Filed 7/30/14 P. v. Espinosa CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
ALBERTO ANTONIO ESPINOSA,
Defendant and Appellant. B248395
(Los Angeles County Super. Ct. No. BA381208)

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed in part, and reversed in part with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

__________ ____________2 INTRODUCTION

Alberto Antonio Espinosa appeals from a judgment of conviction entered after a jury found him guilty of assau lt with a firearm (Pen. Code, 1 § 245, subd. (a)(2)) and also found true the allegations that Espinosa co mmitted the crime for the benefit of, at the direction of, or in association with a crimin al street gang (§ 186.22, subd. (b)(1)(C)) and that he personally used a firearm (§ 12022 .5, subd. (a)). The trial court sentenced Espinosa to state prison for a total of 18 year s, consisting of the upper term of four years, plus 10 years for the criminal street gang enhancement and four years for the personal
firearm use enhancement. Espinosa argues that substantial eviden ce does not support the jury’s finding on the criminal street gang enhancement. Espinos a also argues that he did not receive a fair trial because one of the prosecution’s witn ess revealed to the jury that Espinosa previously had been on probati on and arrested. We affirm the conviction but reverse the
sentence because of an unauthorized senten ce, and remand the matter for resentencing.

FACTUAL AND PROCED URAL BACKGROUND

On February 15, 2011 Christina Perez, Daniel Canas, and their baby daughter
were in a white van traveli ng uphill on Millburn Drive in Lo s Angeles en route to the
house where Perez lived with he r mother. As Perez, who was pregnant with the couple’s second child, drove up the hill, a “vanilla crea m” Chrysler 300 came do wn the hill, driven by Espinosa, Perez’s former boyfriend, whom she only knew by his nickname of
Travieso. Canas observed th at Espinosa was driving erra tically and too fast. Canas reached over from the passenger seat of Perez’ s car and honked the horn. After he had passed, Espinosa made a U-turn a nd came back up Millburn Drive.

1 All undesignated section references are to the Penal Code.3 Espinosa, who was alone in his car, rolle d down his window, and Canas told him to be careful where he was going and to st ay away from Perez “for the baby’s sake, mostly.” Espinosa responded , “Where you from?” and “What’ s up? What’s the problem? What’s up? What’s going on? What’s up?” 2 Canas understood that the question “Where are you from?” meant “What gang are you from? ” Canas, who was not a member of a gang and did not know what gang Espinosa was in, responded, “I’m not from nowhere. Why? What’s up? What’s going on? What’s up with you?” Espinosa then yelled “City Terrace,” which is a criminal street gang. Af ter Perez made a U-turn so that she could park facing downhill, Canas got out of Perez’ s car and responded, “It has nothing to do with your neighborhood,” “Fuc k City Terrace,” and “I have family from gangs, from the Avenues.” Canas was very upset and again to ld Espinosa to stay away from Perez and his daughter. Espinosa made a movement, a nd Canas “saw something that looked like a gun.” Perez heard Espinosa ask Canas where he was from. Although Perez did not hear Espinosa say “City Terrace,” she knows that C ity Terrace is a gang and that her house is within the territory claimed by City Terrace. Perez wanted to avoid a confrontation and moved between the two men “trying to stop th e argument.” She told Canas “to keep his mouth shut” and not to start problems with so meone who was no longer a part of her life. Espinosa then drove away. Perez gave a sigh of relief and said, “Just go. We don’t want any problems.” Perez then went to pick up their baby from the van, and Canas started walking up the driveway toward the house. Less than a minute later, Espinosa retu rned with a passenger, Jimmy Cervantes, who, like Espinosa, was a member of the C ity Terrace gang. Canas observed that the passenger window was down. Cervantes said , “What’s the problem?” or “What’s going
on over here?” Canas walked back toward Espinosa’s car and saw Espinosa take out a

2 Counsel for Espinosa impeached Cana s with his testimony at the preliminary hearing that Espinosa did not ask him where he was from. Canas told the deputies who responded to Perez’s 911 call, however, that Espinosa had asked, “Where are you from?”4 black and chrome handgun, “like a .38 or .45 caliber handgun, automa tic pistol,” like the “.45 [that] served our countr y well in World War II.” While the car was moving slowly, Espinosa reached across Cervantes and pointed the gun out the passenger window. Canas could clearly see the gun, the driver, and the passenger. Cana s was afraid, “[f]or obvious reasons,” but he was also very angry. Pe rez then asked Espinosa, “What are you doing pulling out a gun? My daught er’s here.” A second late r, Espinosa drove away. Perez called the police. The recording of the 911 call, which the People played for the jury, 3 included conversations between Perez and the 911 operator and conversations among Perez, her mother, and Cana s. On the recording, Pere z stated that she had “just seen some gang members” pass by her house and pull out a gr ey or chrome gun and point
it at Canas. Perez said that Canas had instigated the confrontation. When asked if she knew the name of the person with the gun, Perez said that she only knew “his gang affiliated name,” Travieso, but she did not kn ow his real name. When the 911 operator asked what gang Travieso was from, Pere z answered, “He’s from City Terrace.” The recording also included statements by Pere z that she believed her house was now a “target” and “now they’re really gonna shoot” at her house. Los Angeles County sheriff’s deputie s arrived and Perez gave a recorded

statement. 4 In her statement to the responding deputy, she described both encounters with Espinosa. Perez stated that when she first saw Es pinosa (whom she only knew as Travieso from City Terrace), 5 she was close to his car. She saw him reach for the gun and was able to see part of the gun in his hand. When Espinosa returned, she saw him

3 Pursuant to the parties’ stipulation, the court reporter did not transcribe the contents of Perez’s 911 call. The trial c ourt, however, admitted a transcript of the recording into evidence.

4 The People also played portions of Perez’s recorded stat ement for the jury. Although again pursuant to the parties’ stipulation the court reporter did not transcribe it, the trial court admitted a transcript of the recorded statemen ts into evidence.

5 Perez identified Espinosa in a field show-up.5 pull out a gun and point it at Canas. Perez stated, “Travieso didn ’t pull the gun out on me, but Travieso did see me. He pulled it out and pointed it at [Canas ].” Perez said that Espinosa pulled the entire gun “all the way out” while the passenger (Cervantes) was “yelling, ‘Hey fool where you from? Hey f ool where you from? What’s up fool,’ and
stuff like that.” Perez called to her mother, “Go inside, there’s a gun . . . I’ll call the . . . cops.” Perez also told the detectives that she thought Espinosa “was going to come back and shoot” because of his gang affiliation. At trial, Perez remembered very little of her conversation w ith the 911 operator, and she did not remember any of her conversa tion with the deputy sheriffs. She testified at trial that she heard Canas say Espinosa had a gun, but she never actually saw the gun. She admitted, however, that sh e had told the police that day that she saw a gun. Perez also testified that, although she and Canas had a “history, no t a good history, you know, of issues,” she was “trying to stick by [her] man,” just “trying to ma ke things work,” and “was going to say” whatever he said. She st ated, “I didn’t figure he’d make it up, but I
didn’t see it.” Los Angeles County Sheriff’s Detective Frank Alvarado te stified as a gang expert for the prosecution. He worked for over 15 years as a “gang-detail deputy” and patrolled “gang-infested areas” of East Los Angeles a nd Compton. At the time of trial, Alvarado was assigned to investigate cas es involving the City Terra ce 13, Cudahy 13, Winter Gardens, and Arizona Ma ravilla criminal gangs. Alvarado explained that the City Terran ce 13 gang has been in existence since the 1970’s and that in February 2011 it had approximately 90 members. City Terrace gang
members “have the ‘CT’ followe d by the 13, and they like to use the Spanish version se te,” and they use “the Minnesota Twins’ emblem, which is the C and the T letters intertwined together, similar to their baseba ll caps.” He further explained that the number 13 represents “their asso ciation with southern Hispan ic gangs, and the 13th letter of the alphabet being M, and ‘M’ standing fo r Mexican Mafia, indicating that [the] City Terrace 13 gang has allies and accepts the rules of the Mexican Mafia.” He stated that the primary activities of the City Terrace 13 ga ng are “[p]ossession of firearms, sales and6 distribution of narcotics, robberies, assault with deadly weapons, shoo tings, things of that
nature.” Alvarado testified that he kne w Espinosa “[f]rom numerous contacts” as “a member of the City Terrace 13 gang and he was known as Travieso.” He stated that Espinosa has a tattoo of the letter “C” on his right arm, a tattoo of the letter “T” on his left arm, and “CTR” on his knuckles, all of which are City Terrace gang tattoos. He also said that Espinosa drives a Chrysler 300.
Alvarado testified that disr espect on a personal level can transition into “disrespect on a gang level” because by disrespecting an i ndividual in a gang a person can disrespect the gang that the individual represents. Alva rado stated that a gang member advertises that he or she is part of a certain gang with “[t]attoos, shouting . . . out [the name of the gang], vandalisms, indicating sp ray paintings on the walls . . . .” Alvarado explained that “[s]houting out” is when a gang member, “es pecially in the commission of a crime, indicat[es] your gang name wh en you commit a crime or shor tly thereafter or as you’re leaving, which is common.” Gang members id entify the name of their gang in this way “to show their adversaries how great they are, how bold they are, and to show them that’s their gang and they’re not to be disrespected and we’re the best of the best,” as well as “to instill fear and intimidation against their adversary and to let th em know that they’re out there, they’re not going to be disres pected, and they’re going to defend their neighborhood at whatever cost.”
Alvarado also testified that the question, “Where are you from,” is a “confrontational” question. “If a rival or a gang member says where are you from, essentially he’s trying to gain information from the other person, which neighborhood or gang they represent, and if they are riva ls, the chances of an assault or something happening are [imminent].” He also confirme d that saying “Fuck C ity Terrace” would be disrespectful. Finally, he op ined in response to a hypothetical question based on facts7 virtually identical to those in this case, 6 that Espinosa committed the crime for the benefit of and in association with the City Terrace 13 gang. Alvarado’s opinion was “based on the fact of [the] mere confr ontation of asking ‘Where are yo u from’ is saying that [the] individual is going to be an adversary, a nd the mere fact of pulling out a firearm is promoting fear and intimidation not only in the witness but in other individuals who may
have seen this crime. That’s what gangs use to thrive on is fear and intimidation. . . . And in association, when that individual pi cked up the second individual who may have been a member of the same gang.” Alvara do explained that it was important that Espinosa picked up a passenger before he re turned for the same reason deputies have backup, and for “[a] second set of eyes out there for what’s potentially going to happen, some dangerous situation.” Having a witne ss also proves the person’s loyalty to the gang, toughness, and reputation within the gang. Alvarado added that speaking the phrase “Where are you from” and bringing alon g backup can change a confrontation that may have begun as personal into a c onfrontation that is gang-related.

DISCUSSION

A. There Was Substantial Evidence To Support the Jury’s Finding on the Criminal Street Gang Allegation Espinosa argues that his due process rights were violated because there was
insufficient evidence to support the jury’s finding that th e criminal street gang allegation was true. He argues that “the prosecuti on failed to establish that the crime was
committed for the benefit of or in associati on with City Terrace” and that “the assault appears to have resulted from a domestic dis pute” arising out of jealousy or romantic rivalry between Espinosa and Canas over Perez. We conclude that, although there may

6 Counsel for Espinosa obj ected to the hypothetical que stion on “four grounds,” but the discussion regarding the objection occurred o ff the record at side bar. The trial court overruled the objection, and Espinosa ha s not challenged that ruling on appeal.8 have been some evidence of a personal dispute between the two men, there was substantial evidence to suppor t the jury’s finding that Espi nosa threatened Canas with a gun for the benefit of or in association with the City Terrace 13 criminal street gang. In order to prove a criminal ga ng enhancement under section 186.22, subdivision (b), the People mu st prove beyond a reasonable doubt that the defendant committed the felony “for the be nefit of, at the direction of, or in association with any criminal street gang, with the specific inte nt to promote, further, or assist in any criminal conduct by gang members . . . .” This statute “requires proof of only two elements: (1) that the defe ndant committed a felony for the benefit of, at the direction of, or in association with any criminal street gang and (2) that he did so with the intent to promote, further, or assist in criminal conduct by gang members. [Citation.] It does not require proof that a defendant acted with the specific intent to promote, further, or assist a gang. [Citation.]” ( People v. Mejia (2012) 211 Cal.App.4th 586, 613.) Espinosa argues only that the People failed to meet their burden on the first element. The People may and usually do prove the elements required for a criminal street gang enhancement through the testimony of experts in gang culture. (See People v. Vang (2011) 52 Cal.4th 1038, 1045; People v. Gardeley (1996) 14 Cal.4th 605, 618.) Answering “hypothetical questions based on other evidence the prosecution presented . . . is a proper way of pres enting expert testimony.” ( People v. Gonzalez (2006) 38 Cal.4th 932, 946; see People v. Valadez (2013) 220 Cal.App.4t h 16, 29 [“California law permits gang experts to rely on reliable hearsay evidence to fo rm an opinion, even if the evidence would otherwise be inadmissible”]; People v. Hill (2011) 191 Cal.App.4th 1104, 1120 [“[e]xpert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant’s membersh ip in a gang; gang rivalries; the ‘motivation for a particular crime, generally retaliation or intimidation’;
and ‘whether and how a crime was committed to benefit or promote a gang’”].) The People can also rely on evidence of the defend ant’s gang activity. (See People v. Carr (2010) 190 Cal.App.4th 475, 489 [“a jury ma y rely on evidence about a defendant’s personal conduct, as well as expert testimony about gang cu lture and habits, to make9 findings concerning a defendan t’s active participation in a gang or a pattern of gang activity”].) The evidence at trial, view ed in the light most favorable to the judgment, was sufficient to support the jury’s finding that Espinosa assaulted Canas with a firearm for
the benefit of or in association with the City Terrace 13 street gang. (See People v.
Albillar (2010) 51 Cal.4th 47, 59-60 [“[i]n considering a cha llenge to the sufficiency of the evidence to support an enha ncement, we review the entir e record in the light most favorable to the judgment to determine whet her it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from whic h a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt”].) First, Espinosa gave Canas the comm on gang challenge preceding violence, “Where you from?” Alvarado testified that asking that question is an act of aggression indicating that a gang-related assau lt or other crime is about to occur. 7 Even if there were elements of the dispute between Espino sa and Canas that were personal, by asking “Where you from,” Espinosa escalated the confrontation with Canas to one for the benefit of or in association with City Terrace 13.

7 As experts and other witnesses have un iformly testified in other cases, this question is commonly recognized as a gang-related question. (See, e.g., People v. Medina (2009) 46 Cal.4th 913, 917 [former gang member explained that “when a gang member asks another gang member ‘where are you from?’ he means ‘what gang are you from?’ a question that constitutes an ‘aggression step’”]; People v. Partida (2005) 37 Cal.4th 428, 441[“gang expert explained th at ‘Where you from?’ constitutes a ‘challenge’ in the gang culture . . . w ith ‘no correct answer’”]; People v. Miranda (2011) 192 Cal.App.4th 398, 412 [“expert te stified that when a gang member asks someone where he or she is from, it is a prelude to a confronta tion (either verbal or violent) even if the person responds that he is not from a gang”]; People v. Reyes (2009) 172 Cal.App.4th 671, 681 [“[w]hen approaching others in th eir territory, the local gang member usually inquires, ‘Where are you from?’”]; People v. Felix (2008) 160 Cal.Ap p.4th 849, 854 [“‘“Where are you from?”’ . . . understood to be a demand for a gang affiliation”]; People v. Perez (2004) 118 Cal.App.4th 151, 157 [“[w ]hen a gang member asks ‘Where are you from,’ he is planning to engage in violence”].)10 Second, Espinosa called out the name of his gang when he confronted Canas during the first encounter. Alvarado explaine d that shouting out the name of the gang, as Espinosa did, during the commission of a crime is common and identifies that person with a particular gang. Calling out the name of the gang is for the benefit of the gang because it demonstrates the strength of the ga ng, that the gang is entitled to respect, and that the gang members will defe nd the gang’s territory. It also helps spread fear and intimidate those who may be adverse to, or consider testifying against, the gang. 8 Third, Canas made statements that disrespected Espinosa’s gang, which necessitated a response from a member of th e gang. Alvarado explained that Canas’ response “Fuck City Terrace” and his statemen t that he had family in a gang not only showed disrespect to Espinosa , but showed disrespect for the entire City Terrace gang that Espinosa represented. 9

8 Calling out the name of a gang whil e committing a crime is also commonly recognized as a way to bene fit the gang. (See, e.g., People v. Miranda
, supra , 192 Cal.App.4th at p. 412 [expert explained that “[w]hen a gang member announces his gang affiliation during commission of a crime, the entire gang is benefited by an enhanced reputation”]; People v. Samaniego (2009) 172 Cal.App.4th 11 48, 1162 [defense expert testified that “[w]hen a group commits a gang crime, it is cu stomary for them to yell out their gang’s name”].)

9 It is generally recognized that respect is an integral part of gang culture and that disrespect requires a response. (See, e.g., People v. Tran (2011) 51 Cal.4th 1040, 1045 [noting gang expert’s testimony that “respect is of paramo unt importance to gangs, and that gang members will shoot members of a rival gang to enhance the reputation of their own gang, to benefit their gang’s recruitment processes, and to send the message that gang members will react violently to acts of disrespect committed against the gang”]; People v. Medina
, supra , 46 Cal.4th at p. 918 [noting ga ng expert’s testimony that “gang members view behavior that ‘d isrespects’ their gang as a challenge and a ‘slap in the face,’ which must be avenged” and that “if no retaliatory action is taken in the face of disrespectful behavior, the cha llenger and others will view th e gang member and the gang itself as weak”]; People v. Galvez (2011) 195 Cal.App.4th 1253, 1261 [crimes were committed in association with the gang because “[a] gang me mber who does not respond to an act of disrespect will lo se stature within the gang”]; People v. Hill
, supra , 191 Cal.App.4th at p. 1126 [noting the “importa nce of respect and exclusive gang turf to street gangs, which react vi olently to disrespect”].)11 Fourth, Espinosa returned with another member of the gang who could serve as protection and could witness an d confirm Espinosa’s “loyalty to the gang, toughness, and reputation within the gang.” 10 (See People v. Albillar
, supra , 51 Cal.4th at p. 61 [citing to gang expert’s testimony that “[o]ne of the most important things why gang members commit crimes together is the value of one gang member witnessing another gang member committing the crime because that gang member can share it with others or keep it within the group and bolster this person’s st atus by their level of participation in the crime,” and that “[b]y committing crimes together . . . gang members increase their status not only among those participating in the cr imes, but also among the entire gang when fellow participants ‘relay it’ to other gang me mbers”].) Indeed, “evidence that a gang member has committed a crime with another pe rson whom he knows to be a fellow gang member will ordinarily be sufficient to meet the disjunctively worded elements of section 186.22, subdivision (b)(1).” ( People v. Leon (2008) 161 Cal.App.4th 149, 162; see People v. Hunt (2011) 196 Cal.App.4th 811, 819 [“‘fa ct . . . that the defendant had a fellow gang member in the stolen vehicle with him would support a finding that he acted
in association w ith the gang’”].) Fifth, the dispute occurred in territory claimed by the City Terrace 13 gang. Alvarado explained that gang members main tain control over the gang’s territory and those who live in it, by creating fear among residents not to report the gang’s criminal
activities to law enforcement. Alvarado tes tified that non-gang members are reluctant

10 Espinosa asserts that “no extrinsic evid ence of Cervantes’ gang membership was presented.” Not so. Alvarado, who was assi gned to investigate City Terrace 13 cases, testified that he was familiar with Cervan tes from “numerous cont acts” and believed he was a member of the City Terrace 13 gang. It is not entirely clear from the testimony whether these “contacts” were by Alvarado or others, although when Alvarado testified that he knew Espinosa was a member of th e City Terrace 13 gang because of “numerous contacts,” Alvarado explained that he meant pe rsonal contacts. In a ny event, counsel for Espinosa did not object to the questions about how Alvarado knew Cervantes was a member of the gang, and we view Alvarado’s testimony in the light most favorable to the judgment.12 to report a crime or testify and fear retaliati on “because eventually they know they have to go back to their homes and they can’t go anywhere else.” The evidence showed that crimes of intimidation were partially successful in this case, in that Perez and, to a lesser extent, Canas changed their testimony (or at l east remembered less) by the time of trial. Perez was particularly concerned about retr ibution from the gang because her family
still lived in the same house in the gang’s territory. (See People v. Galvez
, supra , 195 Cal.App.4th at p. 1261 [“crimes were committ ed for the benefit of the gang because,” as the gang expert explained, beating of victim “in a pu blic place in gang territory ‘promotes fear, which, in essence, promot es their gang and their brutality to the community in which they live’”]; People v. Miranda
, supra , 192 Cal.App.4th at p. 413 [substantial evidence supported the gang enhancement wher e “there was evidence that defendant was accompanied by fellow gang members, the cr ime was committed in the gang’s territory, and the gang’s name was called out”].) Finally, Espinosa’s possession of a fire arm and assault with a firearm were two
of the activities that Alvarado identified w ith the City Terrace 13 gang. These facts provide additional evid ence that Espinosa committed the cr ime for the benefit of or in association with City Terrace 13. (See People v. Sanchez (2014) 223 Cal.App.4th 1, 12 [that “defendant’s crimes involved both of the gang’s primary ac tivities” was substantial evidence of gang enhancement].) The cases cited by Espinosa, People v. Ochoa (2009) 179 Cal.App.4th 650 and People v. Ramon (2009) 175 Cal.App.4th 843 , are distinguishable. In Ochoa , the defendant “did not call out a gang name” or give any other indication that he was a member of a gang, the defend ant “made no apparent gang signs or signals during his commission of the crimes,” the victim testified only that the defendant looked “a little” like a gang member, and “the prosecutor did not pose any hypothetical to the gang expert . . . .” ( Ochoa
, supra , at pp. 653, 662, 663, 664; People v. Miranda
, supra , 19213 Cal.App.4th at p. 413 [distinguishing Ochoa ].) 11 In Ramon , the gang expert opined that
“the circumstances involved in this case—tw o gang members driving a recently stolen vehicle in gang territory with an unregister ed firearm in the vehicle,” benefitted the gang because the two gang members “could co mmit” crimes such as robbery, burglary, and carjacking while they were in possessi on of the truck and the firearm. ( Ramon , supra , at p. 848.) The Ramon court held that the expert “simply informed the jury of
how he felt the case should be resolved” and that the expert’s opinion was “an improper opinion [that] could not provide substantial evidence to support th e jury’s finding.” ( Id. at p. 851.) The Ramon court concluded that “[w]hile it is possible the two were acting for the benefit of the gang, a mere possib ility is nothing more th an speculation,” and “[s]peculation is not subs tantial evidence.” ( Ibid. ; see People v. Hunt
, supra , 196 Cal.App.4th at p. 822 [distinguishing Ramon on the ground that in Ramon “the expert
had not identified the crime the defendant and his fellow gang member committed as one of the activities of the gang”]; People v. Miranda
, supra , 192 Cal.App.4th at p. 413 [same].) 12

B. The Reference to Espinosa’s Probati on and Arrest Did Not Deprive Him of a Fair Trial During direct examination by the prosec utor, Alvarado testified that he was familiar with Espinosa “[f]rom numerous contacts.” The follo wing exchange then
occurred:

11 In People v. Vang
, supra , 52 Cal.4th 1038 the Suprem e Court partially overruled Ochoa by holding “‘[e]xpert opinion that partic ular criminal conduct benefited a gang’ is not only permissible but can be sufficien t to support the . . . section 186.22, subdivision (b)(1), gang enhanc ement. [Citation.]” ( Id. at p. 1048.)

12 In addition, “ Ramon . . . concerned the sufficiency of the evidence to support the specific intent prong of gang enhancemen t (§ 186.22[, subd.] (b)(1)) allegations.” ( People v. Rios (2013) 222 Cal.App. 4th 542, 566; see People v. Ramon
, supra , 175 Cal.App.4th at p. 853.) As noted, Espinosa does not challenge th e sufficiency of the evidence on this prong.14 “Q [The Prosecutor]: When you say numerous contacts, what do you mean by
that? “A As a patrol deputy and, specifically , as a gang-detail deputy in 2008, I was involved in a probation compliance search at the defendant’s home wherein other members of the City Terrace gang were in his home at the time and the defendant was ultimately arrested for possession — “[Counsel for Espinosa]: Your honor, I’m going to object. Motion to strike.
“The Court: Sustained. “[Counsel for Espinosa]: Ask that a proper admonition be given. “The Court: Don’t go into that material. “Q [The Prosecutor]: So on that day, did you ask the defe ndant if he was a member of a gang?
“A Yes. “Q And what was his response? “A He was a member of the City Terrace 13 gang and he was known as
Travieso.” Espinosa argues that “Alvarado’s referen ces to [his] probati onary status and his ultimate arrest for possession we re extremely prejudicial” a nd denied him his right to a fair trial. Espinosa asserts that “[o]nce the jury heard [he] had been on probation, a probation search had b een conducted wherein other members of City Terrace were in [his] house at the time, and [he] was ultimat ely arrested for possession, it would have been very difficult for th e jury not to be influe nced by this information, particularly since it came from an expert witness.” The problem with Espinosa’s argument is that the trial court sustained the objection and, although the trial court did not give a “proper admonition,” counsel for Espinosa did not ask for a better one. The trial court, rather than admonishing the prosecutor or the witness not to “go into th at material,” should have directed the admonition to the jurors. The trial court sh ould have sustained the evidentiary objection, granted the motion to strike, and instructed the jury at that point to disregard the15 objectionable portion of Alvarado’s testimony . Counsel for Espinosa, however, did not request a clarification of the instruction or any additional instruction or admonition. Therefore, Espinosa has forfeited any challenge to the adequacy of th e instruction. (Cf. People v. Harris (2013) 57 Cal.4th 804, 858 [defenda nt forfeited claim by “fail[ing] to request that the trial court admonish the jury to disregard [a ] remark” in closing argument]; People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [failure to request admonition after the trial court sustained obje ctions to references to Hitler and Bosnia forfeited claim of misconduct]; People v. Thomas (2012) 53 Cal.4th 77 1, 822 [failure “to request an admonition” after trial court sustained objection to improper question forfeited claim of error].) There is no indication in th e record, or suggestion by Espinosa, that any request for a further or additional instruction would have been futile. 13 (See People v.
Pearson (2013) 56 Cal.4th 393, 425 [claims of erroneous evidentiary rulings forfeited where “[n]othing in the record suggests a ny objections or request for an admonition would have been futile”].) To the contrary, the record suggests that the trial court would have granted such a request had coun sel for Espinosa made it. (See People v. Abel (2012) 53 Cal.4th 891, 929 [defendant was not “excused from the necessity of making a timely objection or request for admonition” be cause there was “no reason to assume the court would have been unresponsive to other complaints about the prejudicial nature of the evidence had defendant made a meritorious objection”].) In any event, Alvarado’s reference to an earlier probation and arrest did not deprive Espinosa of a fair trial. The refe rence was isolated, brief, and curable, and the
trial court sustained counsel fo r Espinosa’s objection. (See People v. Lewis (2008) 43 Cal.4th 415, 501 [trial court properly denied motion for mist rial based on deputy sheriff’s
reference to “‘“ex-cons” in the apartment’” sear ched by law enfo rcement where the

13 “To preserve an evidentia ry issue for appeal, the comp laining party generally is required to make a timely and meaningful objec tion in the trial court. . . . The duty to object will be excused when an ‘objection or request for admonition would have been futile or would not have cured the [alle ged] harm . . . .’ [Citation.]” ( People v. Carrillo (2004) 119 Cal.App.4th 94, 101; see People v. Jackson (2014) 58 Cal.4th 724, 762.)16 “testimony did not result in prejudice that was incurable by admonition”]; People v. Valdez (2004) 32 Cal.4th 73, 123 [detective’s “f leeting reference to ‘jail’ was not ‘so outrageous or inherently prejudicial that an admonition could not have cured it’”]; People
v. Leavel (2012) 203 Cal.App.4th 823, 831 [trial court properly denied mistrial based on detective’s reference to serving defendant w ith a search warrant at a detention center where “[t]he single reference to [the] deten tion center was easily cured by striking the evidence and admonishing the ju ry to disregard it”].) Moreover, unlike the cases cited by Espinosa, 14 there is no suggestion or indication in the record, or argument by Espinosa on appeal, that the prosecutor was attempting to have Alvarado testify about Espinosa’s prior probation and arrest. The question did not call for such information but instead was designed to solicit testimony dire ctly relevant to the issues of how Alvarado knew Espinosa and whether Espinosa was a member of the City Terrace 13 gang.

C. Remand is Required to Correct an Unauthorized Sentence As noted, the trial court sentenced Espinosa to the upper term of four years, and imposed both a ten-year violent felony gang enhancement pursuant to section 186.22, subdivision (b)(1)(C), and a four-year person al firearm use enhancement pursuant to section 12022.5, subdi vision (a). Section 11 70.1, subdivision (f), pr ovides in relevant part: “When two or more enhancements may be imposed for being armed with or using a

14 People v. Figuieredo (1955) 130 Cal.App.2d 498, 506 [prosecutor “knew that the conversation to be related by the [witness] w ould show that [the defendant] had been in San Quentin,” and the trial court denied a motion to strike]; People v. Ozuna (1963) 213 Cal.App.2d 338, 341 [“testimony of the officer as to defendant’s statement that he was an ex-convict was not unexpected ; it was calculated”].) In People v. Allen (1978) 77 Cal.App.3d 924, the court did conclude that a witness’ statement th at the defendant was “‘on parole’” could not be cured by an inst ruction, but acknowle dged that it was an “extremely close case” with “exce ptional circumstances.” ( Id. at pp. 934, 935.) In contrast, this case was not par ticularly close, given the descriptions of the events by Canas and Perez, and, unlike Allen , did not involve another error regarding the improper exclusion of evidence relevant to the testimony of the prosecution’s main witness. (See id. at pp. 931-932.)17 dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. . . .” In People v. Rodriguez (2009) 47 Cal.4th 501 the Supreme Cour t held that the additional punishment for committing a violent felony to benefit a criminal street gang under section 186.22, subdivision (b)(1)(C), and the additional puni shment for personal use of a firearm under section 12022.5, subdivision (a), “fall squarely within the limiting language of section 1170.1’s subdivision (f).” ( Id. at p. 508; see People v. Martinez (2012) 208 Cal.App.4th 197, 199 [“trial court improperly imposed enhancements for both personal firearm use (§ 12022.5, subd. (a)) and committing a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C))”].) Here, as in People v. Rodriguez , Espinosa was eligible for a ten-year violent felony gang enhancement only because he used a firearm. As the People concede, section 1170.1 prohibited th e imposition of both enhancem ents, and consequently the trial court imposed an unauthorized sentence. (See People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized sentences are reviewable even though not raised by either party at trial or on appeal].) 15 We will remand the matter to the trial court because “[t]he proper remedy” is not to strike one of the enhanc ements “but to reverse the trial court’s judgment and remand the matter for resentenci ng,” in order to “give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed here violated se ction 1170.1’s subdivision (f).” ( People v. Rodriguez
, supra , 47 Cal.4th at p. 509.)

15 Pursuant to Government Code section 68061, we gave the pa rties an opportunity to file supplemental briefs regardi ng the trial court’s imposition of sentence enhancements pursuant to section 186.22, s ubdivision (b)(1)(C), and section 12022.5, subdivision (a), and People v. Rodriguez
, supra , 47 Cal.4th 501.18 DISPOSITION

The judgment of conviction is affirmed. Th e sentence is reversed and the matter is remanded for resentencing only.

SEGAL, J. *

We concur:

WOODS, Acting P. J.

ZELON, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.