United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, District Judge.
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on August 14, 2009 in the Sacramento Superior Court on charges of conspiracy to commit murder and murder while armed with a firearm, with the special circumstances that the murder was intentional and carried out for financial gain and that petitioner and his co-defendants intentionally killed the victim while lying in wait. Petitioner seeks federal habeas relief on the grounds that his trial counsel rendered ineffective assistance and the trial court violated his right to due process in failing to instruct the jury on imperfect self-defense and imperfect defense of others. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
I. Background/Prior Proceedings
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
Norik Abramyan (Norik) was shot and killed by two assailants as he sat in his car in the parking lot of a Hollywood Video store. The two assailants, defendant Arthur James Battle III and Jason Dillingham, the latter not involved in this proceeding, were hired by defendant Isaiah Dupree Barron, who was hired by Norik's son, defendant Vardan Abramyan (Abramyan), to commit the murder. Convicted by separate juries of conspiracy to commit murder and murder with special circumstances, the three defendants appeal. We consolidated the appeals for argument and decision only.
As to each defendant, we strike the parole revocation fine imposed and suspended pursuant to Penal Code section 1202.45. Imposition of the fines was improper because each defendant was sentenced to an indeterminate term of life without parole.
Except for their contentions concerning the parole revocation fines, the defendants' contentions on appeal reveal no prejudicial error. We therefore modify each judgment and affirm.
Abramyan approached Barron, an acquaintance, about killing Norik. He agreed to pay Barron $4, 000 for the killing and, a few days before the killing, gave Barron $200. The evening before the killing, Abramyan gave Barron an additional $1, 800. Abramyan asked Barron if Barron was going to commit the killing alone, and Barron replied, "Don't worry about it."
Barron recruited Battle and Dillingham to assist him in killing Norik. He offered, and eventually paid, each of them $500.
On July 30, 2006, Lawrence Stringer accompanied Barron, Battle, and Dillingham to a liquor store. Barron told Stringer that they were going to kill someone for money. Stringer said that he did not want to be involved. Barron, Battle, and Dillingham each had a handgun.
The car, carrying Barron, Battle, Dillingham, and Stringer, stopped at an apartment complex. All but Stringer left the car and walked into the complex where they met with Abramyan. A short time later, Barron, Battle, and Dillingham returned to the car. Norik drove up and walked into the complex. Barron, Battle, and Dillingham followed on foot, but they soon came running back to the car and said that they had not shot Norik because there were other people around.
Abramyan called Barron by cell phone, and they agreed to meet at the Hollywood Video store where Abramyan would bring Norik. Barron, Battle, Dillingham, and Stringer drove to the Hollywood Video store and parked behind the store. Barron, Battle, and Dillingham agreed that Battle and Dillingham would do the shooting and Barron would be the driver.
Abramyan and Norik arrived at Hollywood Video in a white Kia and went into the store. After a while, they returned to the car, but Abramyan told Norik that he had to go back into the store to use the restroom. Abramyan again returned to the car but went back into the store, telling Norik he left his cell phone in the restroom.
Meanwhile, Battle and Dillingham walked around to the front of the store, while Barron and Stringer waited in the car behind the store. After waiting for a while, Barron drove around to the front of the store. He spoke to Battle and Dillingham, who were smoking cigars, and encouraged them to shoot Norik. Barron then drove back behind the store to wait. After a few more minutes, Barron told Stringer to go get Battle and Dillingham because, in Stringer's words, "they weren't going to do it." Stringer got out of the car, but before he could walk around the car he heard gunshots.
Battle and Dillingham had waited in the parking lot for a total of about 30 minutes, anxious and pacing, with gloves on and bandanas around their necks. When Norik was alone in the car, Battle and Dillingham put the bandanas up over the lower part of their faces, drew handguns, and ran toward the car, with Dillingham ahead of Battle. They stopped next to the car, on the driver's side, and shot at Norik. Battle and Dillingham then returned to the car driven by Barron, and they sped away.
Norik died at the scene.
After the murder, Abramyan arranged to have the last $2, 000 delivered to Barron.
The district attorney filed an amended information charging Battle, Barron, and Abramyan with conspiracy to commit murder (count one; Pen. Code, §§ 182, subd. (a)(1); 187, subd. (a)); and murder with financial-gain and lying-in-wait special circumstances (count two; Pen. Code, §§ 187, subd. (a); 190.2 subd. (a)(1) & (15)). As to each count, it was further alleged that Battle personally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)) and Barron and Abramyan were involved in an offense in which a principal was armed (Pen. Code, § 12022, subd. (a)(1)).
Battle, Barron, and Abramyan were tried jointly, but each had a separate jury. The juries found each defendant guilty on both counts and found all enhancement and special circumstance allegations true.
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The trial court sentenced Abramyan to life without possibility of parole on count two, with an additional year for the arming of a principal. On count one, the court imposed an indeterminate term of 25 years to life, with an additional year for the arming of a principal. The sentence on count one was stayed pursuant to Penal Code section 654.
People v. Battle , 198 Cal.App.4th 50, 56-58 (2011).
Petitioner testified at his trial. Among other things, he explained the physical and verbal abuse suffered by him and his family members at the hands of his father, victim Norik Abramyan. Petitioner's trial counsel also called an expert witness to testify regarding the impact of this abuse on petitioner. The California Court of Appeal summarized this testimony as follows:
Abramyan testified on his own behalf and produced the testimony of his sisters and his mother concerning Norik's long-term abuse of the family members. He also had an expert testify concerning the effect of such long-term abuse on Abramyan.
Abramyan's mother, Siran, married Norik in an arranged marriage in Armenia. They came to the United States in 1990.
Abramyan was born in 1987, and was 19 years old when Norik was killed. He has three sisters, Anna (born in 1985), Ani (born in 1989), and Alina (born 1991).
We need not recount in detail Norik's abuse of his wife, daughters, and Abramyan, as reflected in the testimony of Abramyan, his mother, and his sisters. At the same time, we do not mean to minimize the extent of the abuse.
Norik was strict and domineering from the beginning of his marriage to Siran. He treated her like a slave. He beat her daily for anything and nothing at all and threatened to kill her. He treated the children the same way and sought to control them financially, even after they moved away and got their own jobs. The mental, physical, and emotional abuse caused Abramyan to feel hopeless, worthless, and, at times, suicidal.
A couple days before the killing, Norik became enraged at 15-year-old Alina over a trivial matter. He kicked her repeatedly, then grabbed her by the hair and hit her. Abramyan and Anna tried to stop the beating, but Norik turned on them. Norik hit Abramyan, who fell to the floor and lost consciousness for a few seconds. After this, Abramyan wanted Norik "gone."
Abramyan offered expert testimony on intimate partner battering. Questioned concerning the effects of violence and victimization on a child, the expert testified: "They can be many. Mostly what we see are children who experience effects of trauma. So, we often see children who are anxious, have nightmares, feel hyper-vigilant about - which means that they're constantly scanning their environment for danger, because some of that's real, some of that's perceived. [¶] So we have children who grow up knowing - knowing that there's violence in their lives and anticipating future violence which effects [sic] their perceptions of the world and their safety in the world." The expert stated that a person who had been abused and had witnessed abuse would "develop [ ] a sense of what's escalating danger in his family because he's experienced, he's seen it. [¶] And so his perception of dangerousness would be lightened by his own experience. And if ...