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People v. Petoyan

California Court of Appeals, Second District, Third Division
Jul 21, 2008
No. B196141 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA260938, Lance A. Ito, Judge.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.


ALDRICH, J.

INTRODUCTION

Defendant was tried three times for the attempted murders of two victims, assault with a firearm, and being a felon in possession of a firearm. The first jury deadlocked. The second jury found defendant guilty of all counts, but the trial court granted a new trial motion. The third jury convicted defendant of all counts, and this appeal followed. Defendant now contends, first, that the prosecutor committed prejudicial misconduct by referring to the outcomes in the first two trials and by implying that evidence had been fabricated. Second, defendant contends that the trial court erred by allowing the prosecutor to amend the information on the eve of trial to allege a gang allegation, which, he further contends, should have been bifurcated for trial and of which there was insufficient evidence. Defendant argues that reversal is required as a result of these cumulative errors. Finally, defendant raises various sentencing errors. We agree that there were errors in defendant’s sentence, but we disagree with defendant’s other contentions. We therefore modify the judgment to correct the sentencing errors, but we otherwise affirm it.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The shooting at Little Paris.

On February 13, 2004, defendant and some of his friends, including Serene Santelmann, rented a room at a Days Inn in a part of Hollywood known as Little Armenia. Defendant did not stay the night at the motel, but he returned the next morning, February 14, in a white sports utility vehicle (SUV). Victoria Tifekchian had rented a white Infiniti SUV with the license plate No. 5DOJ471 that morning. When Tifekchian returned home with the SUV, Narine Markosyan, to whom Tifekchian had been introduced by defendant, took the SUV.

That same day, February 14, 2004, around 4:00 p.m., two men, Karen Hovhannisyan and David Vardanyan, drove to Little Paris, a store across the street from the Days Inn. As Hovhannisyan entered the store’s parking lot, women in a car were exiting. He motioned to them to back up so he could enter the lot. The women said something rude to Hovhannisyan in Armenian as they exited the lot.

Hovhannisyan parked. An Armenian man was standing there, and another man was nearby. The Armenian man asked Hovhannisyan what he said to the women. Hovhannisyan said he had asked the women something. The man replied that his sister was one of the women, and he asked, “ ‘Do you know who I am?’ ” He also asked for Hovhannisyan’s phone number, which Hovhannisyan refused to give. The man shot Hovhannisyan in his neck and knee. Vardanyan was standing next to Hovhannisyan, but Vardanyan was uninjured.

Lisa Hadsell was at a stop sign near Little Paris. She saw three men and a woman fighting in Little Paris’s parking lot, and she heard gunshots. The shooter left in a white SUV. Sarah Happel was also in her car at a stop sign. She saw approximately five men fighting. She also saw the shooter get into a white car having a license plate No. 5DOJ471.

Meanwhile, Santelmann, who had gone shopping, returned to the Days Inn. Soon after arriving, she heard a popping noise and then sirens. Defendant arrived and told Santelmann they were leaving. Defendant did not seem rushed, and he conversed normally with Santelmann. Defendant gave the keys to a white SUV to Santelmann and told her to drive the car. Santelmann did not want to drive the SUV because it was a rental car, and therefore she had a friend pick her up. Defendant left the motel in a black car.

Santelmann followed defendant, and she later gave the keys to the SUV back to him. Santelmann and defendant went to Narine Markosyan’s house. Later during the evening of February 14, 2004, Markosyan was stopped and arrested while driving the SUV. Defendant was not with Markosyan.

Defendant told his friend, Ambartsum Moskovian, that there had been an argument at Little Paris and, in Moskovian’s words, “then [defendant] did it.” Moskovian later said that defendant denied shooting anyone.

The gun used in the shooting was never recovered, and none of the fingerprints lifted from either the SUV or shell casings found at the crime scene matched defendant’s fingerprints.

B. Witness identifications.

Officer Jerry Rodelo showed photographic six-packs to Vardanyan on February 19, 2004. Vardanyan told him three people looked similar to the shooter, but the officer told Vardanyan to pick the man who looked the most similar. Vardanyan picked defendant.

Vardanyan testified at all three trials that defendant was not the shooter.

Also on February 19, 2004, Hovhannisyan identified defendant as the shooter from a photographic six-pack. The detective who showed Hovhannisyan the six-pack described Hovhannisyan as “adamant” about his identification.

Hovhannisyan also said at trial that defendant was not the shooter.

Hadsell identified Markosyan as the woman with the shooter. She did not identify defendant in a photographic line-up. At a live line-up she identified one man as the shooter, although she noted differences in his appearance. She also told a detective that defendant looked similar to the shooter.

Gang evidence was admitted, but we discuss it post.

II. Procedural background.

An information charged defendant with counts 1 and 3, the attempted murders of Karen Hovhannisyan and David Vardanyan (Pen. Code, §§ 187, 664); with counts 2 and 4 for assault with a semiautomatic firearm (§ 245, subd. (b)); and with count 5 for possession of a firearm by a felon (§ 12021, subd. (a)(1)).

All further undesignated statutory references are to the Penal Code.

Defendant was tried three times for these offenses. The first trial commenced in August 2004 and ended on August 17 when the jury deadlocked 11-to-1 in favor of guilt. The trial court declared a mistrial.

The second trial commenced in November 2004, and ended on November 18 with guilty verdicts on all five counts. The trial court, however, granted defendant’s motion for a new trial based on witnesses who came forward after the second trial.

The third trial commenced in September 2006. On September 25, the jury found defendant guilty of all five counts. The jury found true, as to count 1, a firearm use enhancement allegation under section 12022.53, subdivisions (c) and (d), but only under subdivision (c) as to count 3. As to counts 2 and 4, the jury found true firearm use enhancement allegations under section 12022.5, subdivision (a). The jury found true gang enhancement allegations as to all counts under section 186.22, subdivision (b)(1).

On December 20, 2006, the trial court sentenced defendant to two consecutive life terms on counts 1 and 3 for attempted murder. The court ordered defendant to serve a minimum of 15 years on each of those counts, for a total of 30 years, under section 186.22, subdivision (b)(5), before becoming eligible for parole. The court imposed an additional 25-year term under section 12022.53, subdivision (d) on count 1 and an additional 20-year term under section 12022.53, subdivision (c) on count 3. The court sentenced defendant to the high term of three years on count 5, plus a consecutive three years under section 186.22, subdivision (b)(1). All other sentences were imposed and stayed.

DISCUSSION

I. Prosecutorial misconduct.

Defendant contends that the prosecutor committed prejudicial misconduct in two ways: (a) She improperly elicited testimony regarding the outcome in the prior two trials in violation of defendant’s federal and state constitutional rights to due process and trial by jury. (b) The prosecutor suggested that witnesses fabricated evidence, although there was no evidence of fabrication.

A. Testimony about the outcomes in the prior trials.

1. Additional facts.

In May 2005, after the second trial, defendant’s father placed an ad in a newspaper and posted flyers asking witnesses to the shooting to come forward. Defendant’s father also found a photograph of defendant with a friend, Mike Panysyan. Four witnesses came forward and said defendant was not the shooter. All four witnesses identified Panysyan as the shooter or said he looked similar to the shooter.

Three of the witnesses testified at trial, but the fourth was unavailable and her prior testimony was read into the record.

Before trial, the prosecutor asked to examine defendant’s father, Vardan Petoyan, and cousin, Grigor Petoyan, about statements defendant made identifying Panysyan as the shooter and explaining that he did not come forward sooner with the exculpatory evidence because he did not think he would be found guilty. She argued that the timing of defendant’s statements—after the second trial—showed “a motive of fabricating . . . [and] desperation.” Defense counsel responded that the prosecutor improperly wanted the jury hear that the first jury ended in an 11-to-1 deadlock in favor of guilt. The prosecutor added that defendant’s explanation why he did not come forward with the exculpatory evidence sooner—he did not think he was going to be found guilty—was undermined by the result in the first trial; in other words, defendant should have been on notice after that first trial that he might be found guilty.

The trial court said defendant’s statement why he waited to come forward with the evidence qualified as an admission, and overruled defendant’s objection on that ground, but “[t]he [Evidence Code section] 1101 part of it I will probably sustain a 352 objection.” To resolve the dispute, the prosecutor proposed a stipulation: “ ‘On August 4, 2004, a jury trial commenced in this case which resulted in a hung jury.’ . . . ‘The defendant was put on notice at that time that likelihood of conviction as to the charges are great[.]’ . . . [¶] ‘On November 4th, a second jury trial commenced in this case. The jury returned a verdict of guilty[.]’ . . . ‘A new trial was granted in this case on newly discovered defense witnesses.’ ” Defense counsel objected to the statement that defendant was on notice that the likelihood of conviction was great.

The prosecutor said that if the defense would not agree to the stipulation, then she would ask permission to go into the fact the vote was 11-to-1 after the first trial. “Although it’s prejudicial, it’s very probative in this case because it cuts to the defense theory.” The prosecutor asked whether she would be allowed to cross-examine defendant’s father and brother about the 11-to-1 vote. The court said, yes, if it became relevant.

Later, before the trial court called in prospective jurors, the court said it would formulate its own instruction, as the parties had been unable to reach a stipulation. Defense counsel repeated his concern about telling the jury there had been a jury hung 11-to-1 and a conviction. The court agreed that usually such facts are “extraordinarily prejudicial,” but where, as here, the defendant only came up with third party culpability evidence after the second trial, there “is some very substantial probative value to that.” The court took the matter under submission.

During trial, the trial court suggested a stipulation concerning the fact that this was the third trial. The parties agreed to the stipulation, which the court read to the jury: “[D]uring the course of this trial, you will learn that this is the third trial being conducted concerning the events that occurred in the parking lot of the Little Paris store . . . . [¶] Now, the reason this is a third trial is not relevant to any of the issues that you will be asked to decide in this case. Therefore, you are not to guess or speculate as to the reason why this is a third trial. If it becomes relevant, I’ll so instruct you.”

During cross-examination of defense witness Vardan Petoyan, defendant’s father, the prosecutor asked if he had been present at the first and second trials. At sidebar, the following discussion occurred:

“[The prosecutor]: I would ask permission to go into actually what happened in the second trial that defendant told him, which was a conviction.

“The court: No. I think that isn’t what happened. He told him for the first time that the shooter was actually this guy Mike after the second trial.

“[The prosecutor]: Correct.

“The court: Gave him the photo and told him, ‘Find the guy.’ That’s what occurred. That is my understanding.

“[The prosecutor]: That is my understanding, but it was after he was convicted.

“The court: Well, after the second trial.

“[The prosecutor]: Correct.

“The court: You can ask him, ‘After the second trial, is it true that’s the first time that your son told you that the shooter was a guy named Mike?’

“[The prosecutor]: May I ask him whether he was here for all verdicts during the first and second --

“[Defense counsel]: What does that have to do with anything, the verdict?

“[The prosecutor]: Motivation for the --

“The court: You can ask him if he was here for the verdict.” The prosecutor resumed cross-examining Petoyan:

“Q . . . Now, were you . . . here for the verdict of the second trial?

“A Yes.

“Q Now, did you speak to your son after the verdict, the second trial?

“A Yes.

“Q And is that when he gave you some information for the first time regarding this case?

“A Yes.

“Q Now, what exactly did he tell you for the first time regarding this case after the second trial?

“A He said that, ‘I have given the car to . . . someone else, to my friend.’ [¶] . . . [¶]

“Q . . . So after the second trial and after the verdict is [in] . . . when your son first told you for the first time it was another person driving that car; is that correct?

A Yes. [¶] . . . [¶]

“Q . . . When your son told you he gave the car to someone else, what car did you think he was referring to?

“A He was talking about that white car.

“Q The white car involved with the shooting; is that correct?

“A Probably, yes.

“Q Well, you say ‘probably.’ Did he tell you why he was telling you this other person was driving this car after the second trial?

“[Defense counsel]: Objection. Relevance.

“The court: Overruled.

“The witness: Because they were blaming him with that crime. That’s why he told me that, ‘I’m telling you the truth, that I did not drive that car. My friend drove that car because he picked it up from me.’ ” (Italics added.)

Grigor Petoyan was the next defense witness. On direct examination, when asked what he did to investigate what happened at Little Paris, he said “we lost the case” with defendant’s former attorney. During cross-examination, the prosecutor asked, “You understood the serious consequence after the first trial and the likelihood, or there was a great likelihood of some sort that your cousin might be convicted in this case; is that correct?” Defense counsel’s objection was sustained, as was an objection to the prosecutor’s next question, “Do you believe . . . that your cousin could be convicted after the first trial?” The prosecutor then asked when was the first time he learned about “Mike,” and Grigor said it was approximately after the verdict in the second trial. Defense counsel’s objection was overruled. Again over defense counsel’s objection, the witness responded “yes” to the question, “Now, your cousin told you after the verdict of the second trial that . . . he gave the car . . . that was used in the Little Paris shooting to someone else, correct?”

Another defense witness, Marusya Hakopyan, testified that she saw defendant’s mother crying at a store. Hakopyan talked to her and realized that she had seen the shooting at Little Paris. The prosecutor asked the witness if she ran into defendant’s mother “after the second trial and the verdict.” Defense counsel moved for a mistrial. He argued that the prosecutor had brought up the verdict over and over again, and the jury would have to be “downright stupid not to know there was a conviction in this case.” The court responded that the jury had already been instructed on a timeline, so “I am going to direct both parties not to further ask any questions except for to elicit specific place and time calendar wise.” The court then denied the motion for a mistrial.

2. The prosecutor did not engage in misconduct.

Defendant argues that the prosecutor’s questioning violated the trial court’s rulings regarding the scope of permissible examination concerning the verdicts in the prior two trials; hence, the prosecutor committed prejudicial misconduct.

“A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) “A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.) A prosecutor has wide latitude during argument so long as the argument is a fair comment on the evidence, which includes reasonable inferences or deductions drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) Moreover, the prosecutor’s statements must be viewed in the context of the argument as a whole. (People v. Dennis (1998) 17 Cal.4th 468, 522.)

The essence of defendant’s argument is the prosecutor committed misconduct by eliciting the fact that a prior jury found him guilty. Defendant further argues that the trial court exacerbated the misconduct by allowing the prosecutor to question witnesses about the verdict in the second trial. We begin with the court’s rulings. The court, with the parties’ consent, informed the jury that this was the third trial, but the jury was not to speculate why it was the third trial. The court also excluded, properly, evidence of the outcomes from the first two trials. Indeed, the general rule appears to be that “[p]revious legal rulings—and the reasons for them—are not proper matters for the jury to consider in performing its duties. At a new trial following reversal, ‘[n]o advantage is to be taken of the former verdict on the one side, or the rule of the court, for awarding such second trial on the other.’ [Citations.]” (People v. Burgener (2003) 29 Cal.4th 833, 866-867.)

Defendant does not contend the trial court erred by referencing the fact that there were two prior trials. Defendant did not object to the statement the court read to the jury that this was the third proceeding and that the jury was not to speculate why this was the third trial.

In Burgener, it was the defendant who wanted a statement read to the jury informing them that a prior jury sentenced him to death following a trial in which no mitigating evidence, although available, was not presented. Defendant wanted the statement read because he was worried the jury would speculate that the prior verdict was reversed on a technicality and would feel pressure to confirm their verdict to the first jury’s verdict. The trial court sustained the People’s objection to the statement, and the Supreme Court agreed that the statement was properly excluded.

The trial court did, however, agree there was substantial probative value to the time at which defendant produced third party culpability evidence. Defendant told his father that Mike Panysyan was the shooter only after the jury found defendant guilty on all counts in the second trial. It was only then that defendant’s family searched for, and found, exculpatory witnesses. The court therefore allowed the prosecutor to question witnesses—and in particular Vardan Petoyan—about when defendant told them of the third party culpability evidence.

There was substantial probative value to this timing issue. Two trials had occurred, but defendant did not come forward with important exculpatory evidence until after the second trial. As the prosecutor argued, something motivated defendant to come forward with that evidence when he did. The prosecutor therefore asked for permission to get into the fact defendant was convicted in the second trial, which conviction she argued provided the motivation for the late disclosure. The court, however, refused to allow the prosecutor to get into the fact of the conviction, although it allowed her to ask about the timing of the disclosure. Given that the trial court refused to allow the prosecutor to elicit the fact of conviction, and, instead, limited her to eliciting the timing of the disclosure, we cannot say the court abused its discretion.

Defendant, however, argues that the trial court erred in not controlling the prosecutor’s cross-examination of Vardan Petoyan, which cross-examination also constituted misconduct. During cross-examination, the court denied the prosecutor’s request to get into the fact of conviction. But the court told the prosecutor she could ask if defendant first told his father about Mike after the second trial, and she could ask if the witness was present for the first and second trials. The prosecutor asked those questions, although she referred to the “verdict” after the second trial. She also asked if defendant told his father “why he was telling you this other person was driving this car after the second trial.” Vardan answered it was “[b]ecause they were blaming him [defendant] with that crime.”

Defendant thus argues that the jury would have had to have been “downright stupid” not to understand that defendant was found guilty after the second trial. Certainly, the jury might have guessed that a prior jury found defendant guilty. Still, the prosecutor never directly elicited that fact. And we do not think it is clear that the jury would equate the word “verdict” with a “guilty verdict.” Defendant, however, says that any doubt the jury might have had regarding what was the outcome of the second trial would have been dispelled when Vardan Petoyan said defendant had been “blamed” with the crime. That statement could be interpreted to mean defendant had been found guilty in the prior proceedings. But it could also be interpreted as a reference to the fact defendant had been charged with the crimes; hence, the People “blamed” him for the crimes. But even if the jury made a connection between being “blamed” for the crime and being convicted of it, then the jury would have also had to realize that something else happened requiring the verdict to be set aside and necessitating a third trial.

Moreover, even if we attributed misconduct to the prosecutor or error to the trial court arising out of the cross-examination of Vardan Petoyan, the most direct confirmation of what was the outcome of the prior trials did not come as a result of the prosecutor’s examination. It came from defendant’s witness on direct examination. Grigor Petoyan was asked to tell the jury about his search for witnesses. He said the search began after they “lost the case” with defendant’s former attorney. Defendant tries to minimize the impact of Grigor’s statement by arguing that the prosecutor elicited the same fact first with Vardan; therefore, the cat was already out of the bag by the time Grigor testified. But even assuming error resulting from the cross-examination of Vardan, the defense’s own witness compounded or exacerbated any error. We cannot say that the jury, if it in fact realized defendant had been convicted after the second trial, made this realization as a result of Vardan’s testimony, rather than Grigor’s.

B. Fabrication.

1. Additional facts.

The prosecutor repeatedly referred to witnesses who go “sideways” and to possible fabrication of evidence and intimidation of witnesses. For example, Detective Patrick Barron, a witness for the People, testified on direct that Hovhannisyan identified defendant as the shooter from a photographic six-pack. The detective also said that Hovhannisyan was “adamant” in his identification. Hovhannisyan, however, had testified earlier that he never specifically identified anyone, although he did identify three people from the photographs who looked similar to the shooter. On redirect examination of Detective Barron, the prosecutor asked, “And in working gangs, have you come across what’s called when victims or witnesses go sideways?” Defense counsel objected and the court said it was irrelevant.

Later, Officer Jerry Rodelo testified for the People. He showed David Vardanyan a photographic six-pack. Vardanyan said three people looked similar to the shooter. The officer told him to pick the one who looked the most similar. Vardanyan picked defendant. On redirect examination, the prosecutor asked, “Are there . . . times in gang cases in your experience where witnesses honestly tell you—are cooperative before trial, and then once trial begins or court proceedings begin, they go what’s called sideways?” The officer replied yes, it was a common occurrence. On recross examination, the officer said he had no information in this case that any witness had intentionally gone “sideways” because they were scared.

During cross-examination of the People’s gang expert, Officer Frank Flores, the witness testified that it is not uncommon for people to “recant, change or not [to] restate things that they’ve already come forward with.” On redirect examination, the prosecutor asked if it is uncommon for witnesses in a gang case to recant their testimony. The officer said it was “not uncommon at all” and explained why. The officer conceded, however, that he had no information that any witness changed their testimony because they were scared or threatened.

During presentation of the defense case, the prosecutor asked Grigor Petoyan, “If you fabricated evidence, would you admit that?” The trial court sustained defense counsel’s objection, and the prosecutor withdrew the question.

Later, Marusya Hakopyan testified for the defense. She was walking by Little Paris and saw the shooting. She did not report what she saw to the police. But one day she saw a woman, defendant’s mother, crying in a store after the second trial. Hakopyan talked to her and realized that she had witnessed the shooting. Hakopyan said she had never before met defendant’s mother. During the prosecutor’s cross-examination of Hakopyan, defense counsel moved for a mistrial. Defense counsel argued, “The motion for the mistrial is based very simply upon the cross-examination of this witness and other witnesses. This district attorney, for her own purposes, has tried continuously to get into the fact that this is recent fabrication without any evidence of that other than the fact that it came after the second trial’s verdict. That’s a given. [¶] This information came forward after the second trial’s verdict. That alone would not make this—our witnesses party or this counsel here party to recent fabrication. Basically those questions that she has asked this witness over and over again has clearly explained to the jury why this is going on, why we had to do this, why there are witnesses coming in at this particular time. [¶] . . . [¶] When she comes up with those things about—I can’t even remember how many times she has implied that everybody, all my witnesses are lying over and over again, using that one word that she throws in there. And, judge, you have let her go beyond—I can’t believe how far you’ve let her go. And I say this respectfully. Maybe that’s the way it’s supposed to be, but I don’t know how long she can continue to ask meaningless questions over and over again and then throw in barks and not have the court stop it.” The prosecutor responded that she “always thought the point of cross-examination was to discredit a witness.” The court denied the motion for a mistrial.

The People’s gang expert was recalled, and he repeated that he had no information that any member of defendant’s family had threatened a witness. The prosecutor then cross-examined the officer as follows:

“Q In your experience, sometimes do witnesses come forward after an event and fabricate evidence?

“The court: No, counsel. Let’s

“[The prosecutor]: I’ll withdraw.

“The court: All right.

“Q . . . [¶] In becoming an expert on the Armenian Power gang, did you have to investigate—have you investigated crimes committed by Armenian Power gang members?

“A Yes, I have.

“Q And are you familiar with their intimidation and particulars, if they have any, regarding witnesses at trial?

“A Yes.

“Q. What—actually what type of intimidation tactics does Armenian Power gang members employ when they’re in a jury trial?

“[Defense counsel]: Objection, Your Honor. No foundation for this. No evidence before the court.”

At sidebar, the trial court pointed out that the witness had said he was not aware of any witness who had been intimidated in this matter. The prosecutor said she would withdraw the question, but defense counsel again moved for a mistrial and stated that there was no evidence of intimidation and the prosecutor was trying to prejudice the jury. The prosecutor argued that she could go into this area because the gang expert had testified about intimidation by gangs. The court reminded her that “we have no specific evidence in this particular case—and since we’re talking about it, it’s not a charged crime.” The court then sustained an Evidence Code section 352 objection, but denied the mistrial motion “because I think that although an overly aggressive response, it was a legitimate response to a question posed by” defense counsel.

Later, during her closing arguments, the prosecutor, after discussing the testimony of a witness whose testimony differed from tape-recorded statements he made, said “Now, the question you might be asking yourselves is, ‘Miss Chon, I don’t understand why the victims in this case went sideways from the time that they testified.’ ” She then referred to Officer Flores’s testimony that gangs use fear and intimidation. Later, she argued it’s unreasonable to believe that witnesses are not afraid to testify. “[D]o you think that they’re not in fear when they come in, and if they testify and identify the defendant and say, ‘That’s the man who shot me,’ and he gets convicted, that they’re not going to come after them? [¶] . . . [¶] And defense keeps saying, you know, the defendant has been in custody all this time, for two years almost. How is he going to threaten anyone? He’s not the only one in the gang. That territory is controlled by Armenian Power, . . . [¶] . . . What did Detective Flores tell you about Armenian Power? What is one of their known crimes that they always commit? Extortion. That’s what they do. They threaten, kill, beat people that go against them. That’s how they have a strong hold on that community and that’s how they have a strong hold on witnesses that come to court.”

2. It is not reasonably probable that the outcome would have been different assuming prosecutorial misconduct occurred.

With this questioning, the prosecutor skirted a fine line between several principles governing what a prosecutor may ask. For example, although a prosecutor is free to “ ‘argue all reasonable inferences from evidence in the record[,]’ . . . ‘statements of facts not in evidence by the prosecuting attorney . . . constitute misconduct.’ ” (People v. Bolton (1979) 23 Cal.3d 208, 212; see also People v. Price (1991) 1 Cal.4th 324, 481 [“It is misconduct for a prosecutor to ask a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means”].) Thus, a Court of Appeal held that it was misconduct for a prosecutor to ask, “ ‘Mr. Hayward, you have been threatened, haven’t you?’ ” when there was no evidence the witness had been threatened. (People v. Perez (1962) 58 Cal.2d 229, 240 (Perez), disapproved on another ground by People v. Green (1980) 27 Cal.3d 1, 32-34.)

In Perez, although the prosecutor asked the witness if he had been threatened, the prosecutor did not then attempt to establish that the witness in fact had been threatened nor was there any evidence of a threat. The prosecutor nevertheless suggested in closing argument that the witness was coerced into being silent. The court said, “Since the record is barren of any evidence that the witness Hayward had been threatened in any manner whatsoever, we are impressed that the prosecution should have been prepared to substantiate the inevitable insinuation in the latter question to the effect that Hayward’s testimony had been coerced by defendant or some individual acting on his behalf. [Citation.] Since there was no evidence or offer of proof concerning threats upon Hayward, and since the question was asked of an extremely critical defense witness concerning a key factor in that witness’ credibility, it would appear that the question was improper.” (Perez, supra, 58 Cal.2d at pp. 240-241.)

It is not misconduct, however, for a prosecutor to ask witnesses about fear, because evidence a witness is afraid is relevant to the witness’s credibility. (People v. Warren (1988) 45 Cal.3d 471, 480-481 [it is improper to ask a witness about threats if the prosecutor lacks a sufficient basis to believe in the existence of threats, but a prosecutor may ask whether a witness is afraid].) Also, a counsel may conduct “harsh and colorful attacks on the credibility of opposing witnesses.” (People v. Arias (1996) 13 Cal.4th 92, 162, italics omitted.) Moreover, there is “nothing inherently improper about cross-examining a defense witness as to his failure to come forward at an earlier date. In fact, the information discovered during this type of questioning may well aid the trier of fact in its effort to determine whether the testimony is an accurate reflection of the truth or a recent fabrication.” (People v. Ratliff (1987) 189 Cal.App.3d 696, 701; see also People v. Tauber (1996) 49 Cal.App.4th 518, 524-525 [disagreeing with Ratliff to the extent it requires satisfaction of foundational criteria before the evidence may be admitted].)

In examining the witnesses in the manner described above, the prosecutor was clearly trying to impeach the credibility of certain witnesses, which is generally permissible. For example, Hakopyan testified that although she witnessed the shooting, she did not contact the police about what she saw. It was not until she happened to see defendant’s mother in a store crying after the second trial that Hakopyan came forward. Hakopyan also testified that although she lived near defendant’s mother, they had never met before their encounter at the store. Thus, the prosecutor referenced how Hakopyan ran into defendant’s mother after the verdict in the second trial, despite being “neighbors.” Although perhaps “harsh and colorful,” this line of questioning was directed at Hakopyan’s failure to come forward sooner and her credibility. (See generally, People v. Ratliff, supra, 189 Cal.App.3d 696.)

In fact, the prosecutor started to use the word “miraculous” to describe the encounter between defendant’s mother and Hakopyan, but the court sustained its own objection.

Also, when the prosecutor asked officers and detectives whether they had heard of witnesses going “sideways” and recanting, this was asked in the context of the victims’ testimony. Detective Barron testified that Hovhannisyan identified defendant as the shooter, but Hovhannisyan said he never specifically identified defendant as the shooter. Vardanyan similarly said he thought three people in a photographic six-pack looked similar to the shooter, but the officer who showed Vardanyan the six-pack said he told Vardanyan to pick the person who looked the most similar to the shooter. Thus, by asking about witnesses going “sideways,” the prosecutor was suggesting that there might be reasons—namely, they were afraid—why Hovhannisyan and Vardanyan would back away from their prior identifications. It was permissible for the prosecutor to explore the possibility that a witness was afraid.

Nonetheless, there was no evidence that Hovhannisyan, Vardanyan or any other witness had fabricated testimony or had been intimidated. Thus, defense counsel’s objections to the prosecutor’s questions to Grigor Petoyan asking him if he would admit fabricating evidence and to questions about intimidation tactics Armenian Power employs “when they’re in a jury trial” were properly sustained.

Even if we assume that the prosecutor committed misconduct, it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. As we have said, some of the prosecutor’s questions were relevant to a witness’s credibility, even if the questions were “harsh and colorful.” And, notwithstanding the prosecutor’s questions about witness intimidation and fabrication, the witnesses unequivocally said they had no evidence of intimidation or fabrication in this case. We also do not think the fact the first jury hung 11-to-1 in favor of guilt shows that defendant would have obtained a more favorable result in the absence of the misconduct. A second jury convicted defendant on all counts, even though it did not have the benefit of testimony from defense witnesses who came forward after the second trial.

In addition, defendant’s objections to the prosecutor’s questions were sustained. For example, the prosecutor, at the trial court’s prompting, withdrew her question to the gang expert about whether witnesses fabricate evidence, and the court sustained an objection to the question concerning Armenian Power’s intimidation tactics. The jury was instructed with CALJIC No. 1.02 that statements made by attorneys during trial are not evidence, and that if an objection to a question was sustained the jury was not to guess what the answer might have been. CALJIC No. 1.02 also instructs the jury “not [to] assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it.” (CALJIC No. 1.02.) We presume that the jury understood and followed those instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) We therefore conclude that any misconduct was nonprejudicial.

II. The gang enhancement allegations.

Defendant raises three contentions concerning the gang enhancement allegations: (1) The trial court prejudicially erred by allowing the prosecution to amend the information to reallege the gang allegations before the third trial; (2) defendant’s trial counsel provided ineffective assistance of counsel by failing to move to bifurcate the gang allegations; and (3) there is insufficient evidence to support the true findings on the gang allegations. We disagree with each contention.

A. Additional facts .

The original information filed in April 2004 alleged a gang enhancement as to all five counts. At the preliminary hearing, defendant was held to answer on the allegations. The People, however, filed an amended information deleting all gang allegations. The allegations were therefore not at issue in the first and second trials.

On August 23, 2006, before the third trial, the prosecutor asked to introduce evidence of defendant’s gang affiliation to establish motive and “to explain the defendant’s actions of shooting the person and also to explain the defendant’s callous reaction as to the subsequent behavior, that is to explain the behavior of him going back into the hotel room, acting normal, basically acting very casual because he’s used to this violent type of lifestyle.” She conceded that her predecessor decided not to proceed on the gang allegations because he had conflicting information concerning defendant’s status as a gang member. He was either an active gang member or he was pretending to be an active gang member while acting as a police informant. The prosecutor stated that she was not adding an enhancement; she was asking to have gang evidence admitted to “show why the defendant acted in the manner that he did.”

A newly assigned prosecutor tried the third trial. Jury selection began on August 28, 2006 and a jury was impaneled on September 1, 2006.

The trial court replied that if there was no gang allegation, gang evidence was irrelevant. The prosecutor then moved to amend the information to allege the gang enhancement. Defense counsel objected to the amendment, noting that gang allegations had been dismissed. He stated it would be prejudicial to defendant’s “trial rights,” and, based on its dismissal, the defense had not hired gang experts to review the gang evidence. He also argued that the evidence did not support a gang enhancement. He stated a concern “about the prejudicial impact of gang evidence before a jury,” which would “jeopardize” defendant’s rights. Defense counsel, however, conceded that the prosecutor had mentioned about one month ago that she was strategizing and might bring up the gang enhancement.

After the prosecutor confirmed that information concerning the gang allegation had been turned over to the defense before the first trial, the trial court allowed the amendment. The court noted that defendant’s argument appeared to be that the amendment was untimely and that it would be overly prejudicial, but the court said it was unaware of any case stating that Evidence Code section 352 applies to the filing of a gang enhancement. The court said, “The issue most directly presented is whether or not the prosecution can at this late point, that is on the eve of trial, make this request. And technically, she is entitled to, although the court does have inherent power to deny that motion based upon the prejudice to the defense. [¶] In this situation, it has been established to my satisfaction that both sides were aware of the potential issue, that it was discussed more than a month ago, the possibility of the gang enhancement being reinstated. [¶] I do have in front of me People’s exhibit 1 for [the] purpose of this proceeding. These are photographs that are dated February the 19th, 2004, that appear to depict what could be described as gang tattoos, that being, these photographs being dated five days after the incident that is charged in this case. So there is a factual basis to allow the amendment to the information. [¶] And I do take into consideration the fact that this is something that is being requested at the eve of trial. However, this is also information that was known to both sides for a considerable period of time. So I’m going to overrule the objection and allow the reinstatement of the [section] 186.22 special allegation.”

The trial court then asked defense counsel what he wanted to do, as counsel had indicated he had not had an opportunity to have his investigator look into the gang allegation. Defense counsel said he did not need a continuance so long as the prosecutor would have officers and information relevant to the issue available to him.

Thereafter, Officer Frank Flores testified for the People as a gang expert. Armenian Power is a gang prevalent in Hollywood, eastern Hollywood, Glendale, Burbank, and parts of the Valley. Little Paris, where the crimes at issue occurred, is in Little Armenia, a part of Armenian Power’s territory. In 2004, the gang had 50 to 100 members. Armenian Power commits crimes like murder, attempted murder, assaults, assaults with a deadly weapon, vandalism, and drug possession. Extortion and robbery are the crimes most associated with Armenian Power. The gang extorts money from businesses by saying either the business will not be touched if “ ‘rent’ ” is paid or if rent is not paid, something bad will happen to the business.

Grigor Akopyan was convicted in December 2002 of assault with a firearm on a person. At the time he committed the crime, Akopyan, whose moniker was Trouble, was a member of Armenian Power. Yegia Berberyan was convicted in November 2001 of unlawful possession of a firearm and felony assault with a semiautomatic firearm. At the time Berberyan committed the crimes he was a member of Armenian Power. Defendant, however, had no involvement in the crimes Akopyan and Berberyan committed.

AP, AP13, and P13M are associated with Armenian Power. Thirteen stands for the 13th letter of the alphabet “M”, which represents the Mexican Mafia. No specific colors are associated with the gang. But Armenian Power does have a hand sign.

Gangs operate on fear and intimidation. Officer Flores elaborated, “If a gang doesn’t have respect, it doesn’t have control. If it doesn’t have the fear factor, it’s not going to be able to control their territory, and they need to be able to intimidate people within the community that they often victimize and people that often don’t report the crimes.” Gangs do not, however, always shout out their gang name when “fronting” for their gang.

In Officer Flores’s opinion, defendant is a member of Armenian Power. He based his opinion on police reports, statements and interviews of defendant’s friends, and witnesses in this case. Also, defendant has tattoos associated with gang membership and Armenian Power. One tattoo is “213,” which is the original area code for Los Angeles. It represents a claim by the gang member that he or she has been “there from the beginning.” It also represents an affiliation with the Mexican Mafia. Defendant has three dots on his right hand. The dots stand for “Mi Vida Loco” —my crazy life—which is associated with Hispanic Street gangs and represents an affiliation between Armenian Power and the Mexican Mafia. Defendant’s monikers are Sad Eyes and Temper. Defendant had contact with at least one other Armenian Power member in 2002. After being booked, defendant said he was Armenian Power and had been for seven years, but he also said he no longer gang bangs.

Officer Flores testified that the crimes at issue were committed for the gang’s benefit: “[I]t is typical of other crimes I’ve investigated in the past where the gang member who’s challenged is put into the necessary position where there are two females involved—so now you add another factor of respect, where he’s put in a position to respond, or he feels he needs to respond to uphold his honor or the honor of the women and act, in addition to him being a member of the gang feeds into that and the overall benefits of that crime feeding into the gang. [¶] Once . . . a crime like that occurs in that area and it’s known that this person was involved, the benefit flows out. From now on, it’s going to be known that, ‘Hey, this is what happens when you mess with an Armenian Power gang member. This is what is going to happen if you confront them, disrespect them.’ [¶] So the benefit, it has a lasting effect over the whole area, more so because it occurred in that specific area and because you had other people that were obviously present, that although they have not been identified in the gang that are out—I mean the word spreads. [¶] The gang exists on fear and intimidation, through its action. It doesn’t go out and advertise in the newspaper or through a billboard. It does it through action, word of mouth. They’re specifically tight knit in the community, the people there in Hollywood where it’s . . . predominantly Armenian, and something like that spreads out quickly.”

According to the expert, the comment, “ ‘Do you know who I am?’ ” is significant. “Again, putting all the pieces together, knowing who the person is and the area, . . . it’s obvious that person feels like ‘I should be known.’ . . . You should know what area you are in when you come in,’ and it’s something that they feel should be obvious to anybody else, ‘When you’re confronting me, this is what this is, who I am, you should know you’re in my territory.’ ”

B. The trial court did not err in allowing the amendment.

Unless a defendant’s substantial rights would be prejudiced, a court may permit amendment of an information at any stage of the proceedings, even as late as trial. (§ 1009; People v. Edwards (1991) 54 Cal.3d 787, 827; see also People v. Villagren (1980) 106 Cal.App.3d 720, 724 [allowing amendment after jury had been selected].) But an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. (§ 1009; see also People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764 [evidence at preliminary hearing put defendant on notice of potential great bodily injury allegation].) A trial court has discretion to grant or to deny a motion to amend an information, but if defendant’s substantial rights are prejudiced, the motion must be denied. (People v. Birks (1998) 19 Cal.4th 108, 129.)

Here, defendant’s substantial rights were not prejudiced by allowing the amendment. Specifically, defendant had notice of the gang enhancement. At the preliminary hearing, Officer Frank Flores testified as an expert on the Armenian Power gang. He described the gang’s turf, size, criminal activities, and gang signs and symbols. When defendant was arrested in connection with this matter, he admitted to Officer Flores that he had been a member of Armenian Power for seven years, and this admission was substantiated by field identification cards stating that defendant admitted his gang membership to other officers. Defendant’s monikers are Sad Eyes and Temper, and he has tattoos associated with Armenian Power.

Officer Flores also testified at the preliminary hearing that the shooting benefitted Armenian Power: “A lot of the gangs, the way they operate is based on fear and intimidation, fear and intimidation of other people, imposing their will on other people. [¶] The fact that even in a simple argument over a parking space, they’re willing to shoot someone over that is building the gang’s reputation, building the gang member’s reputation. [¶] If a gang member is seen as getting involved in a simple argument and he backs down or chickens out, he loses a certain kind of manhood by not representing himself and the gang. When that gets back to the gang, he may get corded, which is physically attacked by his gang, some sort of punishment by the gang for not representing in a certain form as they’re expected to. [¶] The gang loses status, as well. If he’s not even willing to fight for the smallest things, how could they get him to stick up for the biggest things?”

Based on this evidence, the defendant was held to answer on the gang allegations, over defendant’s motion to dismiss. And, although the original prosecutor dismissed the gang allegations before the first trial, the newly assigned prosecutor told defense counsel about one month before the third trial that she might bring them up again. Moreover, defense counsel declined to ask for a continuance, based on the fact that information relevant to the gang allegation had been turned over to the defense before the first trial. We therefore conclude that defendant had adequate notice of the gang allegations and was not prejudiced by amendment of the information.

Defendant’s argument to the contrary focuses on the relevancy and probative value of the gang evidence. Specifically, he argues that the trial court abused its discretion in allowing the amendment because gang evidence was irrelevant to the issue at trial (the shooter’s identity), and because the probative value of the evidence, if any, was outweighed by the risk of prejudice. He thus argues that admission of the gang evidence violated his federal constitutional due process rights and resulted in a miscarriage of justice under state law.

In making these arguments, defendant, both below and in this court, has conflated two issues: (1) whether the court abused its discretion in allowing the amendment under the standard of review set forth above, with (2) whether gang evidence should have been excluded under Evidence Code section 352. The first issue primarily concerns notice, namely, did defendant receive adequate notice of the allegation? We have answered that question in the affirmative. The second issue is an evidentiary one. But the evidentiary issue is separate from and irrelevant to whether a trial court has abused its discretion in permitting an information to be amended. Thus, to the extent defendant’s argument was and is that the amendment should not have been allowed under Evidence Code section 352, we must reject it.

The People argue that any evidentiary objection under Evidence Code section 352 is not properly before us on appeal, because defendant did not object to amending the information on this ground. Defense counsel did not expressly state he was objecting to the amendment under Evidence Code section 352, but he nonetheless clearly argued that the gang evidence was irrelevant and prejudicial. In fact, the trial court noted that defense counsel was making an objection under Evidence Code section 352, although the court noted that section 352 was not relevant to the inquiry before it.

We do note that it is unclear whether defendant was making, in the trial court, an independent argument under Evidence Code section 352. The court below never expressly ruled on any Evidence Code section 352 objection. But to the extent the court determined, in allowing the information to be amended, that the evidence was not excludable under Evidence Code section 352, the court did not abuse its discretion. Where gang enhancements are alleged, gang evidence is clearly relevant and admissible. (People v. Albarran (2007) 149 Cal.App.4th 214, 233-234, fn. 2.) Defendant has not addressed how gang evidence is excludable when the information has been properly amended to allege gang enhancements. Thus, defendant’s conclusion that the trial was rendered fundamentally unfair or the admission of the evidence resulted in a miscarriage of justice simply does not flow from this argument.

C. Ineffective assistance of counsel.

Defendant next contends that his trial counsel provided ineffective assistance because he did not move to bifurcate trial of the gang enhancements. We disagree.

To prevail on an ineffective assistance of counsel claim, a defendant “must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price, supra, 1 Cal.4th at p. 440; see also People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) There is a presumption trial counsel’s performance comes within the wide range of reasonably professional assistance and that counsel’s actions were a matter of sound trial strategy. (Strickland v. Washington (1984) 466 U.S. 668, 689-690; People v. Lewis (1990) 50 Cal.3d 262, 288.) A defendant claiming ineffective assistance of counsel must also show by a preponderance of evidence “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.) If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)

A trial court has discretion to bifurcate a criminal street gang enhancement from trial of guilt. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Nevertheless, the need for bifurcation exists less with gang enhancements than it does with prior convictions. A prior conviction generally concerns the defendant’s status and has no connection to the charged crime. A gang enhancement, however, “is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (Id. at p. 1048.) For example, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Id. at p. 1049.) Hernandez suggests that bifurcation would be warranted in those cases where evidence of predicate offenses would be “unduly prejudicial” or where other gang evidence is “so extraordinarily prejudicial, and of so little relevance to guilt.” (Ibid.)

Given Hernandez’ssuggestion that there is a rare need for bifurcation for trial of gang allegations, it is not reasonably probable the trial court would have granted the bifurcation motion. Evidence of the predicate offenses was not unduly prejudicial. The predicate offenses were assault with a firearm, unlawful possession of a firearm, and felony assault with a semiautomatic weapon. Defendant had no involvement in the predicate offenses. Nor was the other gang evidence “extraordinarily prejudicial.” The gang expert testified that the shooting occurred in Little Armenia, which is part of Armenian Power’s turf. The gang uses fear and intimidation to commit crimes and to protect its territory. Defendant has tattoos associated with Armenian Power, and he admitted to being a gang member. This gang evidence, when coupled with the victim’s testimony that the shooter asked, “ ‘Do you know who I am?’ ” before shooting him, was therefore relevant to establish defendant’s motive and intent to use his status to perpetuate fear in the community.

Even if such a motion had been made, it is not reasonably probable a different outcome would have occurred, notwithstanding the highly inflammatory nature of gang evidence (People v. Cox (1991) 53 Cal.3d 618, 660). Defendant points to the two prior trials to show a different outcome was reasonably probable in the absence of the admission of gang evidence. But the first jury hung 11-to-1 in favor of guilt. The second jury convicted defendant on all charges. This conviction occurred in the absence of gang enhancement allegations and gang evidence altogether. Indeed, it occurred in the absence of the alibi witnesses who testified at the third trial. The testimony of those alibi witnesses at the third trial was clearly disbelieved, because the third jury convicted defendant on all counts.

And although the two victims did not identify defendant at trial and backed down from their out-of-court identifications of defendant, there was still strong evidence that defendant was the shooter. Just days after the shooting, a detective showed Karen Hovhannisyan a photographic six-pack. Hovhannisyan circled defendant’s picture, and the detective described Hovhannisyan’s selection as “adamant.” David Vardanyan also identified defendant as looking similar to the shooter. And notwithstanding Ambartsum Moskovian’s later denial that defendant told him he was involved in the shooting, Moskovian gave a recorded statement to the police in which he said defendant was at Little Paris and “then he [defendant] did it.”

There was also strong circumstantial evidence placing defendant at the scene of the crime. The shooter fled the scene in a white SUV having a license plate No. 5DOJ471. Minutes after the shooting, defendant returned to the Days Inn. He gave the keys to a white SUV to Serene Santelmann, telling her to drive the car.

Given this evidence and the outcomes after all three trials, we cannot conclude that there is a reasonable probability the outcome at the third trial would have been different had defendant’s trial counsel moved to bifurcate trial on the gang enhancement allegations.

D. Sufficiency of the evidence to support the gang allegations.

Defendant’s final contention regarding the gang enhancement allegations is there was insufficient evidence to support the true finding on them. Again, we disagree.

Section 186.22, subdivision (b)(1), provides, “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” shall be subject to additional punishment as further defined in section 186.22, subdivision (b). (See also People v. Gardeley (1996) 14 Cal.4th 605, 617.) To determine whether there is sufficient evidence to support a jury’s true finding under that section, we review the entire record in the light most favorable to the judgment to decide “ ‘whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

A crucial fact justifies the jury’s true findings. Before defendant shot Hovhannisyan, he asked, “ ‘Do you know who I am?’ ” A reasonable inference the jury could draw from this fact was defendant was trying to intimidate Hovhannisyan by suggesting he should know him because he was a gang member. The People’s gang expert testified that this was what was meant by the question. He said, “ ‘You should know what area you are in when you come in,’ and it’s something that they feel should be obvious to anybody else, ‘when you’re confronting me, this is what this is, who I am, you should know you’re in my territory.’ ” This statement thus contradicts defendant’s argument that there is no “direct evidence” the shooting was gang-related or of defendant’s intent to benefit the gang.

Defendant, however, makes the point that “ ‘Do you know who I am?’ ” has an alternative meaning. Placed in the context of defendant asking what Hovhannisyan said to his “sister,” the question could have been posed to imply that defendant was related to one of the women exiting the parking lot. That interpretation is possible, although we note that defendant had already told the victims that one of the women was his sister. In any event, the jury was entitled to interpret the statement to imply gang membership.

Certainly, “ ‘Do you know who I am?’ ” is not a well-established gang challenge, like “Where are you from?” That being said, there is no particular magic to “Where are you from?” It is not the only question or statement that can support a gang enhancement allegation. Under the circumstances here, there is sufficient evidence that defendant used his gang status to challenge and to intimidate his victims; hence, defendant is not entitled to a reversal of the true findings on the gang enhancement allegations.

III. Cumulative error.

Defendant contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)

IV. Section 654.

Defendant makes two arguments under section 654. First, he contends that the trial court should have stayed the sentences on the gang enhancements as to counts 1 and 3 for attempted murder and to count 5 for felon in possession of a firearm, because the “crimes constituted a single, indivisible course of conduct,” and “[defendant] was therefore subject to conviction and sentencing for only one criminal street gang enhancement.” Second, defendant contends that the entire sentence imposed in count 5 must also be stayed under section 654.

The jury found true gang enhancement allegations as to all counts. The trial court imposed sentences on those enhancements as to counts 1, 3, and 5. Specifically, the court ordered defendant to serve a minimum of 15 years on counts 1 and 3, for a total of 30 years, under section 186.22, subdivision (b)(5), before becoming eligible for parole. The court sentenced defendant to three years under section 186.22, subdivision (b)(1), on count 5.

Section 654, subdivision (a), provides in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “Section 654 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) However, if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she “ ‘may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (Ibid.)

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (Jones, supra, 103 Cal.App.4th at p. 1143.)

The California Supreme Court has not resolved whether section 654 generally applies to sentence enhancements, and appellate courts are split on the issue. (See generally, People v. Coronado (1995) 12 Cal.4th 145, 157, and cases cited therein; People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7; People v. Palacios (2007) 41 Cal.4th 720, 728 [expressly declining to reach the question of whether section 654 generally applies to enhancements, leaving that question “for another day”]; People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1530.) Some courts have held section 654 is inapplicable to enhancements, because enhancements do not define an offense but relate to the penalty to be imposed under certain circumstances. (People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [citing cases]; People v. Palmore (2000) 79 Cal.App.4th 1290, 1298.) Other courts have concluded that section 654 applies to enhancements because it prohibits multiple punishment for the same act, regardless of whether the act results in a conviction or an enhancement. (People v. Arndt, supra, at pp. 394-396; People v. Reeves (2001) 91 Cal.App.4th 14, 55-56; cf. People v. Price (1992) 4 Cal.App.4th 1272, 1277.)

The California Supreme Court has declined to impose a blanket rule regarding the applicability of section 654 to enhancements, but instead has thus far resolved the issue by analyzing the specific language of the enhancement statute (People v. Palacios, supra, 41 Cal.4th 720 [three section 12022.53 enhancements could be imposed, despite section 654’s single intent and objective rule]) or by examining the nature of the particular enhancement (People v. Coronado, supra, 12 Cal.4th at pp. 156-158 [drawing a distinction between status enhancements that pertain to the nature of the offender, and conduct enhancements that pertain to the nature of the offense, and concluding that a prior prison term enhancement, which relates to the defendant’s status as a repeat offender, does not implicate multiple punishment of an act or omission, making section 654 inapplicable]).

Although the California Supreme Court has not addressed the precise issue before us, at least one Court of Appeal has held that section 654 does not preclude punishment for multiple gang enhancements where the underlying offenses are themselves not subject to section 654. In People v. Akins (1997) 56 Cal.App.4th 331, defendant committed two separate robberies against two separate victims. The Court of Appeal rejected the defendant’s contention that it was error to impose two separate sentence gang enhancements. It said, “Although defendant may have had one objective to benefit his gang, the robberies and assaults of Mr. Simpson and Mr. Martin involved separate victims, were separated by time and distance, and were separate robberies.” (Id. at p. 339.) The court further said that even if it assumed that the crimes constituted a continuous course of conduct, the two gang enhancements were proper because there were two independent victims and two distinct robberies. (Ibid.)

We need not here reach the issue of whether section 654 is generally applicable to enhancements. This is because, first, counts 1 and 3 for attempted murder involved separate victims. “We have long held that ‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’ [Citation.]” (People v. Oates, supra, 32 Cal.4th at p. 1063.) Attempted premeditated murder qualifies as a crime of violence for the purposes of applying this multiple victim exception. (Ibid.) Defendant here attempted the murder of two separate victims, Hovhannisyan and Vardanyan; hence, section 654, under existing law, does not preclude imposition of sentence on the gang enhancements as to counts 1 and 3.

Nor are we persuaded that the sentence on count 5 for felon in possession of a firearm, including the sentence on the attached gang enhancement, should have been stayed. Where the underlying offenses are not subject to section 654, gang enhancements attached to them are similarly not subject to section 654. (People v. Akins, supra, 56 Cal.App.4th at p. 340.) The substantive offenses in counts 1 and 3 for attempted murder and the substantive offense in count 5 for felon in possession of a firearm are not subject to section 654. With respect to a violation of section 12021, “multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (Jones, supra, 103 Cal.App.4th at p. 1144.) In other words, section 654 “is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Id. at p. 1145.) Here, Hovhannisyan testified that defendant had the gun in his waistband and took it out to shoot him. This evidence permits the reasonable inference that defendant was at Little Paris with the gun, before the victims even arrived. This evidence was sufficient to support the trial court’s conclusion that section 654 does not bar sentence on the gang enhancement as well as the offenses.

This evidence also distinguishes this case from People v. Venegas (1970) 10 Cal.App.3d 814, and People v. Bradford (1976) 17 Cal.3d 8, both of which defendant cites. In Venegas, defendant shot a companion. There was no evidence that defendant had the gun before the shooting; instead, there was evidence he obtained it during the struggle with his companion. (People v. Venegas, supra, at pp. 818-819, 821.) In Bradford, defendant wrested a gun from a highway patrol officer who had stopped him for speeding. Defendant shot the officer with the gun. (People v. Bradford, supra, at p. 13.) In both Venegas and Bradford, there was no evidence that the defendants arrived at the scene of the crimes already in possession of the guns. Unlike the evidence here, the Venegas and Bradford defendants’ possession of the guns were incidental to a single objective to shoot the victims.

As we observed in Jones, “prohibiting multiple punishment under the circumstances presented here would not further the policies underlying sections 654 and 12021. Section 654’s purpose is to ensure that punishment is commensurate with a defendant’s culpability. [Citations.] This concept ‘works both ways. It is just as undesirable to apply the statute to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence.’ [Citation.] Section 12021 uniquely targets the threat posed by felons who possess firearms. [Citation.] We see no reason why a felon who chooses to arm himself or herself in violation of section 12021 should escape punishment for that offense because he or she uses the firearm to commit a second offense. A felon who, for example, uses a gun to commit a burglary is more culpable than a felon who commits the same burglary without a gun, or than a felon who arms himself but does not commit any additional crimes.” (Jones, supra, 103 Cal.App.4th at p. 1148.)

V. Sentencing issues.

Defendant next contends that the trial court, instead of staying various sentences on enhancements, should have stricken them.

Defendant’s first contention concerns the gang enhancements. The jury found the gang enhancement allegations true as to all five counts. The trial court imposed sentence on the gang enhancements as to counts 1 and 3 and ordered defendant to serve a minimum of 15 years of each life term, under section 186.22, subdivision (b)(5). The court stayed 10-year terms provided for in section 186.22, subdivision (b)(1)(C), under section 654. Defendant argues, the People concede, and we agree that the 10-year terms should have been stricken, not stayed. (People v. Lopez (2005) 34 Cal.4th 1002 [defendant found guilty of first degree murder committed for gang’s benefit was subject to the 15-year minimum parole period in section 186.22, subdivision (b)(5), and not to the 10-year term in section 186.22, subdivision (b)(1)(C); hence, the court struck the 10-year term].)

That subdivision provides that if the felony is a violent one, as described in section 667.5, subdivision (c), then the defendant shall be punished by an additional term of 10 years.

Defendant’s second contention concerns the firearm enhancements in counts 2 and 4, which the trial court stayed instead of struck. In counts 2 and 4 for assault with a semiautomatic firearm, the court imposed but stayed sentences under section 12022.5. Defendant cites People v. Gonzalez (2006) 142 Cal.App.4th 436, review granted March 14, 2007, S149898, for the proposition that the lesser firearm enhancements should have been stricken. After this matter was submitted, the California Supreme Court issued its decision in Gonzalez and held that lesser enhancements in sections 12022.53 and 12022.5 must be imposed and then stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118.)

Defendant incorrectly states that the trial court stayed a 20-year term under section 12022.53, subdivision (c), on count 3. In fact, the court imposed the term. The abstract of judgment, however, states that the 20-year term was imposed under section 12022.53, subdivision (d). The abstract of judgment should be corrected to reflect that the term was imposed under subdivision (c) of section 12022.53.

It is unclear whether Gonzalez is applicable here and whether defendant intended to raise an issue other than that addressed in Gonzalez, which involved lesser enhancements on the same count, whereas this case involves enhancements found true on separate counts. In any event, Gonzalez holds that lesser enhancements must be imposed and then stayed, which is what the trial court did here. No error therefore appears based on the argument defendant has made.

VI. Cunningham v. California.

The trial court sentenced defendant to the upper term of three years on count 5. He contends that this sentence violates his federal constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).

In Cunningham, the United States Supreme Court reaffirmed Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, and overruled People v. Black (2005) 35 Cal.4th 1238 (Black I). Cunningham held that California’s determinate sentencing law violates a defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent that law authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 863-864].)

After Cunningham, our California Supreme Court, in People v. Black (2007) 41 Cal.4th 799, 816 (Black II), reexamined California’s determinate sentencing system and held that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)

Black II also took a broad view of the scope of the prior conviction exception. The court said, “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. United States (1998) 523 U.S. 224] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. . . . [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Black II, supra, 41 Cal.4th at pp. 819-820.) We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant agrees we are bound by Black II. He raises the issue to preserve it for federal review.

The trial court here cited, as factors in aggravation, “the defendant’s prior conviction, numerous and recent seriousness, that he was on probation or parole at the time of the commission of this offense[,] and that his performance on probation or parole was unsatisfactory.” The court found no factors in mitigation. Our review of defendant’s probation report confirms that he has a prior felony conviction in August 2002; he was convicted of misdemeanor forgery. Also, in April 2003, he plead guilty to forgery. Therefore, under Black II, the upper term sentence was properly imposed.

The reply brief purports to address defendant’s criminal history, but the discussion concerns a different defendant who was 78 years old at the time of sentencing. Defendant—Akop Petoyan—was born in 1982; he therefore was not 78 years old in 2006, when he was sentenced.

VII. The restitution and parole revocation fines.

The trial court imposed a $13,000 victim restitution fine, as well as a parole revocation fine in the same amount. Section 1202.4, subdivision (b)(1), however, provides that the restitution fine shall not exceed $10,000. Section 1202.45 also provides that a court shall, at the time of imposing a restitution fine under section 1202.4, subdivision (b), impose a parole revocation restitution fine in the same amount. Under these sections, the restitution fine and parole revocation fine must be reduced to $10,000 each.

DISPOSITION

The judgment is affirmed as modified. The clerk of the superior court is directed to amend the abstract of judgment to (1) reflect that the 10-year sentences under section 186.22, subdivision (b)(1)(C), as to counts 1 and 3 are stricken; (2) to reflect that the 20-year term imposed in connection with count 3 was under section 12022.53, subdivision (c); and (3) to reflect imposition of a restitution fine in the amount of $10,000 and a parole revocation fine in the amount of $10,000. The clerk is directed to forward a copy of the amended abstract of judgment to the Department of Corrections.

We concur: KLEIN, P. J., CROSKEY, J.


Summaries of

People v. Petoyan

California Court of Appeals, Second District, Third Division
Jul 21, 2008
No. B196141 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Petoyan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. AKOP PETOYAN, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 21, 2008

Citations

No. B196141 (Cal. Ct. App. Jul. 21, 2008)