People v. Dermesrobian CA2/6

Filed 8/5/14 P. v. Dermesrobian CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250719 (Super. Ct. No. PA070550) Plaintiff and Respondent, (Los Angeles County)

v.

VAHE DERMESROBIAN,

Defendant and Appellant.

Vahe Dermesrobian appeals from a judgment after conviction by jury of attempted premeditated murder with personal use and discharge of a firearm (Pen. Code, §§ 664/187, subd. (a), 12022, subd. (a), 12022.53, subd. (b), 12022, subd. (c)), and after plea of guilty to four counts of making criminal threats (§ 422) and one count of stalking. (§ 646.9.) The trial court sentenced Dermesrobian to 32 years to life plus five years, eight months in prison. Dermesrobian contends that his conviction for attempted murder must be reversed because the trial court diluted the prosecutor's burden of proof when, during voir dire, it said, "the People have to prove the case beyond a reasonable doubt, not beyond all doubt." He also contends the court diluted his rights when it referred to his "privilege" not to testify instead of his "absolute constitutional right" not to do so. We affirm.

PROCEDURAL BACKGROUND Mario Gamez got into a car with Demresrobian, David Arutyunyan and Karen Bezidzhyan in order to sell them heroin. Dermesrobian revealed a gun and Gomez fled. Dermesrobian shot him several times in the back. Gamez identified Dermesrobian in a photographic lineup. He did not identify Dermesrobian at trial. Gamez testified under a grant of immunity. Cell phone records placed Dermesrobian within .8 miles of the shooting. Police officers found photos of a .22 caliber rifle, and ammunition for it, in Dermesrobian's house. Police officers found an identical .22 caliber rifle in Ari Sahnazoglu's car. In a recorded telephone call, Sahnazoglu told his girlfriend it was the rifle Dermesrobian used. At trial, Sahnazoglu said it was not. No tests were conducted on the rifle. Sahnazoglu testified that Dermesrobian's friend said they had been robbing drug dealers using a gun. According to Sahnazoglu, Dermesrobian was present and "just smiled." The friend contradicted Sahnazoglu's testimony at trial. Sahnazoglu was a convicted felon and a member of the Armenian Power gang. During voir dire, the trial court read the standard instruction on reasonable doubt and then explained, "What that means is if I were to ask you how you will vote right now, your vote would not be guilty. Why? Because as the defendant sits there he's presumed to be innocent. This means the defendant doesn't need to present any evidence. Mr. Newton can sit there and not ask any questions. He doesn't have to call any witnesses because the burden is on the prosecution. "Again, the People have to prove the case beyond a reasonable doubt, not beyond all doubt. Okay? And again, the attorneys will talk to you about those different standards of proof. "A lot of times people come in the courtroom and they look around, see who everybody is and sometimes they look at the defendant and say what did he do. Again, that is not the right way to look at it. The right way to look at it is what he is accused of doing.