Filed 9/21/15 P. v. Baghumyan CA1/1
Received for posting 5/16/16
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141245
v.
ARMEN BAGHUMYAN,                                                     (San Francisco City & County
                                                                     Super. Ct. No. CT13023829)
         Defendant and Appellant.
                                                                 ORDER RECALLING REMITTITUR
                                                                 AND MODIFYING OPINION

                                                                 [CHANGE IN JUDGMENT]

BY THE COURT:
         Good cause appearing, respondent’s motion to recall the remittitur in the above-
referenced matter is granted. The remittitur issued by this court on September 1, 2015 is
recalled, and the superior court clerk is directed to return the remittitur to this court for
cancellation forthwith. Once the clerk of this court is in receipt of the remittitur, the clerk
is then directed to re-issue and re-file the opinion of this court originally filed on June 29,
2015.
         Thereafter, on our own motion, we order the opinion modified as follows:
     1. On page 1, the first sentence of the first paragraph shall be modified to read as
         follow:




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           Defendant Armen Baghumyan appeals from a judgment, following a jury
   trial and conviction of telephonic harassment (Pen. Code, § 653m),1 a
   misdemeanor, and conviction by plea of obstructing a person’s movement
   (§ 647c), also a misdemeanor.


   There is no change to footnote 1.


2. On page 1, the third sentence of the first paragraph is modified to read as follows:
   The trial court sentenced him to 179 days in county jail, with credit for time served
   of 179 days.
3. On page 2, the last sentence on the page, which carries over to page 3 is modified
   to read as follows:
   Whether defendant’s belated request that the jury be instructed that count 5,
   misdemeanor telephonic harassment, was a lesser included offense of the count 1
   felony stalking offense was properly denied is moot given the jury’s inability to
   reach a verdict on count 1 and the court’s declaration of a mistrial.
4. On page 3, the second full paragraph beginning “The record does reflect an error
   . . . .” is deleted.
5. On page 3, the first sentence of the third full paragraph is modified to read as
   follows:
           Because the reporter’s transcript indicates the court, itself, did not actually
   impose any fees and fines, we therefore reverse the fees and fines and remand the
   matter to the trial court to impose fees and fines as required and within the sound
   exercise of its discretion.
6. On page 3, the paragraph under the section titled “Disposition” is modified so that
   the words “and the clerk’s minutes of February 7, 2014, and the commitment are




                                           2
       ordered corrected to show dismissal of count 1” are deleted. The paragraph should
       newly read as follows:
              The matter is remanded for the imposition of fees and fines. In all other
respects, the judgment is affirmed.


       There is a change in the judgment. A new remittitur shall issue forthwith.




Dated: _______________                    ___________________________________ P.J.




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Filed 6/29/15 P. v. Baghumyan CA1/1 (unmodified version)
                      NOT TO BE PUBLISHED IN 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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141245
v.
ARMEN BAGHUMYAN,                                                     (San Francisco City & County
                                                                     Super. Ct. No. 220864)
         Defendant and Appellant.

         Defendant Armen Baghumyan appeals from a judgment, following a jury trial and
conviction of telephonic harassment (Pen. Code, § 653m),2 a misdemeanor. He was
found innocent of one count of misdemeanor battery (§ 243, subd. (e)(1)), and the jury
was unable to reach verdicts on three other charges, stalking (§ 646.9), criminal threats
(§ 422), and a second charge of misdemeanor battery. The trial court sentenced him to
179 days in county jail, with credit for time served of 179 days, and dismissed the latter
charges. The court also issued a 10-year stay away order. Defendant’s appellate counsel
raises no issues and asks this court for an independent review of the record to determine
whether there are any issues that would, if resolved favorably to the defendant, result in
reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People
v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a
supplemental brief, and did so. The court then asked for further briefing on a sentencing
issue, which both parties provided. Upon independent review of the record, we have


         2
             All further statutory references are to the Penal Code unless otherwise indicated.
                                                             1
determined the matter must be remanded for imposition of fines and fees, but otherwise
affirm.
                                         BACKGROUND
          On August 26, 2013, the San Francisco District Attorney filed a domestic violence
felony complaint, alleging three counts (one felony and two misdemeanors). A
preliminary hearing was held on September 6, and defendant was held to answer on the
felony charge. On September 12, the district attorney filed a five-count information,
charging defendant with stalking, criminal threats, two counts of misdemeanor battery
and telephonic harassment.
          Defendant made a section 995 motion as to the stalking and criminal threat
charges, based on the transcript of the preliminary hearing, on the ground defendant had
made no unequivocal, immediate and specific threat. The district attorney opposed the
motion, and the trial court denied it.
          Trial commenced on December 16. The prosecution called eight witnesses,
including the victim, Sona Hovhannisyan.
          Hovhannisyan testified about her initial romantic relationship with defendant
during September 2012, which ended a month later. Defendant nevertheless called her
and eventually began leaving offensive voice messages after the relationship resumed in
February 2013. Hovhannisyan tried to cut off further telephone contact with defendant in
June 2013. Defendant’s telephone calls and abusive messages continued, and between
June 19 and August 22, he left many profane and abusive messages. In August, his
messages became threatening. At that point, she called the police.
                                             DISCUSSION
          Defendant was ably represented by counsel at all times. The trial court properly
denied the section 995 motion. Trial timely commenced. There was no error in the
instructions given. Whether defendant’s belated request that the jury be instructed that
count 5, misdemeanor telephonic harassment, was a lesser included offense of the count 1
felony stalking offense was properly denied is moot given the jury’s inability to reach a
verdict on count 1 and the court’s declaration of a mistrial and subsequent dismissal of

                                               2
the charge. We therefore do not consider it. The jury’s verdict that defendant was guilty
of telephonic harassment is supported by substantial evidence, namely Hovhannisyan’s
testimony.
         The trial court did not abuse its discretion in sentencing defendant to 179 days in
the county jail, with credit for time served of 179 days, and the court properly issued a
10-year protective order.
         The record does reflect an error, however, in connection with the imposition of
fines and fees, and in the court minutes and commitment. The court minutes of
February 7, 2014, indicate defendant was ordered to pay the following: a restitution fine
of $150 pursuant to section 1202.4; a court operations assessment of $40 pursuant to
section 1465.8, and immediate critical needs assessment of $30 pursuant to Government
Code section 70373, subdivision (a), for “each” misdemeanor. The minutes and
commitment, in turn, indicate a finding a guilty (“G”) on both counts 1 and 5. However,
as stated above, a mistrial was declared as to count 1, and it was subsequently dismissed.
Defendant was found guilty only of count 5, misdemeanor telephonic harassment. The
reporter’s transcript also indicates the court, itself, did not actually impose any fees and
fines.
         We therefore reverse the fees and fines and remand the matter to the trial court to
impose fees and fines as required and within the sound exercise of its discretion. (See
People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We further order that the clerk’s
minutes of February 7, 2014 and the commitment be corrected to show dismissal of count
one.
                                            DISPOSITION
         The matter is remanded for the imposition of fees and fines, and the clerk’s
minutes of February 7, 2014, and the commitment are ordered corrected to show
dismissal of count 1. In all other respects, the judgment is affirmed.




                                               3
                                _________________________
                                Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Margulies, J.




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