Filed 4/21/16 P. v. Geragos CA2/2
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO



THE PEOPLE,                                                             B260024

          Plaintiff and Respondent,                                     (Los Angeles County
                                                                        Super. Ct. No. GA088600)
          v.

IRA GERAGOS,

          Defendant and Appellant.



          APPEAL from a judgment of the Superior Court of Los Angeles County.
Dorothy L. Shubin, Judge. Affirmed.


          Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and
Appellant.


          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General,
for Plaintiff and Respondent.
                                                         ******
       Ira Geragos (defendant) appeals his convictions for attempted murder, evading a
police officer, and assault with a deadly weapon on a police officer. Defendant argues
that the trial court erred in admitting portions of a jail phone call he made immediately
after his arrest, and that the court failed to give a limiting instruction to the jury on that
evidence. Neither of defendant’s arguments has merit, and we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Facts
       A.       Charged Conduct
       Defendant separated from his wife of 20 years in January 2010. During their
marriage, defendant had repeatedly threatened to kill his wife and their two daughters.
After the separation, the wife did not see defendant again until December 2012; that
month, she saw him two times outside the office complex where Aram Akopyan
(Akopyan), her then-current boyfriend, operated his acupuncture practice. When the wife
confronted defendant the second time as to why he was there, he replied that his new
girlfriend lived nearby and that he did not blame Akopyan for their separation. The wife
was surprised that defendant knew Akopyan’s name.
       In the early afternoon of January 7, 2013, defendant entered the Akopyan’s
acupuncture office and asked to make an appointment. At first, Akopyan did not
recognize defendant as his girlfriend’s ex-husband. As he walked away to retrieve the
scheduling notebook, Akopyan remembered and turned around. Defendant was holding a
9-millimeter handgun in his hand; defendant aimed the gun at Akopyan’s chest, called
him a “Motherfucker” and pulled the trigger. Akopyan tried to grab the gun, and
defendant shot him twice more, striking him in the wrist and then the elbow. Their
struggle for the gun spilled into the courtyard of the office complex. Once in the
courtyard, defendant fired the gun a fourth time at Akopyan’s head at pointblank range,
but he missed and the bullet grazed Akopyan’s eyebrow. Defendant fled, and Akopyan
identified defendant as the shooter when paramedics arrived to render aid. Akopyan
survived.


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        Defendant drove back toward his home. When police signaled for him to pull
over, he sped up and led four police cars on a high-speed chase in which he ran four red
lights, drove into oncoming traffic, and attempted to run one police car off the road. The
chase ended when defendant’s van collided with a police car. After a tense standoff,
defendant was taken into custody. Defendant’s clothing, as well as a 9-millimeter
handgun found in the van, were stained with Akopyan’s blood. At the time of arrest,
defendant did not smell of alcohol and did not appear to be intoxicated.
        B.      Post-arrest call
        Soon after his arrest, defendant called one of his friends from jail. The two spoke
in Eastern Armenian, and the call—when translated into English—started as follows:
        [Friend]:              Where are you calling from? Did you cancel it already?
        [Defendant]:           No, bro, just listen. I am in Glendale thing . . . I am in
Glendale jail, I am in jail.
        [Friend]:              Where?
        [Defendant]:           In jail. Listen to me . . . That phone cancel [Unintelligible]
        [Friend]:              Where? Which one?
        ...
                    1
        [Defendant ]:          In Glendale jail, I am in Glendale jail.
        [Friend]:              Yeah, did you cancel it or not?
        [Defendant]:           No, I didn’t get a chance to do it, bro. You do it.
        [Friend]:              But what happened? Is everything okay?
        [Defendant]:           Yeah, yeah. I shot someone. I shot someone.
        [Friend]:              Oh mother fucker. Are you crazy, hey man? [Unintelligible.]
Fuck.




1      The transcription lists this statement as being made by defendant’s friend, but this
is obviously a typo.
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II.    Procedural History
       The People charged defendant with (1) attempted murder (Pen. Code, §§ 187,
subd. (a), 664); (2) evading an officer with willful disregard (Veh. Code, § 2800.2); and
(3) assault on a police officer with a deadly weapon, a car (§ 245, subd. (c)). The People
further alleged that attempted murder was committed willfully, deliberately and with
premeditation (§ 664, subd. (a)), that defendant personally discharged a firearm causing
great bodily injury (§ 12022.53, subd. (d)), that defendant personally discharged a firearm
(§ 12022.53, subd. (c)), that defendant personally used a firearm (§ 12022.53, subd. (b)),
and that defendant inflected great bodily injury (§ 12022.7, subd. (a)). The matter
proceeded to trial, and a jury convicted defendant of all three crimes, and found true all of
the firearm and great bodily injury allegations; the jury found not true the allegation that
the attempted murder was committed willfully, deliberately and with premeditation.
       The trial court sentenced defendant to state prison for 33 years and four months—
seven years on the attempted murder count plus an additional 25 years for personally
discharging a firearm causing great bodily injury, plus 16 months (one-third the mid-
term) on the assault on a police officer count. The court imposed a two year sentence on
the evasion count, but ran it concurrently to the others.
       Defendant filed a timely appeal.
                                       DISCUSSION
       On appeal, defendant raises two issues: (1) the trial court erred, under Evidence
Code section 352, in admitting the beginning portion of the jailhouse telephone
conversation; and, alternatively, (2) the court erred in not giving an instruction limiting
the permissible uses of that beginning portion. Because a trial court has “broad
discretion” whether to admit evidence under Evidence Code section 352 (People v.
Lancaster (2007) 41 Cal.4th 50, 83), we review defendant’s first claim for an abuse of
discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) We review the second claim
of instructional error de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.)
There was no error.


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       Under Evidence Code section 352, a trial court may exclude relevant evidence “if
its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (§ 352; accord, People v.
Lee (2011) 51 Cal.4th 620, 643.) Citing section 352, defendant asked the trial court to
redact the above-quoted portion of the jailhouse call on the ground that a jury might
speculate that the friend’s “vague” reference to “canceling” the “line” was code for a
conspiracy to “cancel” (that is, to kill) Akopyan. The trial court denied defendant’s
request. The court explained that the beginning portions of the conversation are relevant
to show “how the conversation starts out, how it continues, and . . . how it transitions to
[defendant] saying he’s in custody . . . for the shooting,” which is in turn relevant to rebut
defendant’s asserted defense of being too intoxicated to form the specific intent to kill;
the court conversely found that nothing in the beginning portion sounded “nefarious,”
that it was not “confusing or misleading,” and that it was “certainly not unduly
prejudicial.”
       The trial court did not abuse its discretion in coming to this conclusion. Read in
context, the call participants’ reference to “cancellation” is most logically understood as
reference to a prior agreement between the two regarding the cancellation of defendant’s
telephone service: Defendant’s friend asks “did you cancel it already” immediately after
asking “where are you calling from?”; defendant says “that phone cancel,” explains that
he “didn’t get a chance to do it,” and asks the friend do “do it”; and when defendant
explains that he “shot someone,” the friend expresses shock and surprise (which is
inconsistent with a pre-existing plot to “cancel” Akopyan). Indeed, defendant testified to
precisely this explanation of their conversation at trial. Under these circumstances, the
court did not abuse its discretion in concluding that the relevance of this evidence to
show defendant’s ability to form cogent and coherent thoughts soon after his arrest was
not outweighed by the remote danger that the jury might speculate that defendant and his
friend were having a coded conversation about a nefarious plot to kill Akopyan.


                                              5
       Nor did the trial court err in not giving an instruction limiting the jury’s
consideration of this evidence for certain purposes. Defendant never requested such an
instruction, and a trial court is under no duty to give a limiting instruction absent a
request for one. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051; Evid. Code, § 355.)
Defendant argues that his motion for redaction constitutes an implicit request for such an
instruction, but we decline to create an exception for implicit requests that would
effectively swallow the general rule requiring explicit ones. Defendant further asserts
that his is one of those “‘occasional extraordinary’” cases in which a trial court has a sua
sponte duty to give a limiting instruction because the “‘unprotested evidence . . . is a
dominant part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose.’” (Hernandez, at pp. 1051-1052, quoting
People v. Farnam (2002) 28 Cal.4th 107, 163-164.) This narrow exception does not
apply here. The portion of the jailhouse conversation defendant protests lasted only
seconds, and is in no sense a “dominant part of the evidence of the accused”—which
instead consists of Akopyan’s positive identification of the defendant after wrestling with
him during the melee following the initial shots, the presence of Akopyan’s blood on
defendant’s clothing and the gun defendant carried with him, defendant’s dangerous
flight from police, and defendant’s motive for the shooting.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                          _______________________, J.
                                                          HOFFSTADT
We concur:

__________________________, Acting P.J.
ASHMANN-GERST

__________________________, J.
CHAVEZ



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