People v. Chilgevorkyan CA2/8 ( 2014 )

Filed 12/26/14 P. v. Chilgevorkyan CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B249892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA064719)
v.
HAKOP CHILGEVORKYAN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabeth A. Lippitt, Judge. Affirmed with modifications.
Carlo A. Spiga, under appointment by the Court of Appeal, for Defendant and
Appellant Hakop Chilgevorkyan.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant Sergey Sarkisyan.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for
Plaintiff and Respondent.
******
A jury convicted Hakop Chilgevorkyan of second degree robbery (Pen. Code,
§ 211)1 and Sergey Sarkisyan of second degree robbery and assault with a
semiautomatic firearm (§ 245, subd. (b)). The jury also found gang and firearm
allegations to be true. Both appellants contend the gang enhancement was not
supported by substantial evidence, and Chilgevorkyan contends the firearm
enhancement against him was unsupported. We modify the judgments to correct
Sarkisyan’s presentence conduct credits and correctly impose court operations
assessments. So modified, we affirm.
FACTS AND PROCEDURE
1. The Robbery
On March 24, 2010, Sarkis Baldjyan was working as a dispenser at the Garden
of Eden medical marijuana dispensary in North Hollywood, California. At
approximately 2:00 a.m., appellants walked into the clinic. The lobby of the
dispensary was separated from the rest of the dispensary by a secured metal door.
Baldjyan was behind the metal door and could see into the lobby through a window.
Sarkisyan reached through the window and tried to grab Baldjyan. Sarkisyan had a
gun pointed at him. Baldjyan tried to back away and fell to the ground. Appellants
told Baldjyan to “buzz them in” from the lobby, and Baldjyan complied. Sarkisyan
had Baldjyan open the cash register and took the money from it. He also took
Baldjyan’s wallet and cell phone and struck Baldjyan in the head with the gun. Both
appellants took merchandise and other items from the clinic. They had Baldjyan buzz
them out and left with black garbage bags containing the stolen items.
Several officers had responded to a call that a robbery was taking place there.
The prosecutor played surveillance video of the incident for the jury. Almost
immediately after appellants exited the dispensary, the surveillance video showed
Sarkisyan rushing back into the lobby and hiding a gun in a planter. Later that
1 Further undesignated statutory references are to the Penal Code.
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morning, an officer recovered the gun from the planter. Chilgevorkyan did not go
back into the dispensary, as Sarkisyan did. When Chilgevorkyan saw the officers
outside the dispensary, he began running through the parking lot. He bent down
slightly as he was running, and the officers heard the sound of a metal object hitting
the ground and sliding across the concrete. The officers stopped Chilgevorkyan and
took him into custody. One of them recovered a gun from the ground underneath a
nearby vehicle.
The garbage bags appellants took from the dispensary were later discovered to
contain marijuana, pastries, and numerous electronic ballasts. Baldjyan identified
Sarkisyan from a six-pack photographic lineup as the man who struck him with the
gun.
2. Gang Evidence
Officer Gary Pugliese of the Los Angeles Police Department was the
prosecution’s gang expert and testified as follows. He was assigned to the North
Hollywood gang enforcement detail at the time of trial. From 2004 to 2010, he was
part of an organized crime task force in which his primary assignment was the
Armenian Power street gang. He estimated conservatively that he had come into
contact with approximately 100 Armenian Power gang members in his career. The
gang had approximately 250 documented members. Rather atypically, the gang was
not turf oriented and was more mobile than most gangs.
Typical Armenian Power gang tattoos included “Armenian Power,” “AP,”
“AP13,” and “Armenian Pride” sometimes followed by a “13.” Chilgevorkyan had a
tattoo of the Armenian Power hand sign on his chest, which signified to Officer
Pugliese that Chilgevorkyan was an Armenian Power gang member. Sarkisyan had
“AP” tattooed on the back of his head and “APx3” tattooed on his elbow, which
Officer Pugliese opined stood for “AP13.” Both signified his membership in the
Armenian Power gang. It would have been unusual for anyone other than Armenian
Power gang members to have Armenian Power tattoos. If actual Armenian Power
members saw someone who had those tattoos and was not a member, they would
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likely assault or kill that person. Further, rival gang members might see those tattoos
and try to assault or kill that person.
Officers found a black Lexus at the dispensary parking lot with the keys in the
ignition and a cell phone in the center console. On the cell phone, among other things,
the officers found a picture of what appeared to be Sarkisyan’s elbow tattoo, a picture
of Sarkisyan himself sitting against a wall, a picture of someone’s hand making the
hand sign used for “A” in Armenian Power, and four pictures of handguns.
The primary activities of the Armenian Power gang included murder, shootings,
assault with a deadly weapon, robbery, fraud, extortion, possession of narcotics, and
vandalism. In 2006, Hayk Arakelyan was an Armenian Power gang member who was
convicted of robbery, and gang allegations were found to be true. Also in 2006, Isaak
Torosyan was an Armenian Power gang member who was convicted of robbery, and
gang allegations were found to be true.
Officer Pugliese testified that gang members are so effective in committing
crimes because of their numbers and their ability to intimidate. The victims and other
witnesses may be afraid to come forward or testify because they fear the individual
gang member who committed the crime, but they also fear retaliation from the
individual’s “homies” in the gang.
The prosecutor set up a hypothetical based on the facts of this case. Based on
these facts, Officer Pugliese opined the robbery was committed for the benefit of, at
the direction of, or in association with a criminal street gang:
“First of all, going back to the two individuals who both have in my
opinion Armenian Power gang tattoos, the fact that they are working
together, the fact that they go in to do a robbery which is consistent with
the type of crime that Armenian Power commits, the fact that one of
them in his vehicle has a phone that has photos on it of other handguns
along with a gang hand sign of the [“A”] and pictures of his tattoo, if you
take the totality of all those circumstances, then in my opinion that is a
gang crime using two gang members in association with each other, and
it’s also in furtherance of the gang.”
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Officer Pugliese further testified that, in his experience talking with Armenia
Power gang members over the years, they take the fruits of their robberies or drug
sales and use them to “take care of the big homies” who are in prison, or they use it for
further gang activities, such as buying weapons to use in later crimes or buying more
drugs to sell. In the hypothetical posed by the prosecutor, the marijuana could be sold
or given to the “homies,” and the electronic ballasts they took could be used to
cultivate marijuana.
3. Procedural History
The amended information charged both appellants with second degree robbery
and charged Sarkisyan with assault with a semiautomatic firearm. The amended
information alleged the offenses were committed for the benefit of, at the direction of,
and in association with a criminal street gang. (§ 186.22, subd. (b)(1)(C).) It also
alleged appellants personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd.
(b)), and a principal was armed or personally used a firearm (§§ 12022, subd. (a)(1),
12022.53, subds. (b), (e)(1)). As to Sarkisyan, it alleged he had served two prior
prison terms (§ 667.5, subd. (b)), had one prior conviction for a serious felony (§ 667,
subd. (a)(1)), and had one prior strike within the meaning of the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170, subd. (a)-(d)).
The jury found appellants guilty as charged and found the gang and firearm
allegations to be true. The court found the prior conviction allegations against
Sarkisyan to be true. The court sentenced Chilgevorkyan to 13 years in state prison,
consisting of 3 years for the robbery count and 10 years for the gang enhancement.
The court also imposed but stayed a 10-year term and a 1-year term for two different
firearm enhancements.
The court sentenced Sarkisyan to 35 years in state prison, consisting of 5 years
for the robbery count, doubled pursuant to the ‘Three Strikes” law; 10 years for the
gang enhancement; 10 years for a firearm enhancement; and 5 years for the prior
serious felony conviction under section 667, subdivision (a)(1). The court also
imposed but stayed a 1-year term for a second firearm enhancement, and imposed but
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stayed a sentence on the count for assault with a semiautomatic firearm. The court
awarded Sarkisyan 1,319 days of presentence custody credit, consisting of 1,152 actual
days and 167 days of good time/work time credit.
DISCUSSION
1. Substantial Evidence Supported the Gang Enhancement
Both appellants assert the jury’s true finding on the gang enhancement was not
supported by substantial evidence. They contend there was no evidence they had the
requisite specific intent or that their crimes were committed for the benefit of, at the
direction of, or in association with a gang. We disagree.
When a defendant claims a gang enhancement was based on insufficient
evidence, we “review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could
find” the gang enhancement to be true. (People v. Albillar (2010) 51 Cal. 4th 47, 60
(Albillar).) “We presume every fact in support of the judgment the trier of fact could
have reasonably deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (Ibid.)
The gang enhancement, section 186.22, subdivision (b)(1), has two prongs. It
requires that defendants (1) have committed a felony “for the benefit of, at the
direction of, or in association with any criminal street gang,” and (2) with “the specific
intent to promote, further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).)
As to the specific intent prong, intentional acts combined with knowledge that
those intentional acts would assist a crime by gang members is sufficient to satisfy this
prong. (People v. Villalobos (2006) 145 Cal. App. 4th 310, 322.) Thus, “if substantial
evidence establishes that the defendant intended to and did commit the charged felony
with known members of a gang, the jury may fairly infer that the defendant had the
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specific intent to promote, further, or assist criminal conduct by those gang members.”
(People v. Albillar, supra, 51 Cal.4th at p. 68; see People v. Villalobos, supra, 145
Cal.App.4th at p. 322 [“[c]ommission of a crime in concert with known gang members
is substantial evidence which supports the inference that the defendant acted with the
[requisite] specific intent”].)
Here, the record discloses substantial evidence of the requisite specific intent.
The evidence clearly shows appellants intentionally committed the robbery together
and assisted each other. They entered the dispensary together; Sarkisyan drew a gun
on Baldjyan while Chilgevorkyan opened the doorway from the lobby and entered the
dispensary; Sarkisyan followed behind him and they both proceeded to take items
from the premises; Sarkisyan kept a gun trained on Baldjyan and hit him in the head;
appellants left together, each carrying a garbage bag full of items. They both had
Armenian Power gang tattoos -- Sarkisyan on his head and elbow, Chilgevorkyan on
his chest -- signifying their membership in the gang. These intentional acts by two
gang members actively assisting one another were sufficient to infer appellants had the
specific intent to further or assist criminal conduct by gang members.
The cases cited by appellants are inapposite. They rely on People v. Ramon
(2009) 175 Cal. App. 4th 843 and In re Daniel C. (2011) 195 Cal. App. 4th 1350
(Daniel C.). In Ramon, a deputy pulled over two gang members who were driving a
stolen vehicle in their gang territory and who had an unregistered gun in the vehicle.
(Ramon, supra, at p. 847.) Based on a hypothetical involving the circumstances of the
case, the prosecution’s gang expert opined driving a stolen vehicle and possessing an
unregistered firearm benefitted the gang. (Id. at pp. 847-848.) The court refused to
hold “as a matter of law that two gang members in possession of illegal or stolen
property in gang territory are acting to promote a criminal street gang.” (Id. at p. 853.)
The court held while it was possible the two were acting for the benefit of the gang,
the mere possibility was simply speculation. (Id. at p. 851.) Still, the court
acknowledged its “analysis might be different if the expert’s opinion had included
‘possessing stolen vehicles’ as one of the activities of the gang.” (Id. at p. 853.)
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Unlike in Ramon, there was nothing speculative about the evidence in this case.
Appellants actively assisted each other, known gang members, in robbing Baldjyan
and the dispensary. It was reasonable for the jury to infer they each intended to assist
criminal conduct by another gang member. Moreover, unlike the expert in Ramon, the
expert here opined that the charged crimes were activities of the Armenian Power
gang.
Daniel C. is inapposite because it involved a gang member committing a crime
alone. There was no evidence the defendant acted in concert with his companions,
who had left the store before he committed the robbery, did not assist him in assaulting
the store manager, and did not see what happened after they left. (Daniel C., supra,
195 Cal.App.4th at pp. 1353, 1361.)
Moving to the other prong, the evidence was also sufficient to show appellants
committed the robbery for the benefit of, at the direction of, or in association with the
gang. When gang members commit a crime together, the jury may reasonably infer
they committed the crime “in association with any criminal street gang.” (§ 186.22,
subd. (b)(1); see People v. Albillar, supra, 51 Cal.4th at p. 68.) Additionally, it is well
settled that the jury may rely on expert testimony about gang culture and habits to
support its finding on a gang allegation. (People v. Ferraez (2003) 112 Cal. App. 4th
925, 930.) Officer Pugliese testified robbery was one of the primary activities of the
Armenian Power gang. In response to a hypothetical involving the facts of this case,
he opined the crime would benefit the gang because the proceeds of robbery could be
funneled back into the gang to support further criminal activities, used to cultivate and
sell marijuana, or used to support gang members in prison. While it was sufficient that
appellants committed the charged crimes in association with fellow gang members,
there was also evidence from which the jury could infer the crimes benefitted the gang.
(People v. Martinez (2008) 158 Cal. App. 4th 1324, 1332; People v. Morales (2003)
112 Cal. App. 4th 1176, 1198.)
The case cited by appellants for a contrary result, People v. Ochoa (2009) 179
Cal. App. 4th 650 (Ochoa), is again inapposite. In Ochoa, the gang expert did not
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testify that the charged crime was primary activity of the gang; there was no other
evidence linking the crime to the gang, such as the display of gang signs, the calling
out of the gang’s name, or the committing of the crime in gang territory; and the
defendant committed the crime alone, without fellow gang members. (Id. at pp. 653,
662.) The court thus found no basis for the finding the crime gang-related and held the
expert’s testimony was speculative. (Id. at p. 663.) But the necessary evidentiary
basis does exist here, when robbery was a primary activity of the gang and appellants
committed the crime in association with each other.
2. Substantial Evidence Supported the Firearm Enhancement Against Chilgevorkyan
Chilgevorkyan contends the evidence was insufficient to support imposition of
the firearm enhancement (§ 12022.53, subds. (b), (e)(1)) against him. We disagree.
His argument assumes the gang enhancement was unsupported, which we have already
found was not the case.
The jury found true that, in the commission of the robbery, a principal
personally used a firearm within the meaning of section 12022.53, subdivisions (b) and
(e)(1). The enhancement in section 12022.53, subdivision (e)(1) imposes vicarious
liability for firearm use on aiders and abettors who commit crimes in participation with
a criminal street gang. (People v. Garcia (2002) 28 Cal. 4th 1166, 1171.) Section
12022.53, subdivision (e)(1) applies to any defendant who is a principal in the offense,
even if he or she is not the person who used a firearm, when the prosecution proves (1)
the defendant violated the gang enhancement statute (§ 186.22, subd. (b)), and (2) any
principal in the crime personally used a firearm under section 12022.53, subdivision
(b). (People v. Miranda (2011) 192 Cal. App. 4th 398, 411.) Chilgevorkyan does not
dispute that Sarkisyan, another principal in the robbery, personally used a firearm
during the commission of the robbery. Indeed, the evidence is clear that Sarkisyan
drew a gun on Baldjyan and hit him with it. There can be no dispute a principal used a
firearm under section 12022.53, subdivision (b). Chilgevorkyan argues instead that
the gang enhancement was unsupported, and therefore the jury could not hold him
vicariously liable for another principal’s use of a firearm. Because we have rejected
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his argument that the gang enhancement was unsupported, his argument on the firearm
enhancement necessarily fails.
3. Sarkisyan Is Entitled to Five Additional Days of Presentence Custody Credit
Sarkisyan contends he was entitled to five additional days of presentence
custody credit. Respondent agrees, as do we.
Sarkisyan could accrue 15 percent of his presentence time in custody in good
time/work time credit. (§ 2933.1, subd. (c).) The court awarded him 1,152 actual days
of credit and 167 days of good time/work time credit. But 15 percent of 1,152 is
172.8, not 167. He was thus entitled to 172 days of good time/work time credit, or
five more days. We may order the abstract of judgment corrected. (People v. Taylor
(2004) 119 Cal. App. 4th 628, 647 [“A sentence that fails to award legally mandated
custody credit is unauthorized and may be corrected whenever discovered.”].)
4. Court Operations Assessments Should Be Imposed on Both Appellants
When fees or assessments are mandatory and the trial court fails to impose
them, the result is an unauthorized sentence that we may correct on appeal. (People v.
Terrell (1999) 69 Cal. App. 4th 1246, 1255.) Respondent contends the court neglected
to impose a mandatory assessment. We agree.
Section 1465.8 imposes a $40 assessment per conviction to assist in funding
court operations. (§ 1465.8, subd. (a)(1).) The court must impose the assessment for
each offense of which the jury convicted the defendant, regardless of whether the court
stayed the sentence on the offense. (People v. Crittle (2007) 154 Cal. App. 4th 368,
371.) Accordingly, the court should have assessed $80 against Sarkisyan and $40
against Chilgevorkyan to assist in funding court operations. (§ 1465.8, subd. (a)(1).)
DISPOSITION
The judgment against Sarkisyan is modified to reflect an award of 172 days of
good time/work time credit and a court operations assessment of $80 under section
1465.8. The judgment against Chilgevorkyan is modified to reflect a court operations
assessment of $40 under section 1465.8. The trial court shall prepare an amended
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abstract of judgment showing the modifications and forward a certified copy to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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