Filed 8/23/23 P. v. Saakyan CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

GAYK SAAKYAN,

Defendant and Appellant.

 B325194

 (Los Angeles County

 Super. Ct. No. PA057735)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael Terrell, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal,

for Defendant and Appellant.

No Appearance for Plaintiff and Respondent.

______________________
2

MEMORANDUM OPINION1

Defendant and appellant Gayk Saakyan appeals the trial 

court’s denial of his petition for resentencing pursuant to Penal 

Code2 section 1172.6 (former § 1170.953). We find no error and 

affirm.

A. Procedural Background

A second amended information, filed on December 11, 2012,

charged Saakyan with five counts of willful, deliberate and 

premeditated attempted murder (§§ 187, subd. (a), 664) along 

with other offenses not relevant to this appeal. As to the five

attempted murder counts, the second amended information 

specially alleged, in part, that Saakyan personally used and 

intentionally discharged a firearm causing great bodily injury

(§ 12022.53, subd. (d)).

A jury convicted Saakyan of the five willful, deliberate and

premeditated attempted murder counts and found true the 

special allegations of firearm use. The trial court sentenced 

Saakyan to consecutive life terms for three of the attempted 

murders, plus 25 years to life on each of those counts for the 

section 12022.53, subdivision (d), enhancements. The court

1 We resolve this case by memorandum opinion because it 

“is determined by a controlling statute which is not challenged for 

unconstitutionality and does not present any substantial question 

of interpretation or application.” (Cal. Stds. Jud. Amin., § 8.1(1).)

2 All unspecified statutory references are to the Penal Code.

3 The Legislature renumbered the statute as section 

1172.6, with no change in text, effective June 30, 2022 (Stats. 

2022, ch. 58, § 10). For ease of reference, we use the current 

citation at section 1172.6 throughout this opinion.
3

imposed concurrent terms for the other two attempted murder 

counts as well as for the attendant enhancements. We affirmed 

Saakyan’s conviction in an opinion filed on April 24, 2014. 

(People v. Saakyan (Apr. 24, 2014, B246476) [nonpub. opn.].)

On March 21, 2022, Saakyan filed a petition for 

resentencing under section 1172.6 and requested appointment of 

counsel. The trial court appointed counsel for Saakyan. After 

further briefing from both parties, and without holding an 

evidentiary hearing, the court concluded that Saakyan was 

ineligible for relief as a matter of law because the record of 

conviction showed that he was the actual shooter and had a 

specific intent to kill.

Saakyan then appealed. We appointed counsel to represent 

Saakyan, and his appellate counsel filed a brief raising no issues 

and requesting that we exercise our discretion to independently 

review the record for error pursuant to People v. Delgadillo (2022) 

14 Cal.5th 216 (Delgadillo). In Delgadillo, our Supreme Court 

established procedures for cases in which counsel determines 

that an appeal from an order denying postconviction relief lacks 

merit. In such cases, “(1) counsel should file a brief informing the 

court of that determination, including a concise recitation of the 

facts bearing on the denial of the petition; and (2) the court 

should send, with a copy of counsel’s brief, notice to the 

defendant, informing the defendant of the right to file a 

supplemental letter or brief and that if no letter or brief is filed 

within 30 days, the court may dismiss the matter.” (Id. at 

pp. 231-232.) If the defendant does not file a supplemental brief, 

we “may dismiss the appeal as abandoned.” (Id. at p. 232.) In 

that instance, we do “not need to write an opinion but should 

notify the defendant when [we] dismiss[ ] the matter.” (Ibid.) 
4

Because a defendant who has been denied postconviction relief 

has no constitutional right to an appeal, we are not required to 

conduct an independent review of the record before dismissing 

the appeal, but we may conduct such a review at our discretion. 

(Id. at pp. 227-228, 232.)

If the defendant does file a supplemental brief or letter, we 

are “required to evaluate the specific arguments presented in 

that brief and to issue a written opinion. The filing of a 

supplemental brief or letter does not compel an independent 

review of the entire record to identify unraised issues.” 

(Delgadillo, supra, 14 Cal.5th at p. 232.)

On June 16, 2023, we notified Saakyan by letter of the nomerits brief filed by his counsel and informed him that he had 30 

days to file a supplemental brief.4 At Saakyan’s request, we 

granted him an extension to file his supplemental brief; we 

received his brief on July 31, 2023.

B. Saakyan Is Ineligible for Relief Under Section 1172.6

Section 1172.6 was enacted by the Legislature in 2018 as 

part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The overall 

purpose of the legislation was “to amend the felony murder rule 

and the natural and probable consequences doctrine, as it relates 

to murder, to ensure that murder liability is not imposed on a 

person who is not the actual killer, did not act with the intent to 

kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.” (Stats. 2018, 

ch. 1015, § 1, subd. (f).) To accomplish this, the bill added section 

4 In a declaration submitted with the brief he filed,

Saakyan’s counsel averred that he sent Saakyan a copy of 

counsel’s brief along with a copy of the entire record on appeal.
5

189, subdivision (e) “to amend the felony-murder rule,” and added 

section 188, subdivision (a)(3) “to amend the natural and 

probable consequences doctrine.” (People v. Gentile (2020) 10 

Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022 Reg. Sess.)

later expanded section 1172.6 to allow persons convicted of 

attempted murder under the natural and probable consequences 

doctrine to apply for resentencing. (Stats. 2021, ch. 551, § 2.)

As relevant here, section 1172.6 provides a mechanism for 

a defendant to seek resentencing where (1) an information was 

filed against the defendant that allowed an attempted murder 

prosecution to proceed under the natural and probable 

consequences doctrine, and (2) the defendant could not now be 

convicted of attempted murder under the present law. (§ 1172.6, 

subd. (a).) Saakyan does not meet this eligibility test, because he 

was not prosecuted based on the natural and probable

consequences doctrine. Instead, Saakyan’s attempted murder 

prosecution and subsequent convictions were based solely on him 

being the actual shooter. In its verdict forms, the jury expressly 

found to be true that Saakyan committed each of the five 

attempted murders willfully, deliberately and with 

premeditation, and that he personally and intentionally 

discharged a firearm as part of each attempted murder.

Saakyan is therefore ineligible for resentencing under 

section 1172.6, and the trial court did not err in summarily 

denying his resentencing petition. (Delgadillo, supra, 14 Cal.5th 

at p. 233; People v. Patton (2023) 89 Cal.App.5th 649, 656-657.)

Saakyan’s supplemental brief does not deny he was the actual 

shooter; it does claim that Saakyan “had no inteant [sic] or 

premeditation to kill anyone” and provides an alternative history 
6

of why he shot at the five victims.5 That is not sufficient for relief 

in light of the jury’s express findings that Saakyan acted with 

premeditation and personally and intentionally shot at the 

victims. Section 1172.6 is a legislative act of lenity that provides 

a resentencing procedure to give defendants serving otherwise 

final sentences the benefit of changes to applicable criminal laws; 

it does not provide a mechanism for a new trial. (Estrada v. 

Superior Court (2023) 93 Cal.App.5th. 915, 925.) The version of 

events in Saakyan’s brief (which the jury clearly rejected) does 

not raise a cognizable issue on appeal because “ ‘[n]o factfinding, 

weighing of evidence, or credibility determinations’ were or are 

necessary here” given that Saakyan is ineligible for relief because

“ ‘[t]he record of conviction irrefutably establishes as a matter of 

law that’ [Saakyan] was convicted as the actual perpetrator of the 

attempted murder. [Citation.]” (People v. Patton, supra, at 

p. 658.)

Finally, we decline counsel’s request that we independently 

review the record, as nothing before us suggests such an exercise 

is necessary. (Delgadillo, supra, 14 Cal.5th at p. 232.)

5 Saakyan’s supplemental brief also criticizes actions by the 

prosecutor and defense attorney in his case. Those criticisms are 

not relevant to Saakyan’s eligibility for relief under section 

1172.6 and we therefore do not address them.
7

DISPOSITION

The trial court’s order denying Saakyan’s petition for 

resentencing is affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.