trial and I saw the
pictures. And [defendant] stabbed his father in the
chest several times. [Defendant’s father] is actually
very lucky to be alive today. Had the knife been
plunged into his chest in a different angle, at a
different angle or in a different spot, it could have
easily just killed him instantly. He could have bled
to death [and] had to have emergency surgery. A
surgeon had to split his chest open from the bottom of
his throat down to his belly button in order to save
his life. [¶] So, you know, I recognize [defendant]
has serious mental health issues. But I also
recognize that he has a propensity to be pretty
violent.”
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The trial court also discussed defendant’s recorded statement to
the police:
“[I]n the statement itself, it’s clear that
[defendant] knew what he was doing. Although
. . . he did mention snakes. . . . he knew that he was
stabbing his father in the chest. . . . [H]e said that to
the police. He knew it. He wanted to injure his
father. [¶] So, you know, you have to consider all of
that when you are thinking about his mental health
issues too.”
The trial court also considered defendant’s criminal history,
stating, “And then you look at his prior conviction where he was
convicted of several robberies with the use of a firearm and he
discharged the firearm during the course of the robbery [and] did
19 years in state prison . . . .” The court noted that defendant
“re-offended . . . within one year. [H]e stabbed his father in the
chest. [¶] [T]here was another arrest for indecent exposure and
. . . another incident where [defendant] allegedly exposed himself
to a neighbor. Knocked on [her] door and tried to get in there to
have sex with her.” Although the court did not expressly state
that the aggravating factors outweigh the mitigating factors, it is
clear from the court’s reasoning and ruling that this was the
court’s conclusion.
Defendant cites legislative history materials for Senate Bill
1393, which amended section 1385 to permit the trial court to
dismiss the five-year recidivist enhancement, indicating that in
exercising its discretion, the court should consider “the ‘facts of
the case, the defendant’s history and culpability or other
potential mitigating factors.’ (Sen Comm. on Pub. Safety,
10
SB 1393 (2017-2018 Reg. Sess.)” Defendant argues that “other
potential mitigating factors” means that the list of factors the
trial court may consider is meant to be “more expansive than the
typical Romero/Williams factors” to be used in determining
whether to strike a prior conviction alleged under the Three
Strikes law. Defendant suggests that the trial court should
therefore have considered less “traditional” mitigating
circumstances such as sympathy and compassion. Defendant
asserts that his sentence must be reversed because the trial court
was unaware of its discretion to consider sympathy and
compassion to strike an enhancement in furtherance of justice.
In fact, the trial court expressed sympathy and compassion for
defendant due to his mental illness, and indicated that if the law
allowed, the court would not send defendant to prison but to a
live-in lock-down mental health facility.
Defendant appears to gather from the trial court’s
expressions of sympathy, that it had no power to strike the
enhancement under the circumstances of this case. We do not
share defendant’s interpretation of the court’s remarks.4 The
trial court’s remarks were an expression of the court’s wish that
the Department of Corrections had more extensive psychiatric
facilities or services, and that the court had the opportunity to
place defendant in such a facility. A trial court may recommend
placement, but placement and transfer decisions, including
mental health placements are within the authority of the
Department of Corrections and Rehabilitation. (Cal. Code Regs.,
4 Expressions of sympathy are “often seized upon by
defendants in making the argument” that the court wanted to
grant leniency but felt powerless to do so. (See People v.
Sassounian (1986) 182 Cal.App.3d 361, 414-416.)
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tit. 15, § 3375; see People v. Lara (1984) 155 Cal.App.3d 570, 576;
§ 5080.) The court intended to make the appropriate
recommendation, saying it would “reach out to a contact. . . . to
see if there’s somewhere in the state prison system where [the
court] can recommend that [defendant] be sent so he does receive
mental health treatment.”
The court carefully considered the circumstances in
aggravation and mitigation, and implicitly found that the
circumstances in aggravation weighed more heavily against
granting the motion. The trial court did not abuse its discretion
or use an improper evaluation.
II. Romero motion
Defendant notes that the trial court recognized that
defendant has genuine mental health issues, and that in denying
the Romero motion, the court said, “So my compassionate and
sympathetic side wants me to strike a strike. But when I follow
the law, I simply cannot reach that conclusion because he is not
outside the letter and the spirit of the Three Strikes law.”
Defendant contends that this is error. He argues that the spirit
of the Three Strikes law has changed so dramatically since the
California Supreme Court’s 1986 decision in Romero, supra, 13
Cal.4th 497, and since the 1998 decision in Williams, supra, 17
Cal.4th 148, that they represent an outdated standard.
Defendant acknowledges that granting a Romero motion
“required an ‘extraordinary’ showing that the ‘career criminal can
be deemed to fall outside the spirit of the very scheme within
which he squarely falls once he commits a strike as part of a long
and continuous criminal record.’” (Carmony, supra, 33 Cal.4th at
12
p. 378, quoting Williams, supra, 17 Cal.4th at p. 161.) But he
asserts that that was an old standard.
The Romero/Williams/Carmony standard is not outdated or
obsolete. The California Supreme Court has continued to require
that “‘the circumstances must be “extraordinary . . . by which a
career criminal can be deemed to fall outside the spirit of the very
scheme within which he squarely falls . . .” [and] the
circumstances where no reasonable people could disagree that
the criminal falls outside the spirit of the three strikes scheme
must be even more extraordinary.’ [Citation.]” (People v. Vargas
(2014) 59 Cal.4th 635, 641, quoting Carmony, supra, 33 Cal.4th
at p. 378.)
Defendant further argues that the Three Strikes law was
dramatically altered by the Three Strikes Reform Act of 2012,
enacted by Proposition 36. The Three Strikes Reform Act did not
change the standard or even apply to defendant; rather it
modified the Three Strikes law so that the minimum 25-year-to-
life sentence may be imposed (usually) only if the third conviction
is also a serious or violent felony. (People v. Johnson (2015) 61
Cal.4th 674, 679-681.) The Three Strikes law continues to limit a
sentencing court’s discretion to strike a prior serious or violent
felony conviction. (See Carmony, supra, 33 Cal.4th at pp. 377-
378.)
Defendant asserts that he is constitutionally entitled to
have the sentencing court consider sympathy and compassion.
He relies on People v. Lanphear (1984) 36 Cal.3d 163, which held
that a jury considering the death penalty must be permitted to
consider and “act on the basis of sympathy or compassion when
that sympathy is a reaction to evidence regarding the defendant’s
character or background. That evidence, as distinguished from
13
mitigating circumstances related to the offense itself, may not
reduce culpability, but it must nonetheless be considered by the
jury. [Citation.]” (Id. at pp. 166-167, citing Eddings v. Oklahoma
(1982) 455 U.S. 104, 113-115; Lockett v. Ohio (1978) 438 U.S. 586,
604; Woodson v. North Carolina (1976) 428 U.S. 280, 304;
Williams v. New York (1949) 337 U.S. 241, 247.) Defendant’s
sentence was determined by the court, which did consider
defendant’s background, character, and prospects, and “‘other
“individualized considerations.”’” (Williams, supra, 17 Cal.4th at
p. 159, italics added.) As we have previously discussed, we do not
construe any of the trial court’s comments as expressing the
belief that it was prohibited from considering sympathy or
compassion, only that it had to follow the law.
Defendant appears to argue that the language in section
1385 giving the court authority to dismiss an action or
enhancement “in furtherance of justice” is intended to confer such
broad discretion as to allow the court to give as great or more
weight to sympathy and compassion in ruling on a Romero
motion than the factors outlined in Williams, supra, 17 Cal.4th at
p. 161, including the nature and circumstances of the current
felony and prior serious or violent felony convictions, defendant’s
background, character, and prospects. On the contrary, although
section 1385, endows the trial court with broad discretion, “‘[t]he
requirement of the statute that a “dismissal” in the “furtherance
of justice” be accompanied by a specification of reasons, acts as a
restraint on the exercise of that discretion and contemplates that
the exercise of such discretion be reviewable by a higher court.
[Citations.] [¶] Any dismissal purporting to be in the
“furtherance of justice” must necessarily be based on a
consideration, not only of defendant’s interest, but of the interest
14
of society in seeing that its laws are effectively implemented.
[Citation.]’” (People v. Sassounian, supra, 182 Cal.App.3d 361,
415, italics added, quoting People v. Orin (1975) 13 Cal.3d 937,
944-947.) “[T]he unwillingness of a trial judge to face that
difficult task or the sympathy which the trial judge might feel for
a particular defendant cannot . . . constitute a basis for a
complete or partial dismissal ‘in furtherance of justice’ under
Penal Code section 1385.” (People v. Sanders (1983) 145
Cal.App.3d 218, 225-226; accord, Sassounian, supra, at p. 414.)
Here, the trial court did, in fact, undertake the task of
balancing the interests of society with sympathy for defendant
and his family. After hearing from family members, the court
said:
“I understand the love that the family has for
[defendant]. And I respect that. But sometimes
there’s an old saying, love is blind. When you love
somebody, you don’t see the negatives. You don’t see
the problems. In this case, I acknowledge the fact
that [defendant] is mentally ill. Clearly. Clearly, he
is. But I also think that the family has to recognize
equally as much that he is a violent person as well.”
The court then noted that Khachik could have died, and that it
was clear from defendant’s statement to the police that he knew
what he was doing and wanted to injure his father. The court
then described defendant’s two prior armed robberies, violent
felonies pursuant to section 667.5, subdivision (c)(9), and noted
that defendant discharged a firearm during the course of one
robbery, spent 19 years in prison, and violently reoffended within
one year.
15
We conclude from the totality of the trial court’s comments
that the court understood the scope of its discretion and applied
the correct legal standard to determine that defendant is not
outside the spirit of the Three Strikes Law. Thus, the court’s
ruling did not “‘fall[] outside the bounds of reason’ under the
applicable law and the relevant facts [citations].” (Williams,
supra, 17 Cal.4th at p. 162; Romero, supra, 13 Cal.4th at p. 530.)
Defendant has failed to meet his burden to demonstrate that the
trial court’s decision was irrational or arbitrary. (Carmony,
supra, 33 Cal.4th at pp. 377-378.)
III. Imposition of two five-year enhancements
Defendant contends that one of the two five-year
enhancements imposed should be stricken because the prior
convictions on which they were based were not brought and tried
separately. Respondent agrees.
In relevant part, section 667, subdivision (a)(1) provides
that “[a]ny person convicted of a serious felony who previously
has been convicted of a serious felony . . . shall receive, in
addition to the sentence imposed by the court for the present
offense, a five-year enhancement for each such prior conviction on
charges brought and tried separately.” (§ 667, subd. (a)(1).)
“[T]he requirement in section 667 that the predicate charges
must have been ‘brought and tried separately’ demands that the
underlying proceedings must have been formally distinct, from
filing to adjudication of guilt.” (In re Harris (1989) 49 Cal.3d 131,
136.)
In this case it was alleged that the two robbery convictions
arose from the 1998 conviction in Los Angeles Superior Court
case No. GA036919. Defendant admitted both robbery
16
convictions, and that they were entered on the same date in the
same case, No. GA036919. Since the two convictions were not
separate, the trial court should have imposed the enhancement
for just one of them.
The appropriate remedy is for this court to vacate one of
the five-year enhancements. (See People v. Jones (2015) 236
Cal.App.4th 1411, 1417-1418; People v. Frausto (2009) 180
Cal.App.4th 890, 903-904.)
DISPOSITION
The judgment is modified by vacating one of the two five-
year enhancements imposed under section 667, subdivision (a).
As so modified, the judgment is affirmed. The trial court is
directed to prepare and forward to the Department of Corrections
and Rehabilitation a certified copy of an amended abstract of
judgment reflecting the amended judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
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