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Filed 9/21/15 P. v. Baghumyan CA1/1 R eceived 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.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,

v. ARMEN BAGHUMYAN, Defendant and Appellant. A141245

(San Francisco City & County Super. Ct. No. CT13023829)

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 recei pt 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:2 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 follo ws: 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 mistri al.

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 are3

ordered corrected to show dismissal of count 1” are deleted. The paragraph should
newly read as follows:

The matter is remand ed 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.1

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,

v. ARMEN BAGHUMYAN, Defendant and Appellant. A141245

(San Francisco City & County Super. Ct. No. 220864 )

Defendant Armen Baghumyan ap peal s 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 misd eme anor 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

raise s no issues and ask s this c ourt 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) 2 5 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 sente ncing 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.2

determined the matt er must be remanded for imposition of fines and fees, but otherwise

affirm.

B ACKGROUND On August 26, 2013, the San Francisco District Attorney filed a domestic violence felony complai nt, alleging three counts (one felony and two misdemeanors)

. A prelimin ary hearing was held on September 6, and defendant was held to answer on the felony charge. On September 12, the district a ttorney filed a five

- count information, charging defendant with stalking, criminal threats, two counts of misdemeanor battery

and te lephonic 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 an d specific threat. The d istrict a t torney 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

d uring 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 wi th defenda nt in

June 2013. Defendant’s telephone calls and abusive messages continued, and between
June 19 and August 22, he left many pro fane and abusive messages. In August, his messages became threatening

. At that poi nt, she called the police.

D ISCUSSION

Defendant w as 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 d efendant’s belated request that the jury be instruc ted 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 declar ation of a mistrial and sub sequent dismissal of3

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 , an d in the court minutes and c ommitment

. 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

c ommitment, in turn, indicate a finding a guilty ( “G” ) on both count s 1 and 5

. However,
as stated above, a mis trial was declared as to count 1 , and it was subsequently dismissed

. Defendant was found guilty only of count 5 , misdemeanor telephonic harassment

. T he reporter’s transcript also indicates the court, itself, did not actually impose an y 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.A pp.4 th 380, 385.) We further order that the cler k’s

minut es of February 7, 2014 and the c ommitment be corrected to show dismissal of count

one.

D ISPOSITION

The matter is remanded for the imposition of fees and fines, and the clerk’s

minut es of February 7, 2014, and the c ommitment are ordered correcte d to show

dismissal of count 1 . In all other respects, the judgment is affirmed.4 _________________________ Banke, J.

We concur:

_________________________ Humes, P. J.

_________________________ Margulies , J.