People v. Nikolayan CA2/2 ( 2022 )

Filed 12/29/22 P. v. Nikolayan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B312896
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA067198)
v.
EDWARD NIKOLAYAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Jared D. Moses, Judge. Affirmed.
Cliff Gardner and Daniel Buffington for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, and David F. Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted defendant and appellant Edward
Nikolayan (Nikolayan) of kidnapping to commit another crime
(Pen. Code, § 209, subd. (b)(1)),1 rape of an intoxicated person
(§ 261, subd. (a)(3)), and sexual penetration of an intoxicated
person (§ 289, subd. (e)).
On appeal, Nikolayan argues that his case should be
reversed or remanded because (1) the trial court failed to hold a
hearing on evidence related to the victim’s sexual history (Evid.
Code, § 782); (2) the statutory scheme allowing victims of certain
sexual offenses to testify with a support person (§ 868.5) violates
his due process and confrontation clause rights; (3) the trial court
erroneously denied a continuance of his sentencing hearing to
allow for the preparation of a supplemental probation report; and
(4) insufficient evidence supports his conviction for sexual
penetration of an intoxicated person. We find no reversible error
and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Criminal Acts
The prosecution alleged that on the evening of
September 19, 2006, Nikolayan accompanied a man named
Tigran Bedrosian (Bedrosian) to the Elephant Bar, a bar and
restaurant in downtown Burbank.
Earlier that day, Bedrosian had approached a woman, S.F.,
introduced himself as a filmmaker, and asked if she would be
interested in a role in his new film project. S.F. agreed to meet
Bedrosian at the Elephant Bar to discuss the part. She testified
that she did not believe that the meeting would be a “romantic
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
date,” and that she did not intend to stay at the bar for more than
one hour, since she had to be at work by 8:00 p.m. that night.
Bedrosian was late for their meeting, and S.F. testified that
she nervously drank three glasses of wine waiting for him to
arrive. By the time Bedrosian and Nikolayan arrived, she had
started on a fourth glass.
S.F. asked Bedrosian who Nikolayan was. Bedrosian did
not answer the question directly, instead telling her “don’t worry
about him,” as Nikolayan “didn’t speak English.” Bedrosian
seated himself on one side of S.F., and Nikolayan sat on the other
side of her.
The men ordered S.F. another glass of wine, along with
vodka shots for the table. At some point, Bedrosian told S.F. that
“he wanted to make a porno.” This was the first time S.F. had
heard Bedrosian say anything about pornography. S.F. testified
that shortly after this revelation, everything “went dark” and she
blacked out.
The bartender, Jessica White (White), testified that she
had noticed S.F. drinking excessively over the course of the
evening. Between the time that Bedrosian and Nikolayan
arrived at about 6:30 p.m. and the time that White closed their
tab at 7:39 p.m., the group had ordered seven glasses of wine and
11 shots of hard liquor; the latter were mixed with juice and
served in oversized shot glasses. White testified that S.F. refused
the last shot served to her, and that White cut off any further
drinks to her. S.F. had not ordered any of the shots.
At 8:00 p.m., the group left the Elephant Bar. They got
into a Dodge Magnum that Bedrosian had rented earlier, and
Nikolayan drove them to the Sakura Motel in Glendale.
En route, S.F. vomited profusely on herself, Bedrosian, and the
3
car. She later testified that she was “out of it” and not feeling
well.
After renting a motel room, Nikolayan and Bedrosian
removed S.F. from the car and carried her prone body, covered
with a blanket, up the stairs to their motel room. They dropped
her onto the second floor landing so that Bedrosian could unlock
the motel room. S.F. stirred and began vomiting. Nikolayan
walked into the motel room, and Bedrosian carried S.F. into the
room after him.
Nikolayan left and reentered the room at intervals. At one
point, Nikolayan emerged and left the motel in the Dodge
Magnum. When he returned, Bedrosian was standing on the
landing outside their motel room, smoking and wearing nothing
but a towel around his waist. The men both went back into the
motel room, then left—both fully clothed, with Bedrosian holding
a bag—and drove away.
S.F. woke up in the motel room at around 3:00 a.m. She
was alone, naked, and smelled vomit. She could not find her bra
or underwear, and her dress, crumpled in the trash, was soaking
wet. Her wrists, pelvis, and inner thighs were sore. Prior to the
meeting at the Elephant Bar, S.F. remembered inserting a
tampon; when she woke up at the Sakura Motel, she discovered
that the tampon was gone and the sheets were bloody.
She found her phone and attempted to call Bedrosian, but
discovered that his phone number had been deleted from her
phone. She put on her wet dress, walked out of the motel, and
called a cab before flagging down a passing police officer.
Security footage shows S.F. leaving the motel at 3:25 a.m.,
barefoot and wearing a dress.
4
The police officer later testified that S.F. was “excited or
frantic” when she approached him, and that she smelled of
alcohol and vomit. She told the officer that she feared she had
been raped. The officer observed red marks on her wrists,
consistent with bruising caused by a person carrying her or
holding her wrists above her head; photographs of these marks
were entered into evidence. Sperm samples recovered from S.F.’s
vagina matched Nikolayan’s DNA.
When the police returned to the motel room later, they
discovered S.F.’s underwear and a cigarette butt with
Nikolayan’s DNA on it. The comforter from the motel room bed
was found balled up and discarded by the motel’s elevator.
Investigators discovered that two unidentified men had
brought the Dodge Magnum to a car wash sometime after
September 19, 2006. The car’s interior was caked in vomit, and
detailers cleaning the car found a man’s T-shirt and pants, a pair
of high-heeled shoes, and a key card for a room at the Sakura
Motel.
When questioned by the police, Nikolayan categorically
denied any knowledge of the entire incident. He insisted that he
did not drive a Dodge Magnum, that he had never been to the
Elephant Bar or the Sakura Motel, and that he did not have sex
with anyone on the night of September 19, 2006.
II. Trials and Convictions
On December 8, 2010, the Los Angeles County District
Attorney’s Office filed an information charging Nikolayan with
kidnapping to commit another crime (§ 209, subd. (b)(1)) (count
1); rape in concert (§ 264.1) (count 2); rape of an intoxicated
person (§ 261, subd. (a)(3)) (count 3); sexual penetration of an
5
intoxicated person (§ 289, subd. (e)) (count 4); and assault with
intent to commit a felony (§ 220) (count 5).
Nikolayan pled not guilty, and the case proceeded to trial.
Over Nikolayan’s repeated objections, his trial attorney conceded
the rape charge in count 3 in an attempt to avoid a potential life
sentence on the kidnapping charge. (See People v. Nikolayan
(Mar. 9, 2015, B249123) [nonpub. opn.].)
This strategy was unsuccessful; a jury convicted Nikolayan
of kidnapping (count 1), rape (count 3), and sexual penetration of
an intoxicated person (count 4). We affirmed defendant’s
conviction on appeal. (People v. Nikolayan, supra, B249123.)
However, following the Supreme Court’s decision in McCoy v.
Louisiana (2018) 138 S.Ct. 1500 (McCoy),2 Nikolayan successfully
sought a writ of habeas corpus, and the trial court vacated his
convictions.
The state retried Nikolayan on the three counts for which
he had been convicted originally, and a second jury found him
guilty. The trial court sentenced Nikolayan to life imprisonment
on the kidnapping charge, and imposed stayed determinate
sentences on the rape and sexual penetration charges.
Nikolayan timely appealed.
DISCUSSION
Nikolayan raises four basic arguments against his
conviction and sentencing. We address each of these arguments
in turn.
2 The McCoy court held that the Sixth Amendment
guarantees a defendant the right to choose the objective of his
defense and to insist that his attorney refrain from admitting
guilt, even when the attorney believes that confessing guilt has
strategic advantages. (McCoy, supra, 138 S.Ct. at p. 1505.)
6
I. Evidentiary Hearing on Victim’s Alleged Conduct
First, Nikolayan argues that the trial court erroneously
denied his request for an evidentiary hearing to determine
whether to admit evidence of S.F.’s prior sexual conduct, which
he maintains is crucial to assessing S.F.’s credibility as a witness
and victim.
A. Relevant law and standard of review
“Under California’s rape shield law, specific instances of a
complaining witness’s sexual conduct are not admissible to prove
consent by the complaining witness in a prosecution for specified
sex offenses,” including rape of an intoxicated person and sexual
penetration by a foreign object. (People v. Fontana (2010)
49 Cal.4th 351, 354 (Fontana); Evid. Code, § 1103, subd. (c)(1).)
However, such evidence may be admissible to attack the
complaining witness’ credibility. (Fontana, supra, 49 Cal.4th at
p. 354.)
To admit evidence of a complaining witness’ prior sexual
history, a defendant must comply with the procedures
established by Evidence Code section 782. (People v. Mestas
(2013) 217 Cal.App.4th 1509, 1514–1515 (Mestas).)
First, the defendant must file a written motion
demonstrating that the proffered evidence is relevant to
evaluating the victim’s credibility, including an affidavit stating
the offer of proof. (Fontana, supra, 49 Cal.4th at pp. 354, 362;
Evid. Code, § 782, subd. (a)(1)-(2).) If the defendant’s proffer is
sufficient, the trial court must hold an evidentiary hearing
outside the jury’s presence to give the defense an opportunity to
question the victim on the offered evidence. (Fontana, supra, at
pp. 354, 362; Evid. Code, § 782, subd. (a)(3).) However, the trial
court need not hold a hearing unless it first determines that the
7
defendant’s sworn offer of proof is sufficient. (Mestas, supra,
217 Cal.App.4th at p. 1515.)
At the conclusion of the hearing, the court must determine
whether the probative value of the evidence outweighs the
danger of undue prejudice. (Evid. Code, §§ 782, subd. (a)(4); see
also § 352.) If so, the court will issue an order detailing the
evidence to be admitted and the questions permitted. (Evid.
Code, § 782, subd. (a)(4).)
“The Legislature’s purpose in crafting these limitations is
manifest and represents a valid determination that victims of
sex-related offenses deserve heightened protection against
surprise, harassment, and unnecessary invasions of privacy.”
(Fontana, supra, 49 Cal.4th at p. 362 [citing People v. Rioz (1984)
161 Cal.App.3d 905, 916–917].) Accordingly, courts must exercise
“[g]reat care . . . to insure that this exception to the general rule
barring evidence of a complaining witness’ prior sexual conduct
. . . does not impermissibly encroach upon the rule itself and
become a ‘back door’ for admitting otherwise inadmissible
evidence.” (People v. Rioz, supra, at pp. 918–919.)
We review the trial court’s order excluding evidence
pursuant to these provisions for abuse of discretion. (People v.
Gutierrez (2009) 45 Cal.4th 789, 827.) An abuse of discretion
occurs when “the trial court exercise[s] its discretion in an
arbitrary, capricious, or patently absurd manner that result[s] in
a manifest miscarriage of justice. [Citation.]’” (People v. Ramirez
(2019) 34 Cal.App.5th 823, 828.) This standard also applies when
the defendant is denied an evidentiary hearing under section 782
of the Evidence Code. (See Mestas, supra, 217 Cal.App.4th at
p. 1517.)
8
B. Nikolayan’s motion for an evidentiary hearing
At Nikolayan’s second trial, he filed an Evidence Code
section 782 motion seeking to introduce evidence of S.F.’s prior
sexual conduct. Specifically, Nikolayan sought to introduce
statements purportedly made by S.F.’s ex-husband about her self-
reported history of drinking at bars, having assignations with
men, and later blaming the trysts on alcohol-induced blackouts.
The motion included an affidavit from Nikolayan’s trial counsel,
recounting statements that S.F.’s ex-husband allegedly told him.
The trial court denied Nikolayan’s motion for two reasons.
First, it found that his proffered evidence was insufficient to open
an Evidence Code section 782 hearing, as it consisted solely of
unsubstantiated hearsay statements for which no foundation had
been laid. The court expressed “significant questions about the
foundation for all this,” identifying several layers of hearsay in
all his proffered evidence.
Second, the trial court determined that, even assuming the
propriety of Nikolayan’s evidence, its limited probative value
would be significantly outweighed by risk of undue prejudice.
The court noted that S.F. had never accused any of her alleged
former flings of criminal activity, rendering her alleged sexual
history “fundamentally different” from the facts of this case. The
court went on to describe the ex-husband’s alleged statements as
“unfairly, improperly inflammatory,” and “prejudicial in the way
contemplated by [Evidence Code section] 352 . . . which is
[evidence that] inflame[s] . . . [the] passions and prejudices of the
jurors.”
The trial court thus ruled that “none of this [evidence] is
admissible,” and that Nikolayan had not met his burden to
9
advance to “a [Evidence Code section] 782 actual in-court hearing
with live witness testimony.”
C. Analysis
On appeal, the central question is whether the trial court
abused its discretion by refusing to hold an Evidence Code section
782 hearing on Nikolayan’s evidence. We answer this question
with a resounding no.
“The purpose of [an Evidence Code] section 782 hearing is
to establish the truth and probative value of the offer of proof, not
to allow a fishing expedition based on sketchy and unconfirmed
allegations.” (Mestas, supra, 217 Cal.App.4th at p. 1518.)
Nikolayan’s proffered evidence consists of a collection of
statements about the victim’s sexual history, allegedly made by
the victim, as told to her ex-husband, who then told them to
defendant’s trial counsel. This triple hearsay evidence is, to say
the least, “sketchy and unconfirmed.” (Ibid.) The trial court
appropriately decided that this evidence, lacking in credibility
and of limited probative value, falls short of the standard
required to proceed to an Evidence Code section 782 hearing.
(See, e.g., Fontana, supra, 49 Cal.4th at p. 368 [defendant’s first-
hand but unconfirmed visual observations of the victim’s body,
offered to show that the victim allegedly participated in
additional sex acts on the day of the rape, were insufficient to
warrant an Evid. Code, § 782 hearing].)
Nikolayan argues that he should have been given the
opportunity to perfect his evidence at an Evidence Code section
782 hearing. This ignores that the express purpose of that
hearing is not to allow a defendant to develop his offer of proof,
but to “allow the questioning of the complaining witness
regarding the offer of proof” as filed in the defendant’s initial
10
motion. (Evid. Code, § 782, subd. (a)(3).) Nikolayan cites no
persuasive legal authority for his contrary contention. (People v.
Ham (1970) 7 Cal.App.3d 768, 783, overruled on other grounds as
stated in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3 [“Where
a point is merely asserted on appeal by counsel without any
. . . authority for its proposition, it is deemed to be without
foundation and requires no discussion”].)
Alternately, Nikolayan argues that this case is controlled
by People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett). In that
case, an appellate court held that the trial court erred in denying
an Evidence Code section 782 hearing on evidence that the
victim, a young child, had been sexually abused prior to the
crimes with which the defendant had been charged. (Daggett,
supra, at p. 757.) Nikolayan interprets this case as requiring a
trial court to accept sexual history evidence based on multiple
levels of hearsay as a sufficient basis for an Evidence Code
section 782 hearing.3
But Daggett is distinguishable from Nikolayan’s case in two
important ways. First, the Daggett defendant proffered evidence
of a contemporaneous interview of the victim by a doctor and a
3 Nikolayan also characterizes the Daggett opinion as
holding that “the trial court . . . should have at least held a
hearing so counsel could address the perceived foundational
shortcomings and determine whether a proper foundation could
be established for this evidence.” He is incorrect; the Daggett
court held that the hearing was required “to determine whether
the acts of prior molestation were sufficiently similar to the acts
alleged here,” not to give the defendant an opportunity to correct
foundational defects in his offer of proof. (Daggett, supra, 225
Cal.App.3d at p. 757.)
11
social worker during an investigation into the former sexual
abuse; the interview was documented in the prosecution’s files.
(Daggett, supra, 225 Cal.App.3d at p. 575.) This is a categorically
stronger foundation than Nikolayan’s counsel’s recollections of
his oral conversations with the victim’s ex-husband.4
Second, the victim in Daggett was a young child at the time
of the alleged assaults, and he was still a young child at the time
of the subsequent trial. The Daggett court expressed concern
about the “aura of veracity” that attaches to child victims of
sexual violence, “because knowledge of such acts may be
unexpected in a child who had not been subjected to them.”
(Daggett, supra, 225 Cal.App.3d at p. 757.) The probative value
of evidence of prior sexual abuse is presumptively heightened in a
case like Daggett, where it can “cast doubt upon the conclusion
that the child must have learned of these acts through the
4 In his reply brief, Nikolayan argues that Fontana, supra,49 Cal.4th 351 also compels the conclusion that his hearsay
evidence was sufficient to launch an Evidence Code section 782
hearing. But like Daggett, the hearsay statements proffered in
Fontana had a significantly stronger foundation than the
evidence Nikolayan submitted. The defendant in Fontana
submitted sexual history evidence consisting of expert opinion
formed by medical professionals after conducting examinations of
and interviews with the victim on the day of the alleged rape;
their opinions indicated that the victim’s injuries could have been
attributed to separate sexual interactions that had taken place
earlier that day; and these experts had already testified in court
prior to the defendant’s motion. (Fontana, supra, at pp. 364,
366.) This evidence is substantially more credible than
statements allegedly made by a victim’s ex-husband about sexual
events that had taken place years prior to the sexual crimes
under prosecution.
12
defendant.” (Ibid.) This presumption does not apply in the
present case, where the victim is an adult woman.
Given all of the above, we affirm the trial court’s decision to
forego an evidentiary hearing on Nikolayan’s Evidence Code
section 782 petition.5
II. S.F.’s Support Person
Next, Nikolayan argues that the trial court erroneously
allowed S.F. to testify with a support person sitting behind her.
A. Relevant law
In prosecutions for certain violent crimes and sex offenses,
including violations of sections 209, 261, and 289, every
complaining witness “shall be entitled, for support, to the
attendance of up to two persons” while he testifies. (§ 868.5,
5 Even if we could overlook the foundational insufficiency of
Nikolayan’s evidence, we would still affirm on the trial court’s
alternate ruling that the evidence should be excluded because its
probative value was significantly outweighed by the danger of
undue prejudice against the victim.
When arguing for his Evidence Code section 782 motion,
Nikolayan contended that evidence of S.F.’s alleged history of
drunken sexual encounters was relevant to the question of
whether S.F. “consented” to the alleged crimes, which he
conflated with her overall credibility as a complaining witness.
The trial court rationally determined that the proffered evidence,
as argued by Nikolayan, posed a significant risk of undue
prejudice on the prohibited question of S.F.’s consent, and that
the evidence’s probative value was outweighed by these risks.
(Mestas, supra, 217 Cal.App.4th at p. 1514 [“The trial court is
vested with broad discretion to weigh a defendant’s proffered
evidence, prior to its submission to the jury, ‘and to resolve the
conflicting interests of the complaining witness and the
defendant.’ [Citation.]”].)
13
subd. (a).) Only one support person may accompany the testifying
witness to the stand. (Ibid.)
The California Supreme Court has established that a
support person’s mere presence with a witness on the stand,
pursuant to section 868.5, does not infringe upon a defendant’s
due process and confrontation clause rights, unless the support
person improperly interferes with the witness’s testimony, so as
to adversely influence the jury’s ability to assess the testimony.
(People v. Myles (2012) 53 Cal.4th 1181, 1214.)
B. Analysis
Nikolayan does not claim that S.F.’s support person
behaved improperly, or that the trial court’s rulings on the
support person violated section 868.5. Instead, Nikolayan argues
that section 868.5 itself is unconstitutional in cases such as this,
where the testifying witness is an adult and has not
demonstrated an extraordinary need for a support person while
testifying. He claims that the mere presence of S.F.’s support
person while S.F. testified violated his due process and
confrontation clause rights.
Nikolayan’s creative constitutional arguments necessarily
fall on deaf ears. As an intermediate appellate court, we must
“take the law as we find it and do not reexamine doctrines
approved by the Supreme Court with a view to enunciating a new
rule of law.” (Fuller v. Standard Stations, Inc. (1967) 250
Cal.App.2d 687, 694.) As noted above, our Supreme Court has
already determined that compliance with section 868.5 does not
violate a defendant’s due process or confrontation clause rights.
(Myles, supra, 53 Cal.4th at p. 1214.) We must decline
14
Nikolayan’s invitation to fashion a new standard for this settled
question of law.6
III. Denial of Motion to Continue Sentencing
Nikolayan also argues that the trial court improperly
denied his motion to continue sentencing to allow the production
of a supplemental probation report.7
6 Nikolayan argues that even if his first two arguments
(contesting the denial of an evidentiary hearing under section 782
of the Evidence Code and the constitutionality of S.F.’s support
person, respectively) do not individually warrant reversal,
together they constitute cumulative error. However, a claim of
cumulative error first necessitates a finding of error. There can
be no cumulative error if the challenged rulings were not
erroneous. (People v. Fuiava (2012) 53 Cal.4th 622, 716.)
Because we reject Nikolayan’s first two arguments, we also reject
his claim of cumulative error.
7 Nikolayan also argued for a continuation so that he could
hire new counsel to explore “the possibility of filing a new trial
motion.” Nikolayan made this request for the first time at his
sentencing hearing, in the midst of argument on his unfulfilled
request for a supplemental probation report.
“Generally, the granting of a continuance is within the
discretion of the trial court[,] [but] [a] continuance may be denied
if the accused is ‘unjustifiably dilatory’ in obtaining counsel.”
(People v. Courts (1985) 37 Cal.3d 784, 790–791.) The trial court
did not abuse its discretion in denying Nikolayan’s 11th-hour
request for a continuance to obtain new counsel “for the
possibility” of filing a motion for a new, third trial. (See People v.
Pigage (2003) 112 Cal.App.4th 1359, 1367 [request for
continuance appropriately denied where the defendant “waited
until the last minute to express . . . concerns” and “[t]here is no
evidence defendant attempted to retain counsel, or had even
taken steps to secure funds to hire private counsel”].)
15
A. Relevant law and standard of review
Rule 4.411(c) of the California Rules of Court requires a
trial court to “order a supplemental probation officer’s report in
preparation for sentencing proceedings that occur a significant
period of time after the original report was prepared.” Although
a probation report has “obvious utility” in any sentencing
proceeding (People v. McClure (1987) 191 Cal.App.3d 1303, 1306,
fn. 3), it is not necessarily required if the defendant is ineligible
for parole (People v. Dobbins (2005) 127 Cal.App.4th 176, 180
(Dobbins)).
However, the trial court’s failure to order or obtain a
supplemental probation report does not automatically result in
prejudicial error. Because there is “no federal constitutional
right to a supplemental probation report,” any “alleged error
implicates only California statutory law.” (Dobbins, supra,
127 Cal.App.4th at p. 182.) Accordingly, our “review is governed
by the [People v.] Watson [(1956) 46 Cal.2d 818, 834–836]
harmless error standard.” (Ibid.)
Under the harmless error standard, remand is required
only if a defendant can show a reasonable probability that he
would have obtained a more favorable result had a supplemental
probation report been prepared. (See Dobbins, supra, 127
Cal.App.4th at p. 183.)
B. The sentencing hearing
Two weeks before the sentencing hearing, Nikolayan
requested the preparation of a supplemental probation report, as
his original probation report had been prepared 11 years earlier.
The trial court granted his request and ordered the supplemental
report prepared for the upcoming sentencing hearing.
16
At the sentencing hearing, the probation office resubmitted
Nikolayan’s original probation report. Nikolayan asked for the
sentencing hearing to be continued until the supplemental report
could be prepared and received by the court.
The trial court denied his request, ruling that Nikolayan
was not entitled to a new probation report because he was
statutorily ineligible for probation. Alternately, the court ruled
that it would impose the maximum sentence regardless of any
mitigating factors that a supplemental probation report could
potentially present. The court strenuously denounced
Nikolayan’s “savage, savage behavior” in this case, noted that the
evidence for Nikolayan’s conviction was “just overwhelming,” and
concluded that Nikolayan’s behavior “warrants somebody
spending the rest of their life behind bars.”
C. Analysis
To succeed on this portion of his appeal, Nikolayan must
show a reasonable probability that obtaining a supplemental
probation report would have resulted in a more favorable
sentence. But Nikolayan does not even attempt argument along
these lines.
Instead, he argues that the trial court erroneously
concluded that he was ineligible for probation at the time of
sentencing and that a probation report could have provided the
trial court with useful information. He also asserts, without
citation to legal authority, that he was entitled to a supplemental
probation report regardless of whether the court would have
imposed a more lenient sentence.
The fact remains that any error in proceeding without the
supplemental probation report is ultimately harmless. The trial
court insisted on sentencing Nikolayan to the maximum term of
17
imprisonment for his bestial conduct when committing the
underlying crimes, regardless of any mitigating circumstances
that had developed since those crimes took place. Under these
circumstances, Nikolayan cannot show that the absence of a
supplemental probation report prejudiced him at the sentencing
hearing.
IV. Sufficiency of the Evidence
Lastly, Nikolayan argues that insufficient evidence
supports his conviction for sexual penetration of an intoxicated
person (§ 289, subd. (e)).
A. Relevant law and standard of review
Section 289, subdivision (e), prohibits “an act of sexual
penetration when the victim is prevented from resisting by any
intoxicating or anesthetic substance, or any controlled substance,
and this condition was known, or reasonably should have been
known by the accused.” Sexual penetration “is the act of causing
the penetration, however slight, of the genital or anal opening of
any person . . . for the purpose of sexual arousal, gratification, or
abuse by any foreign object, substance, instrument, or device, or
by any unknown object.” (§ 289, subd. (k)(1).) A foreign object
includes “any part of the body, except a sexual organ.” (Id., subd.
(k)(2).)
In considering a challenge to the sufficiency of the 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
defendant guilty beyond a reasonable doubt. [Citation.] We
presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. [Citation.] ‘A
18
reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.’” (People v. Albillar (2010) 51 Cal.4th 47, 60
(Albillar).) “The same standard also applies in cases in which the
prosecution relies primarily on circumstantial evidence.” (People
v. Young (2005) 34 Cal.4th 1149, 1175.)
B. Analysis
The prosecution charged Nikolayan with sexual
penetration of an intoxicated person for removing S.F.’s tampon.
It presented evidence that S.F. had inserted a tampon before
meeting with Bedrosian and S.F. at the Elephant Bar; that
Nikolayan raped S.F. while she was heavily intoxicated; that she
had sustained bruising on her wrists; that she was left in the
motel room alone, naked, and covered in vomit; and that S.F.
recognized that her tampon had been removed immediately upon
regaining her senses.
The trial court instructed the jury that in order to convict
defendant, it must find that he penetrated S.F. with the “‘specific
intent to cause sexual abuse,’” whether for the purpose of gaining
sexual gratification for himself or simply to cause pain or
discomfort to S.F. The jury convicted defendant of the sexual
penetration charge.
Viewed in the light most favorable to the judgment, the
record contains substantial evidence from which a reasonable
jury could conclude that Nikolayan removed S.F.’s tampon with
the requisite criminal intent. Nikolayan had treated S.F. roughly
all night, helping to drag her prone body to the motel room,
causing bruising on her wrists, and then raping her while she
was heavily intoxicated and covered in vomit, all in service of his
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ultimate goal of sexual gratification.8 The jury could properly
infer that Nikolayan had removed her tampon with the same
state of mind. (See People v. Rios (2013) 222 Cal.App.4th 542,
567–568 [state of mind generally proved by circumstantial
evidence, and therefore intent is ordinarily inferred from facts
and circumstances surrounding the offense].) And Nikolayan’s
later denial of any participation in these acts could be construed
as an indication that he understood that his behavior was wrong
and harmful to S.F. (M.N. v. Morgan Hill Unified School Dist.
(2018) 20 Cal.App.5th 607, 628 [evidence that the perpetrator of
criminal sexual penetration “knew that his actions would be
humiliating and insulting to [the] [v]ictim” can demonstrate
specific intent to sexually abuse the victim].) Under these
circumstances, we see no reason to overturn the jury’s verdict.
8 Indeed, at the sentencing hearing, the trial court, having
viewed the same evidence as the jury, characterized “[t]he
[security] video” as “so disturbing and so troubling
. . . [Nikolayan] and his crime partner . . . treat [S.F.] . . . like an
object. And that’s a nice way of putting it. They treat her like a
piece of meat, like a cadaver o[r] a cow being stuck on a hook.
That’s how they treat her. The way they unload her from that
car and wrap her in that blanket and dump her on the ground by
the elevator and allow her to vomit on herself, to bring her into
that motel room. And then just to take their sweet time going
about their business, standing on the balcony smoking a cigarette
wrapped in a towel, it’s savage, savage behavior. [¶] It’s
animalistic behavior. I don’t know if animals treat other animals
as savagely as [Nikolayan] treated [S.F.]. But it’s just savage,
absolutely savage behavior that has no place in a civilized
society.” Given the jury’s verdict, they easily could have reached
similar conclusions and extrapolated the presence of specific
intent therefrom.
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Nikolayan argues that the most damaging conclusion that
could be drawn from the record is that “the removal of the
tampon, in of itself, was not for sexual arousal or abuse,” but was
instead a mere “intermediary step to accomplish a separate act
involving sexual arousal or abuse.” This is a distinction without
difference. Following Nikolayan’s argument, he penetrated S.F.
with the intent of sexually abusing her. Whether Nikolayan
derived personal gratification from the penetration itself is of no
moment.
In any event, if the record “reasonably justif[ies] 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.” (Albillar, supra, 51 Cal.4th at p. 60.)
Nikolayan’s argument that the record equally supports the
conclusion that he did not intend to sexually abuse S.F. when he
removed her tampon is unavailing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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