P. v. Petoyan

Filed 7/21/08 P. v. Petoyan CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Affirmed as modified.

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.

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 defendants sentence, but we disagree with defendants 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 stores 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 Hovhannisyans 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 Pariss 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 Markosyans 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 Moskovians 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 defendants 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.^[1]

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.^[2]

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);^[3]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)).

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 defendants 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 defendants 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, defendants father placed an ad in a newspaper and posted flyers asking witnesses to the shooting to come forward. Defendants father also found a photograph of defendant with a friend, Mike Panysyan. Four witnesses came forward and said defendant was not the shooter.^[4] All four witnesses identified Panysyan as the shooter or said he looked similar to the shooter.

Before trial, the prosecutor asked to examine defendants 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 defendants statementsafter the second trialshowed 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 defendants explanation why he did not come forward with the exculpatory evidence soonerhe did not think he was going to be found guiltywas 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 defendants statement why he waited to come forward with the evidence qualified as an admission, and overruled defendants 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 its prejudicial, its very probative in this case because it cuts to the defense theory. The prosecutor asked whether she would be allowed to cross-examine defendants 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, Ill so instruct you.

During cross-examination of defense witness Vardan Petoyan, defendants 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 isnt 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. Thats 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 thats 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. Thats why he told me that, Im 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 defendants 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 counsels objection was sustained, as was an objection to the prosecutors 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 counsels objection was overruled. Again over defense counsels 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 defendants 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 defendants 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 prosecutors questioning violated the trial courts rulings regarding the scope of permissible examination concerning the verdicts in the prior two trials; hence, the prosecutor committed prejudicial misconduct.

A prosecutors 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 defendants 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 prosecutors 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 defendants 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.^[5] We begin with the courts 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 rulingsand the reasons for themare 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.)^[6]

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 defendants family searched for, and found, exculpatory witnesses. The court therefore allowed the prosecutor to question witnessesand in particular Vardan Petoyanabout 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 prosecutors cross-examination of Vardan Petoyan, which cross-examination also constituted misconduct. During cross-examination, the court denied the prosecutors 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 prosecutors examination. It came from defendants 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 defendants former attorney. Defendant tries to minimize the impact of Grigors 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 defenses 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 Vardans testimony, rather than Grigors.

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 whats 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 youare cooperative before trial, and then once trial begins or court proceedings begin, they go whats 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 Peoples gang expert, Officer Frank Flores, the witness testified that it is not uncommon for people to recant, change or not [to] restate things that theyve 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 counsels 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, defendants 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 defendants mother. During the prosecutors 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 trials verdict. Thats a given. [] This information came forward after the second trials verdict. That alone would not make thisour 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 aboutI cant 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 beyondI cant believe how far youve let her go. And I say this respectfully. Maybe thats the way its supposed to be, but I dont 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 Peoples gang expert was recalled, and he repeated that he had no information that any member of defendants 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. Lets --

[The prosecutor]: Ill withdraw.

The court: All right.

Q . . . [] In becoming an expert on the Armenian Power gang, did you have to investigatehave 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. Whatactually what type of intimidation tactics does Armenian Power gang members employ when theyre 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 caseand since were talking about it, its 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 dont understand why the victims in this case went sideways from the time that they testified.  She then referred to Officer Floress testimony that gangs use fear and intimidation. Later, she argued its unreasonable to believe that witnesses are not afraid to testify. [D]o you think that theyre not in fear when they come in, and if they testify and identify the defendant and say, Thats the man who shot me, and he gets convicted, that theyre 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? Hes 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. Thats what they do. They threaten, kill, beat people that go against them. Thats how they have a strong hold on that community and thats 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, havent 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.)^[7]

It is not misconduct, however, for a prosecutor to ask witnesses about fear, because evidence a witness is afraid is relevant to the witnesss 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 defendants mother in a store crying after the second trial that Hakopyan came forward. Hakopyan also testified that although she lived near defendants mother, they had never met before their encounter at the store. Thus, the prosecutor referenced how Hakopyan ran into defendants mother after the verdict in the second trial, despite being neighbors. Although perhaps harsh and colorful,^[8]this line of questioning was directed at Hakopyans failure to come forward sooner and her credibility. (See generally, People v. Ratliff, supra, 189 Cal.App.3d 696.)

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 reasonsnamely, they were afraidwhy 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 counsels objections to the prosecutors questions to Grigor Petoyan asking him if he would admit fabricating evidence and to questions about intimidation tactics Armenian Power employs when theyre 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 prosecutors questions were relevant to a witnesss credibility, even if the questions were harsh and colorful. And, notwithstanding the prosecutors 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, defendants objections to the prosecutors questions were sustained. For example, the prosecutor, at the trial courts prompting, withdrew her question to the gang expert about whether witnesses fabricate evidence, and the court sustained an objection to the question concerning Armenian Powers 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) defendants 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^[9]asked to introduce evidence of defendants gang affiliation to establish motive and to explain the defendants actions of shooting the person and also to explain the defendants 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 hes 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 defendants 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.

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 defendants 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 defendants 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 defendants 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 Peoples 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 Im 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 Powers 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 doesnt have respect, it doesnt have control. If it doesnt have the fear factor, its 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 dont report the crimes. Gangs do not, however, always shout out their gang name when fronting for their gang.

In Officer Floress opinion, defendant is a member of Armenian Power. He based his opinion on police reports, statements and interviews of defendants 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 lifewhich is associated with Hispanic Street gangs and represents an affiliation between Armenian Power and the Mexican Mafia. Defendants 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 gangs benefit: [I]t is typical of other crimes Ive investigated in the past where the gang member whos challenged is put into the necessary position where there are two females involvedso now you add another factor of respect, where hes 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 its known that this person was involved, the benefit flows out. From now on, its 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 outI mean the word spreads. [] The gang exists on fear and intimidation, through its action. It doesnt go out and advertise in the newspaper or through a billboard. It does it through action, word of mouth. Theyre specifically tight knit in the community, the people there in Hollywood where its . . . 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, . . . its obvious that person feels like I should be known. . . . You should know what area you are in when you come in, and its something that they feel should be obvious to anybody else, When youre confronting me, this is what this is, who I am, you should know youre in my territory.

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

Unless a defendants 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 defendants substantial rights are prejudiced, the motion must be denied. (People v. Birks (1998) 19 Cal.4th 108, 129.)

Here, defendants 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 gangs 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. Defendants 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, theyre willing to shoot someone over that is building the gangs reputation, building the gang members 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 theyre expected to. [] The gang loses status, as well. If hes 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 defendants 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.

Defendants 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 shooters 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.^[10] 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 defendants argument was and is that the amendment should not have been allowed under Evidence Code section 352, we must reject 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, defendants 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 counsels 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 counsels performance comes within the wide range of reasonably professional assistance and that counsels 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 counsels 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 counsels 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 defendants 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 defendants gang affiliationincluding evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the likecan 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 l