People v. Mankyan

THE PEOPLE, Plaintiff and Respondent, v. HOVIK MANKYAN, Defendant and Appellant.

B224757

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Dated: March 6, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA274167)

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald H. Rose, Judge. Affirmed.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Daniel C. Chang and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Hovik Mankyan appeals from a judgment after a jury convicted him of murder and possession of a firearm by a felon. He argues the trial court abused its discretion in denying his request to substitute retained for appointed counsel and in denying defense counsel's request for a continuance. He asserts several instructional errors. We find no abuse of discretion and no instructional error. Defendant contends that the post-verdict amendment of the information to add a second prior strike conviction was unauthorized. We find this issue forfeited, and, in the alternative, find the error harmless.

We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On the evening of October 9, 2004, in a parking lot in North Hollywood, Lydvik Tadevosyan met with Alfred Gazaryan to settle a dispute about credit cards.¹ Each man was accompanied by his own group of friends, among whom were Arsen Aivazian and defendant. When Gazaryan started cursing Tadevosyan, the argument turned physical, and Aivazian, who was a boxer, punched Gazaryan, causing Gazaryan's face to bleed. Aivazian might have hit defendant as well. Eventually the men went their separate ways.

Later that evening Tadevosyan, Gazaryan and their respective friends met near Laurelgrove Park. Gazaryan's face was still bleeding. Tadevosyan and Gazaryan spoke and shook hands. As Tadevosyan and Aivazian started walking away, defendant asked Aivazian if he punched everyone who cursed his mother. Curse words were exchanged, and Aivazian punched defendant. Then, two shots were fired, killing Aivazian. Tadevosyan and his friend Arthur Baronyan saw a gun in defendant's hand. Most of the men, including defendant, left the scene. Tadevosyan called 911, then retrieved his gun from the car in which he had arrived, and hid it in the park.

Police found two guns in the park, but neither could have shot the bullet found at the scene. No useful fingerprints were taken from either gun. Gunshot residue takenfrom Tadevosyan's hand was not submitted for testing. Initially, Tadevosyan lied to the detectives telling them that Aivazian had been the victim of a drive-by shooting. Eventually, Baronyan and then Tadevosyan identified defendant as the shooter.

In November 2004, the case against defendant was filed with the District Attorney's office. Defendant's house was placed under surveillance, and his wife was informed that a warrant had been issued for his arrest. Four years later, in March 2008, police surrounded a house where defendant had been seen and directed him to come out. After several hours, defendant exited the house, covered with blood and with razor blade cuts on his arms. He was treated at the scene and taken away by ambulance.

In April 2009, defendant was charged with murder (Pen. Code, § 187, subd. (a))² and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Also alleged were firearm use enhancements (§ 12022.53, subds. (b)-(d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior strike felony conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). In July 2009, retained counsel's motion to be relieved was granted, and the Public Defender's office was appointed to represent defendant. On March 9, 2010, the trial court denied a second retained counsel's substitution motion, as well as appointed counsel's motion to continue. Defendant waived his right to a jury trial on the prior conviction. The jury trial began on March 11, 2010. On March 30, 2010, the jury convicted defendant as charged and found the special allegations regarding firearm use to be true.

A week later, an amended information was filed, alleging a second prior strike conviction. Defense counsel did not object. After a bench trial, the court found the prior conviction allegations to be true. In May 2010, defendant's new trial motion was denied, and he was sentenced to 100 years to life in prison, as follows: 15 years to life, tripled to 45 years to life, on count 1; 25 years to life for the firearm use enhancement under section 12022.53, subdivision (d); 5 years for the prior conviction under section 667, subdivision(a); and 25 years to life, consecutive, on count 2. Defendant was given credit for 771 days actually served and was assessed various fines and fees.

This timely appeal followed.

DISCUSSION

I

Defendant contends the trial court abused its discretion and violated his right to counsel of his choice when it denied his second retained counsel's substitution motion. We disagree.

A defendant's due process right to effective assistance of counsel includes '"the right to retain counsel of one's own choosing. [Citations.]'" (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) Once retained, counsel must be given a reasonable time to prepare a defense. (Id. at p. 790.) But the trial court has discretion to deny a last-minute request for substitution of counsel and a continuance that will disrupt the orderly process of justice. (Ibid.) Whether the denial of a continuance is so arbitrary so as to violate due process depends on the circumstances of the case. (Id. at p. 791.)

The defendant in Courts, who was represented by appointed counsel, contacted an attorney two months before the scheduled trial date and sought a continuance eight days before trial to retain the attorney. He paid the attorney a retainer five days before trial and attempted to calendar a motion for substitution of counsel and a continuance. All his requests for a continuance, including the one made on the day of trial, were denied. (Courts, supra, 37 Cal.3d at p. 788.) The Supreme Court reversed the ensuing conviction, finding that the defendant had made a good-faith, diligent effort to obtain the substitution of counsel months before the scheduled trial date and had conscientiously informed the trial court of his progress. (Id. at p. 791.) Since the defendant in Courts had previously requested only one continuance and his request had been denied, his case did not present the problem of a sudden request to change counsel after numerous continuances. (Id. at p. 792.) His request for a continuance to retain counsel, made more than a week before the scheduled trial date, and the efforts to calendar a motion for acontinuance after counsel was retained were not untimely as they were made in advance of trial. (Id. at pp. 792-793.) The court concluded that the defendant's diligence made the state's interest in an expeditious resolution of the case less compelling, and the record did not indicate that a continuance would have created a significant disruption or inconvenience for the court and the parties. (Id. at p. 794.)

Like Courts, this case involves a request to substitute retained for appointed counsel in advance of trial.³ In other respects, it is significantly different.

Defendant was represented by retained counsel Vicken P. Hagopian at the preliminary hearing and arraignment in April 2009. On June 19, 2009, Hagopian disclosed a distant relationship with defendant and informed the court that defendant's family had paid a partial retainer to attorney Mark Geragos, who had some undisclosed conflict. Hagopian agreed to represent defendant until Geragos resolved the conflict, but defendant's family was not able to pay Hagopian's fees and investigative costs. The court noted that if Hagopian had a conflict and no other counsel could be retained, it would appoint the Public Defender's office. The matter was continued to July 16, 2009.

On July 16, 2009, Hagopian declared a conflict of interest, stating he was related to defendant.⁴ He was relieved at defendant's request, and the public defender was appointed to represent defendant. The case was then continued numerous times.

On March 9, 2010 (day 6 of 10 for trial), H. Russell Halpern, who had been retained by defendant's family the day before, appeared and moved to be substituted as defendant's counsel, asking for a continuance of one or two months to get ready. He advised the court that defendant's family had tried to retain him for several months but,he guessed, had been unable to find the funds to do so. The prosecutor opposed the motion. The trial court ruled that the motion was untimely, noting that the case dated back to 2004, had remained in the preliminary hearing courts for a year after defendant was arrested in 2008,⁵ and had been continued for another year after that. Altogether, it had been on the court's calendar 29 times. The court attributed the delays to the fact that defendant's original retained attorney had stayed on for months before declaring a conflict of interest. Appointed counsel was then given additional months to prepare the case for trial. The court noted that the substitution motion was made on day 6 of 10 for trial, when the case was ready to be tried. It found that defendant had sufficient opportunity to retain private counsel and considered the motion a delaying tactic.

Under these circumstances, the court's denial of the requested substitution and continuance was not an abuse of...