Filed 11/12/14 P. v. Delosreyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. THOMAS ADOLPH DELOSREYES, Defendant and Appellant. G048749 (Super. Ct. No. 09NF1571)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Carla Castillo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, Lynne McGinnis and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 Defendant Thomas Adolph Delosreyes was charged in an information with a deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a); all undesignated statutory references are to this code), assault with a semiautomatic firearm (§ 245, subd. (b)), and active particip ation in a criminal st reet gang (§ 186.22, subd. (a)), based on an incident that occurre d on June 3, 2009. It further alleged the attempted murder and the assau lt were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of those offenses , personally discharged a firearm in the commission of the attempted murder (§ 12 022.53, subds. (d)) and personally used a firearm in the assault (§ 120 22.5, subd. (a)). La stly, the information alleged defendant suffered a prior “strike” conviction (§§ 667 , subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (§ 6 67, subd. (a)(1)), and served a prior term in state prison (§ 667.5, subd. (b)). A jury convicted defendant of atte mpted voluntary mans laughter (§§ 192, subd. (a), 664, subd. (a)) as a lesser and incl uded offense of attempted murder, and found him guilty of assault with a se miautomatic firearm. The ju ry found defendant inflicted great bodily injury in co mmitting the attempted manslaughter and the assault with a semiautomatic firearm, defendant personall y used a firearm during the assault, and
committed the assault fo r the benefit of a criminal street gang. 1 The jury was unable to reach a verdict on the substantive gang charge, a mistrial was declared as to that count, and the charge was ultimately dismissed. De fendant admitted he su ffered a prior “strike” and serious felony conviction, and that he prev iously served a prior term in state prison.
The court sentenced defendant to a tota l term of 31 years, consisting of a middle term of six years on the assault, doubled because defendant suffered a prior “strike” conviction, plus consecutive terms of 10 years on the gang enhancement, four

1 The jury found defend ant did not commit the a ttempted manslaughter for the benefit of a criminal street gang.3 years on the personal use of a firearm enhanc ement, and five years on the prior serious felony conviction enhancement.
Defendant contends the evidence does not support the attempted voluntary manslaughter conviction or the gang enhancemen t attached to the a ssault with a firearm conviction, and the trial court committed reve rsible error in adm itting evidence of an assault he committed six years before the charged incident. We affirm.
I
FACTS
A. The Shooting Irma Hernandez and her daughters Erica and Michelle lived in an apartment in Fullerton, in Baker Street’s claimed gang territory. Michelle is an associate of the Baker Street gang. The girls shared a bedr oom and on a nightsta nd was a notebook with
“Baker Street West Side Fullerton” written on it. Hernandez was friends with Brittney Sh ropshire who also lived in the same apartment complex. Just prior to 1:00 a.m. on June 3, 2009, Hern andez, Shropshire, and Shirley Duarte, another friend of Hernandez’s, left Herna ndez’s apartment and went to Crown Liquor to buy beer. Th e liquor store was within walk ing distance. While in the store, Raymond Escobedo, who was loud, dr unk, and wearing an Anaheim Angels hat entered and approached Duarte. He made inappropriate comments to her, including telling her to pull down her pants. Duar te responded by slapping Escobedo. He attempted to slap her back. Thinking he had, Shropshire told him, “Don’t slap my home girl.” Escobedo said he wa s from Anaheim and Riverside—gang s in either city would be
rivals to Baker Street—and “F. . . Fullerton. F. . . Orange.” He said he was going to “blast” the women, and reached toward his belt, causing Shropshire to fear he might have a gun. Hernandez telephoned her daughter Michelle and to ld her what happened at the liquor store.4 The women returned to Hernandez’s apartment. Defendant, Samuel Negrete, and Christopher Kelley were present. Like defendant, Kelley was a Baker Street gang member. Duarte was angry and explaine d what happened at the store. Defendant
asked what the male looked like. Duarte sa id he was fat and had on a hat. Defendant
then went into the bedroom closet and retr ieved something shiny fro m a shoebox. Luis Barajas, who was in the bedroom, thought th e object looked like a gun. Defendant left the room after he got the gun. Defendant and Negrete then left the apartment. About 10 or 15 minutes after defendant left the bedroom, Barajas h eard a gunshot. About five minutes later, defendant, Michelle and her cousin, Negrete, Kelley, and another male ran into the apartment out of breath. Defendant paced about and said either, “I had to shoot him,” or
“I had to blast him.” Defenda nt said he knew it was the same male from the liquor store and he threw the gun away in the bushes. Police responded to the apartment comple x in response to a shots fired call. Escobedo was found on the grou nd near apartment 105. He had a gunshot wound to the right thigh. The bullet had ente red his thigh, but appeared to have lodged in his scrotum. His hat was nearby, although the responding o fficer did not remember if Escobedo was wearing it when police arrived on the scene. An expended .22-caliber shell casi ng was found in the entryway of the apartment complex and a .22-caliber semiauto matic handgun was located in the bushes. The gun was jammed. DNA fro m the firearm and its maga zine matched defendant’s profile.

B. Gang Evidence The parties stipulated that as of J une 3, 2009, the Baker Street gang was a criminal street gang; defendant knew memb ers of the gang engaged in a pattern of criminal gang activity; defendant, whose monike r is “Little Rascal,” is an admitted5 member of the Baker Street gang; Victor Hernandez is a known Baker Street gang member; and defendant assaulted a rival gang member in 2003 with a filed down
toothbrush for the benefit of the Baker Street gang. A detective testified defendant has been a Baker Street gang member since he wa s 13 years old. Defendant has a number of Baker Street tattoos, including on his face.
Fullerton Detective Jim Bo lden testified as a gang expert. He is familiar with the Baker Street gang. He opined defe ndant and Kelley were active participants in the Baker Street gang on the date of the shooting. Bolden sa id writings found in Hernandez’s apartment was in the style he ha s seen in other gang related writings. He added the fact that the gun was retrieved from a box in Michelle’s closet is consistent
with a female’s role in th e gang, hiding contraband or weapons, thereby showing allegiance to the gang. Bolden said Duarte is an associate of the Baker Street gang and
her son is a documented Baker Street member. Bolden said the Baker Street gang ha s no allies. Anaheim gangs are Baker
Street rivals. He said a Baker Street member who shoots a rival in Baker Street territory would earn respect for the shooting. Backi ng up occurs when one member goes out to commit a crime and takes another gang member with him to back him up “in case for whatever contingency may aris e to assist in any way.” The hypothetical question posed to Bo lden asked him to assume: On June 3, 2009, three females, one of whom was an a ssociate of the Baker Street gang, were in a liquor store in Fullerton when a male in a dark shirt a nd an Anaheim Angel’s baseball cap, claiming Anaheim and Rivers ide, insulted the associate a nd threatened to “blast” the females. Bolden noted the liq uor store was within Baker Stre et’s claimed territory. The prosecutor added more to the hypothetical: After the incident at the liquor store, the
females went to the residence of another fe male who was a Baker Street associate and
contacted her and a male whose tattoos were consistent with Baker Street membership; the male was handed a .22-caliber firearm, le ft the residence acco mpanied by two other6 male Baker Street gang members, and confro nted the individual who had insulted the females; prior to the confrontation, “someo ne yells out Baker Street, and another person yells out Fullerton;” and the person who insult ed the women was then shot in the thigh. The prosecutor asked Bolden what f acts he would point out as proving the shooting was gang related. Bolden said the facts included the victim “claiming to be a gang member” of a rival of Baker Street, the incident occurred in Baker Street territory, and members of the gang would not let an act of disrespect to a female associate of the gang go unanswered. He fu rther pointed out the signifi cance of the Baker Street members yelling out “Baker” or “Fullerton” lets the victim know who is doing the shooting and at the same time lets witnesses know it is a gang shooting and they should
not interfere. According to Bolden, de fendant wore “typical gang attire” on the night of the shooting—long socks, baggie shorts, and a T-shirt. He added there would be adverse consequences from the gang for one who di srespects a gang member in the gang’s territory. The prosecutor asked Bolden if the f act that the victim wore a dark shirt and an Angels hat and claimed Riverside an d Anaheim made it appear to be a gangrelated incident. Bolden said the fact that the victim may have claimed an Anaheim gang and was wearing the Anaheim “A” on his hat, representing the City of Anaheim, made the incident appear to be gang related. The prosecutor told Bolden to assu me two individuals with the shooter were acting as back up. Bolden said that was consistent with a gang-related shooting. He said they were there not only to back up the shoo ter in the event they were needed, but
also as witnesses to make sure details of the shooting got back to the gang and the shooter’s reputation is bolstered for showing his willingness to shoot a member of a rival
gang.7 On cross-examination, the defense as ked Bolden to assume the victim was not a gang member and that no one yelled out “Baker Street” or “Fu llerton.” Bolden was then asked if the shooting was done for the bene fit of the Baker Street gang. He said he “would not rule it out,” but based on the ch ange in the hypothetical, “[i]t would need more investigation.” When asked if he co uld not state a “hard conclusion” based on the defense’s hypothetical, Bolden said he would “like to have more.”
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence does not support his conviction for attempted manslaughter or the true finding on the gang enhancement attached to his
conviction for assault w ith a semiautomatic firearm. “‘In assessing the sufficiency of the evidence, we review the entire record in the light most fa vorable to the judgment to
determine whether it discloses evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” ( People v. Steele (2002) 27 Cal.4th 1230, 1249.) We must accept all assessments of credibility made by the trier of fact and determine if substantial evidence exists to support each elem ent of the offense. (See People v. Carpenter (1997) 15 Cal.4th 312, 387.) We presume in support of the judgm ent the existence of every fact that could reasonably be deduced from the evidence. ( People v. Kraft (2000) 23 Cal.4t h 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no h ypothesis whatever is
there sufficient substantial ev idence to support [the conviction].’ [Citation.]” ( People v.
Bolin (1998) 18 Cal.4th 297, 331.) In other words, the fact that the evidence could “‘“reasonably be reconciled”’” with innocen ce does not permit an appellate court to reverse a conviction. ( People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)8 1. Attempted Manslaughter Manslaughter is an unlawful killing wit hout malice. It is a lesser included offense of murder. ( People v. Koontz (2002) 27 Cal.4th 1041, 1086.) Attempted manslaughter involves the unlawful attemp t to kill a human being without malice aforethought. The crime requires the defendant commit (1) a direct but ineffectual act to kill a human being, (2) with the specific intent to kill, (3) and that the action taken to kill the individual was unlawful. (See People v. Speight (2014) 227 Cal.Ap p.4th 1229, 1244; § 21a.)
Defendant contends the evidence does not support a necessary element of the crime. Specifically, he argues there was insufficient evidence he intended to kill
Escobedo. He reasons that as he shot Escobedo but once, a nd that was in an area of the body unlikely to lead to deat h, the evidence does not indica te he intended to kill. He
maintains that if he had wanted to kill th e victim, there was nothing stopping him from shooting the victim more than once.
Of course the fact that the victim survived a shootin g does not compel a
conclusion the shooter did not in tend to kill. “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise
to an inference that th e shooter acted with [an intent to kill].” ( People v. Smith (2005) 37 Cal.4th 733, 742.) In the pr esent case, there is reason to believe the shooting took place at close range. There appears to have been a confrontation and du ring the confrontation Escobedo told defendant he (Esc obedo) was from Riverside.
Much is made of the fact the victim was shot in the thigh, rather than a place where the risk of death would be significa ntly higher, such as the chest or head.
But we do not know where defenda nt was aiming. “The act of firing toward a victim at a close, but not point blank, range ‘in a manne r that could have inflicted a mortal wound had the bullet been on target is sufficient to support an infere nce of intent to kill . . . .’ [Citation.] ‘The fact that the shooter may have fired only once and then abandoned his9 efforts out of necessity or fear does not comp el the conclusion that he lacked the animus
to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor ma rksmanship necessarily estab lish a less culpable state of mind.’ [Citation.]” ( People v. Chinchilla (1997) 52 Cal.Ap p.4th 683, 690.) We believe a reasonable jury could have found beyond a reasonable doubt
defendant intended to kill Escobedo. Es cobedo offended a female associate of the Baker Street gang. Defendant apparently shot th e victim from close range immediately after hearing about the incident. Defendant fled immediately af ter shooting the victim. He tossed the firearm away while in flight. When recovered, police discovered it was jammed. The jury was free to infer the reason the victim was only shot once was because the gun jammed after the first shot. Additionally, the fact that defendan t fired once, hitting Escobedo in the thigh does not mean defendant is a good mark sman and aimed for Escobedo’s thigh. We are not presented with facts similar to a situation where a defendant standing over the
victim shoots the victim in the knee and tells him it will be worse the ne xt time. In such a situation, the defendant’s careful aim at a st ationary target, in c onjunction with warning about future violence, strongly indicates the sh ooter’s lack of an intent to kill. The location of the gunshot wound, however, does not compel the conclusion defendant did
not mean to kill. In People v. Ramos (2004) 121 Cal.App.4t h 1194, a defendant’s conviction for attempted murder was upheld ag ainst a sufficiency of evidence challenge in a case where the defendant attempted to shoot into a car full of what he believed were rival gang members, but the gun misfired. ( Id . at p. 1208.) “[I]f the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferre d, even if the act was done without advance consideration and only to eliminate a momentary obst acle or annoyance.” ( People v.
Arias (1996) 13 Cal.4th 92, 162.) There is more here. Generally speaking, the intent to kill may “be inferred from the defendant’s act s and the circumstances of the crime.10 [Citation.]” ( People v. Smith , supra , 37 Cal.4th at p. 741.) Here, those circumstances include Escobedo having insulted a female asso ciate of defendant’s gang in the gang’s territory, while ostensibly claiming a rival gang and specifically insulting defendant’s gang. It was reasonable for the jury to co nclude defendant intend ed to kill Escobedo when defendant immediately obtained a loaded gun upon hearing what Escobedo had done and said, and rushed out to confront Escobedo.
In People v. Vang (2001) 87 Cal.App.4th 554, the appellate court stated the proof of intent to kill is “‘ge nerally deemed sufficient if the means used by the defendant, and the surrounding circumstances make the crime apparently possible .’ [Citation.]” ( Id . at p. 564.) The circumstances surround ing the shooting in this matter make it eminently possible that Escobedo could have been killed as the result of the attack and shooting by defendant. As an appellate court, “our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” ( People v. Lashley (1991) 1 Cal.App.4th 938, 946) and we need not be convinced of defendant’s guilt to uphold th e conviction ( People v. Kraft , supra , 23 Cal.4th at p. 1054). Because a reasonable ju ry could have conclu ded defendant intended to kill when he shot Escobedo, we reject defendant’s claim of insufficient evidence.
2. Gang Enhancement The Legislature has pr ovided a gang enhancement when a felony has been “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promot e, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b )(1).) To prove the en hancement applies in a given case, the crime must be dem onstrated to be “gang related” ( People v. Albillar (2010) 51 Cal.4th 47, 69). Of course, not every crime committed by a gang member is gang related. ( Id. at p. 60.) Not only must the offens e be gang related, but the defendant must have specifically intended to “promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)11 Cases rarely involve “direct eviden ce that a crime was committed for the benefit of a gang.” ( People v. Miranda (2011) 192 Cal.App.4th 398, 411.) Evidence the crime was committed for the benefit of a gang is often supplied by e xpert testimony. The Evidence Code permits one to te stify as an expert if he “h as special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) “‘Expert opinion that particular criminal conduct benefited a gang’ is not only permissible but can be sufficient to support the Penal Code section 186. 22, subdivision (b)(1), gang enhancement.” ( People v. Vang (2011) 52 Cal.4th 1038, 1048.) “Exp ert opinion that particular criminal conduct benefited a gang by enhancing its re putation for viciousness can be sufficient to
raise the inference that the co nduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the meaning of section186.22(b)(1). [Citations.]” ( People v. Albillar , supra , 51 Cal.4th at p. 63.) An expert may generally give hi s or her expert opinion based on a hypothetical question wherein the expert is asked to assume the truth of the facts stated in the question. ( People v. Gardeley (1996) 14 Cal.4th 605, 618 .) For the opinion to have any value, the facts the expert is asked to a ssume are true must be supported by evidence admitted in the trial. ( Ibid. ) An opinion based on “assumptions which are not supported by the record” has “no ev identiary value.” ( Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) Defendant claims the gang enhancem ent cannot withstand scrutiny because the evidence fails to prove the assault was gang related or that he acted with the specific intent to benefit the gang. He contends that as no witnesses to the shooting testified, it is only through “sheer speculation” one could conc lude the crime was gang related or that he specifically intended to benefit the Ba ker Street gang by shooting Escobedo. Additionally, in addressing Bolden’s opinion th at the crime benefitted the Baker Street gang, defendant points out certain facts rec ited in the hypothetical were not supported by12 the evidence. For example, c ontrary to what the prosecutor asked Bolden to assume as true in the hypothetical ques tion, no one in defendant’s gr oup yelled out “Baker Street” or “Fullerton” during the shoo ting incident. Defendant furt her argues the hypothetical was improper because it asked Bolden to assu me a Baker Street member (defendant) left
the residence of a Baker Street associate with a gun the gang associate gave him, “accompanied by two other male Baker Street gang members.” Defendant claims there was no evidence to support the assumption he left with two male gang members. Defendant is correct about the hypoth etical’s shortcomings. There was no evidence defendant or anyone w ith him at the scene of the shooting yelled “Baker Street” or “Fullerton.” According to Bolden, the significance of the gang’s name being called out during the attack is to let the victim know who is doing the shooting and at the same time let witnesses know they sh ould not interfere because it is a gang shooting. Bolden was asked on cross-examination to assume no one yelled out “Baker Street” or
“Fullerton.” He was then asked if the shoo ting was done for the benefit of the gang.
Bolden said he “would not ru le it out,” but based on the ch ange in the hypothetical, “[ i ] t would need more investigation .” (Italics added.) When asked if he could not state a “hard conclusion” based on the defense’s hyp othetical, Bolden said he would “like to
have more.” The hypothetical was also flawed in asking Bolden to assume defendant left the residence with two other male gang memb ers. There was no evidence he left with

two male Baker Street gang members. Wh ile there was evidence Kelley was a gang member, there was no evidence Negrete was a gang member. A witness testified defendant left the house that night with Negr ete and although the pr osecutor asked if the witness saw defendant leave with Kelley, th e answer was no. But there was evidence from which the jury could reas onably have inferred defendant left Hernandez’s residence with Kelley. Kelley was at the residence when the story about the en counter at the liquor13 store was told and he returned to the residence the same tim e as the defenda nt and out of breath from running, like defendant a nd those that returned with him. Notwithstanding the flawed hypothetical question, the jury’s true finding is supported by the evidence. Escobedo offended a female associate of the Baker Street gang on Baker Street’s home turf. In doin g so, he “claimed” Anaheim and Riverside, which was consistent with wearing an An aheim Angels cap, as one from an Anaheim gang might. Anaheim gangs are rivals of Ba ker Street. Escobedo also threatened to
“blast” the women. Additiona lly, Escobedo insulted Baker St reet specifically, by stating,
“F. . . Fullerton.” Even if Escobedo was not a gang member, his actions spoke of gang membership. Bolden said the fact that the victim “may ha ve claimed to have been an Anaheim gang member” and wore “the Anahei m ‘A’ representing the City of Anaheim,” suggests the shooting was gang related. Based on the testimony of Bolden, one would not expect Escobedo’s insults to go unanswered by the insulted gang, even if we discount the answer to the flawed hypothetical.
Defendant left Hernandez’s residenc e with a gun and went looking for
Escobedo. He left with at least one othe r male gang member (Kelley) and one female associate (Michelle) of the gang. There is every reason to believe they were with him when he confronted Escobedo, because after the shooting they returned to the residence as a group, each breathing hard from runni ng, presumably from the scene of the shooting. 2 “‘Commission of a crime in concert w ith known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang member s in the commission of the crime.’ ( People v.
Villalobos (2006) 145 Cal.App.4th 310, 322; see also People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [‘very fact that defendant co mmitted the charged crimes in

2 Kelley, too, had been charged in the shooting of Escobedo and pled guilty to assault with a dead ly weapon in that matter.14 association with fellow gang members’ supports the enhancement].)” ( People v.
Miranda , supra , 192 Cal.App.4th at p. 4 12.) Here, the evidence indicates defendant went to confront Escobedo with another gang me mber and an associate of the gang. In
Miranda , like defendant here, the defendant committed his crim e in the presence of a fellow gang member and an associate of the same gang. ( Id . at p. 405.) Relying on the above-quoted language in People v. Villalobos , supra , 145 Cal.App.4th 310, the Miranda court upheld the jury’s true findi ng on the gang enhancement. ( People v. Miranda , supra , 192 Cal.App.4th at pp. 411-413.) The evidence supports the jury’s true finding on the gang enhancement despite deficiencies in the pr osecutor’s hypothetical question. Accordingly, we reject defendant’s sufficiency of the evidence challenge.

C. Admission of Evidence Prior to the taking of evidence, de fense counsel brought up the issue of
defendant’s 2003 conviction for assault with a deadly weapon as the result of an assault on a fellow inmate with a sharpened toothb rush. The court’s initial response was the
conviction could be used to impeach the defendant if he testified and would also be
admissible to show defendant’s connection to Ba ker Street, if the earlier assault was gang related. The court noted the prior convicti on occurred in 2003 an d the present offense occurred in 2009, so the prior was not so re mote as to render its introduction improper. The court stated the expert should be permitted to testif y he is aware defendant has admitted to being a gang member, but the conviction was not relevant. Defense counsel then requested the jury be given the following instruction: “On March 4, 2003, defendant . . . admitted to assaulting Jonathan Flores, a rival gang member, with a plastic toothbrush which was filed down to have an edge for the benefit of Baker Street gang with the intent to promote, further, or assist criminal co nduct by the gang.” The court agreed and instructed the prosecutor not to get into the guilty plea fo rm or the prior conviction. The15 court said the probative value of the eviden ce was not substantially outweighed by any prejudicial effect of the evid ence. (See Evid. Code, § 352 [court may excl ude evidence when its probative value is substantia lly outweighed by undue prejudice].) Later that afternoon, as part of a rather extensive stipulation, defendant stipulated he had “admitted unde r penalty of perjury to assau lting Jonathan Flores, a rival gang member, with a plastic t oothbrush which was filed down to have an edge, and did so for the benefit of the Baker Street gang with th e intent to promote, further, or assist in criminal conduct by members of that gang.” A week later, the court read the stipulation into evidence without objection.
Defendant now contends the court prejudicially e rred in admitting evidence of his prior assault. “‘“. . . Evidence C ode section 352 authorizes the trial court to exclude from an expert’s testimony any hear say matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]” [Citation.]’” ( People v. Linton (2013) 56 Cal.4th 1146, 1200.) We review a trial court’s decision to
admit evidence for an abuse of discretion, and reverse only if “it is shown ‘“the trial court exercised its discretion in an arbitrary, capri cious, or patently absu rd manner that resulted in a manifest miscarriage of justi ce.” [Citation.]’ [Citation.]” ( People v. Merriman (2014) 60 Cal.4th 1, 74.) Defendant argues that once he stipul ated to being a gang member and knowing about the activities of its member s, evidence of his prior assault was inadmissible to prove his me mbership and knowledge of the activities of the gang’s members. The factual predicate for his argume nt—that he had earlier stipulated to being a gang member and knowing of the activitie s of other gang members—does not exist. Evidence of defendant’s prio r assault was not admitted after he stipulated to being a gang member and knowing of the activities of Baker Street gang members. It was part and parcel of the same stipulation. Additionally, the sti pulation was entered into after the
court had ruled on the admissib ility of evidence concerning the prior assault. Thus, the16 court did not have such a stipulation be fore it at the time the court ruled on the admissibility of the evidence of the prior assault.
The evidence was admissible all the sa me. Yes, defendant admitted he was a member of the gang and kn ew of the activities of other members, but he did not stipulate to actively participating in the gang, an element of the offense charged in count three. ( People v. Johnson (2013) 57 Cal.4th 250, 259 [s ection 186.22, subd. (a) requires proof of “active participation” in the criminal street gang]; see People v. Rodriguez (2013) 55 Cal.4th 1125, 1133 [statute does not punish me re membership in gang].) The
evidence was admissible as tendi ng to prove defendant’s atta chment to the gang and that he actively participates in the gang. Even had the court erred in its ruling, any error would have been harmless. ( People v. Watson (1956) 46 Cal.2d 818, 836 .) The court did not permit the jury to hear defendant had been convicted in the prior incide nt, or the details of the assault, other than it involved a sharpened toothbrush and was committed for the benefit of defendant’s gang. The evidence of the identity of the shooter in th is matter was overwhelming, as was evidence the shooting was gang related: Escobedo disrespected a Baker Street gang associate on the gang’s home turf; Escobedo seemed to claim memb ership in a rival Anaheim gang, wore a baseball hat indicative of an Anaheim gang, specifically insulted the Baker Street gang, and acted as if he had a gun on his person; defendant, another Baker Street gang member, and at least one asso ciate of the gang, learned of the incident immediately; the associate gave defendant a gun; and defendant immediately ran off to
confront Escobedo.17 III
DISPOSITION The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.