P. v. Nazarian

Filed 3/23/09 P. v. Nazarian CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline H. Nguyen, Judge. Affirmed with modification.

Peter Knecht for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

I.        INTRODUCTION

Defendant, Vahan Nazarian, appeals from his conviction for willful, deliberate and premeditated attempted murder (Pen. Code,^[1] 187, subd. (a), 667) and the findings that he personally used a deadly weapon and inflicted great bodily injury. ( 12022, subd. (b)(1), 12022.7, subd. (a).) Defendant argues: there was insufficient evidence to support his conviction; the prosecutor improperly granted immunity to Emma Nazarian; the prosecutor committed misconduct; and the trial court improperly denied his new trial motion. We affirm with a minor modification.

II.     FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) This case involves the November 5, 2005 stabbing of defendants stepson, James Farrohk-Shahab. Mr. Farrohk-Shahabs parents divorced when he was seven years old. Thereafter, his mother, Emma Nazarian, married defendant. However, they lived apart and kept their marriage a secret from Mr. Farrohk-Shahab and defendants three sons. Mr. Farrohk-Shahab first learned of his mothers remarriage when he was 12 or 13 years old. Mr. Farrohk-Shahab preferred not to live with defendant. Defendant degraded and treated Mr. Farrohk-Shahab cruelly. Mr. Farrohk-Shahab lived in Las Vegas and Maryland with family members. Mr. Farrohk-Shahabs natural father was also abusive. Mr. Farrohk-Shahab graduated from high school while living with an aunt and uncle. The uncle was Dr. Mohammed Shahab. Mr. Farrohk-Shahab looked upon Dr. Shahab as a father figure.

Mr. Farrohk-Shahab attended California State University at Northridge and lived in the dormitory and fraternity house. In 1999, Mr. Farrohk-Shahab transferred to Fresno State University, where he studied for two and one-half years. Mr. Farrohk-Shahab received financial aid and monetary assistance from his mother. Mr. Farrohk-Shahab graduated in 2001with a bachelor of arts degree in history with a minor in anthropology. While a student at Fresno State, Mr. Farrohk-Shahab was convicted of petty theft. Mr. Farrohk-Shahab then began graduate school at California State University at Northridge. Mr. Farrohk-Shahab moved into his mothers home in Glendale at that time. Mr. Farrohk-Shahab rarely saw defendant at the residence. Mr. Farrohk-Shahab spent a significant time at school and defendant rarely came home. Defendant came home for a few hours each evening, but only stayed overnight on the weekends. Mr. Farrohk-Shahab tried to avoid defendant. Mr. Farrohk-Shahab testified, [Defendant] always treated me like . . . a dog . . . so the few hours that I knew he would be home, I would try to avoid being at home during those couple of hours a day. According to Ms. Nazarian, defendant was not angry when Mr. Farrohk-Shahab moved into the family residence. But she testified, [H]e wasnt told that he was coming to stay there. Defendant also maintained a home in Sun Valley, California. Defendant did not pay for Mr. Farrohk-Shahabs living expenses. However, defendant paid the car insurance premiums for Mr. Farrohk-Shahab and Ms. Nazarian. Defendant also paid the car insurance premiums for his own sons. At one point, Mr. Farrohk-Shahab was involved in an automobile accident and his car was a total loss. After the accident, defendant stopped paying Mr. Farrohk-Shahabs car insurance premiums.

Adrian Mandujano was friend of Mr. Farrohk-Shahab. Mr. Mandujano visited Mr. Farrohk-Shahab three times each week at Ms. Nazarians home. Mr. Mandujano would visit after defendant had left the house. If defendant was present, Mr. Mandujano and Mr. Farrohk-Shahab would meet him outside the Nazarian residence. Despite the difficulties with defendant, Mr. Farrohk-Shahab was very close to Ms. Nazarian and spoke to her daily by cellular phone.

On March 17, 2005, Ms. Nazarian became ill while out shopping with Mr. Farrohk-Shahab. Mr. Farrohk-Shahab initially began driving his mother to the hospital in his Accord automobile. However, when Mr. Farrohk-Shahabs car overheated, they returned home. Mr. Farrohk-Shahab then drove Ms. Nazarian to the hospital in her Mercedes. When Mr. Farrohk-Shahab learned that his mother would be kept overnight for tests, he left. While in the hospital parking lot, Mr. Farrohk-Shahab telephoned defendant and explained that Ms. Nazarian was in the hospital. Defendant immediately called Mr. Farrohk-Shahab back. Defendant screamed over the phone, Wheres my wife you little fucker? Mr. Farrohk-Shahab hung up. Defendant called Mr. Farrohk-Shahab back. Defendant instructed Mr. Farrohk-Shahab to get to the house immediately. Also in the conversation, defendant used profanity and threatened Mr. Farrohk-Shahab. Mr. Farrohk-Shahab described one of the threats, That he was going to kick my ass.

Mr. Farrohk-Shahab telephoned Mr. Mandujano. Mr. Farrohk-Shahab asked Mr. Mandujano to meet at the Nazarian residence. Mr. Farrohk-Shahab explained: I wanted someone to be there in case [defendant] tried to do something to me. [] . . . I just was kind of stressed out. My mother was sick. I just kind of needed a friend. And besides that, I just figured with all the threats [defendant] was saying to me, it would be smarter to have somebody there, just in case. When Mr. Mandujano arrived, Mr. Farrohk-Shahab drove Ms. Nazarians car to the home of another friend. At approximately 10:30 p.m., defendant arrived at the hospital. Defendant took Ms. Nazarian home at approximately 11 or 11:30 p.m. Around midnight, defendant left the Nazarian residence.

When Mr. Farrohk-Shahab and Mr. Mandujano drove back to the Nazarian residence after midnight, they saw defendant driving. Mr. Farrohk-Shahab decided to evade defendant. However, Ms. Nazarian telephoned Mr. Farrohk-Shahab from her home. Ms. Nazarian told Mr. Farrohk-Shahab to come home immediately. Mr. Farrohk-Shahab was unaware that his mother had returned from the hospital. Defendant had returned and parked in the driveway of his residence. As Mr. Farrohk-Shahab pulled up near the curb, he attempted to close the convertible top. Defendant stood next to the drivers side and began punching Mr. Farrohk-Shahab in the face. Mr. Farrohk-Shahab was still restrained by his seatbelt. The engine of the automobile was still running and the car was still in drive. Ms. Nazarian came outside and saw defendant repeatedly hitting Mr. Farrohk-Shahab. Ms. Nazarian ran to the car and tried to put herself between defendant and Mr. Farrohk-Shahab. Mr. Farrohk-Shahab tried to protect himself from the blows by raising his hands to his face. Defendant struck Mr. Farrohk-Shahab at least eight times in the head with a closed fist.

Eventually, Mr. Mandujano got out of the car. Defendant stepped back. Mr. Farrohk-Shahab was then able to get out of the car. However, the car began to roll. Ms. Nazarian got into the car and set the brake. Defendant again hit Mr. Farrohk-Shahab as they stood in the middle of the street. Mr. Farrohk-Shahab described what happened next: I kind of grabbed him, almost like you would palm a ball, towards his face and pushed him back. Mr. Farrohk-Shahab pushed on the top of defendants head. Defendant continued to strike at Mr. Farrohk-Shahab. Mr. Farrohk-Shahab eventually punched defendant. After the punch, Mr. Farrohk-Shahab, Ms. Nazarian, and Mr. Mandujano came to defendants aid. Ms. Nazarian called the police.

Soon thereafter, the police arrived. Mr. Farrohk-Shahab spoke to the police. Ms. Nazarian overheard the conversation with the police. Mr. Farrohk-Shahab testified Ms. Nazarian said, [I]f I press charges on my stepfather, she would never speak with me again. Mr. Farrohk-Shahab then requested that no charges be filed against defendant. Glendale Police Officer Fernando Salmeron interviewed Ms. Nazarian at the scene. Officer Salmeron testified Ms. Nazarian was afraid defendant would kill Mr. Farrohk-Shahab, [I]f [Mr. Farrohk-Shahab] came home, [defendant] was going to kill him. Defendant was taken to a hospital for treatment. Mr. Farrohk-Shahab and Mr. Mandujano drove Ms. Nazarian to the hospital to be with defendant.

Mr. Farrohk-Shahab then returned home. Early the next morning Mr. Farrohk-Shahab and Mr. Mandujano were awakened by defendants son, Andre Nazarian,^[2]who was pounding on the front door. Andre was yelling: Im going to kick your ass. If anything happens to my dad, Ill kill you. Andre then attempted to break in by pounding on a sliding glass door in the kitchen. Mr. Farrohk-Shahab asked Andre to calm down and to leave several times. At first, Andre refused to leave. Mr. Farrohk-Shahab threatened to call the police. Andre went to his truck. Mr. Farrohk-Shahab feared that Andre would return with a weapon. Mr. Farrohk-Shahab called the police. Mr. Farrohk-Shahab requested that charges be pressed against Andre. But to Mr. Farrohk-Shahabs knowledge, no charges were filed against Andre.

A few days later, Ms. Nazarian told Mr. Farrohk-Shahab that he must move out of her home. This was because defendant did not want Mr. Farrohk-Shahab to reside there any longer. Also, Mr. Farrohk-Shahab testified his mother gave an additional reason for the move, Because [defendant] said he would divorce her if I was still there. Ms. Nazarian rented an apartment for Mr. Farrohk-Shahab. Mr. Farrohk-Shahab returned to the Nazarian residence home only on occasions when it could be verified defendant was not at home. Mr. Farrohk-Shahab continued to have frequent telephone conversations with his mother between April and November 2005. Ms. Nazarian supported Mr. Farrohk-Shahab financially. Mr. Farrohk-Shahab borrowed $50,000 in financial aid when he began a doctoral pharmacy program at the University of Southern California in August 2005. Mr. Farrohk-Shahab never asked defendant for money.

Mr. Farrohk-Shahab was afraid to go to the Nazarian residence when defendant was present. When asked why, Mr. Farrohk-Shahab testified, I feared for my life. Ms. Nazarian wanted to see Mr. Farrohk-Shahab on his 26th birthday, November 6, 2005. However, on November 6, 2005, Mr. Farrohk-Shahab had to study for a mid-term examination. Mr. Farrohk-Shahab suggested to his mother they meet on November 5, 2005, so they could go for a walk. Ms. Nazarian warned Mr. Farrohk-Shahab that defendant was home. Mr. Farrohk-Shahab said that he would call Ms. Nazarian when he arrived outside her home. On November 5, 2005, after parking in front of her home, Mr. Farrohk-Shahab attempted to call Ms. Nazarian on her cellular phone but was unsuccessful. Mr. Farrohk-Shahab did not usually call Ms. Nazarian on the home phone for fear defendant would answer. Mr. Farrohk-Shahab reached his mother on her home phone and told her he was waiting outside. Mr. Farrohk-Shahab stood near the curb as his mother came out of the house. As it was cool, Ms. Nazarian went back inside to get a sweater or a sweatshirt.

Mr. Farrohk-Shahab walked up to the front porch. Mr. Farrohk-Shahab saw through the window that defendant was seated on a couch inside watching television. Ms. Nazarian put out some fruit and a paring knife for defendant. When Ms. Nazarian came back outside, she and Mr. Farrohk-Shahab turned to walk down the walkway.

Defendant suddenly opened the front door. Mr. Farrohk-Shahab described what happened next: And [defendant] came out and started screaming profanities to me. Telling me hell kick my ass and hell kill me. Mr. Farrohk-Shahab turned around and responded: I have nothing to prove. And this is ridiculous. Defendant went back inside the residence. As Mr. Farrohk-Shahab and Ms. Nazarian began walking down the sidewalk, defendant ran out of the house. Defendant ran towards Mr. Farrohk-Shahab. Defendant had his right hand cocked back in a fist. Mr. Farrohk-Shahab turned and ran toward defendant. Defendants extended right hand stuck Mr. Farrohk-Shahab. Mr. Farrohk-Shahab was struck on the left side of his torso beneath the place where his shirt pocket was located. As this was occurring, Mr. Farrohk-Shahab simultaneously struck defendant. At first defendant stumbled but then ran at Mr. Farrohk-Shahab again. Mr. Farrohk-Shahab held defendants head in an effort to avoid being struck. Mr. Farrohk-Shahab then pinned defendant to the ground. Mr. Farrohk-Shahab hit defendant again. Mr. Farrohk-Shahab then got up. Defendant ran into the house.

Mr. Farrohk-Shahab went to the middle of the street in an effort to get as far away as possible. Mr. Farrohk-Shahab feared that defendant would retaliate. Ms. Nazarian told Mr. Farrohk-Shahab to get into the house. Ms. Nazarian stated, Hes going to get a knife and try to kill [you]. Mr. Farrohk-Shahab refused to go into the residence. Mr. Farrohk-Shahab testified he told Ms. Nazarian why he refused to go into the residence, Because I told her hell try to kill me.

Ms. Nazarian went into the house. Ms. Nazarian heard defendant rummaging through a kitchen knife drawer. Ms. Nazarian told defendant that whatever he planned to do he better kill her before going outside. Ms. Nazarian saw a large knife, approximately 12 inches in length, on the kitchen counter above the open knife drawer at the time. Mr. Farrohk-Shahab could see through the open front door that defendant had gone into the kitchen. Thereafter, Mr. Farrohk-Shahab heard the sound of kitchen drawers opening and the clang of metal. Mr. Farrohk-Shahab heard Ms. Nazarian scream, You will have to kill me first. Mr. Farrohk-Shahab feared for his mothers safety.

Mr. Farrohk-Shahab called the police on his cellular phone using a loud voice in an effort to get the neighbors attention. A tape recording of the emergency call was played for the jurors at trial. At the time, Mr. Farrohk-Shahab did not realize that he had been stabbed. Defendant also telephoned the police while inside the house. A tape recording of defendants call was also played for the jurors. Defendant told the police:

[A] guy came by my house and beat me up. Hes still here. He pulled a knife on me. When asked what the suspect looked like, defendant told the emergency operator, Hes Asian. Defendant did not identify Mr. Farrohk-Shahab as the assailant in the telephone conversation with the emergency operator.

When the police arrived, defendant continued to advance toward Mr. Farrohk-Shahab. Sergeant York Tsurata directed Mr. Farrohk-Shahab to sit on the neighbors porch across the street. Mr. Farrohk-Shahab told Sergeant Tsurata, Im the one who called. Mr. Farrohk-Shahab then sat on the porch as directed and was polite and compliant. Defendant continued to advance toward Mr. Farrohk-Shahab. Sergeant Tsurata commanded defendant to stop. Defendant was ordered to place his hands up several times. Eventually, Sergeant Tsurata tackled defendant. Another arriving officer, Chad McDonald, assisted in restraining defendant. Paramedics treated defendant for a wound on his forehead. Sergeant Tsurata later overheard Ms. Nazarian say that defendant had grabbed a kitchen knife. Ms. Nazarian consented to the officers taking possession of the knife.

Officer McDonald interviewed Ms. Nazarian while defendant was being treated by paramedics. Ms. Nazarian was very upset, crying, and appeared embarrassed by what had occurred. Ms. Nazarian told Officer McDonald that Mr. Farrohk-Shahab had wanted to see her on November 5, 2005. Mr. Farrohk-Shahabs birthday was the following day. Ms. Nazarian stated she and Mr. Farrohk-Shahab were standing in front of the house talking. Defendant then came to the door and began to yell profanities as if to instigate a fight. Defendant said to Mr. Farrohk-Shahab, You bastard, Ill kick your ass. Defendant ran down the steps directly at Mr. Farrohk-Shahab. As he ran, defendant said, Ill kick your ass, you son of a bitch. Defendant began striking Mr. Farrohk-Shahab with a closed fist several times. Ms. Nazarian told Officer McDonald that defendant struck Mr. Farrohk-Shahab several times. Thereafter, Mr. Farrohk-Shahab took defendant to the ground. Mr. Farrohk-Shahab climbed on top of and struck defendant twice with a closed fist. Mr. Farrohk-Shahab then got up and walked away. Ms. Nazarian saw defendant get up and run into the house. When Ms. Nazarian followed defendant into the house, she saw him grab a large kitchen knife from a drawer. Ms. Nazarian said she feared defendant would harm Mr. Farrohk-Shahab. Ms. Nazarian told defendant, Youll have to kill me first to get to him. Defendant then placed the knife on the counter and walked out. According to Officer McDonald, Ms. Nazarian described a threat by defendant, She told me that [defendant] told her if he comes around here again, Ill kill him.

Sergeant Tsurata spoke with Mr. Farrohk-Shahab. While they were talking, Mr. Farrohk-Shahab realized that he had blood on his shirt. When Mr. Farrohk-Shahab lifted his outer shirt, he found his undershirt bloody. Thereafter, Mr. Farrohk-Shahab lifted his undershirt to find his torso bleeding. Mr. Farrohk-Shahab declined an offer of medical treatment. Sergeant Tsurata suggested that the paramedics return to the scene. However, Mr. Farrohk-Shahab said he was fine and just wanted to go home as he was upset. Mr. Farrohk-Shahab went into the Nazarian residence. Mr. Farrohk-Shahab and his mother dressed the wound with an Armenian remedy and bandage. Mr. Farrohk-Shahab declined his mothers offer to take him to the emergency room. Mr. Farrohk-Shahab took a photo of his wound with his cellular phone to document what had happened.

Mr. Farrohk-Shahab went outside to see if he could find the stabbing implement. Using his cellular phone for lighting, Mr. Farrohk-Shahab looked near the area where the altercation occurred. Mr. Farrohk-Shahab found a black steak knife in the grass. The knife had red on the serrated edge. Mr. Farrohk-Shahab gave the knife to Ms. Nazarian. The knife appeared to be the same one Ms. Nazarian had given to defendant to cut the fruit. However, the knife Mr. Farrohk-Shahab found was bent. It had not been bent when Ms. Nazarian gave the knife to defendant. Ms. Nazarian wrapped the knife in paper and put it away in a drawer. Mr. Farrohk-Shahabs shirts were thrown in the trash.

Defendant was interviewed by Officer McDonald. While seated in the backseat of a police car, defendant was advised of and waived his constitutional rights. Officer McDonald described defendants statement: He told me that when he found out that [Mr. Farrohk-Shahab] was standing in front of the house, he was upset and he walked to the front door and asked [Mr. Farrohk-Shahab] to leave. . . . [] He said Mr. Farrohk-Shahab made a smart ass remark and he asked him to leave several more times. And [Mr. Farrohk-Shahab] didnt leave. According to Officer McDonald, defendant described the fight thusly: [H]e approached him and began striking him with a closed fist. [Mr. Farrohk-Shahab] then took him to the ground, climbed on top of him, and struck his several times, causing the laceration above his eye. Officer McDonald described defendants explanation of what occurred after the fight ended: After [Mr. Farrohk-Shahab] struck him, he stood up and walked away. He was upset that they were just involved in an altercation and that [Mr. Farrohk-Shahab] was still around. So he got up and ran into the house. Thereafter, while in the residence, defendant admitted grabbing a knife. Defendant said when he heard Ms. Nazarian say Youll have to kill me first he put the knife on the counter.

Before she went outside following the fight, Ms. Nazarian had telephoned Ofik Davoodian. Ms. Davoodian is Ms. Nazarians sister. Ms. Davoodian was also distantly related to defendant. Ms. Davoodian is married to Herach Mansoori. Ms. Nazarian asked them to come to her residence. When Ms. Davoodian and Mr. Mansoori arrived at the Nazarian home, defendant was inside the police car. Later, Mr. Farrohk-Shahab came to the kitchen and told them, This is where he has hit me with a knife. Ms. Davoodian testified that the wound was small. Ms. Davoodian and Ms. Nazarian cleaned and bandaged Mr. Farrohk-Shahabs wound. Thereafter, Mr. Farrohk-Shahab left the house briefly. Mr. Farrohk-Shahab returned a few minutes later. Mr. Farrohk-Shahab showed Ms. Davoodian, Mr. Mansoori, and Ms. Nazarian a knife. Mr. Farrohk-Shahab said he found the knife on the ground. Ms. Nazarian grabbed the knife from Mr. Farrohk-Shahab, wrapped it in a paper towel, and placed it in a kitchen drawer. Ms. Nazarian threw Mr. Farrohk-Shahabs bloody shirts into the trash.

Mr. Farrohk-Shahab decided to leave the house. Mr. Farrohk-Shahab began driving to the home of a friend, Philip Wasem, in Lawndale. Mr. Farrohk-Shahab encountered traffic while driving. Mr. Farrohk-Shahab began to feel cold wetness under his shirt. Mr. Farrohk-Shahab touched the area and found his wound was leaking blood. Mr. Farrohk-Shahab called Mr. Wasem and said: Im leaking blood, bro. I need you to look up the nearest emergency room. Im on my way to your house. When I get there, I need you to take me. Mr. Wasem met Mr. Farrohk-Shahab. Mr. Farrohk-Shahabs shirt and undershirt were both soaked in blood. Mr. Farrohk-Shahab was somewhat frantic. Mr. Wasem drove Mr. Farrohk-Shahab to the UCLA Harbor Medical Center, arriving after midnight. Mr. Farrohk-Shahab was taken into surgery and remained overnight at the hospital. Mr. Farrohk-Shahab was released from the hospital and picked up by Ms. Nazarian. Mr. Farrohk-Shahab was confined to home and given painkillers for approximately three weeks following the surgery. Mr. Farrohk-Shahab was required to go for daily medical treatment for three weeks because his wound did not heal properly. At the time of trial, Mr. Farrohk-Shahab had a scar from the stab wound. Mr. Farrohk-Shahab testified that he continued to suffer residual health problems as a result of the stab wound.

Glendale Police Training Agent Tracey Lowrey was an investigator assigned to this case. Agent Lowrey spoke with Mr. Farrohk-Shahab about what had occurred. Agent Lowrey served a search warrant on the Nazarian residence on November 15, 2005. Ms. Nazarian was present at the time. Agent Lowrey hoped to recover the small knife and Mr. Farrohk-Shahabs undershirt. Mr. Farrohk-Shahab had told Agent Lowrey that he taken the undershirt off and it had been thrown out.

Agent Lowery interviewed Ms. Nazarian. Ms. Nazarian said Mr. Farrohk-Shahab had come to her home on November 5, 2005 because it was his birthday. Mr. Farrohk-Shahab waited on the front porch while Ms. Nazarian went to get a sweater. Defendant and Mr. Farrohk-Shahab exchanged angry words. Mr. Farrohk-Shahab told defendant, Youd better treat her well. Mr. Farrohk-Shahab and Ms. Nazarian started to leave. Then, defendant ran after Mr. Farrohk-Shahab. Defendant struck Mr. Farrohk-Shahab. Thereafter, Mr. Farrohk-Shahab struck defendant. Mr. Farrohk-Shahab tried to leave. Ms. Nazarian wanted to get them all back in the house. Defendant went into the kitchen and picked up a kitchen knife. Ms. Nazarian was very hesitant while speaking with Agent Lowrey. Ms. Nazarian told Agent Lowrey that defendant had taken a large kitchen knife from the drawer. Ms. Nazarian stepped in front of defendant and said, You will have to kill me before you kill my son. Defendant put the knife down.

Agent Lowrey asked Ms. Nazarian where the bloody shirts Mr. Farrohk-Shahab wore that evening were located. Ms. Nazarian said they had been thrown out in the trash. When asked about the knife used to stab Mr. Farrohk-Shahab, Ms. Nazarian responded, Have you found it yet? Ms. Nazarian was reluctant to show Agent Lowrey where the knife was located. Ms. Nazarian was advised that if she had knowledge of the knifes location and hid evidence, it could be a crime. Ms. Nazarian was wringing her hands, covering her face with her hands, crying and shaking her head. Ms. Nazarian later reluctantly walked to the kitchen and pointed to the drawer where the knife was found. The knife was wrapped in a tissue and napkin and stuffed in the back of the drawer. Ms. Nazarian said the knife was the one used to stab Mr. Farrohk-Shahab.

On November 16, 2005, a lawyer surrendered defendant at the Glendale Police Station to be formally booked and then post bail. As Agent Lowrey was booking defendant, he indicated that he wanted to tell her what occurred on November 5, 2005. Agent Lowrey explained that an interview would take place after the booking process was completed. Agent Lowrey further explained that any discussion regarding the crime would require an advisement of constitutional rights. Thereafter, Agent Lowrey advised defendant of his constitutional rights. Agent Lowrey took defendant to an interview room with a tape recorder and had Sergeant Lola Abrahamian present before discussing the crime with him. Agent Lowrey advised defendant of his constitutional rights a second time. An audio recording of the interview was played for the jurors at trial. During the interview, defendant admitted that he had been using the fruit knife inside the house and already had it in his hand when he ran out of the house. When asked when the smaller knife was used in the attack, defendant explained the stabbing as follows: I didnt even . . . that one. I honestly wouldnt. It was in my hand. He he runs towards me. And you have . . . pushing me, I . . . the knife in my hand. So by pushing me, I dont know how that how did it happen. Defendant denied knowing the knife was in his hand. After further questioning, defendant admitted he had the knife during the fight. Defendant also admitted that he picked up a large knife when he went back into the house.

Ms. Nazarian came to Ms. Davoodians home almost daily after the incident. Ms. Nazarian visited Ms. Davoodian after work. Defendant occasionally accompanied Ms. Nazarian on these visits. On more than one occasion, Ms. Nazarian asked Ms. Davoodian and Mr. Mansoori to speak to Mr. Farrohk-Shahab. Ms. Davoodian described Ms. Nazarians comments concerning speaking to Mr. Farrohk-Shahab as follows: [S]he said go and talk to [Mr. Farrohk-Shahab] and tell him to finish up with this small problem or issue. And tell him that he has disrupted our lives with his behavior and actions. In November 2005, Mr. Wasem overheard a telephone conversation between Mr. Farrohk-Shahab and Ms. Nazarian. During that conversation, Mr. Farrohk-Shahab repeatedly said he was unwilling to take money to drop the case.

In June 2006, after the preliminary hearing in this case, Ms. Nazarian flew to Delaware to see Dr. Shahab and his wife, Sally Campbell. Ms. Nazarians purpose in visiting them was to enlist their aid in talking to Mr. Farrohk-Shahab. Ms. Nazarian wanted Dr. Shahab and Ms. Campbell to suggest to Mr. Farrohk-Shahab that the stabbing was an accident. Ms. Nazarian told Ms. Campbell that if Mr. Farrohk-Shahab were to say that the stabbing was an accident, he would have money for everything he needed. Ms. Nazarian made it clear she and defendant would insure Mr. Farrohk-Shahab was provided for financially. Dr. Shahab agreed to speak to Mr. Farrohk-Shahab. Ms. Nazarian denied having said that Mr. Farrohk-Shahab would not get financial support if he failed to so testify.

Dr. Shahab and Ms. Campbell testified at trial that Ms. Nazarian visited them in Delaware in June 2006. Dr. Shahab and Ms. Campbell contradicted portions of Ms. Nazarians recollection of their conversations in Delaware. Throughout her visit, Ms. Nazarian discussed the stabbing. Ms. Nazarian admitted that defendant had a fruit knife in his hand at the time of the stabbing. But Ms. Nazarian told Dr. Shahab and Ms. Campbell the stabbing of Mr. Farrohk-Shahab was an accident. Ms. Nazarian asked Dr. Shahab and Ms. Campbell to talk to Mr. Farrohk-Shahab. They were to ask Mr. Farrohk-Shahab to drop the charges, say it was an accident, or just refuse to testify. Ms. Nazarian said that she could not support Mr. Farrohk-Shahab if anything happened to defendant because she would have no money.

Dr. Shahab and Ms. Campbell telephoned Mr. Farrohk-Shahab after Ms. Nazarian returned home. Mr. Farrohk-Shahab told them what had occurred. Ms. Campbell told Mr. Farrohk-Shahab that Ms. Nazarian had visited them. Mr. Farrohk-Shahabs version of the events differed significantly from that provided by Ms. Nazarian. Mr. Farrohk-Shahab said: What did she want you to do? . . . Why would my own mother want - - get involved? She shouldnt be with this man, he stabbed me. Mr. Farrohk-Shahab told Ms. Campbell the family had proposed a financial settlement to make the case go away. Ms. Campbell told Mr. Farrohk-Shahab that Ms. Nazarian asked them to request he not testify and to say it was an accident. Mr. Farrohk-Shahab told Ms. Campbell that he would not take any money to make the case go away. Mr. Farrohk-Shahab said he was afraid.

Dr. Shahab met with Mr. Farrohk-Shahab in Las Vegas in August 2006. Dr. Shahab was in Las Vegas in connection with Mr. Farrohk-Shahab fathers estate. Mr. Farrohk-Shahab negotiated a settlement regarding his inheritance. Ms. Nazarian was with Mr. Farrohk-Shahab in Las Vegas at that time. While in Dr. Shahabs presence, Ms. Nazarian discussed the payment of money with Mr. Farrohk-Shahab. Dr. Shahab described Ms. Nazarians offer as follows, Say we give you some money for your expenses, the money you owe for student loan and just to drop the charges. According to Dr. Shahab, Mr. Farrohk-Shahab refused the offer stating, [N]o, I dont want to get any money.

Further, Ms. Nazarian asked Ms. Davoodian and Mr. Mansoori to speak to Mr. Farrohk-Shahab about dropping the charges. At some time in August 2006, Mr. Mansoori spoke with Mr. Farrohk-Shahab about the pending charges against defendant. Ms. Davoodian later told Ms. Nazarian that Mr. Farrohk-Shahab said he wanted $500,000. Later in the conversation, Ms. Davoodian told Ms. Nazarian Mr. Farrohk-Shahab made the following demand, And then later [Mr. Farrohk-Shahab] had said, no, I just want half of all [defendants] assets. Mr. Mansoori related the conversation with Mr. Farrohk-Shahab to Ms. Davoodian. Ms. Davoodian then relayed the conversation between Mr. Farrohk-Shahab and Mr. Mansoori concerning the bribe to Ms. Nazarian. But, Ms. Davoodian did not recall telling Detective Matt Irvine: No, No. I dont think so in response to the question: Did [Mr. Mansoori] say that [Mr. Farrohk-Shahab] demanded money in exchange for his testimony and dropping the case?

Sergeant Abrahamian was present during the interview between Detective Irvine and Ms. Davoodian. Ms. Abrahamian spoke English as well as the dialect spoken by Armenians from Armenia or Iran. Sergeant Abrahamian assisted with translation during the interview. The interview was recorded. Ms. Davoodian was able to communicate effectively with Sergeant Abrahamian. During the interview, Ms. Davoodian told Sergeant Abrahamian that Ms. Nazarian admitted that on November 5, 2005, defendant had run out of the house with a knife in his hand. Ms. Davoodian also described Ms. Nazarians efforts to have Mr. Farrohk-Shahab drop the case against defendant. Ms. Davoodian did not say that Mr. Farrohk-Shahab had demanded money or property. Ms. Davoodian did say that Mr. Mansoori had offered money to Mr. Farrohk-Shahab to make the case go away. Ms. Davoodian did not say Mr. Farrohk-Shahab had manipulated his wound in any way in her presence.

Detective Irvine also interviewed Mr. Mansoori in August 2006. Although Sergeant Abrahamian was present to assist with translation, 98 percent of the interview was conducted in English. Mr. Mansoori appeared to understand the questions asked. Mr. Mansoori denied seeing Mr. Farrohk-Shahab manipulate the knife wound. Mr. Mansoori said that Mr. Farrohk-Shahab did not attempt to extort money from defendant. Detective Irvine described Mr. Mansooris statement: Mr. Mansoori said the [Mr. Farrohk-Shahab] was not lying to extort money from [defendant], nor . . . was he willing to change his testimony in exchange to get money from [defendant] or anybody else in the family. Mr. Mansoori acknowledged speaking with Ms. Nazarian and defendant about the topic of offers of money to Mr. Farrohk-Shahab. Mr. Mansoori stated several times that Mr. Farrohk-Shahab said money was not the issue in this case.

Mr. Farrohk-Shahab learned that in June 2006, Ms. Nazarian had gone to visit Dr. Shahab and Ms. Campbell in Delaware. After the preliminary hearing in this case, Ms. Nazarian offered Mr. Farrohk-Shahab property in exchange for a change in his testimony. Ms. Nazarian told Mr. Farrohk-Shahab they owned a business in Las Vegas that was in the name of defendants children. Ms. Nazarian told Mr. Farrohk-Shahab they would put his name on the business if he dropped the case. Mr. Farrohk-Shahab told Ms. Nazarian that he was uninterested. Later, Ms. Nazarian offered Mr. Farrohk-Shahab $250,000 in exchange for dropping the charges against defendant. Ms. Nazarian also asked Mr. Farrohk-Shahab to characterize what occurred as an accident. Mr. Farrohk-Shahab rejected his mothers offer.

On another occasion, Mr. Mansoori offered Mr. Farrohk-Shahab $500,000 to make this case go away. Mr. Farrohk-Shahab rejected the offer. But Mr. Farrohk-Shahab made a $2 million counteroffer. Mr. Farrohk-Shahab explained his counteroffer: I would have never accepted any offer [defendant] gave me because I was scared he would give me the money. The next day I would be dead. Mr. Farrohk-Shahab testified the only way he would accept money would be to have enough that he could disappear to another country where no one could find him. Mr. Farrohk-Shahab knew that there was no possibility his $2 million demand could be met. Mr. Farrohk-Shahab was unwilling to change his testimony for money.

III.   DISCUSSION

A.     Evidence of Willful, Deliberate and Premeditated Attempted Murder

Defendant argues that there was insufficient evidence to support the finding that he committed willful, deliberate and premeditated attempted murder. Defendant argues: It is not reasonable to infer that [he] intended to kill [Mr. Farrohk-Shahab] even if one accepts the [prosecutions] theory that [he] intentionally grabbed the knife. . . . [] It is not reasonable for a man of [defendants] age and size to assume the he would cause the death of a young healthy man with a stab from a paring knife. Defendant further argues that he reacted rashly without thought.

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review:  [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.  The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.  (People v.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.)  Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (Jackson v.Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.)  The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence.  (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.)  The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].  (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

The California Courts of Appeal have held: Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. [T]he test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing. The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . . [Citations.] (People v. Ibarra (2007) 151 Cal.App.4th 1145, 1152, quoting People v. Villegas (2001) 92 Cal.App.4th 1217, fns. omitted; People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.)

In People v. Koontz (2002) 27 Cal.4th 1041, 1080, quoting People v. Mayfield (1997) 14 Cal.4th 668, 767, our Supreme Court held: A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. ( 189 [willful, deliberate and premeditated killing as first degree murder].) Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.]

In People v. Anderson (1968) 70 Cal.2d 15, 26, our Supreme Court identified three categories of evidence available to sustain a finding of premeditated murderplanning, motive, and intent. The Supreme Court later clarified, The Anderson analysis was intended only as a framework to aid in appellate review, it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way. (People v. Perez (1992) 2 Cal.4th 1117, 1125; see also People v. San Nicolas (2004) 34 Cal.4th 614, 658; People v. Mayfield, supra, 14 Cal.4th at p. 768; People v. Sanchez (1995) 12 Cal.4th 1, 32, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.22.) In People v. Manriquez (2005) 37 Cal.4th 547, 577, the Supreme Court reiterated: [W]e continue to apply the principle that [t]he process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. . . . [Citations.] [Citations.] (Ibid., quoting People v. Hughes (2002) 27 Cal.4th 287, 370-371.) In People v. Smith (2005) 37 Cal.4th 733, 741-742, quoting People v. Arias (1996) 13 Cal.4th 92, 162, our Supreme Court held: [I]f the jury found defendants use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance. [Citation.] . . .[M]otive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice. (Original italics.)

Here, there was substantial circumstantial evidence to support the jurors willfulness, deliberation, and premeditation finding. Defendant and Mr. Farrohk-Shahab had a difficult relationship for years. In fact, Mr. Farrohk-Shahab lived with various relatives as a child and teenager because of defendants attitudes. As a young adult, Mr. Farrohk-Shahab also lived away from home, despite his close relationship with his mother. Eventually, Mr. Farrohk-Shahab moved to his mothers residence. But Mr. Farrohk-Shahab minimized any contact with defendant. Mr. Farrohk-Shahab either remained in his room or came home after defendant left for another residence each evening.

In March 2005, defendant became furious because Mr. Farrohk-Shahab had used Ms. Nazarians car to drive her to the hospital for treatment of an illness. Mr. Farrohk-Shahab advised defendant telephonically concerning Ms. Nazarians hospitalization. Defendant screamed over the phone, Wheres my wife you little fucker? Mr. Farrohk-Shahab hung up the phone. Defendant called Mr. Farrohk-Shahab back. Defendant ordered Mr. Farrohk-Shahab to get to the Nazarian residence immediately. In the conversation, defendant used profanity and threatened Mr. Farrohk-Shahab. Mr. Farrohk-Shahab returned to the Nazarian residence and was immediately assaulted by defendant. Mr. Farrohk-Shahab was punched at least eight times in the head with a closed fist. This occurred while Mr. Farrohk-Shahab sat still restrained by his seatbelt. Eventually, defendant was distracted by Mr. Farrohk-Shahabs friend, Mr. Mandujano. Only then was Mr. Farrohk-Shahab able to get out of the car. Defendant again hit Mr. Farrohk-Shahab as they stood in the middle of the street. Mr. Farrohk-Shahab then pushed defendant away. Eventually, Mr. Farrohk-Shahab struck defendant in self defense. Although the police were summoned, Mr. Farrohk-Shahab declined to press charges against defendant. Officer Salmeron interviewed Ms. Nazarian at the scene. Ms. Nazarian was afraid defendant would kill Mr. Farrohk-Shahab. A few days later, Ms. Nazarian told Mr. Farrohk-Shahab he must move out of her home. The move was necessitated because defendant did not want Mr. Farrohk-Shahab in the residence.

Mr. Farrohk-Shahab did not see defendant again until November 5, 2005. Mr. Farrohk-Shahab came to the house to walk with his mother. Mr. Farrohk-Shahab did not go inside the Nazarian residence. Rather, Mr. Farrohk-Shahab waited on the porch while Ms. Nazarian went for sweater. Mr. Farrohk-Shahab walked to the porch. Mr. Farrohk-Shahab saw defendant was watching television and eating fruit. Some words were exchanged between them. When Ms. Nazarian left to walk with Mr. Farrohk-Shahab, defendant suddenly opened the front door. Defendant threatened to kill Mr. Farrohk-Shahab. Mr. Farrohk-Shahab responded: I have nothing to prove. And this is ridiculous. Defendant went back inside. As Mr. Farrohk-Shahab and Ms. Nazarian began walking down the sidewalk, defendant ran out of the house armed with the paring knife. Defendant then stabbed Mr. Farrohk-Shahab with the knife. After the stabbing, defendant went back inside and picked up a large kitchen knife. It was only because Ms. Nazarian said defendant would have to kill her before anything further happened that he put the knife down. After the incident, Ms. Nazarian also told Officer McDonald defendant had previously threatened to kill Mr. Farrohk-Shahab.

The jury could reasonably infer that defendant had sufficient time to premeditate and deliberate before he intentionally picked up the fruit knife and left the residence. Defendant then charged Mr. Farrohk-Shahab. Defendant had threatened to kill Mr. Farrohk-Shahab previously and on the night of November 5, 2005. Defendants further act of getting a larger knife when his first attempt was unsuccessful supports the inference he possessed the requisite mental culpability. (People v. San Nicolas, supra, 34 Cal.4th at p. 658 [the brief period during which defendant saw the victims reflection in a mirror and turned around to stab her was adequate to have reached the deliberate and premeditated decision to kill]; People v. Mayfield, supra, 14 Cal.4th at p. 769; People v. Sanchez, supra, 12 Cal.4th at pp. 32-33; People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez, supra, 2 Cal.4th at pp. 1125-1126; People v. Thomas (1992) 2 Cal.4th 489, 516-517.)

B. Alleged Prosecutorial Misconduct

1. Overview

Defendant argues that the prosecutor, Debra Archuleta, committed misconduct by: arbitrarily using immunity power; denying his constitutional right to compel the attendance of a witness and present a defense; and making inappropriate comments during closing argument. In reviewing the principles governing findings of prosecutorial misconduct the California Supreme Court has consistently noted: The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . 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.] 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. [Citation.] (People v. Carter (2005) 36 Cal.4th 1215, 1263, quoting People v. Ochoa (1998) 19 Cal.4th 353, 427; People v.Hill (1998) 17 Cal.4th 800, 819; People v.Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v.DeChristoforo (1974) 416 U.S. 637, 642-643; People v.Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.)

2. Forfeiture

Defendant neither objected to the alleged instances of prosecutorial misconduct at trial nor requested a grant of immunity for Mr. Mansoori. The failure to timely object forfeits these issues on appeal. A reviewing court will generally not review a claim of prosecutorial misconduct unless an objection and request for admonishment was raised at trial, or unless an admonishment would not have cured the harm. (People v. Benavides (2005) 35 Cal.4th 69, 108 [defendants failure to object to prosecutors alleged plea to the passions and prejudices of the jury and failure to request an admonition resulted in forfeiture of the issue on appeal]; People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Navarette (2003) 30 Cal.4th 458, 507; People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v.Ochoa, supra, 19 Cal 4th at p. 427.) Our Supreme Court has held, The reason for this rule, of course, is that the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instruction the harmful effect upon the minds of the jury. [Citation.] [Citation.] (People v.Cox (1991) 53 Cal.3d 618, 682, quoting People v.Green (1980) 27 Cal.3d 1, 27, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)

3. Immunity

a.       factual and procedural background

Defendant argues that the prosecutor committed misconduct by arbitrarily granting immunity to Ms. Nazarian but not to Mr. Mansoori. During her opening statement, the prosecutor stated: [Ms. Nazarian] told [Ms. Campbell] and [Dr. Shahab] that if [Mr. Farrohk-Shahab] would say that this was an accident, that he would be taken care of financially. [Ms. Nazarian] also told them that if [Mr. Farrohk-Shahab] spoke against his stepfather, the defendant, that they would not support him financially any longer. The prosecutor further argued: [Mr. Mansoori] will tell you that he also attempted to dissuade [Mr. Farrohk-Shahab] from testifying against the defendant. And, in fact, was present when there was [sic] discussions between [Ms. Nazarian] and [Mr. Farrohk-Shahab] about paying him off to make this case go away. On the other hand, defense counsels opening argument included the following: [Mr. Farrohk-Shahab] said to other people, to his mother, to [Mr. Mansoori], [Dr. Shahab], you get me $2 million and youll never see me again. Put half of everything that [defendant] owns in my name. Defense counsel further argued that the jurors would hear testimony that Mr. Farrohk-Shahab was disrespectful to defendant. Moreover, according to defense counsel, Mr. Farrohk-Shahab was ungrateful for the benefits defendant had provided over the years.

Ms. Nazarian testified at length regarding the November 5, 2005 incident. Ms. Nazarian testified that a large kitchen knife was on the kitchen counter after defendants initial altercation with Mr. Farrohk-Shahab. But she denied seeing defendant grab the large kitchen knife. Ms. Nazarian also denied she told the police that defendant held the large knife. Ms. Nazarian also denied participating in any conversation with defendant, Ms. Davoodian, and Mr. Mansoori about a bribe which could lead to the dismissal of the charges. Ms. Nazarian admitted asking Ms. Davoodian and Mr. Mansoori to speak to Mr. Farrohk-Shahab about dropping the case but not for money. Ms. Nazarian acknowledged that she spoke almost daily with Detective Irvine for some time. Ms. Nazarian did not remember telling Detective Irvine that defendant was present in Ms. Davoodians back yard when Mr. Mansoori discussed a half-million-dollar bribe. Ms. Nazarian said she told Mr. Farrohk-Shahab repeatedly the stabbing was just an accident but never offered him money or things of value to testify differently.

The prosecutor attempted to question Ms. Nazarian regarding the Delaware trip where a bribe was discussed with Dr. Shahab and Ms. Campbell. Defense counsel objected on Evidence Code section 940 grounds.^[3] A sidebar conference followed. One of defendants attorneys, Allen Rose, argued Ms. Nazarian was being questioned about a criminal act for which she could be prosecuted. The trial court noted: Well, Ive got to say, so far she has not admitted to anything that would lead to potential criminal liability. But certainly the potential is there. Particularly in light of the Peoples earlier offer of proof that there were admissions made by the witness to the detective. [] I think, out of abundance of caution, if shes not represented by counsel, spoken to her about this issue - - I dont know if this conversation that youre going into in Delaware now is going to be more incriminating than what shes previously testified to. So far shes denied that she ever offered anyone money, specifically in exchange for false testimony. So theres no criminal exposure or liability with her testimony thus far. [] But I agree with [defense counsel], that given this issue and given the Peoples offer of proof, if the People are not going to immunize her for her alleged conduct in connection with this, then she needs to consult with an attorney to decide what her options are. The prosecutor, Ms. Archuletta, expressed uncertainty as to what Ms. Nazarians testimony would be regarding the Delaware trip. Ms. Archuletta had not interviewed Ms. Nazarian. Ms. Archuletta explained: Every time we talk to her its a different version. I am only going off the information contained in the reports. In addition, Ms. Archuletta indicated that a request for immunity must be approved by the chain[] of command within her office. The trial court believed there was a need to appoint an attorney to advise Ms. Nazarian even absent a grant of immunity by the prosecutors office.

The following day, Steven Larkin was appointed to represent Ms. Nazarian. Mr. Larkin stated Ms. Nazarian would invoke her Fifth Amendment privilege. The trial court indicated that although the prosecutor decided not to question Ms. Nazarian about the Delaware trip, Mr. Larkin was still appointed: Because I think the potential for self-incrimination is there with regard to conversations generally about whether she ever offered the victim in this matter money in exchange for testifying falsely in court. And there was some discussion of that on direct yesterday, particularly as it relates to the conversation in the uncles backyard. [] And so I think that the potential covers not only the Delaware conversations, but also based on the Peoples offer of proof yesterday, potentially the backyard conversation as well. But, as I indicated to counsel before we went on the record, as it stands right now, theres a complete denial of this witness yesterday that there was ever any criminal conduct on her part. One of defendants attorneys, Mr. Rose, argued that he necessarily had to cross-examine Ms. Nazarian about the attempts to bribe Mr. Farrohk-Shahab. Immunity was granted to Ms. Nazarian. The immunity grant was to be applied retrospectively to cover any conduct arising out of this case involving the crimes of perjury and attempts to bribe or dissuade a witness.

When trial resumed, Ms. Nazarian acknowledged that she had been granted immunity from prosecution in connection with perjury and efforts to bribe a witness. Ms. Nazarian admitted telling Ms. Campbell that if Mr. Farrohk-Shahab were to say the stabbing was an accident, he would have money for everything he needed. However, Ms. Nazarian denied saying that if Mr. Farrohk-Shahab did not change his testimony she would not be able to support him financially.

The trial court also inquired regarding the necessity of appointing counsel to represent Ms. Davoodian and Mr. Mansoori prior to their testimony. Toney Govea was appointed to advise Ms. Davoodian. Mr. Govea reported Ms. Davoodian was not a percipient witness to any conversations between Mr. Farrohk-Shahab and Mr. Mansoori related to money or dropping the case. Ms. Davoodian indicated that after discussing the issue with Mr. Govea, she would voluntarily testify. Mr. Mansoori, however, indicated that he would invoke his Fifth Amendment privilege absent a grant of immunity. However, the prosecutor did not call Mr. Mansoori as a witness and declined to grant him immunity. Mr. Mansoori was called as a defense witness only regarding his observations of what took place when he and Ms. Davoodian arrived at the Nazarian home after the November 5, 2005 stabbing. Defense counsel did not request that Mr. Mansoori be granted non-statutory immunity.

b.      The failure to grant immunity to Mr. Mansoori

The California Supreme Court has held: The grant of immunity is an executive function, and prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant. [Citations.] (People v. Williams (2008) 43 Cal.4th 584, 622; People v. Samuels (2005) 36 Cal.4th 96, 127; People v. Stewart (2004) 33 Cal.4th 425, 468; In re Williams (1994) 7 Cal.4th 572, 609; People v. Cudjo (1993)6 Cal.4th 585, 619; In re Weber (1974) 11 Cal.3d 703, 720.) Our Supreme Court has also held: [A]lthough the prosecution has a statutory right, incident to its charging authority, to grant immunity and thereby compel testimony [citation], California cases have uniformly rejected claims that a criminal defendant has the same power to compel testimony by forcing the prosecution to grant immunity. [Citation.] (People v. Samuels, supra, 36 Cal.4th at p. 127, quoting In re Williams, supra, 7 Cal.4th at p. 609; see also People v. Cudjo, supra, 6 Cal.4th at p. 619; In re Weber, supra, 11 Cal. 3d at p. 720.) Defendant argues that the prosecutor manipulated the presentation of evidence in such a manner as to deceptively persuade the jurors he was guilty. More specifically, defendant argues: The prosecutor knew before she called [Ms.] Nazarian that the prosecutor would accuse [Ms.] Nazarian of a crime. The prosecutor remained silent regarding the need for counsel to advise the witness. Defendant notes that after Ms. Nazarian was assigned counsel and invoked her Fifth Amendment privilege not to testify, only then was she granted immunity. Defendants ultimate complaint is that thereafter immunity was not granted to Mr. Mansoori, Because there does not appear to be an objective reason to treat the two witnesses differently, it must be assumed that the decision to grant [Ms. Nazarian] immunity and not [Mr. Mansoori] was a personally motivated decision. Defendant concludes that the prosecutors unjustified refusal to grant Mr. Mansoori immunity denied the defense access to exculpatory evidence.

Defendants reliance on federal circuit court decisions in United States v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086, Government of Virgin Islands v. Smith (3rd Cir. 1980) 615 F.2d 964, 972, and People v. Hunter (1989) 49 Cal.3d 957, 974-976 to support his contentions is misplaced. Preliminarily, decisions of lower federal courts, while persuasive, are not binding on us. (People v. Seaton (2001) 26 Cal.4th 598, 653; People v. Williams (1997) 16 Cal.4th 153, 190; Wagner v. Apex Marine Ship Management Corp. (2000) 83 Cal.App.4th 1444, 1451.) These cases relate to a defendants request that the trial court grant the witness use immunity, which did not occur in this case. Moreover