Filed 7/9/21 P. v. Kalamkarian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

HAROUTIOUN KALAMKARIAN,

Defendant and Appellant.

B305996

Los Angeles County

Super. Ct. No. PA090643

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael Terrell, Judge. Affirmed.

Susan K. Shaler, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Stacy S. Schwartz and John Yang, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

A jury convicted defendant and appellant Haroutioun 

Kalamkarian of two counts of lewd act on a child under the age 

of 14. On appeal, Kalamkarian’s sole contention is the trial court 

violated his constitutional rights by declining to remove a juror 

and replace her with an alternate. We find no abuse of discretion 

and affirm.

FACTS AND PROCEDURAL BACKGROUND

1. Kalamkarian molests Vana B. for three months

As Kalamkarian does not challenge the sufficiency of the 

evidence, we summarize it briefly. In August 2014, Vana B. 

was 10 years old and in the fifth grade. Her brother Hovag was 

in the sixth grade. On August 14, 2014, Kalamkarian, who was 

“a family friend” of Vana’s father, began picking up Vana and 

Hovag from school.

Kalamkarian picked Vana up when she got out of school 

at 2:30 p.m. He took her to a lemon tree near Hovag’s school. 

(Hovag got out of school at 3:00 p.m.) One day that first week, 

Kalamkarian asked Vana “if [she] wanted to pick lemons for [her] 

grandma.” When Kalamkarian lifted Vana up to get lemons, 

he “scoop[ed]” her up from her bottom, put his whole left hand 

on her vagina, and “squeeze[ed]” and “massag[ed]” it. Vana felt 

“[v]ery uncomfortable.”

On another day, Kalamkarian leaned against the passenger 

side of his car, told Vana to stand in front of him, “pulled [her] 

in,” “put his hands on [her] butt” outside her clothes, and 

squeezed and massaged it with both hands.

Another time Kalamkarian made Vana lean up against 

him, put his hands on her breasts under her tank top, and 

cupped, massaged, squeezed, and “play[ed] with them.” While he 

did this, Vana “felt like a hard object where his penis would be”; 

he “was grinding it on [her] butt.” Vana was “very shocked and 

uncomfortable, but [she] was too afraid to say anything.”
3

On yet another date, when Vana refused to get out of the 

car to “pick lemons,” Kalamkarian got into the back seat, closed 

the door, sat “right next to [her],” “and put his hands skin-to-skin 

on [her] vagina.” He “open[ed] up the labia majora” and “fe[lt]

around.”

After the first week, Kalamkarian touched Vana “almost 

every day.” “It was continuous, and it really did not have a 

pattern.”

On October 13, 2014, Deborah Lee was driving down the 

street around 3:00 p.m. She saw a car “where [an] older man 

was leaning up against the back—with his back to the car with 

[a] little girl leaning up against him in front of him with his arms 

around her and his hands on her breasts.” Lee “didn’t feel right 

about it”—“[h]e was touching her in a place that seemed to [her] 

was wrong, and she looked a little scared.” Lee made a U-turn, 

parked, and got out. Lee told Kalamkarian “what he was doing 

to her . . . was not right” and she “was going to call the cops.”

Kalamkarian told Vana to get back in the car. He said, 

“ ‘Don’t mind her. People in America are just crazy. She’s a 

lunatic. Don’t tell anyone.’ ” Lee followed Kalamkarian’s car,

called 911, and gave the operator Kalamkarian’s license plate 

number.

About a month later, police came to Vana’s house. Vana 

“tried to sit [her] mom down and talk to her about it and then 

[she] just couldn’t bring [herself] to do it.” Vana told her mother

Kalamkarian touched her vagina when they were picking lemons. 

Vana’s mother wanted to make a police report but her father 

disagreed, saying Kalamkarian was a trusted friend.

In 2017 Vana started seeing a therapist because she was 

cutting herself. Vana told her therapist what Kalamkarian 

had done to her, and the therapist called the police. A detective 

came to talk to Vana, and she told him what had happened.
4

2. The trial and Juror No. 9

The People charged Kalamkarian with two counts of 

lewd act on a child in violation of Penal Code section 288, 

subdivision (a). The case went to trial in February 2020.

a. Voir dire

The trial court gave the prospective jurors questionnaires 

to complete and then questioned them, as did counsel. 

Kalamkarian’s appellate counsel moved to augment the record 

on appeal to include the jury questionnaires, but the superior 

court stated it could not find them. According to the reporter’s 

transcript, one of the questions on the questionnaire was, “Do 

you have any feelings about the particular charge, lewd act upon 

a child, against this defendant that would make it difficult for 

you to be a fair and impartial juror in this case?” A number of

prospective jurors told the court and counsel they, or someone 

close to them, had been the victim of child molestation. The 

court handled these colloquies in chambers.

The juror who eventually became Juror No. 9 was single 

with no children; she worked as a registered nurse. Juror No. 9 

said that, when she was about eight to 10 years old, her 

stepfather would come into the room she shared with her sister 

“and pull down our pants when we were sleeping.” Her sister 

told her “he would put her on his lap when he had a boner . . . .” 

The man remained in the household for “five plus years.” Juror 

No. 9 reported the behavior to her mom after she and the man 

divorced, but the police did not get involved.

The court told Juror No. 9, “Obviously, that’s not something 

you’ll ever forget for the rest of your life.” The juror answered, 

“Uh-huh.” The court continued, “The question for us, though, is 

not whether you can forget it, but if you can put it aside so when 

the evidence comes in in this case, you can make a decision based 

on the evidence presented in this case and not based on your own 
5

experience or your sister’s experience and the traumatic events 

that you’ve endured when you were children.” Juror No. 9 

responded, “I am – I am pretty sure I’m able to detach myself 

from that, from those experiences.”

Defense counsel then asked Juror No. 9 if she could “keep 

an open mind, listen to . . . the totality of the evidence and then 

be able to be fair and impartial and make a decision based on 

the credibility of the witnesses and the evidence that you . . . 

evaluated,” given the alleged victim was “around the same age.” 

Juror No. 9 again responded, “I am pretty sure I can detach 

myself and listen to the whole story.” Defense counsel followed 

up, noting the juror had said “pretty sure.” The juror then said, 

“Yes. Okay. Then let me rephrase it. I am and will be able to 

cut myself off from that trauma and be able to keep an open mind 

when it comes to this case.”

Defense counsel did not challenge Juror No. 9 for cause, 

nor did he exercise a peremptory challenge to remove her.1

b. Juror No. 9 sends a note to the judge

Vana was the first witness to testify. When the trial 

recessed for lunch, Juror No. 9 “left a note.” In chambers, 

the court showed the note to counsel and read it into the record. 

Juror No. 9 had written, “May I speak to the judge regarding 

being excused from this case? I honestly thought I could be 

impartial in this case and separate my past experiences, but 

what the witness stated[,] I remembered a lot about what I . . .

also experienced. The rubbing of the body on the pelvic area, 

being afraid, etc.”

1 Accordingly, appellate counsel’s musing that “it is 

surprising Juror No. 9 was seated after voir dire when she 

disclosed her personal history involving the same crime 

she would be asked to judge” is irrelevant.
6

Defense counsel recalled the in-chambers conversation with 

the juror during voir dire, and said, “Obviously, this has triggered 

something, and I – based on this note, I don’t think that she 

would be able to continue as a juror on this case.” The court 

replied, “[I]t seems a bit premature now. . . . [W]e can reexamine 

this at the end of the evidence . . . . What we need to know at 

the end of the day is whether she’s able to listen to everything 

and keep an open mind. She doesn’t know that right now.” After 

further discussion with counsel, the court stated, “She’s already 

on the jury. It seems to me that we could ask her that question

[—can she evaluate the case based on what’s presented in the 

courtroom without impact from her life experience—] after all 

the evidence is in . . . . So that’s my suggestion, which is not 

to definitively say she stays on the jury, but let’s make that call 

with more complete information at the end of the presentation 

of evidence.” Defense counsel said, “Okay. . . . All right. Thank 

you.”

Back in the courtroom, the court told the jurors, “Juror 

No. 9 . . . wrote a note to the court, which I discussed with both 

attorneys. We will revisit that issue once all the evidence is in. 

I need you to listen to all the evidence and then we’ll revisit 

that issue.”

At the conclusion of the evidence, the court spoke with 

Juror No. 9 in chambers, with counsel present. The court asked, 

“The concerns you expressed in the note, do you have those 

concerns still?” Juror No. 9 responded, “I did not expect the first 

witness to be so emotionally charged.” The court interrupted to 

caution the juror not to discuss the strength of the evidence or 

her opinions about the credibility of any witness. The court said, 

“I just want to know whether your concerns about being able 

to serve . . . are still there or whether you feel that . . . now that
7

you’ve heard all the evidence, that you can continue your 

service?”

Juror No. 9 responded, “Hearing the rest of the evidence, 

I don’t think my concerns are still there.” The court asked, “Do 

you think you can be fair, you can be impartial?” The juror said, 

“Hold on. Let me think about it.” The court continued, “Let 

me ask it another way. Do you think you can judge this case 

based only on the evidence that was presented in the courtroom?” 

Juror No. 9 answered, “Hearing all the evidence, I believe I can.”

The court then said, “As I said during the jury deliberation 

[sic] process, that’s what the court requires of all jurors, that they 

make a decision only on the evidence and only after considering 

all of the evidence and deciding whatever credibility decision 

you’re going to make based on the totality of the evidence. Are 

you confident you can do that?” Juror No. 9 answered, “Sorry. 

I’m just – yes.”

Defense counsel then asked the juror, “Despite your own 

personal feelings, do you think you can remain fair and impartial 

in this case?” Juror No. 9 responded, “I think I can, but I can 

see --.” Defense counsel interrupted: “I sense that there are 

some doubts so --.” The court said, “That’s all you need to say.” 

The juror said, “Okay.”

The prosecutor asked Juror No. 9, “Bottom line, you can 

base your decision on the evidence in this case?” The juror asked, 

“Solely on the evidence?” The prosecutor said, “Yes.” Juror No. 9 

answered, “Yes.”

After the juror left the chambers, defense counsel asked 

the court to replace her. Counsel said,

“As the court observed, she took some time 

to respond to the questions, and part of that is 

she’s trying to stay within the boundaries that 

Your Honor had given her, and I understand 
8

that. But her responses were ‘I think I can,’ did 

not give the notion that ‘yes, I can.’ She was 

hesitant. She was concerned. So on that basis, 

I would ask that she be replaced . . . .”

The prosecutor disagreed.

The court stated, “I did not sense any ambiguity. She was 

clear she can do this based on the evidence and do it fairly, do it 

impartially. So I’m going to deny the defense request that she 

be excused for cause.”

c. The verdicts and sentence

The jury convicted Kalamkarian on both counts. The court 

sentenced him to 10 years in the state prison, choosing the upper 

term of eight years on count 1 and one-third the midterm of two 

years on count 2.

DISCUSSION

Kalamkarian’s sole contention on appeal is that the 

trial court violated his constitutional rights by declining to 

remove Juror No. 9. Kalamkarian asserts that, in light of what 

happened with her stepfather when she was a child, “Juror No. 9, 

at some level, inevitably would want to punish Kalamkarian 

despite her assurances to the trial court she would decide 

the case based on the evidence.”

Penal Code section 1089 (section 1089) authorizes the trial 

court to discharge a juror at any time before or after the final 

submission of the case to the jury if, upon good cause, the juror 

is found to be unable to perform his or her duty. A trial court has 

broad discretion to investigate and remove a juror in the midst 

of trial where it finds that, for any reason, the juror is no longer 

able or qualified to serve. (People v. Bennett (2009) 45 Cal.4th

577, 621 (Bennett); People v. Millwee (1998) 18 Cal.4th 96, 142,

fn. 19.) 
9

The ultimate decision whether to retain or discharge 

a juror rests in the sound discretion of the trial court. (People 

v. Sattiewhite (2014) 59 Cal.4th 446, 486 (Sattiewhite).) We 

review a trial court’s determination of whether a juror should be 

discharged for good cause under an abuse of discretion standard. 

(People v. Beeler (1995) 9 Cal.4th 953, 989 (Beeler); Bennett, 

supra, 45 Cal.4th at p. 621.) If any substantial evidence exists 

to support the trial court’s exercise of its discretion under 

section 1089, the court’s action will be upheld on appeal. 

(Sattiewhite, at p. 486.)

“Before an appellate court will find error in failing to 

excuse a seated juror, the juror’s inability to perform a juror’s 

functions must be shown by the record to be a ‘demonstrable 

reality.’ The court will not presume bias, and will uphold the 

trial court’s exercise of discretion on whether a seated juror 

should be discharged for good cause under section 1089 if 

supported by substantial evidence.” (People v. Holt (1997) 

15 Cal.4th 619, 659. See also Sattiewhite, supra, 59 Cal.4th

at p. 486; Bennett, supra, 45 Cal.4th at p. 621; People v. Lucas

(1995) 12 Cal.4th 415, 489.) We defer to the trial court’s 

credibility assessments, based, as they are, on firsthand 

observations unavailable to us on appeal. (People v. Williams

(2015) 61 Cal.4th 1244, 1262; Beeler, supra, 9 Cal.4th at p. 989

[trial court was in best position to observe juror’s demeanor].)

Here, during voir dire, Juror No. 9 told the judge and the 

attorneys about her experience with her stepfather.2 Juror No. 9 

2 Kalamkarian’s reliance on People v. Diaz (1984) 152 

Cal.App.3d 926 is misplaced. There, a juror concealed during 

voir dire that she had been the victim of a crime similar to 

that charged against the defendant. The court discussed the 

presumption of prejudice arising from juror misconduct. (Id. 

at p. 930.) Here, by contrast, Juror No. 9 did not conceal—but 
10

stated she could “cut [her]self off from that trauma and be able to 

keep an open mind when it comes to this case.” After hearing the 

first part of Vana’s testimony,3 Juror No. 9 wrote the court a note 

just before the lunch break. The court’s “suggestion” to counsel 

was they hold further investigation of the issue until the evidence 

was in, when the court and counsel would have “more complete 

information.”

When both sides were about to rest, the judge again 

brought Juror No. 9 into chambers. By then, the jury had 

heard the direct and cross-examination of Vana, as well as

the testimony of Deborah Lee (who had driven by and seen

Kalamkarian touching Vana’s breasts) and Joyce Medley, 

an expert in Child Sexual Abuse Accommodation Syndrome. 

The jury also heard testimony from defense witnesses: 

Kalamkarian’s son Raffi and Raffi’s wife Talin Jorian.

Juror No. 9 said she had not “expect[ed] the first witness 

[Vana] to be so emotionally charged.” Vana was 15 at the time of 

trial. She described Kalamkarian’s actions in her testimony and 

also demonstrated what he had done to her using a mannequin. 

At one point, describing how Kalamkarian had cupped and 

squeezed her breasts, Vana began to cry. Later in her testimony, 

describing how her father refused to make a police report and 

she felt “alone in the situation,” Vana began to cry again.

rather readily disclosed—her experience with her stepfather 

as a child. Juror No. 9 did not engage in any misconduct.

3 Trial began that morning at 10:11 a.m. The court gave 

the jury the introductory instructions and counsel presented 

opening statements. Of the 77 pages of reporter’s transcript that 

morning, about 65 percent (50 pages) are of Vana’s testimony. 

Accordingly, the jury heard from her for about an hour and 

10 minutes before breaking for lunch.
11

This testimony undoubtedly was emotional and perhaps 

difficult for the jurors to hear. There is no indication Vana 

became tearful again on cross-examination, redirect, or recross. 

Kalamkarian’s son then told the jury he was a “very good, loving, 

caring husband, father, and grandfather” who “[a]bsolutely 

[could] not” “do the things that they are saying he did.” 

Kalamkarian’s daughter-in-law testified he was “a very caring, 

very welcoming, very warm person” and she had no hesitation 

in leaving her young daughter in his care.

Having heard all the evidence, Juror No. 9 told the judge 

and counsel she “[didn’t] think [her] concerns”—expressed in 

her note—“[were] still there.” In response to the court’s question, 

“Do you think you can judge this case based only on the evidence 

that was presented in the courtroom?” the juror answered, 

“Hearing all the evidence, I believe I can.”

Kalamkarian asserts “[t]he trial court . . . precluded 

defense counsel from obtaining an explanation from Juror No[.] 9

about her continuing hesitation over whether she could be 

impartial.” Assuming for argument’s sake that counsel have a 

right to question a seated juror after voir dire is over and before 

deliberations begin,4 it was defense counsel who interrupted 

Juror No. 9 before she could complete her answer. Counsel 

asked, “Despite your own personal feelings, do you think you 

can remain fair and impartial in this case?” Juror No. 9 began 

to answer: “I think I can, but I can see --.” Counsel interrupted: 

“I sense that there are some doubts so --.” At that juncture, the 

court told Juror No. 9, “That’s all you need to say.” In response 

4 Cf. People v. Cleveland (2001) 25 Cal.4th 466, 485 

[permitting attorneys for the parties to question deliberating 

jurors is fraught with peril and generally should not be 

permitted; court may allow counsel to suggest areas of inquiry 

or specific questions to be posed by the court].
12

to the prosecutor’s questions, Juror No. 9 confirmed she could 

base her decision solely on the evidence.

As our Supreme Court has stated, the trial court is in the 

best position to assess the demeanor and believability of jurors. 

(Beeler, supra, 9 Cal.4th at p. 989; People v. Turner (1994) 8 

Cal.4th 137, 205.) The trial judge watched and listened to Juror 

No. 9 when she said, “Hold on. Let me think about it.” He was 

in the best position to determine whether Juror No. 9 truly was 

hesitant about her ability to be impartial, or whether she was 

simply thinking carefully about her feelings and views before 

confirming that she could judge Kalamkarian’s case based solely 

on the evidence and not on her experience as a child. The court 

told counsel, “I did not sense any ambiguity.” The record reflects 

that the court was persuaded the juror could perform her duties. 

(Bennett, supra, 45 Cal.4th at p. 621.) We see no abuse of 

discretion.
13

DISPOSITION

We affirm Haroutioun Kalamkarian’s judgment of 

conviction.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

KALRA, J.

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.