The People v. Grigoryan

1

THE PEOPLE, Plaintiff and Respondent, v. AZNAUR GRIGORYAN, Defendant and Appellant.

B322129

California Court of Appeals, Second District, First Division

July 31, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. PA092744 Hayden A. Zacky, Judge.

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.

ROTHSCHILD, P. J.

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 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] 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 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 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 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).

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...