Filed 7/31/23 P. v. Grigoryan CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

AZNAUR GRIGORYAN,

Defendant and Appellant.

 B322129

 (Los Angeles County

 Super. Ct. No. PA092744)

APPEAL from an order of the Superior Court of 

Los Angeles County, Hayden A. Zacky, Judge. Affirmed. 

Sally Patrone, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Nikhil Cooper, Deputy Attorneys

General for Plaintiff and Respondent.
2

Aznaur Grigoryan appeals from an order summarily 

denying his petition to vacate his manslaughter conviction and 

be resentenced under Penal Code section 1172.6.1 Because he 

has failed to provide us with an adequate record to review, we 

affirm the court’s order. In any case, even if a complete record 

would support his factual assertions, he is not entitled to relief 

under section 1172.6.

FACTUAL AND PROCEDURAL SUMMARY

On May 8, 2019, Grigoryan drove a car while intoxicated. 

His car and a car driven by Arotin Mahmoudian collided, which 

caused Mahmoudian’s car to hit and kill a pedestrian, Raymond 

Allen, and Allen’s dog.

In June 2021, the Los Angeles District Attorney filed a 

second amended information charging Grigoryan with: murder 

of Allen (count 1; § 187); hit and run driving resulting in injury 

to another (count 2; Veh. Code, § 20001, subd. (b)(1)); driving 

under the influence of alcohol causing injury (count 3; Veh. 

Code, § 23153, subd. (a)); gross vehicular manslaughter (count 4;

§ 191.5, subd. (a)); assault upon Angela Llernas (a passenger 

in Mahmoudian’s car) with a deadly weapon (count 5; § 245, 

subd. (a)(1)); cruelty to an animal (count 6; § 597, subd. (a); 

and resisting, delaying, or obstructing a peace officer (§ 148, 

subd. (a)(1)). The People further alleged that in the commission 

1 Subsequent unspecified statutory references are to the 

Penal Code.

Grigoryan filed his petition for resentencing under former 

section 1170.95, which the Legislature later renumbered 

section 1172.6 without substantive change. (Stats. 2022, ch. 58, 

§ 10.) We hereafter refer to section 1172.6 for ease of reference.
3

of count 3 (driving under the influence), Grigoryan personally 

inflicted great bodily injury on Raymond Allen. (Pen. Code, 

§ 12022.7, subd. (a).)

On June 9, 2021, pursuant to a plea agreement, Grigoryan 

pleaded no contest to counts 2 through 7; that is, all counts other

than murder, which the court dismissed.

2 He also admitted the 

personal infliction of great bodily injury enhancement allegation 

as to count 3. The court found that there is a factual basis for the 

plea, accepted the plea, and found Grigoryan guilty of counts 2 

through 7. The court sentenced Grigoryan to one year in jail, 

for which he was credited the same amount for time served, plus 

14 years in prison.

On January 31, 2022, Grigoryan filed a petition for 

resentencing under section 1172.6. Grigoryan alleged: (1) an 

information was filed against him that allowed the prosecution to 

proceed under a theory of murder under the natural and probable 

consequences doctrine; (2) he was convicted of manslaughter 

following a plea offer in lieu of a trial at which he could have been 

convicted of murder; (3) he “could not presently be convicted of 

murder because of changes to [sections] 188 or 189[,] effective 

[January 1, 2019].” Grigoryan requested the appointment of 

counsel.3

2 A transcript of the plea hearing is not included in our 

record. Our references to the facts concerning the plea are based 

on a minute order in the record. 

3 In addition to arguments pertinent to resentencing 

issues under section 1172.6, Grigoryan, in documents filed 

prior to the appointment of counsel, asserted that a prosecution 

expert testified falsely at his preliminary hearing, and that the 
4

Grigoryan, acting in propria persona, submitted a

document, to which he attached a written statement that 

Mahmoudian had given to law enforcement, and a document 

prepared by a traffic accident reconstructionist, dated January 

23, 2020. (Capitalization omitted.) According to Grigoryan, 

Mahmoudian “made an unsafe lane change” into Grigoryan’s lane 

of traffic, struck Grigoryan’s car, “swerved out of control,” and hit 

Allen, causing Allen’s death. In his filing he included numerous 

citations to the transcript of his preliminary hearing in support 

of his factual assertions.

On February 2, 2022, without appointing counsel, the court 

summarily denied Grigoryan’s petition on the ground that the 

People’s theory of murder was implied malice under People v. 

Watson (1981) 30 Cal.3d 290 (Watson), not felony murder or the 

natural and probable consequences doctrine.

On February 23, 2022, Grigoryan, still without counsel,

filed a motion for reconsideration on the ground, among others,

that the court failed to appoint counsel for him.

In response to the motion, the court appointed counsel for 

Grigoryan, directed the People to file a response to the petition, 

and allowed Grigoryan’s counsel to file a reply to the People’s 

response.

The People’s response argued that Grigoryan is ineligible 

for relief under section 1172.6 because he “was the actual driver 

prosecution failed to preserve and produce exculpatory evidence

in violation of principles established in California v. Trombetta

(1984) 467 U.S. 479, and Brady v. Maryland (1963) 373 U.S. 83. 

These points are not asserted on appeal, and we do not address 

them.
5

of the vehicle that was the proximate cause of the death of 

Raymond Allen.”

On June 30, 2022, Grigoryan substituted retained counsel 

in place of the public defender’s office. On the same day, 

Grigoryan’s new counsel filed a reply to the People’s response. 

According to the reply, “there is no evidence that [Grigoryan] 

acted with malice aforethought,” and that “malice is being 

imputed upon [him] due to the allegations that he was driving 

under the influence or violating a speed law[, which] is improper 

and contrary to Penal Code [section] 188.”

At a hearing held on July 1, 2022, the court concluded 

that Grigoryan is not eligible for relief under section 1172.6, 

and denied the petition. The court stated that it “considered 

everything in the court file, [including] the preliminary hearing 

transcript,” and explained that Grigoryan “was convicted of 

second degree murder for killing a person under a theory of 

actual implied malice, . . . not malice imputed under the natural 

and probable consequences doctrine.”

Grigoryan timely appealed.

Our record does not include the transcripts of the 

preliminary hearing or the hearing on Grigoryan’s plea.

DISCUSSION

A. Section 1172.6

In 2018, the Legislature enacted Senate Bill No. 1437

(Stats. 2018, ch. 1015, § 2, p. 6675), which “eliminated natural 

and probable consequences liability for murder as it applies to 

aiding and abetting, and limited the scope of the felony-murder 

rule.” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) 

Among other changes, the law now provides that “[m]alice 
6

shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3).) The changes 

are intended “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, p. 6674; see People v. Gentile (2020) 10 Cal.5th 830, 

842.) 

Senate Bill No. 1437 did not affect liability for implied 

malice murder under Watson, supra, 30 Cal.3d 290. (People v. 

Carr (2023) 90 Cal.App.5th 136, 143 (Carr); People v. Roldan

(2020) 56 Cal.App.5th 997, 1004–1005.) Under Watson, a person 

may be found guilty of murder if he drives while intoxicated, 

knows that his conduct endangers the life of another, and acts 

with conscious disregard for life. (Watson, supra, 30 Cal.3d at 

p. 300.) The Watson theory of murder remains valid because it 

“does not involve the imputation of malice. It requires proof—

in addition to the mere fact that the defendant killed someone 

while driving intoxicated—that the defendant personally 

harbored implied malice.” (Carr, supra, 90 Cal.App.5th at 

p. 144.) 

Senate Bill No. 1437 also enacted the predecessor to 

section 1172.6. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.) 

As amended in 2021 and renumbered in 2022, section 1172.6

authorizes an individual convicted of murder based on the 

felony-murder doctrine, the natural and probable consequences 

doctrine, “or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime” 

to petition the superior court to vacate the conviction and be 

resentenced on any remaining counts if the petitioner could not 
7

now be convicted of murder because of the changes made by the 

new law. (§ 1176.2, subd. (a); Stats. 2021, ch. 551, § 2; Stats. 

2022, ch. 58, § 10.) 

A petition under section 1172.6 must state, among other 

allegations, that the “petitioner could not presently be convicted 

of murder or attempted murder because of changes” Senate Bill 

No. 1437 made to the law of murder. (§ 1172.6, subd. (a)(3).) 

When, as here, a petitioner files a facially sufficient petition, the 

trial court must appoint counsel for the petitioner, if requested,

and determine, after the opportunity for briefing and a hearing,

whether the defendant has made a prima facie case for relief 

under section 1172.6. (§ 1172.6, subd. (c); People v. Hurtado

(2023) 89 Cal.App.5th 887, 891; People v. Flores (2022) 76 

Cal.App.5th 974, 985 (Flores).)

In determining whether the defendant has made the 

requisite prima facie showing, the court may review and rely on 

the record of the petitioner’s conviction. (Lewis, supra, 11 Cal.5th 

at p. 970; People v. Williams (2022) 86 Cal.App.5th 1244, 1251.) 

The “record of conviction,” our Supreme Court explained, “will 

necessarily inform the trial court’s prima facie inquiry under 

section [1172.6], allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless.” (Lewis, 

supra, 11 Cal.5th at p. 971.) Although, in reviewing the record of 

conviction, courts “should not engage in ‘factfinding involving the 

weighing of evidence or the exercise of discretion’ ” (id. at p. 972), 

when the record establishes as a matter of law that petitioner

is ineligible for resentencing, the court may deny the petition 

at the prima facie stage (People v. Garcia (2022) 82 Cal.App.5th 

956, 969–971; Flores, supra, 76 Cal.App.5th at p. 987).
8

Where the petitioner’s conviction resulted from a guilty 

plea rather than a trial, the record of conviction includes the 

transcript of the defendant’s preliminary hearing testimony

to the extent the transcript “reliably reflect[s] the facts of the

offense for which the defendant was convicted.” (People v. 

Reed (1996) 13 Cal.4th 217, 223; see People v. Patton (2023) 

89 Cal.App.5th 649, 657, review granted June 28, 2023,

S279670 [summary denial of section 1172.6 petition affirmed 

based on uncontroverted testimony at preliminary hearing]; 

Flores, supra, 76 Cal.App.5th at p. 989, fn. 11 [rejecting 

contention that preliminary hearing transcript is not part of 

the record of conviction for purposes of evaluating prima facie 

showing under section 1172.6]; People v. Houck (1998) 66 

Cal.App.4th 350, 356–357 [preliminary hearing transcript is 

not part of record of conviction when conviction resulted from a 

jury verdict]; see generally Couzens et al., Cal. Practice Guide: 

Sentencing Cal. Crimes (The Rutter Group 2022) § 23.51(J) 

(rev. Aug. 2022); cf. People v. Solis (2001) 90 Cal.App.4th 1002, 

1018–1019 [preliminary hearing transcript is part of record of 

conviction and may be relied on to prove conduct underlying prior 

felony conviction for purposes of Three Strikes law]; People v. 

Blackburn (1999) 72 Cal.App.4th 1520, 1531 [same].) The 

reliability of the preliminary hearing transcript for this purpose 

may be supported by the record of the defendant’s plea when 

it discloses that the defendant stipulated to the preliminary 

hearing transcript as a factual basis for the plea. (People v. 

Nguyen (2020) 53 Cal.App.5th 1154, 1161; see also People v. 

Davenport (2021) 71 Cal.App.5th 476, 481 (Davenport) [rejecting

petitioner’s section 1172.6 argument that the preliminary 

hearing transcript is never part of the record of conviction, but 
9

concluding the court erred by denying the petition where 

defendant’s plea record did not show that he stipulated to the 

preliminary hearing transcript as the factual basis for his plea].)4

Grigoryan relies on Flores, supra, 76 Cal.App.5th 974, for 

the assertion that the “trial court was prohibited from relying 

on the preliminary hearing to deny relief.” Flores does not so 

hold. In that case, the Court of Appeal independently reviewed 

the record and considered the preliminary hearing transcript,

which included evidence that the petitioner’s accomplice actually 

killed the victim; the petitioner may have merely aided and 

abetted the actual killer without the intent to kill. (Id. at 

pp. 981–982, 991.) Thus, the evidence “[did] not exclude the 

possibility that petitioner was, or could have been, convicted 

under the imputed malice theories eliminated by Senate Bill 

No. 1437.” (Flores, supra, at p. 991.) The Flores court therefore 

concluded that the preliminary hearing transcript does not 

establish petitioner is ineligible for resentencing as a matter 

of law. (Id. at p. 991.) Contrary to Grigoryan’s argument, the

Flores court did not hold that courts are precluded from relying 

on the preliminary hearing transcript in evaluating petitioner’s

section 1172.6 prima facie showing—indeed, the court expressly 

rejected that argument (Flores, supra, at p. 989, fn. 11)—and held 

4 In Davenport, the court stated that the trial court, in 

evaluating the prima facie showing under section 1172.6, cannot 

rely on the preliminary hearing transcript unless the petitioner 

had stipulated that the transcript provided a factual basis for his 

plea. (People v. Davenport, supra, 71 Cal.App.5th at p. 481.) We 

do not need to reach this issue in this case and express no view 

on the correctness of this aspect of Davenport. 
10

only that the preliminary hearing transcript in that case did not 

establish the petitioner’s ineligibility as a matter of law.

B. Failure to Provide an Adequate Record for 

Review

We independently review the trial court’s determination 

that the petitioner failed to make a prima facie showing for relief. 

(People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon

(2021) 68 Cal.App.5th 967, 975.) 

“On appeal, we assume a judgment is correct and the 

defendant bears the burden of demonstrating otherwise.” 

(People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11.) 

The burden of demonstrating error requires the appellant to 

provide “an adequate record to permit review of a claimed error.” 

(People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) “Where the

appropriate record is missing or incomplete, [appellant] must

see that the defect is remedied, by requesting augmentation 

or correction of the appellate record [citation] or by other 

appropriate means [citation].” (People v. Barton (1978) 21 Cal.3d 

513, 519–520.) When the defect is not remedied, we will presume 

that the missing or omitted part of the record supports the 

challenged ruling “unless there is something in the record to 

overcome the presumption.” (In re Silva (1931) 213 Cal. 446, 

448.)

Here, Grigoryan cited to the preliminary hearing transcript 

in support of his petition below, and the trial court, without 

objection, expressly considered the transcript in denying the 

petition. Our record, however, does not include the preliminary 

hearing transcript or the transcript of Grigoryan’s plea hearing. 

Nor does it appear that Grigoryan made any effort to augment 

the record to include the omitted transcripts or that such an 
11

effort would have been futile. We therefore presume that 

the omitted transcripts support the court’s order, and there 

is nothing in our record to overcome that presumption. 

Accordingly, Grigoryan has failed to satisfy his burden of 

demonstrating error.

Even if we assume that the complete record, if it 

had been provided to us, would support Grigoryan’s version of 

the incident—that is, that Mahmoudian, not Grigoryan, caused 

Allen’s death—he would still not be entitled to relief under 

section 1172.6. Section 1172.6 provides relief for persons 

who “could not presently be convicted of murder or attempted 

murder because of changes to [s]ection 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a)(3), italics added.) Under 

Grigoryan’s version of the incident, the reason he could not now 

be convicted of murder or attempted murder is not because of

changes to the law of murder made by Senate Bill No. 1437, but 

because he could not have been convicted of murder or attempted 

murder under the law in effect before or after the enactment of 

Senate Bill No. 1437. Section 1172.6, however, is not a vehicle 

for relitigating issues unaffected by the recent changes in the 

law of murder. (See People v. Strong (2022) 13 Cal.5th 698, 715; 

People v. Allison (2020) 55 Cal.App.5th 449, 461, disapproved on 

another point in Strong, supra, at p. 718, fn. 3.)
12

DISPOSITION

The order denying Grigoryan’s petition for resentencing 

is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.