People v. Isayev
| Decision Date | 19 July 2011 |
| Docket Number | C055417 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MAKSIM YURYEVECH ISAYEV et al., Defendants and Appellants. |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Maksim Yuryevech Isayev, Gennadiy Sevchuk, and Mariya Stepanov were convicted by separate juries of murdering Dmitriy Paskar, a young man who slept with Stepanov and then bragged about it. Defendant Isayev admitted shooting the victim, but asserted he did so out of heat of passion or provocation and was therefore guilty only of voluntary manslaughter. Defendant Stepanov claimed that she never intended Isayev to kill the victim but simply wanted the victim to apologize and be punished. Defendant Sevchuk asserted thatalthough he was at the scene of the murder, he was drunk and uninvolved in any plan to kill the victim.
The juries rejected defendants' claims. One jury convicted defendant Isayev of first degree murder (Pen. Code, § 187, subd. (a); unspecified statutory references that follow are to the Penal Code) and found that Isayev personally used and discharged a shotgun in the commission of this offense (§ 12022.53, subd. (d)). The jury also found true the special circumstance that Isayev killed the victim while lying in wait. The court sentenced defendant to life without possibility of parole, plus 25 years to life for the firearm enhancement.
The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found that they were vicariously armed with a shotgun. Stepanov's jury found untrue a special circumstance alleging that she intended that the victim be killed and that the murder occurred by means of lying in wait. The court sentenced both Stepanov and Sevchuk to prison for terms of 15 years to life, plus an additional year for the weapons enhancement.
All three defendants appeal, asserting numerous reversible errors occurred over the course of their trials. We strike one fine imposed on defendant Isayev and otherwise affirm the judgment.
We discuss most of the relevant facts in the context of the issues raised, but provide this brief summary of the underlying background.
The events surrounding this murder began when the victim slept with defendant Stepanov and then bragged about it. Stepanov was very upset and told defendant Isayev, her former boyfriend, what had happened. Isayev told his friend, defendant Sevchuk.
Defendant Sevchuk bought ammunition for Isayev's shotgun and loaded the gun. Isayev, Sevchuk and others drove to the victim's home, intending to shoot the victim when he came out of his house. However, when the victim made his appearance, he was accompanied by his girlfriend and the assault did not occur because defendants did not want any witnesses.
Isayev called Stepanov to report this kink in the plans, and told her to call the victim to make arrangements to meet him late that night at a park. Stepanov did so. When Isayev and Sevchuk drove up, Isayev saw the victim and Stepanov standing close to together; the victim reached for Stepanov and groped her. Isayev got out of the car, retrieved his loaded shotgun from the trunk, and approached the victim, asking Stepanov if this was "the guy." When Stepanov nodded, Isayev shot the victim twice and killed him.
As relevant to this appeal, the primary issues at trial were (1) whether the murder was premeditated or whether Isayevshot the victim out of heat of passion, and (2) whether Sevchuk and Stepanov were liable as aiders and abettors for a murder that was the natural and probable consequence of an intended assault.
Evidence established Isayev's reputation as a violent and jealous person. Defendants Sevchuk and Stepanov knew that Isayev had a gun and had previously been involved in shooting incidents arising from jealousy. Witnesses described hearing Isayev brag about the murder and make statements such as He told one witness that he had aimed for the victim's head and killed him to stop him from raping girls.
One of the prosecution witnesses was Mikalai Yarmaliuk, the person who first drove the car to the victim's house. Yarmaliuk described Sevchuk loading the shotgun, the plan to shoot the victim, the phone conversations between defendants Isayev and Stepanov, and Isayev's past violent conduct. Yarmaliuk had suffered head injuries in an earlier accident and defendants challenged his memory, emphasizing the inconsistencies in his testimony and his general credibility.
As noted, the juries convicted defendant Isayev of first degree murder and found a lying-in-wait special circumstance to be true. The other two juries convicted defendants Stepanov and Sevchuk of second degree murder and found the charged firearms enhancement to be true.
The three defendants appeal.
Witness Mikalai Yarmaliuk testified about defendants' involvement in the events leading up to the shooting of the victim. Yarmaliuk had suffered a head injury some years earlier when his car collided with a train, and he had some memory loss as a result. Defendant Stepanov sought to obtain Yarmaliuk's medical records, asserting that these documents "will reveal information pertinent to Yarmaliuk's memory and credibility."
The trial court released the only two pages of the medical records that it found relevant. One, a report dated September 5, 2003, described Yarmaliuk as having "short-term memory loss." The other, from May 19, 2004, indicated that Yarmaliuk was being treated for a "traumatic brain injury [with] mild cognitive impairment," and other problems.
The court ruled that defendants would be permitted to "fully cross-examine Mr. Yarmaliuk on those points" and counsel did so.
On appeal, defendants ask this court to review the sealed records and determine if additional medical records of Yarmaliuk should have been disclosed. The Attorney General has no objection to this review. We have examined the sealed medical records and conclude that the trial court's ruling was correct.There are no other relevant documents that should have been disclosed.
In a related argument, defendants challenge the timing of the court's ruling, asserting that the court erred in waiting to review the medical records until midtrial, when Yarmaliuk began to testify. Their argument is based on a belief that the records contained other information that should have been provided prior to trial to ensure adequate time to conduct additional investigation. Defendants' claim falters on its predicate: there was no other information that should have been provided. Our conclusion that the trial court gave counsel all of the relevant medical records obviates the need to discuss this matter further.
Defendants Isayev and Sevchuk raise two claims relating to a drive-by shooting at the home of Roman Kutsenko. At the time of this shooting, defendant Isayev was dating Nadia S., Kutsenko's former girlfriend. When Kutsenko continued to call and text Nadia, Isayev became jealous, and he threatened to shoot Kutsenko's house. The next day, someone in fact shot at the house and at a van parked outside.
Various witnesses, including Nadia and Mikalai Yarmaliuk, reported that the drive-by shooting was done by defendants Isayev and Sevchuk.
We turn to the two specific claims at issue in this appeal.
Defendants Isayev and Sevchuk contend that the trial court erred in permitting the prosecution to introduce evidence relating to the Kutsenko shooting.
As relevant to this appeal, the prosecution sought to introduce evidence relating to the Kutsenko shooting to prove defendants' intent, motive and knowledge. (Evid. Code, § 1101, subd. (a), (c).) Defendants opposed that motion, challenging the applicability of Evidence Code section 1101 and raising claims under Evidence Code section 352.
The trial court concluded that "the evidence of the Kutsenko drive-by shooting is relevant on the issue of Isayev's intent and motive. [¶] I have conducted [an Evidence Code section] 352 analysis and find admission of this evidence is not outweighed by undue consumption of time, substantial danger of undue prejudice, confusion of issues or misleading the jury.
The court also found the evidence admissible as to defendant Sevchuk, concluding that the "evidence is relevant, at a minimum, to show that knowledge of Isayev's intent when they went looking for Paskar [the victim of the charged offenses], that is, that Isayev meant to shoot Paskar.
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