THE PEOPLE, Plaintiff and Respondent, v. EMIN MIRZAKHANYAN, Defendant and Appellant.
B290629
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 11/2/20
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GA100960)
Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Louis W. Karlin and Kim Aarons, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Emin Mirzakhanyan suffers from a psychiatric disorder that likely played a significant role in two serious disturbances that gave rise to two felony and four misdemeanor convictions. Over the course of the proceedings, Mirzakhanyan was given several opportunities to seek or participate in mental health treatment in lieu of detention and prosecution. Mirzakhanyan would not avail himself of these opportunities because he was vehemently opposed to taking psychotropic medication. He therefore proceeded to a jury trial and was convicted of two counts of felony vandalism, and one count each of misdemeanor trespass, criminal threats, battery, and battery on a peace officer. Because Mirzakhanyan would not commit to any mental health treatment programs that potentially involved medication, the court denied his request for probation.
Mirzakhanyan appealed his misdemeanor convictions for trespass and battery. He also asked us to remand his case to the sentencing court for a hearing to determine his eligibility for a newly-enacted mental health diversion program set out in
In our prior opinion we concluded the misdemeanor convictions for trespass and battery are supported by substantial evidence, and that a remand for mental health diversion would have been futile. We agreed with Mirzakhanyan that the protective order must be vacated and that he is entitled to an additional 12 days of conduct credit.
Mirzakhanyan then filed a petition for review arguing we should have remanded the convictions to the trial court to consider whether he was eligible for mental health diversion under the new statute. On January 29, 2020, the Supreme Court granted appellant’s petition for review and deferred further consideration of the petition pending its decision in People v. Frahs, which was filed on June 18, 2020. (People v. Frahs (2020) 9 Cal.5th 618 (Frahs).) On August 26, 2020, the Supreme Court directed us to vacate our prior decision and to reconsider the cause in light of Frahs, which held the mental health diversion statute retroactive to cases pending as of the effective date of the statute. Upon reconsideration we now find substantial evidence supports the judgment of conviction; vacate the protective order; award additional conduct custody credits; and conditionally reverse the judgment of conviction and remand to the trial court to determine whether appellant is eligible for mental health diversion under
FACTUAL BACKGROUND
I. The Trespass Count: The Lexus Dealership
On April 17, 2017, Mirzakhanyan walked into a Lexus dealership and told the sales manager he was there to pick up his car. The manager, William West, recognized Mirzakhanyan because Mirzakhanyan had visited the dealership twice before. On each prior visit, Mirzakhanyan became very loud, and yelled and cursed. The most recent visit had been a few days earlier, when Mirzakhanyan was arrested by police officers after he was
West attempted to de-escalate the situation by asking Mirzakhanyan which salesperson he had been working with. Mirzakhanyan said he could not recall. West then asked which car he was buying, and Mirzakhanyan pointed to a Lexus LX 570 in the showroom. Mirzakhanyan demanded to speak with the dealership owner, stating, “I’m crazy. I have been off my meds for three days.” Mirzakhanyan also told West he had been to the dealership before and West had “put him in jail for two months.”
Mirzakhanyan became increasingly agitated and started damaging the LX 570. He attempted to pull the front grille off, kicked the body, and kicked and punched the mirrors and glass. Mirzakhanyan then got inside the car, punched through the windshield, ripped off the rearview mirror, and ripped the navigation system from the dashboard. Mirzakhanyan exited the car, kicked it again, and attempted to damage other cars in the showroom. He pulled the side mirrors off one car and punched the mirrors and glass of two others. The damage to the LX 570 alone was more than $28,000.
After damaging the cars, Mirzakhanyan stood on a water feature, started yelling, and began splashing water on people in the dealership. At one point, Mirzakhanyan said, “I will come back and shoot everyone.” Police officers arrived and placed Mirzakhanyan under arrest.
Five weeks later, on May 25, 2017, Mirzakhanyan went to the Altana apartment complex in Glendale. The apartment manager, Morgan Loy, saw Mirzakhanyan pick up a six-foot-tall advertising sign in front of the complex and throw it into the middle of the street. Mirzakhanyan started jumping on the sign and yelling while in the middle of the street.
The apartment’s service manager, Mark Roe, and a service technician, Sergio Ramirez, were inside the apartment complex and saw Mirzakhanyan’s outburst through the front windows. Roe went outside and locked the entrance to the building. After jumping on the sign, Mirzakhanyan tried to enter the building through the entrance Roe had locked. Employees told Mirzakhanyan he could not enter the building; he nevertheless walked past Roe and tried to open the door several times.
Mirzakhanyan then turned to his left toward several three-foot-high planters, grabbed some of the gravel from one of the planters with both of his hands, and threw it in Roe’s direction. At the time, Roe was standing behind Mirzakhanyan. The gravel hit Roe’s face and torso, after which Roe grabbed Mirzakhanyan and pulled him into the street. A struggle ensued, and two other members of the maintenance team helped Roe pin Mirzakhanyan to the ground. They kept him there as the officers arrived.
As he was being arrested, Mirzakhanyan screamed to Roe, “I’m going to kill you and your family.” He told Roe he knew where Roe worked and, “your family [is] going to die.”
As Officers Insalaco and Hamilton were driving Mirzakhanyan to the Los Angeles County jail, Mirzakhanyan continuously spat on Hamilton, covering the back of his head, his uniform, and his badge with saliva. Mirzakhanyan also covered
Mirzakhanyan caused approximately $900 worth of damage to the sign.
In or about March of 2018, approximately two months before trial, Mirzakhanyan showed up at the Altana apartment complex and confronted Roe. Mirzakhanyan asked Roe, “Do you remember me,” to which Roe replied, “Yes, I do. You look a lot better. Are you on medicine?” Mirzakhanyan responded, “You’re a motherfucker. You fucking lied to the court. You lied to everybody. I’m going to fucking own this place. This place Altana. I’m going to own it.”
III. Procedural Background
On May 15, 2017, Mirzakhanyan was charged with felony vandalism (
On June 5, 2017, the trial court declared a doubt as to Mirzakhanyan’s competence to stand trial pursuant to
For the incident at the Altana apartment complex, Mirzakhanyan was charged on August 7, 2017 with felony vandalism (
On April 13, 2018, the two cases were consolidated. Mirzakhanyan was charged via amended information on May 10, 2018 with two counts of felony vandalism (
On May 18, 2018, a jury found Mirzakhanyan guilty of all counts as charged. Mirzakhanyan admitted the truth of the bail allegation.
The court sentenced Mirzakhanyan to a total of five years in county jail, comprised of the low term of 16 months for count 1, one-third of the middle term of eight months for count 3, six months for count 4, six months for count 6, and two years for the bail enhancement. The court also imposed and stayed a six-month term for count 2 pursuant to
Mirzakhanyan timely appealed.
DISCUSSION
Mirzakhanyan alleges on appeal that substantial evidence does not support the jury’s verdicts in counts 2 and 5; he is entitled to a hearing to determine whether he is eligible for mental health diversion; the criminal protective order must be vacated; and he is entitled to 12 additional days of conduct credit.
We conclude substantial evidence supports count 2 and 5, and affirm the judgment. The protective order, however, must be vacated. Additionally, the People concede, and we agree, that Mirzakhanyan is entitled to an additional 12 days conduct credit and that he is entitled to a hearing to determine whether he is eligible for mental health diversion.
I. The Verdicts in Counts 2 and 5 are Supported by Substantial Evidence
A. Standard of Review
When a defendant challenges the sufficiency of the evidence to support a judgment, we review the evidence under the familiar and deferential substantial evidence standard. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.) Substantial evidence is evidence that is “reasonable, credible, and of solid value.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We review the record in the light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lee (2011) 51 Cal.4th 620, 632.) It is the ” ‘exclusive province of the trial judge or jury to determine the credibility of a witness,’ ” and to determine the weight to be given to the testimony adduced at trial. (Ibid.; Hicks, at p. 429.) Reversal under this standard of review “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Count 2: Trespass
Mirzakhanyan alleges his trespass conviction must be reversed because the jury’s conclusion that Mirzakhanyan intended to disrupt the Lexus dealership’s business when he entered the premises was not supported by substantial evidence. We disagree.
The evidence demonstrates that Mirzakhanyan had been to the dealership several times in the past, was escorted out by police, and was told not to return. The most recent incident had occurred only a few days before the incident in this case. It led to Mirzakhanyan’s prior arrest, which Mirzakhanyan directly blamed on West. The jury could reasonably conclude that
Mirzakhanyan’s reliance on In re Wallace (1970) 3 Cal.3d 289 does not assist him. There, the defendants were arrested for handing out leaflets at a county fair protesting the effects of automation on farm workers. (Id. at p. 291.) A security guard told the defendants that distributing the leaflets was not permitted and asked them to leave. (Id. at p. 294.) They were invited to return if they left their signs and leaflets behind. (Ibid.) The defendants re-entered one or two hours later, resumed their leafleting activity, and refused to leave. (Ibid.) Our Supreme Court concluded there was no illegal trespass, largely because the defendants did not actually obstruct any activities at the fair. (Id. at pp. 294–295.) It was therefore evident that their only intent was to convey information, not to disrupt the activities on the premises. (Id. at p. 294.) Wallace establishes that merely returning to a business or property after being asked to leave, without more, does not necessarily prove the requisite intent necessary to support a conviction for trespass.
In In re Ball (1972) 23 Cal.App.3d 380, however, the defendant not only returned after being asked to leave, but then proceeded to actually obstruct business. There, the defendant entered a Disneyland parking lot and set up a table to gather signatures and donations for an anti-pollution initiative. (Id. at p. 385.) Disneyland had already denied the defendant permission to engage in this conduct, and suggested the defendant set up a table outside the Disneyland property. (Ibid.) Instead of doing so, the defendant set up his table in an area that blocked the
That is what happened here. Mirzakhanyan was not only told twice to leave the dealership and not return, he was also arrested and escorted from the property by law enforcement days before the incident at the dealership. When he did nonetheless return on April 17, he actually interfered with business by destroying property, yelling, and splashing water on customers. This constitutes reasonable, credible evidence from which the jury may infer Mirzakhanyan intended to cause a disruption when he entered the Lexus dealership. This is far from a case in which ” ‘upon no hypothesis’ ” is the evidence substantial enough to support the trespass conviction. (People v. Bolin, supra, 18 Cal.4th at p. 331.)
C. Count 5: Battery on Roe
Mirzakhanyan alleges there was not substantial evidence to support the jury’s conclusion that he willfully struck Roe because he was not looking in Roe’s direction when he threw the gravel. We disagree.
Additionally, Roe testified he told Mirzakhanyan not to enter the building and Mirzakhanyan walked right past him upon entering the building. Roe also testified, and the video confirms, that Roe was the person closest to Mirzakhanyan when Mirzakhanyan threw the gravel out of the planter in Roe’s direction. Finally, another maintenance worker testified he and other workers were walking behind Mirzakhanyan as he approached the planter, and that Mirzakhanyan was aware of their presence.
The jury could reasonably deduce from this evidence that Mirzakhanyan knew Roe and the other maintenance workers were behind him when he threw the gravel in their direction. (People v. Lee, supra, 51 Cal.4th at p. 632.) Reviewing the record in the light most favorable to the judgment, we conclude there is substantial evidence from which a rational jury could find Mirzakhanyan guilty of battery. (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)
To be granted diversion under the new statute, a defendant must satisfy six criteria. Among them are that the defendant consent to diversion and agree to comply with treatment as a condition of diversion. (
However, in Frahs, our Supreme Court held that a “conditional limited remand for the trial court to conduct a mental health diversion eligibility hearing is warranted when . . . the record affirmatively discloses that the defendant appears to meet at least the first threshold eligibility requirement for mental health diversion—the defendant suffers from a qualifying mental disorder.” (Frahs, supra, 9 Cal.5th at p. 640.) For those appellants whose eligibility depends on retroactive application of the statute, the court did not require a showing on any of the other six factors to obtain a remand because the record on appeal is “unlikely to include information pertaining to several eligibility factors” and requiring more would be “onerous and impractical.” (Id. at p. 638.) Here, prior to trial, Mirzakhanyan was declared incompetent to stand trial and was sent to Patton State Hospital for treatment to restore his competence. In the course of his treatment, he was diagnosed with “Bipolar Disorder Most Recent Episode Manic Severe with Psychotic Features.” It was also noted that he believed he was “Jesus Christ and 666.”
III. The Criminal Protective Order Must be Vacated
At sentencing, the trial court entered a three-year criminal protective order pursuant to
Orders made under
We agree with the reasoning in Ponce. The existing statutory provisions authorizing long-term protective orders set forth numerous procedural protections for those subject to them. (Ponce, supra, 173 Cal.App.4th at p. 383.) Consequently, “the Legislature intended a ‘narrower scope’ for
Here, unlike the court in Townsel, the protective order against Mirzakhanyan was not issued to protect the integrity of the judicial process; it was intended to protect the victims in this case. While it may have been reasonable—even warranted—for the People to seek court intervention to protect the victims,
IV. Mirzakhanyan is Entitled to 12 Additional Days of Conduct Credit
At sentencing, the court determined Mirzakhanyan had spent 350 days in pre-trial detention and awarded him 350 days credit for actual time spent in custody, which included time spent at Patton State Hospital. In addition to actual custody credit, a defendant may also accrue “conduct credits under . . .
In determining the conduct credit to which Mirzakhanyan was entitled, the court subtracted the full 42 days he spent at Patton State Hospital from the 350 days actually served and awarded him 308 conduct credits. Mirzakhanyan alleges, the People concede, and we agree, that the court’s calculation of conduct credit was erroneous. Here, of the 42 days Mirzakhanyan spent at Patton State Hospital, 12 were spent awaiting transfer to the county jail after he was declared competent. The court should have deducted only 30 days from his conduct credit rather than 42. Accordingly, Mirzakhanyan is entitled to a total of 320 days of conduct credit.
DISPOSITION
The convictions are conditionally reversed for a limited remand with the following instructions:
If the trial court finds defendant suffers from a qualifying mental disorder, does not pose an unreasonable risk of danger to public safety, and otherwise meets all the statutory criteria set forth in
The
The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.