Filed 9/23/13 P. v. Vartanyan CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                          B240976

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA348894)
         v.

AVETIS VARTANYAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Sam
Ohta, Judge. Affirmed.
         George Gevork Mgdesyan for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.


                                            _____________________
       As part of a negotiated agreement, Avetis Vartanyan pleaded no contest to one
count of voluntary manslaughter and admitted a firearm-use enhancement. Prior to
sentencing, Vartanyan moved to withdraw his plea. The trial court denied the motion and
imposed a 16-year state prison term pursuant to the plea agreement. On appeal,
Vartanyan contends the court coerced him to enter a guilty plea. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Preliminary Hearing Evidence1
       On the evening of May 20, 2008, a group of men were arguing in the parking lot
of a shopping center. Shots were fired, killing Artak Karamyan and Paylak Harutyunyan.
Vartanyan was seen running from the shopping center through a residential
neighborhood. The police found Vartanyan in the backyard of a house and recovered the
handgun used to kill Karamyan from the backyard of a nearby house.

       2. The Information
       On October 28, 2009, Vartanyan was charged by information with the murders of
Karamyan and Harutyunyan (Pen. Code, § 187, subd. (a))2 with special allegations he had
personally and intentionally discharged a firearm causing great bodily injury or death in
committing the murders (§ 12022.53, subd. (d)) and had personally and intentionally
discharged a firearm in committing the murders (§ 12022.53, subd. (c)). It was also
specially alleged Vartanyan had previously served two separate prison terms for felonies
(§ 667.5, subd. (b)). Represented by retained counsel,3 Vartanyan pleaded not guilty and
denied the special allegations.




1     Because Vartanyan entered into a plea agreement midway through trial, we rely
upon the preliminary hearing transcript to summarize the facts.

2      Statutory references are to the Penal Code.

3      Vartanyan is represented by the same counsel on appeal.

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       3. Pretrial Motions
       The trial court heard and denied Vartanyan‟s motion to dismiss the information
(§ 995) and granted the People‟s motion to dismiss the second count, the murder of
Harutyunyan, in furtherance of justice.

       4. Vartanyan’s No Contest Plea and Related Proceedings
       On August 6, 2010, during the People‟s case-in-chief and outside the presence of
the jury, the trial court told Vartanyan it had discussed with both counsel the plea offer
that had been made to him. The court engaged in a lengthy discussion with Vartanyan
about the consequences of going to trial, comparing potentional sentences if Vartanyan
was convicted with the offer that had been made. The court explained to Vartanyan he
would face consecutive terms of 25 years to life for first degree murder and personal use
of a handgun, meaning he would not be eligible for parole for 50 years and would not
likely be released on parole because “the facts of the case are so brazen, what happened is
so bad, you know, daylight with people, innocent people potentially getting hurt,” and
Vartanyan purportedly was a gang member.
       The court encouraged Vartanyan to evaluate the prosecutor‟s offer objectively and
told Vartanyan the offer of a 10 to 20-year sentence was objectively reasonable from the
prosecutor‟s perspective, adding the prosecutor “was not playing hardball in terms of
settlement.” The court continued, “again from your perspective you may think it‟s not
reasonable. [„] I didn‟t do it, I don‟t want to take the deal.[‟] That‟s fine. If that is where
you‟re at, then roll with it. Okay?”
       The trial court then told Vartanyan, “So the bottom line is, if you wanted to
resolve this case, it‟s not going to make you happy. It‟s not going to be something you‟re
going to be, you know, yelling „yippee‟ about. You‟re going to be unhappy about it.
You‟re going to say, „Dang, that‟s a lot of time.‟ You have to understand that, if you
don‟t take the deal and you get convicted, which is a possibility, that you‟re going to be
really upset to the degree where you‟re going to think, „Man, my life is over.‟”




                                              3
         The trial court informed Vartanyan, if convicted, he would be sentenced for first
or second degree murder according to the law to a term of 15 years to life, or 25 years to
life, 35 years to life or 50 years to life. A determinate term sentence would not be
possible if Vartanyan were found guilty. The court inquired whether Vartanyan
understood these sentencing options, and Vartanyan answered he did. The court then
asked if he had any questions, and Vartanyan replied he knew the consequences. The
court then recessed the trial, during which Vartanyan spoke with his family and defense
counsel.
         When trial reconvened, the parties informed the trial court they had reached a plea
agreement that provided Vartanyan would plead no contest to an amended count of
voluntary manslaughter (§ 192, subd. (a)) for a six-year sentence and admit personal use
of a firearm (§ 12022.5, subd. (a)) for a 10-year sentence. In return, the murder count and
remaining firearm-use and prior prison term enhancement allegations would be
dismissed.
         The record of the plea hearing established Vartanyan was advised of and waived
his constitutional rights, was advised of and acknowledged he understood the
consequences of his plea and indicated no one had made any promises or threats to make
him enter a no contest plea. Defense counsel joined in the waivers, concurred in the plea
and stipulated to a factual basis for the plea. The trial court found Vartanyan had
knowingly, voluntarily and intelligently waived his constitutional rights and entered his
no contest plea.
         The trial court agreed to continue sentencing for 60 days, but advised Vartanyan if
he subsequently wanted to withdraw his plea, his motion would require “legal cause.”
The court further stated, “I also want the record to reflect that we spent an hour and a half
talking to the defendant. He had an opportunity to talk with his family.” Because
sentencing was continued to October 6, 2010, the court declared a mistrial on the murder
count.




                                              4
       5. Vartanyan’s Motions to Withdraw His Plea
       On January 27, 2011, Vartanyan filed a motion to withdraw his plea (§1018),
asserting that he had been unduly pressured by the trial court to enter a guilty plea.4 The
People opposed the motion, which the court denied. Vartanyan then filed a motion for
reconsideration.
       In his declaration in support of the motion, Vartanyan stated he had always wanted
a trial, confident he would be acquitted of the murder charge. However, when the court
unexpectedly spoke to him in the middle of trial “about the risks of a murder trial and he
can see how I can end up doing a life sentence in this case, I was overwhelmed and
frightened.” Vartanyan stated, when the court “was telling me it was better to take the
prosecutor‟s offer than serve life” and “I would be younger than he after I served my
time[,] I was terrified, I felt like I lost my strength and the reasons I held onto for two
years.” Vartanyan stated he felt he no longer had any options because “the most
important person in the courtroom, the judge, thought I was going to lose.”
Consequently, Vartanyan said he had concluded that if he did not agree to the negotiated
plea, he would be in prison for the rest of his life.

       6. Sentencing Hearing
       On March 20, 2012, the same bench officer who had presided over the plea
hearing presided over the sentencing hearing. In accordance with the plea agreement, the
trial court sentenced Vartanyan to an aggregate state prison term of 16 years, consisting
of the middle term of six years for voluntary manslaughter, plus ten years for the firearm-
use enhancement. )~ The court ordered Vartanyan to pay a $40 court security fee, a $30
criminal conviction assessment and a $ 200 restitution fine. The court imposed and
suspended a parole revocation fine pursuant to section 1202.45. Vartanyan was awarded
a total of 1,610 days of presentence credit (1,400 actual days and 210 days of conduct
credit). The remaining count and special allegations were dismissed on the People‟s
motion.

4      The motion did not include a declaration by Vartanyan.

                                               5
       Vartanyan timely filed a notice of appeal, and the court granted his request for a
certificate of probable cause.

                                         DISCUSSION
       1. Standard of Review
       Vartanyan appeals from the order denying his motion to withdraw his plea under
section 1018. We review the denial of a motion to withdraw a plea for abuse of
discretion. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123, People v. Wharton
(1991) 53 Cal.3d 522, 585.) However, because the trial court relied on facts which are
not part of the record on appeal, 5 the People assert that Vartanyan has forfeited his claim
by failing to provide an adequate record. We construe the appeal as challenging the
voluntariness of his plea.
       A plea, like any other waiver of constitutional rights, “may be accepted by the
court only if knowing and intelligent˗made with a full awareness of the nature of the
right being waived and the consequences of the waiver. In addition, the waiver must be
voluntary.” (People v. Smith (2003) 110 Cal.App.4th 492, 500; see also New York v. Hill


5       “The court rules as follows: 1) Based on the disturbance caused by the information
received from the remaining jurors that they leaned in favor o[f] acquittal, there exists a
plausible explanation that the defendant changed his mind about the decision to enter a
plea to resolve the case. The comments by the court to the defendant as well as the facts
found by the court, as it relates to comments made to the defendant by the prosecutor, are
distinguishable from [People v.] Weaver [(2004)118 Cal.App.4th 131] and were not of
the nature such as to overcome the will of the defendant. This plausible explanation for
the change of mind, added to the distinguishable nature of the court‟s comments leads the
court to conclude the defendant has failed to show by a [sic] clear and convincing
evidence that his free will was overcome at the time of entering the deal. ¶ (2) Assuming
the defendant was not informed about the juror‟s comments, which appears to me not
likely, the comments by the court, as well as the determined facts of what the prosecutor
said to the defendant are alone distinguishable from Weaver, [supra.] and given the time
to reflect and the opportunity to speak with both family and counsel about what if any
course of action to take, leads me to conclude defendant has failed to show by clear and
convincing evidence that his free will was overcome.” The reporter‟s transcript of the
hearings on the motion to withdraw the plea and the motion for reconsideration are not
part of the appellate record.

                                             6
(2000) 528 U.S. 110, 114 [145 L.Ed.2d 560, 120 S.Ct. 659].) When a defendant elects to
waive the fundamental constitutional rights that accompany a trial by pleading no contest
or guilty “the record must reflect that the defendant did so knowingly and voluntarily- -
that is, he or she was advised of and elected to refrain from exercising the fundamental
rights in question.” (People v. Collins (2001) 26 Cal.4th 297, 308.)
       Under the governing test, a plea is valid “if the record affirmatively shows that it is
voluntary and intelligent under the totality of the circumstances.” (People v. Howard
(1992) 1 Cal.4th 1132, 1175; see also North Carolina v. Alford (1970) 400 U.S. 25, 31
[27 L.Ed.2d 162, 91 S.Ct. 160].) In contrast, “guilty pleas obtained through „coercion,
terror, inducements, subtle or blatant threats‟ are involuntary and violative of due
process. [Citations].” (People v. Sandoval, supra, 140 Cal.App.4th at p. 124.) Thus, if a
guilty plea is induced by promises or threats it is involuntary. (People v. Collins, supra,
26 Cal.4th 297, 312.) “However, involuntariness is found only if threats, duress, or
coercion overcome the exercise of the defendant‟s „free judgment.‟” (People v.
Sandoval, supra, 140 Cal.App.4th at p. 123.) We review the record independently to
determine the voluntariness of the waiver of rights and entry of the plea. (People v.
Mosby (2004) 33 Cal.4th 353, 360-361.)

       2. The Trial Court Did Not Coerce Vartanyan To Enter A Plea
       Although California law does not prohibit judicial involvement in plea
negotiations, a judge‟s participation in plea discussions may improperly influence a
defendant‟s decision to accept a plea agreement. “[W]hen the trial court abandons its
judicial role and thrusts itself to the center of the negotiation process and makes repeated
comments that suggest a less than neutral attitude about the case or the defendant, then
great pressure exists for the defendant to accede to the court‟s wishes.” (People v.
Weaver (2004) 118 Cal.App.4th 131, 150 (Weaver).) Nonetheless, not every instance of
judicial involvement in plea negotiations results in duress. (Id. at pp. 149-150.) “Judges
can, in appropriate cases and in a reserved manner, play a useful part in that process.”
(Weaver at p. 150.)


                                              7
          Relying on Weaver, Vartanyan argues the trial court coerced him to accept the
negotiated plea by advocating at length for the prosecution, causing him to believe he
would not be afforded a fair trial.
          In Weaver, the defendant pleaded guilty to multiple counts of child molestation.
After repeated and prolonged efforts by the trial court to induce a plea, and after the trial
court indicated it would admit potentially prejudicial evidence that, in the trial court‟s
stated view, indicated the defendant would be convicted, and that the crimes were the
result of a “particular and dangerous mental disorder” (pedophilia). (Weaver at p. 149.)
The Court of Appeal reversed the denial of his motion to withdraw his plea based upon
the coercive comments of the trial judge during plea negotiations. (People v. Weaver,
supra, 118 Cal.4th at p. 136.)
          Unlike the trial judge in Weaver, the trial judge in the present case did not express
an opinion that Vartanyan was guilty, advocate on behalf of the victim or make
derogatory comments about Vartanyan. Nonetheless, Vartanyan argues the pressure
brought to bear on him was greater than that described in Weaver because the trial judge
identified himself as a former prosecutor, commented on the evidence, suggesting it
would lead the jury to view Vartanyan unsympathetically, and stated Vartanyan would be
sentenced to the term prescribed by law if convicted and would not likely be granted
parole.
          After examining the totality of the circumstances, Vartanyan‟s proffered, coercive
interpretation of the trial court‟s comments as advocating for the prosecution and
pressuring him to accept a negotiated plea, does not fairly characterized the events, or
indicate that the plea was not entered voluntarily and intelligently. (People v. Mosby,
supra, (2004) 33 Cal.4th at pp. 360-361.)
          The record suggests the trial court became involved in plea discussions only after
Vartanyan indicated an interest in entering a plea in return for a seven-year sentence. The
trial court explained to Vartanyan his potential prison exposure in matter-of-fact terms,
comparing the maximum sentence he faced if he were convicted by a jury as opposed to
the actual sentence being contemplated by the prosecutor as part of a negotiated plea.

                                                8
Indeed, Vartanyan does not claim the trial court exaggerated when it told Vartanyan he
could be sentenced to a term of 50 years to life under the law and would probably not be
granted parole if he were found guilty. These comments must be interpreted in context as
accurately advising Vartanyan of the realistic alternatives he had to assess in determining
whether to proceed with the trial, given the fact the prosecutor was not offering
Vartanyan a seven-year prison term as part of a negotiated plea. The trial court never
urged Vartanyan to accept the plea offer or advised Vartanyan the negotiated plea was in
his best interests. Rather, the trial court told Vartanyan if he decided to reject the
prosecutor‟s offer, “If that‟s where you‟re at, then roll it. Okay?” Although the trial court
could well have avoided commenting on the evidence and its effect on the jury, the court
thereafter acknowledged to Vartanyan the outcome of the trial was uncertain, “So you
don‟t have a slam dunk case either way.” In sum, the trial court accurately explained,
albeit at length, the possible consequences of a guilty verdict and pointed out the benefits
that could naturally accrue from the entry of a plea. (See People v. Ray (1996) 13 Cal.4th
313, 339-341.)
       The trial court then recessed the proceedings to allow Vartanyan to discuss the
matter with his family and his attorney. When the parties returned to court, Vartanyan
told the trial court he wanted to accept the prosecutor‟s offer of a negotiated plea. At the
plea hearing, Vartanyan orally acknowledged he understood the nature and consequences
of the plea and was entering his plea “freely and voluntarily” because he thought “it was
in his best interests to do so. Vartanyan‟s defense counsel joined in the waivers and
concurred in the plea. We presume counsel properly reviewed the terms of the plea
agreement and advised Vartanyan of his rights, because Vartanyan is not claiming
ineffective assistance of counsel, and there is no evidence that counsel neglected his
duties. Thus, Vartanyan has failed to show that he entered his negotiated plea
involuntarily, as the result of judicial coercion.




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                                 DISPOSITION

     The judgment is affirmed.




                                        ZELON, J.




We concur:




     PERLUSS, P. J.




     WOODS, J.




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