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Filed 5/2/16 P. v. Bernik CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----



THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREY BERNIK,
Defendant and Appellant.


C071777
(Super. Ct. No. 09F01612)



Defendant Andrey Bernik contends his second degree murder conviction cannot stand because: (1) his counsel rendered ineffective assistance by not moving to exclude a recording of an incriminating conversation; (2) the prosecution’s delay in filing charges denied him his rights to a speedy trial and due process; (3) the trial court improperly denied his motion for new trial made on the grounds of newly discovered evidence and jury tampering; (4) the court erred in denying his pinpoint instruction on transferred intent; and (5) insufficient evidence supports the conviction. We disagree with each of defendant’s contentions and affirm the judgment.

FACTS


Stephan Bernik owned a landscaping business. He negotiated to sell the business to Valeriy Pishtoy and accepted a deposit from him. The two could not reach agreement, however, and Pishtoy asked for his deposit back. They both agreed to meet in a supermarket parking lot to discuss the issue.

At the appointed hour, each party arrived, accompanied by friends. Bernik arrived in a Mazda truck that was pulling a trailer. Yury Dovgan was with him. Alex Chekayda and Roman Mysin arrived in a Lexus. They came at Dovgan’s request. Defendant, who is Stephan Bernik’s son and Dovgan’s friend, arrived in a Nissan Titan pickup truck along with his two brothers.

Dovgan had originally ridden with defendant in the Titan, but prior to arriving at the supermarket, the Mazda and the Titan stopped, and Dovgan got out. He walked over to the Mazda, walked back, and put a gun next to the seatbelt buckle in the Titan. He then returned to the Mazda and rode with Bernik to the supermarket.

Accompanying Pishtoy were Hariton Prutyanu, his son Aleksandr Prutyanu, and Yevgeniy Yakimov. Hariton arrived in his own car, and Yakimov and Aleksandr came in Aleksandr’s car.

Pishtoy and Bernik started talking. Pishtoy heard Bernik say to another man, “Andrey, leave the gun.” Someone from behind Pishtoy put a rope around his throat and started to hit him, while Bernik hit him from the front. A violent fight broke out, and Pishtoy was seriously injured. One of his sons took him away.

After the fight, the parties began fleeing the parking lot. Bernik drove out of the parking lot in his Mazda truck and trailer. As he did, Aleksandr’s friend Yakimov jumped onto the trailer. The Nissan Titan rolled by Aleksandr, and as it did, someone from inside the truck pointed a gun at him. Then it left the lot.

Defendant’s friend Dovgan jumped into the Lexus with Chekayda and Mysin, and they left to follow Bernik’s Mazda and the Titan. Hariton and Aleksandr Prutyanu left in Hariton’s car and they, too, tried to follow the Mazda.

As Bernik drove the Mazda, Yakimov moved from the trailer to the Mazda’s bed. Bernik swerved the truck back and forth while Yakimov used a knife to break the rear window. With the truck moving, Bernik opened the driver’s side door, jumped out, and ran away. Yakimov also jumped out of the truck, threw his knife in some bushes, and ran back to where his pickup was parked.

The driverless Mazda crashed into a fire hydrant. Two witnesses stopped at the accident scene and one pulled the keys out of the Mazda’s ignition. The Lexus pulled up to the scene, and Dovgan exited the Lexus. Carrying a crow bar, he ran up to the Mazda, angry and yelling. One of the witnesses calmed him down. Meanwhile, the Titan pulled up across the street, and a gunshot from inside the Titan hit and killed Dovgan. The Titan immediately left the scene.

Later, the victim’s father, Vasily Dovgan, recorded a conversation he had with defendant. In the conversation, defendant admitted he killed his friend, Vasily’s son. The recording was played to the jury and a translated transcript was admitted into evidence by stipulation of the parties. In the conversation, defendant stated that at the time of the accident, he thought his father had been injured or killed while driving the Mazda and had fallen over out of sight. He claimed that when he arrived at the scene, there were men with daggers running around, so he started shooting. He did not aim at anyone but thought, “Whoever I hit, I hit.” However, he stated that as the Titan pulled away, he thought he had “finished” the person he shot. He later learned he had killed “the wrong person.”

Defendant testified at trial. He claimed that after the parking lot fight, he and his two brothers drove off in the Titan. Before leaving the lot, he noticed some men on the other side of the fight were armed with weapons; one had a knife. These men tried to block the Titan, so he brandished his gun to scare them. He saw the man with the knife jump onto the Mazda’s trailer and make his way to the truck’s bed. The man started hitting the truck’s window with the knife. The Mazda and the Titan took different routes out of the parking lot, but both ended up on the same street, with the Mazda behind the Titan. Defendant saw the Mazda swerving back and forth behind him, and his brother, who was driving the Titan, made a u-turn to go help their father. The Mazda almost hit them, and then it crashed. Defendant could not see his father, so he thought his father had been stabbed and was slumped over in his seat.

The Titan made another u-turn and headed back to the crash site. Defendant saw someone by the Mazda who he thought was the man who had been in the back of the Mazda attempting to break its window, along with some people he thought were the man’s friends. He shot one time from the Titan to scare them away, and he saw someone fall. He asserted he just shot toward the Mazda and did not aim at anyone. After firing the shot, the Titan immediately sped off. Defendant also did not call the police. Defendant believed the person he shot was the person who had been in the back of the Mazda, whom he thought was Yakimov. He later learned he shot Dovgan.

A jury convicted defendant of second degree murder. (Pen. Code, §§ 187, subd. (a), 189.)1 It also found that defendant intentionally and personally used a firearm to commit the crime, resulting in death. (§ 12022.53, subds. (b), (c), and (d).) The trial court sentenced defendant to a total prison term of 45 years to life; 20 years to life for the murder conviction, plus a consecutive 25 years to life for the firearm enhancement.

DISCUSSION

I




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