Filed 7/8/15 P. v. Villareal CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
JOSE VILLAREAL et al. , Defendants and Appellants. H038081 (Monterey County Super. Ct. No. SS090625)

A jury convicted d efendant Jose Villareal of possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)) 1 and active participation in a criminal street gang ( former § 186.22, subd. (a) )

. 2 An allegation that he possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)) was also found true. Villareal was acquitted of assault with a firearm on a peace officer ( § 245, subd. (d)). He was
sentenced t o five years in prison. The jury convicted defendant Carlos Fletes of possession of a firearm by a felon (former § 12021, subd. (a)(1) ), possession of ammunition by a felon ( former § 12316, subd. (b)(1) ) , and active participation in a criminal street gan g ( § 186.22, subd. (a) )

.

1 Further statutory references are to the Penal Code unless otherwise noted.

2 Subsequent references to section 186.22 are to the version in eff ect when defendants committed their crimes.2

Allegations that he possessed the firearm and the ammunition for the benefit of a criminal street gang (§ 186.22, subd. (b)) were also found true. Fletes was acquitted of assault with a firearm on a peace officer (§ 245, subd. (d )). He admitted a prior serious felony
strike conviction (§§ 667, subd. (a)(1), 1170.12, subd. (c)(1)) and was sentenced to 15 years in prison

. Defendants make substantially the same contentions on appeal , and each expressly joins in the other’s argumen ts to the extent those arguments are favorable to him and relevant to his appeal

. They contend that (1) their substantive gang crime conviction s and the gang enhancement findings w ere not supported by substantial evidence ; (2) the
trial court abused its discretion and denied them due process by admitting “irrelevant, cumulative and unduly prejudicial” gang evidence ; ( 3 ) the admission of certain hearsay
basis evidence violated their Sixth Amen d ment right to confront witnesses; ( 4 ) the trial

cour t prejudicially misinstructed the jury with former CALCRIM No. 1400 ; (5) the prosecutor’s “pervasive” misconduct denied them due process; and ( 6 ) the trial court’s errors were cumulatively prejudicial

. D efendants also ask that we independently r eview
the sealed transcript s of the in camera hearing on their supplemental Pitchess 3 motions for disclosure of police officer personnel records , which the trial court denied. We
affirm

.

I. Background Gang violence between Norteños and Sureños spiked in Salinas during the first
two weeks of January 2009 . There were “nearly a dozen shootings ” and “five or six”

w ere fatal. At a January 15 briefing , Monterey County Joint Gang Task Force members
received information that a green mini van used in one of the homicide s and a white
Nissan Altima taken in another might be at one of several body shops “getting painted or

3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ).3

getting some kind of work done on it to alter its appearance.” JR’s Body Shop on Dayton
Street was one of the shops mentioned

. Fletes owned and operated the business in an industrial area of Salinas. His shop was t he first in a row of warehouses that faced another row of warehouses across a shared parking lot that opened onto Dayton Street. Monterey County D eputy S heriffs Jess e Pinon and Bryan Hoskins and probation officers Leo Salas and Chris Plummer were assigned to the gang task force in January
2009. At a round 7:00 p.m. on January 15 , Pinon and Salas drove to Fletes’s body shop in
an unmarked car to conduct surveill ance

. The other businesses in the area were closed
but the shop lights were on. A large roll

- up bay door onto the parking lot was open . The inside of the shop was “extremely well

- lit” and light spilled into the area in front of the bay door. Pinon turned into the parking lot and drove by the shop

. Two Hispanic males
stood near the threshold of the open bay door

. Pinon and Salas “imm ediately” recognized one of the m as Villareal , a Sureño gang member and convicted felon

. Th ey did not recogniz e the second man , whom they later identified as Fletes

. Pinon drove past the other warehouses and made a U

- turn at the end of the parking
lot . Five to 10 minutes later, he and Salas drove by the shop a gain “to see if we could see the green minivan . . . .” Fletes was still standing i n the threshold of the open bay door

. His hand was at his waistband. Villareal was standing “next to a stack of tires” to the right of the bay door. As Pinon drove by , Salas s aw Villareal pull “a smaller dark

colored object” from the stack of tires and put it “in the small of his back.” Salas “believed [Villareal] was attempting to conceal a firearm.” Pinon saw Villareal “ reach
into the tires and retrieve a firearm. ” Pinon “ could see the silhouette of the firearm” in his rearview mirror because “[i]t was well

- lit behind [Villareal].” V illareal “placed it behind his back and started squatting down.”
Pinon drove o ut of the parking lot , pulled over d own the street , and called Hoskins
for assistance

. Hoskins was the senior member of the gang task force unit. H e and4

Plummer arrived about 10 minutes later in a marked gang task force vehicle . They followed Pinon and Salas back to the body shop

. Defendants were still outside w hen the officers’ cars turned into the driveway.
Villareal assumed “a somewhat aggressive stance” and “appeared to be reaching into his
waistband

. ” H e and Fletes both focused on Pinon’s unmarked vehicle. When they saw the marked patrol unit right behind it , both “took off running into

. . . the garage.” Each was holding his waistband, a “huge indicator” that they were carrying firearms

. Pinon jumped out of his car and gave chase , yelling that Villareal had a gun

. Hoskins and Plummer ran around to the back of the warehouse to prevent anyone from escaping through the rear door. Pinon was “yelling” at V illareal as he pursued him into the shop

. “ ‘ Police, stop.’ ‘ Villareal , police.’ ‘Travieso, I know it’s you. ’ ” Travieso ( which means troublemaker in Spanish ) is V illareal’s gang moniker.
Villareal kept running

. “ [ H ] is hands were in his waistband area, and that was a threat.” Villareal was “saying something to the rear of the warehouse” as he ran , but
Pinon did not hear what he said

. Pinon lost sight of Villareal

. Pinon was behind a car “almost in the middle of the warehouse” whe n he saw Fletes emerge “probably about 10
feet in front of the vehicle. ” “I see the subject turning towards me with a firearm in his hand.” “I see the barrel. As he’s looking at me, he is starting to turn his body toward me.” Pinon saw “[a] dark

- colored firearm, and the barrel of the firearm pointed at me.”
He saw that Fl etes had “both of his hands on the firearm.” Pinon yelled , “ ‘ Gun ’ ” and fired a single shot. The bullet struck Fletes in the hand , his hands “separated,” and he dropped the gun. Pinon did not see where it “flew to” because h e kept h is eyes focused
on F letes’s hands

. Fletes dropped to one knee and P inon yelled at him to keep his hands
up. Hoskins and Plummer were behind the warehouse when they heard the shot.
Hoskins left Plummer t here and sprinted around to the front, radioing for help as he ran. He saw Salas at the threshold of the bay door and Pinon inside, “challenging defendant5

Fletes, who was on the ground.” Hoskins approached Pinon and asked him what happened. Pinon said that V illareal was somewhere “off to the left.” He told Hoskins he
sh ot Fletes in the hand because Fletes pointed a gun at him.
Hoskins told Pinon to remain focused on Fletes. Hoskins scann ed the area and “observed [Villareal] creeping along the west wall ” of the shop. H e ordered Villareal to show his hands but Villarea l dropped them and walked away . W hen he “got towards the
back of the cars there , ” he put his hands up , walked behind one of the cars closest to the wall and started up the next row of cars. “That’s where he dropped his hands again.” Hoskins again ordere d Villareal t o show his hands , and Villareal complied. He was handcuffed a nd t aken out of the building.
Pinon was still in the same spot, “covering down” on Fletes. Hoskins told Pinon
to walk back to ward him . The officers told Fletes to crawl toward them , and he was taken into custody

. Paramedics treated him for wounds to his hand and abdomen before
he was taken by helicopter to the hospital

. Fletes was the last one out of the shop. No one entered after he was taken out.
SWAT team members called into the building “for quite a bit of time” and then entered to “conduct a clear” of the warehouse , which was then secured until a warrant could be
obtained.
Officers searched t he shop the following morning

. They f ound a loaded

. 38

- c aliber Smith and Wesson hand gun just under the back bumper of a Corvette about five to seven feet away from where Fletes fell. “[M]ost everything in the shop” was covered with dust but the gun had no dust on it. There were streaks in the dust marks on the ground in the a rea around the gun

. A silver

- colored paint sprayer with a hose
attached was found in a pool of blood where Fletes fell

. Officers found a loaded black

. 22

- caliber Smith and Wesson semiautomatic
firearm in the front seat of a black 1930 ’ s coupe i n the are a where Villareal was taken into custody. “Everything else in the vehicle was covered in a very thick layer of dust”6

but “the gun was clean

. ” T here was also “a clean mark where it had slid down” on a windshield that someone had left in the coupe’s front seat. Officers found a padded gun
holder and nine

- millimeter ammunition in the office of the shop

. They found a black bag
that contain ed .45

- caliber ammunition behind a small refrigerator near the roll

- up door. Criminalist Josh Sehhat analyzed DN A samples taken from the guns and ammunition found in the shop. The DNA that was recovered had degraded , which made
the results inconclusive. On January 2 7, 20 09 , o fficers searched Fletes’s Navajo Drive house

. T hey found a blue Dallas Cowboys jersey with the number 31 and a newspaper article about gang activity in Salinas in the master bedroom

. They also found photographs of Fletes and Villareal wearing gang attire. In the closet of another bedroom, they found nine pairs of work pants and seven work shirts with Villareal’s name stitched in them . On a shelf above the clothes, they found a loaded .38

- caliber semiautomatic handgun , a spare magazine with ammunition in it, and the internal mechanisms of a magazine for an

assa ult rifle

. They found paperwork with Villareal’s name on it, gang

- related drawings
and artwork , and tattoo inks under the bed. The bed “looked like it had been slept in.”
In a kitchen cabinet , officers found a baggie with “different rounds of
ammunitio n” in it and prison correspondence addressed to Fletes next to a prescription
medicine bottle with his name on it . In another kitchen cabinet, officers found a baggie
with rounds of .22

- caliber ammunition in it

. In the garage, officers found a backpack on the floor . Inside it was mortgage company correspondence addressed to Fletes , ammunition, and gang writings and lyrics

. Officers also found a gun cleaning kit and the magazine for an assault weapon in the
garage

. Pinon, Hoskins, Salas, and Plummer t estified for the prosecution at trial

. Other
officers described the January 15, 2009 events and the subsequent investigation.7

Salinas Police Officer Robert Zuniga testified as the prosecution’s gang expert. Zuniga explained that “a lot” of the crimes t hat Sureño gang members commit in Salinas are “very violent” crimes ranging from shootings to carjackings to murders. He
described seven predicate offenses committed by Sureño gang members , an d certified court records reflecting the convictions were admitted into evidence

. O n January 12, 2009 , two males in a green minivan challenged persons in a vehicle driving
next to them and fired multiple rounds into the car when they res ponded, “ ‘ Norte

. ’ ” The
driver of the car was killed. Sureño gang members Valentin Rivas and Benjamin Carrillo were convicted of murder with multiple gun and gang enhancements. O n June 14, 2006 , a Sureño gang member assaulted a peace officer with a firearm. Carlos Osuna was convicted of violating section 245, subdivision (d)(1 ). On June 22, 2006 , a Sureño gang
member brandished a firearm at a police officer

. Ivan Rubio was convicted of assault on a peace officer and brandishing a firearm with a gang enhancement

. O n July 27, 2004,
the driver of a stolen car evaded police and led them on a pursuit while his passenger
fired rounds at the m from the sunroof of the car

. Sureño gang members Jose Monsivais and Marcos Amparo were convicted of crimes that included attempted murder of a peace officer, carjacking, shooting at an oc cupied vehicle, and assault with a firearm

. Three of the seven predicate crimes that Zuniga described involved V illareal
and /or Fletes. O n February 10, 2004 , Villareal assaulted a fellow jail inmate with a “loaded” sock. He pleaded guilty to misdemeanor assault with a deadly weapon. O n December 9, 2003, Villareal was found in possession of a loaded

. 22

- caliber handgun at a Salinas street festival. He was convicted of being a felon in possession of a firearm and placed on fe lony probation with gang terms. O n December 12, 2001, Fletes and another
Sureño gang member were found in a vehicle with two stolen firearms. Officers also found magazines with live ammunition in the car. Fletes’s fingerprints were on one of the magazin es. He was convicted of being a felon in possession of a firearm with a gang
enhancement

.8

Based on these predicate offenses and on his personal k nowledge and experience
with Norteño and Sureño gang members in Salinas, Zuniga opined that the Sureño
crimi nal street gang engaged in a pattern of criminal activity. He further opined that
Sureño gang members in Salinas know about that criminal activity because crimes in Salinas are “on the news constantly” and “most of the time gang

- related incidents make
the front page” of the newspaper. The crimes are also publicized by word

- of

- mouth because gang members boast about the ir crimes to enhance their reputations in the gang. Zuniga opined that the Sureño criminal street gang is a criminal street gang as
section 186.22 defines the term. Zuniga opined that Villareal was an active member of the Sureño crim inal street
gang in January 2009

. He based his conclusion on Villareal’s numerous Sureño gang

tattoos ( some of which were “clearly visible for the public to know that he’s a gang member” ) , his many gang

- related contacts with law enforcement ( including a 2002 assault on a Norteño gang member and a June 2010 jail assault on a rumored Sure ño dropout ), t he gang paraphernalia and the firearm found during the search of Fletes’s Navajo Street house, and Villareal’s various admissions of Sureño gang membership

. Zuniga opined that Fletes was also an active member of the Sureño criminal street
gang in January 2009

. He relied in part on Fletes’s numerous gang

- related contacts with police between 1975 and November 2001, when Fletes was sent to prison. In March 1995, police contacted Fletes after a rival gang member aimed a rifle at him and called

out the rival gang’s name

. In August 1995, police respond ing to a report of shots fired at
a Salinas residence found Fletes , several documented Sureño gang members , and a spent
.38

- caliber bullet. On another occasion in August 1995, police contacted Fletes and several documented Sureño gang members in a park after rival gang members called out their gang name and fired several rounds , hitting one of the Sureños i n the back. On another occasion in August 1995, a Sureño gang member was shot at Fletes’s house. Fletes initially lied to police about his involvement but eventually admitted it and said he9

had thrown the gun over the fence. He was placed on probation. In September 1996, Fletes was walking with another Sureño gang member when a Norteño gang member fired shots at them, striking Fletes once in the leg. Zuniga stated that these incidents showed Fletes’s active participation in the gang and his knowledge that gang members
commit violent crimes. In June 1997, Fletes was cited for driving without a license. His passenger, a known Sureño gang member on active probation, was arrested for possession of methamphetamine and marijuana. Fletes was contacted with other Sureños in September and December 1997. Zuniga stated that these incidents showed Fletes’s active participation and association with a criminal street gang. In April 1998, Fletes was arrested during a traffic stop for being in the company of another Sureño gang member in violation of the gang conditions of his probation. In
November 1998, police execut ed simultaneous search warrants at the body shop (owned

at the time by Fletes’s brother) and at Fletes’s residence. Drugs and multiple stolen firearms were found at the shop and additional stol en property and a loaded stolen
firearm was found at Fletes’s residence. Fletes was convicted of possession of stolen
p roperty and placed on felony probation. In July 1999, police contacted Fletes at a known Sureño gang area in the company of other Sureños in violation of his probation. In November 2001, police attempt ed to make contact with an active Sureño gang
member who was standing next to a van. The suspect fled. Police found Fletes and
another active gang member in the van with two stolen firearms and a magazine pouch containing ammunition

. Fletes’s fingerprints were on one of the magazines. He was
convicted o f being a felon in possession of a firearm and sent to state prison. Zuniga noted that Fletes was paroled in 2003 with gang terms but continued to associate with active Sureño gang members. In 2005 , a Sureño died in a traffic accident
in Salinas. Wh en officers arrived, they found a loaded handgu n in the waistband of the
accident victim’s pants and discovered that the car he was driving was registered to10

Fletes. In 2008, a Sureño gang member was waiting in front of the body shop for a quote
when unknown males shot and killed him. Zuniga also considered the fact that the white Altima taken during one of the January 2009 homicide s was found at Fletes’s shop. Zuniga also relied on the photos and gang lyrics discovered during the search of Fletes’s Navajo Drive residence and on a 2008 letter addressed to Fletes that was found
in the master bedroom. The letter was from a documented Sureño gang member
incarcerated for murder. Zuniga noted that Fletes told the deputies who transpor ted him to jail in 2009 that he was “a Southerner associate.” Zuniga also described r ecordings of jail telephone calls placed to Fletes ’s number a fter h is release on bail . Fletes accepted close to 200 collect
calls from Villareal and other inmates in the jail’s Sureño pod

. Between 2009 and 2011 , Fletes made monthly deposits of “[a]nywhere from 20 to a hundred dollars” to Villareal’s jail account. He also put money on other Sureño inmates’ jail accounts . These included the accounts of Jorge Luis Ruiz, a La Posada Trece gang member in custody for murder , and Edgar Maldonado, a La Posada Trece gang member in custody for attempted murder

. Zuniga described recordings of phone calls in which Fletes and Villareal spoke about other Sureño gang members. In on e such call, Fletes said “Hey, somebody wants to talk to you” and handed the phone to another gang member. Zuniga recognized the
voice of V illa , a “ high

- ranking La Posada Treces gang member ” in Salinas

. Zuniga explained that these calls showed that Flete s was “actively associating with a Sureño gang member, allowing that Sureño gang member to talk to a Sureño gang member who’s incarcerated. It shows that networking session. It shows that they are clearly associating together.” Zuniga testified that he reviewed recordings of other Sureño inmates ’ telephone
conversations with Fletes. In one “fairly long” conversation , a d ocumented gang member asked Fletes for money and Fletes responded “that he would take care of him.” Fletes
had another “fairly length y conversation” with another “well

- known La Posada Treces11

Sureño gang member” from Salinas. At least four other inmates from the Sureño pod
also called Fletes. “Again, another Sureño gang member, who’s incarcerated in a
Sureño

- only housing facility, making a phone call to Mr. Fletes shows that association” with the Sureño criminal street gang. Based on a hypothetical question that closely tracked the facts shown by the
evidence , Zuniga opined that the gang members described in the hypothetical possessed weapons and ammunition for the benefit of or in association with a criminal street gang. “[Y]ou have two Sureño gang members who are working in concer t to commit a crime to possess the firearms.

. . . [A] firearm is a tool of the trade for gang members. It benefits the individual’s reputation within the Sureño criminal street gang to possess firearms. It also benefits the gang

-- having these Sureño gang members . . . possessing these firearms, it benefits that gang’s reputation.”
Retired university professor Malcolm Klein testified as a gang expert for the
defense. He had been involved in gang research “off and on” since 1962, was a
consultant to the U nited States Department of Justice’s National Gang Center, and
described himself as a “generic gang expert

. ” He had never been to Salinas

. He had
never heard of the La Pos a da Trece gang. He had never talked to Salinas gang members.
He did not inte rview or speak with Fletes.
Klein opined that Fletes was “ probably” not an active gang member in January
2009. Fletes was 28 at the time, had obtained an early release from parole, and had not
been rearrested “for some five years” after his release. In Klein’s view, Fletes “had formed . . . essentially, a new life for himself” and “was becoming a gang

- reformer type.”
Klein said that it is “quite common” for ex

- gang member s to try “ to intervene in the lives of current gang member s to get them out , ” although he did not see much evidence that Fletes’s purported reformist efforts were “working” with Villareal. Klein acknowledged that some gang reformers “have gone bad later on

. ” He conceded that p utting money on gang me mbers’ jail accounts “could be” an indication of12

a return to the gang lifestyle. He agreed that i t would be “a wise move” for someone trying to disassociate himself from a gang to get rid of gang clothing and gang indicia

. He said i t would be “[s]tupid” to be photographed with an acti ve gang member who was wearing gang clothing , and “[i] t wouldn’t be smart” to keep letters from Sureño gang
members. “Normally,” it would not be wise for a person trying to disassociate from a gang to let an active gang member live with him and his family

. Fletes’s wife Sandra Fletes testified that he was released from parole in June 2005
and later took over his family’s auto body shop. He was at the shop “ 12 hours or more a day” except for Sundays, which were spent with the family. She first met Villa real when
Fletes invited him to dinner. His relationship with Fletes was work

- related in the beginning but the two later became “close.” She believed that Fletes saw Villareal “as someone he wanted to . . . mentor and just help.” They included Villareal in family
functions , and Fletes helped him get a job. “[H]e became like a family member” and stayed at their home several times a week.
Sandra Fletes said she never saw guns or bullets in the kitchen of the Navajo
Street house . She never saw gangster lyrics or noticed the green backpack or the gun magazine in the garage. She never saw Fletes with a gun or ammunition. She worked in the office of the shop “maybe once a week” in January 2009, organizing papers and “trying to ge t a filing system going.” She never saw ammunition in a filing cabinet

. Jason Fries testified that he created a computer animation to illustrate the opinions of the defense’s forensic analysis expert, Kenton Wong

. The animation was played for the jury. Forensic analysis expert Wong opined that the bullet’s path through Fletes’s body was consistent with Fletes’s account of events and inconsistent with Pinon’s account. Wong based his trajectory analysis on descriptions in Fletes’s medical records, on

me asurements of Fletes’s body taken three years after the incident, and on Fletes’s
recollection of h is position at the time.13

Fletes testified in his own behalf. He admitted that he was a member of the La
Posada Trece Sureño gang in his teens and early tw enties, hanging out with the wrong crowd and committing crimes. He said h is attitude changed when he was sent to prison
in 2001. When he was paroled in 2003, he committed himself to changing his life “in a positive way

. ” He did not formally drop out of the gang because that requires debriefing by law enforcement and he feared retribution by active gang members

. Fletes worked in his brother’s auto shop after his release from prison and eventually took over the business. Sur eños are among his customers because “you can’t reject customers that come into your place of business wanting you to fix their cars.” He
met Villareal when he came in for an estimate. They became friends . H e hired Villareal to do odd jobs . He introduc ed him to his family and invited him to join in family
activities

. He found Villareal to be “kind of lost, kind of confused

. ” Fletes “wanted to
show him that there was another life, instead of the one that he grew up around.” “I
would tell him to leave that behind.”
Fletes testified that he stayed late on January 15, 2009 , to paint the bumper and the grill of a show car

. Villareal was at the shop waiting for a ride home. The job required “[a]round ten coats” of paint. Fletes was outside talking to Villareal between coats when they saw a car “driving by, and real slow.” It went to the end of the lot and drove by again

. Fletes went back to his painting. He “grabbed the paint sprayer,” connected the air hose, and started spraying. He “kind of felt a presence or sensed something and I just turned, and then boom, that’s all I heard.” He “fell down like a sack of cement” and felt “a lot” of pain in his hand and stomach. He did not understand what had happened. He
did not recall where his hands were when he was shot.
Fletes said that h e did not hear Pinon yell ing at Villareal

. He denied pointing a gun at Pinon or hav ing a gun in his hand. He denied seeing either of the guns that were found in the shop at any time earlier that day

. On cross

- examin ation, he said i t was “possible” that h e would have seen the gun under the Corvette had it been there earlier14

that day . “I don’t know how that gun got there, but somebody put that gun there.” Fletes
said that he did not see Villareal with a firearm that day. He acknowledged that from the
time he was shot until the time the SWAT team entered the shop, the only people who
were inside were the four gang task force officers (Pinon, Salas, Hoskins, and Plummer), Villareal, and himself. He was then asked , “Ar e you saying that the officers put that gun there?” He responded, “Yes.” It was his belief that the officers planted both guns. He conceded that he had no evidence to support that claim.
Fletes claimed that he never saw the bullets found in the filing cabinet in the office of the shop . He did not put them there or allow anyone to put them there. He “would have thrown them away” had he seen them.
Fletes admitted that he was living in the Navajo Street house on January 15, 2009 , but he said that he wa s no longer living there when police searched it. The house was being repossessed , and he let someone else live there until the bank took it over. He knew “nothing” about the bullets found in the house. He never saw clips or magazines
there . He had noth ing to do with the gun

- cleaning kit , which belonged to his brother

- in

law.
Fletes admitted hanging around with rappers as a teenager. He had “ the equipment , the computer, the reel to reel, the keyboard, and the beat maker.” He did not write the lyrics that were found in the garage of his Navajo Street house. His only involvement with the lyrics was to “break down the raps” and “put beats behind everything.” That was before he went to prison. He remembered seeing the lyrics at his mother’s house. Whe n he was released from prison, he moved “all my stuff that I had in my mom’s garage that was in boxes to my Navajo address.” He did not know how the lyrics or the envelope from the mortgage company bearing his name got into the green backpack found in the garage of his Navajo Street house

. Fletes maintained that t he references in the lyrics to “Carlos , ” “Carlitos,” and
“Mr. C” were to “another guy” named Carlos. He did not know why a Sureño gang15

member addressed him as “Evil C” in the letter he wrote to him from jail in 2008. He acknowledged that one gang lyric said “Carlos Fletes.” He acknowledged listen ing to some of the recorded jail calls from Villareal and other Sureño inmates but denied hearing any references to him self as “Car litos.”
Fletes testifie d that the white Altima was parked on the street outside his shop because “they said something had happened and they just needed somewhere to park it.” That conversation occurred on “the day before this [January 15, 2009] incide nt.”
Fletes admitted that he put “[a] hundred dollars” on Villareal’s jail account “[a]bout three times.” Villareal called him from jail “a lot”

— “at least three or four times

a week.” Fletes did not recall whether Villa joined in one of his conversatio ns with
Villareal. Fletes said he did not accept most of Villareal’s calls. He “just wouldn’t pick up.” His wife accepted calls from Villareal. Fletes found out “after the fact” that she
also put money on other Sureños’ jail accounts. The jury return ed guilty verdicts against both defendants on all but the assault counts and found the gang enhancement allegations true. Fletes admitted a prior serious felony strike conviction. The trial court sentenced him to 15 years in prison. The court
sentenced Villareal to five years in prison. D efendant s filed timely notice s of appeal.

II. Discussion
A. Substant i al Evidence Challenge s to Gang Findings
Defendants challenge the sufficiency of the evidence to support the true findings on the gang enhancement allegations and their conviction s for active participation in a criminal street gang

.

“ ‘ We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citatio n.] ’ ” ( People v. Wilson (2008) 44 Cal.4th 758, 806.) “ [W] e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence

— th at is, evidence that is16

reasonable, credible, and of solid value

— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact ’ s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidenc e nor reevaluates a witness ’ s credibility. ’ ” ( People v. Albillar (2010) 51
C al.4th 47, 60 (

Albillar ).)
1

. Evidence Supporting G ang Enhancements
Defendants claim there was insufficient evidence to support the true finding s on the gang enhancement alleg ations

. We disagree

. S ection 186.22 , subdivision (b)(1) authorize s a sentencing enhancement when a
defendant was convicted of a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members .

. . .” The first pron g r equires that the
offense be “ ‘ “

gang related. ” ’ ” (

Albillar , supra , 51 Cal.4th at p. 60 .) “Expert opinion that particular criminal conduct benefi te d a gang

. . . can be sufficient to raise the inference that the conduct was ‘committed for the benefit of .

. . a[] criminal street gang’ within the meaning of section 186.22(b)(1). [Citations.]” ( Albillar , at p. 63 .) “ ‘ Expert opinion that particular criminal conduct benefited a gang’ is not only permissible but can be sufficient to support the

. . . gang enhancement.” ( People v. Vang (2011) 52 Cal.4th 1038, 1048 ( Vang ).) The second prong of the enhancement statute requ ires that the offense be committed with “ the specific intent to promote, further, or assist in any criminal conduct by gang members .

. . .” ( § 186.22, subd. (b)(1).) “ There is no further requirement that the defendant act with the specific intent to pro mote, further, or assist a

gang ; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. ” ( Albillar , supra , 51 Cal.4th at p. 67.) “ ‘ There is no statutory17

requirement that this “ criminal conduct by gang members ” be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing. ’ ” ( Id. at p. 66.) The jury could reasonably have concluded that defendants’ firearm possession
offenses were “ ‘ “

gang related. ” ’ ” (

Albillar , supra , 51 Cal.4th at p. 60.) T here was ample evidence that b oth were gang members. Villareal admitted that he was a Sureño
and had been since he was about 11 years old. There was evidence tha t Fletes had fallen back into the gang notwithstanding his assertion that he committed to changing his life when he was paroled from prison. He testified that he never formally disassociated from the gang. He admitted to jail deputies in 2009 that he was “a Southerner associate.” He invited Villareal, an active gang member, into his home. He made regular deposits to Villareal’s and other Sureño gang members’ jail accounts and accepted numerous collect
calls from them. G ang items were found during the search of his Navajo Drive residence. A Nissan Altima taken during one of the January 2009 homicides was found at his body shop. A reasonable factfinder could conclude from this evidence that Fletes’s continuing
associatio n with Sureño gang members went far beyond his claimed reluctance to refuse
to do business with Sureño customers

. There was substantial evidence that both
defendants were members of the Sureño gang. There was also evidence that p o ssession of firearms by Sureño gang members benefits the gang. Zuniga explained that f irearms are gang members’ tools of the trade. Gang members possess them “ because of the capability to use [a firearm] as an offensive tool and as a defensive tool.” “Offensive should the oppo rtunity arrive . . . where they’re able to use a gun to commit a crime, they have that opportunity, it’s readily accessible to
them. ” Firearms are so important to the gang that “being a convicted felon, or a prior felon, and not being able to possess a fi rearm, these gang members know if they are caught possessing a firearm, there’s a severe consequence for that. But yet they still choose to carry these firearms, they still choose to be in possession of them to benefit the18

gang.” “G ang members will go ou t and commit crimes to make the gang stronger.” “A lot” of the crimes that gang members commit in Salinas are “very violent” crimes involving firearms

. “[A] lot of the reason why these gangs exist here is . . . fear and intimidation.” “[T]o them that eq uals power. By installing [ sic ] fear in rival gang members,

. . . fear in the community, it . . . equals power to these individuals and these gangs. That’s what enables them to continue to be a gang here . . . .” “[H]aving these Sureño gang members taki ng that opportunity and possessing these firearms, it benefits that gang’s reputation.” Finally, there was evidence of defendants’ apparent willingness to engage with persons defendants suspected were rival gang members. Hoskins testified that the

atmos phere in Salinas was “very hot that January , which means that there’s

. . . a lot of rival activity going back and forth

. ” Fletes testified that he was aware of the gang war and knew that five homicides had occurred in the first two weeks of January 2009

. When “two male Hispanics” drove slowly past the shop that January evening, Fletes suspected

t hat they might be gang members. He and Villareal discussed it. Yet both remained
outside the well

- lit shop

. Villareal retrieved a firearm from the stack of t ires “and started squatting down

. ” Both d efendants h ad their hands at their waistbands. When the unmarked car drove up to the roll

- up door the third time, Villareal “was in a . . . fight or flight stance.” He “was reaching into his waistband .” A reason able factfinder could
conclude that defendants’ actions indicated a willingness to engage with the suspected
rival gang members

. In sum, a reasonable factfinder could conclude that defendants’
firearm possession offenses were “ ‘ “ gang related ” ’ ” and that the first prong of the enhancement allegation statute was satisfied. ( Albillar , supra , 51 Cal.4th at p. 6 0

. ) The jury could also reasonably have concluded that the second prong of the
enhancement statute was satisfied because defendants had the requisite sp ecific intent to
avoid confiscation of their guns and thus to maintain their illegal possession of the m

. We have already described the evidence that supported an inference that defendants were19

armed and w illing to engage with the suspected rival gang members rather than to withdraw by going inside and closing the roll

- up bay door . ( Ante , p. 18 .) There was also
evidence that when defendants saw the marked vehicle , both “immediately” turned and

ran , each holding his waistband

. The jury coul d reasonably infer that this too showed their intent to maintain their illegal possession of the guns. The jury could reasonably infer from defendants’ “close” friendship and from the fact that they discussed the suspicious car that they also discussed th e fact that they were both armed. Even if defendants did not discuss the fact that they were armed, the jury could infer from defendants’ actions and demeanor outside the shop that night that each was aware that the
other was armed. It could reasonably i nfer from defendants’ flight that they understood
that neither was permitted to possess a firearm and that they fled to avoid having those
firearms confiscated. Finally, it could infer that each intended to assist the other in maintaining his unlawful pos session of a firearm, either by evading capture entirely or by putting the guns where police might not find them. Such an inference is bolstered by the fact that Villareal said “something to the rear of the warehouse” as he ran from Pinon.
Those words co uld only have been directed to Fletes, since he and Villareal were the only
two besides Pinon in the warehouse at the time. The inference that each intended to assist the other in maintaining his unlawful possession of a firearm is further bolstered by
th e fact that th os e firearms were later found where police would not necessarily spot them quickly in the car

- packed shop. All of this evidence supported an inference that defendants acted with the specific intent to promote, further, or assist each other’s
criminal conduct in re taining possession of the ir illegally

- possessed firearms. Substantial evidence thus supported the true findings on the gang enhancement allegations. Villareal argues that a part from Zuniga’s opinion, there was “no evidence” that he possessed the .22

- caliber firearm for the benefit of, at the direction of, or in association with any criminal street gang. T he record refutes his argument. Zuniga’s testimony was not the only evidence the jury heard on the issue. We have already described th e20

evidence that , when considered in light of Zuniga’s testimony , supported a conclusion that defendants possessed the fi rearms for the benefit of the Sureño gang . ( A nte , p p

. 17

- 19. )
Villareal contends that Zuniga’s “opinion concerning [Villareal’s] specific intent in possessing the .22 handgun improperly went to the ultimate issue to be decided by the jury.” Not so. Vil lareal’s reli ance on In re Frank S. (2006) 141 Cal.App.4th 1192 ( Frank S. ) and People v. Ramon (2009) 175 Cal.App.4th 843 ( Ramon ) is misplaced

. In
Frank S. , the court held that the prosecution’s gang expert should not have been permitted to testify “that a specific individual possessed a specific intent.” ( Franks , at
p. 1197.) The court concluded that because the expert’s testimony was “the only

e vidence” of the defendant’s intent, the true finding on the enhancement allegation was not supported by subst antial evidence. ( Id. at pp. 1197

- 1199.) In Ramon , the court held
that “ [t] he facts on which [the gang expert] based his testimony were insufficient to permit him to construct an opinion about Ramon’s specific intent in this case. His opinion, therefore , cannot constitute substantial evidence to support the jury ’ s finding on the gang enhancement.” ( Ramon , at p. 852.) Both of these decisions relied on People v.
Killebrew , which our high court has since limited. ( People v. Killebrew (2002) 103 Cal.App.4 th 644 ( Killebrew ), disapproved in part in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 ( Vang ).)
In Killebrew , a gang expert testified through hypothetical questions about “the subjective knowledge and intent ” of each of 11 occupants in three vehicles

. ( Killebrew , supra , 103 Cal.App.4th at p. 658 .) The court held that it was error to admit the expert’s testimony because issues of subjective knowledge and intent are properly reserved for the trier of fact. ( Killebrew , at p. 658.) The court f urther held that because t he expert’s testimony was the only evidence offered to establish the elements of the defendant’s alleged conspiracy to possess a handgun , no substantial evidence supported his
conviction. ( Id . at p p

. 660

- 661 .)21

Killebrew ’s holding was limited in 2011 by the California Supreme Court in Vang. ( Vang , supra , 52 Cal.4th at p. 1046.) The Vang court noted that the Killebrew decision

“ never specifically state [d] whether or how the expert referred to specific persons, rather than hypothet ical persons

. ” ( Vang , at p. 1047.) The court further noted that “[o] bviously, there is a difference between testifying about specific persons and about hypothetical persons. ” ( Ibid. ) The court expressly disapproved “ of any interpretation of
Killebrew

. . . as barring, or even limiting, the use of hypothetical questions. Even if expert testimony regarding the defendants themselves is improper, the use of hypothetical questions is proper. ” ( Vang , at p. 1047, fn. 3.) The expert in Vang testified ( in re sponse to hypothetical questions based on facts shown by the evidence ) that an assault was a “ ‘ gang

- motivated ’ ” attack

. ( Vang , supra , 52 Cal.4th at p. 104 3 ) The high court held that the expert’s testimony was properly
admitted

. “ The expert did not give an opinion on whether defendants did commit an assault in that way, and thus did not give an opinion on how the jury should decide the

case. ” ( Vang , at p. 1049.) So too here. Here as in Vang , Zuniga “ did not give an opinion on how the jury should decide the case. ” ( Ibid .) His opinions were provided in response to hypothetical questions about “ two Sureño gang member s, A and B. ” Zuniga did not tell the jury how to decide the case. There was nothing improper about his testimony. ( Vang , at p. 1049 .) We reject Villareal’s challenge to Zuniga’s testimony

. Fletes argues that there was no substantial evidence about his intent because there
was “no evidence about the circumstances in which [he] obtained dominion over the gun or ammunition” and “no evidence that [he] had participated in any unlawful gang activity” since his release from prison. We do not find these claimed deficiencies in the evidence import ant. There was ample evidence from which the jury could co nclude that Fletes posses sed the firearm . H is hands were at his waistband when Pinon and Salas drove by and he held his waistband as he ran from Pinon (which Hoskins described as “a22

very distinctive look” and a “huge indicator” that a gang member is armed) . A loaded
.38

- caliber firearm was found just feet from where Fletes fell after being shot. There was also ample evidence from which the jury could conclude that Fletes possessed the ammunition

. It was found in the office of his body s hop and behind a small refrigerator near the roll

- up door of the auto body shop that he owned

. The jury could reasonably have concluded that these are areas that a shop owner is likely to frequent. It could reasonably have disbelieved Fletes’s self

- serving testimony that he was unaware of
the a mmunition in the shop and would have thrown it away had he been aware of it. Moreover, Fletes would still possess the ammunition even if someone else put it
where it was found. “ Possession may be physical or constructive, and more than one person may possess the same contraband. ” ( People v. Williams (20 09) 170 Cal.App.4th 587, 625 ( Williams ) .) Possession can be imputed when the contraband is found in a place
that is immediately accessible to the joint dominion and control of the accused and
another. ( Pe ople v. Newman (1 971) 5 Cal.3d 48, 53 ( Newman ) , disapproved on another ground in People v. Daniels (19 75) 14 Cal.3d 857, 862 .) Here, Fletes unquestionably possessed t he firearms and ammunition found in his shop , and there was ample evidence from which the jury could reasonably have concluded that did so to benefit the Sureño
gang , wit h the specific intent to further criminal conduct by Sureño gang members

. ( Williams , at p. 625 ; Newman , at p. 5 3 .)

2

. Evidence Supporting Substantive Gang Crime Convictions
Defendants c laim that their substantive gang crime convictions must be reversed because there was no substantial evidence to support the third element of the offense. We disagree.

“ The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang ’ s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion,23

furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] ” ( People v. Rodriguez (2012) 55 Cal.4th 1125 , 1130 ( Rodriguez ). ) “[T]o

s atisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member. [Citation.] ” ( Rodriguez , at p. 1132.) A gang member who acts alone in committing a felony does not violate the gang participation statute. ( Rodriguez , at p. 1139.) Relyin g on Rodriguez , defendants a rgue that in the absence of evidence t hat either
knew that the other possessed a gun , “it cannot be rationally inferred that [he] intended to encourage or assist the [other’s] commission of a felonious offense.” The argument fa ils because there was ample evidence from which the jury could rationally infer that each knew the other was armed that night. There was testimony that Villareal was “like a [Fletes] family member” and that he and Fletes had a “close” friendship. There was
evidence about the “unusually large number of gang

- related shootings back and forth between Norteños and Sureños” that January. Fletes testified that he was aware of the ongoing “gang war” and that he became sus picious when two Hispanic males drove slowly by the shop that night

. He suspected that they might be gang members. He and
Villareal discussed the suspicious car. The jury could reasonably infer from this evidence
and from the fact that defendants remain ed outside despite their suspicions about the car
that they had also discussed the fact that they were both carrying guns that night. Even if they did not speak about it, there was ample evidence from which the jury
could infer that each knew from the ot her’s actions and body language outside the shop that night that the other was carrying a gun. Defendants were outside together when Pinon and Salas drove by the shop the first time. They were still outside when the
officers drove by a second time five t o 10 minutes later. Defendants had their hands at their waistbands

. Defendants were still outside together when the officers returned a24

third time seven to 10 minutes later. Pinon, Salas, and Hoskins described defendants’
actions , their stances, and the position of their hands outside the shop that night in detail

. The jury could reasonably infer from th at testimony that each defendant saw something during that approximately 20

- minute period t o confirm that his friend was carrying a gun. Fletes argues that even if he knew Villareal possessed a firearm, there was “ no evidence that [he] intended to promote, assist or further [Villareal’s] possession of a
gun. ” The argument misstates the standard. Specific i ntent is not an element of the

su bstantive gang offense. (§ 18 6 .22, subd. (a); see Rodriguez , supra , 55 Cal.4th at
p. 1130 & fn. 5

. ) The third element of the statute requires that the defendant “willfully promote[], further[] or assist[] in any felonious criminal conduct by members of t he gang.” (§ 18 6 .22, subd. (a).) “[T]o satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct.” ( Rodriguez , at p. 1132.) “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to
commit the act

. . . . ” (§ 7.) “The plain meaning of section 186.22(a) requires th a t felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member.” ( Rodriguez , at p. 1132.) Those requirements were satisfied here because the jury could reasonably have
conclude d that defendants acted in concert to further or assist each other’s felonious criminal conduct of possessing a firearm. (§ 18 6 .22, subd. (a).) It could reasonably infer
that defendants jointly possessed the .22

- caliber firearm that Villareal retrieved from the
stack of tires

. The firearm was not registered to either def endant. 4 It was on Fletes’s

4 The parties stipulated that the registered owner of the .22

- caliber firearm that Villareal was convicted of possessing would testify that he sold it to a friend 10 years earlier . Th ey further stipulated (1) that the frien d would testify that he later sold the gun and (2) that t he person to whom he sold it would testify that he sold it, that he did not remember when or to whom he sold it, and that h e did not know either of the defendants in this case. The parties also stipulated that the registered owner of the .38

- caliber25

property , in a spot where Fletes and Villareal both had access to it. ( E.g., People v. Nieto (1966) 247 Cal.App.2d 364, 366

- 367.) A mmunition for a .22

- caliber firearm was found at Fletes’s Navajo Drive residence in a kitchen cabinet where both Fletes and Villareal
had access to it

. Zuniga testified that gang members’ firearms are often obtained by burglar y , are not registered to the gang members, and can be passed around from one gang member to another. The jury could reasonably have conclude d that d efendants’ flight at the sight of Hoskins’s marked vehicle was a willful act that furthered or contributed to their continued felonious possession of the firearms. When both ran from Pinon, each doubled
his c hance of avoiding confiscation of at least one of the weapons. Fletes had an opportunity to escape or to secrete the firearm he was carrying while Pinon was focused on Villareal. When Pinon lost sight of Villareal and was suddenly distracted by Fletes,
V illareal’s chance s to escape or to secret e the firearm he was carrying increased. Th e jury could reasonably infer from the fact that Villareal said something to Fletes as both

ran from Pinon that the two were acting in concert. The fact that the firearms were found where police would not immediately spot them in the car

- filled shop further supports a
conclusion that defendants acted in concert to promote, further or assist each other’s
felonious criminal conduct. We conclude that there was substantial ev idence to support
the third element of the substantive gang offense

.

B. Challenges to the Admission of Gang Evidence 1. Evidence of Villareal’s Participation in a Jail Stabbing
Villareal contends that the trial court abused its discretion under Evidence Code
sections 352 and 1101 and violated his federal and state constitutional rights by allowing

firearm that Fletes was convicted of possessing would testify that it was stolen from him in Los Angeles in 2000

.26

Zuniga to testify that his opinions were based in part on evidence that Villareal participated in a n attack on another Sureño inmate at the Monterey County Jail

. a. Background The prosecutor moved in limine to admit evidence that while Villareal was awaiting trial in this case, he a nd a fellow Sureño attacked another inmate and stabbed him “over 30 times” with a shank made from a fo urth Sureño inmate’s medical brace

. The victim believed the attack was triggered by his rumor ed c ooperat ion with law
enforcement. Villareal was charged with attempted murder and his case was p ending
when this case went to trial

. The prosecutor argued a t the in limine hearing that t he evidence was admissible to show Villareal’s active participation in the Sureño gang

. Villareal’s counsel objected that
it was cumulative and highly prejudicial . He asked the court to sanitize the evidence if
the court was not inclined to exclude it entirely under Evidence Code section 352

. Fletes’s counsel also objected , asserting among other things that the evidence was “irrelevant as to [Fletes] , ” inflammatory , and violative of Fletes’s due process rights.
The trial court found that the evidence was highly probative but that t he
viciousness of the attack was “clearly . . . prejudicial in an inappropriate way.” “So, the details are not coming in.” “So, the Court’s ruling is assault with a deadly weapon and
no d etails as to the violent specifics.” “[T]he other parts of it ... I assume it’s in the jail. I assume that there [is] . . . at least one other . . . Sureño involved; that . . . there is information that would provide the proper setting and the proper flavo r.” “[I]f there’s something inconsistent with that idea, then we need to talk about it. But right now

. . . from what I know of it , the circumstances surrounding it are admissible, at least may be relied on by the expert and if there is proper examinatio n of the expert that elicits that
kind of information

. . . .” The court ruled that the evidence was also admissible against
Fletes “in the sense [that] one element of the offense or the enhancements . . . is association with someone who is an active part icipant, a member of a gang, and this27

would be relevant for that purpose.” “[T]he evidence will be admissible . . . against both defendants.”
The court had earlier emphasized tha t its in limine rulings were all tentative and subject to reevaluation “if there’s an objection in the context of the evidence as it stands at the time.” Before the y presented their opening statements, both defense counsel summarily and very generally renewed t heir previous objections. The trial court overruled them, “[h]aving heard no particular specific that would alter the calculations previously made.” The court reiterated that “[i]f there is some specific item with specific aspects that you feel need further discussion, be specific.” Openi ng statements were then presented. Two weeks later, Zuniga testified without objection that the jail assault was
one of the many b ases for his opinion that Villareal was an active member of the Sureño criminal street gang on January 15, 2009. b. Analys is
Villareal argues that the trial court should have excluded evidence of the jail
assault as irrelevant, cumulative, and unduly prejudicial under Evidence Code
section 352

. W e disagree.

“ ‘ Relevant evidence’ means evidence .

. . having any tendency in re ason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) “ The court in its discretion may exclude evidence if its probative value is substantiall y outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misl eading the jury. ” (Evid. Code, § 352.)

“ ‘ “ The prejudice that section 352 ‘ “ is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.]

“ Rather, the statute uses the wo rd in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” [Citation.]’ [Citation

. ] In other28

words, evidence should be excluded as unduly prejudicial when it is of such nature as to
inflame the emoti ons of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors ’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. ” [Citation .] ’ ” ( People v. Scott (2011) 52 Cal.4th 452, 491 ( Scott ).)

“ [ N ] either the prosecution nor the defendant has a right to present cumulative
evidence that cre ates a substant ial danger of undue prejudice [citation] or that unduly consumes the court’s time [citation]. ” ( Williams , supra , 170 Cal.App.4th 587, 611.) But

“ n o bright

- line rules exist for determining when evidence is cumulative . . . . [A]pplication of the term must be reasonable and practical.” ( Ibid. ) We review the trial court’s rulings on the admissibility of evidence for abuse of discretion. ( Id. at p. 606.) “The admission of gang evidence over an Evidence Code section 352 objection will not
b e disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” ( People v. Valdez (1997) 58 Cal.App.4th 494, 511 ( Valdez ).) Even if we assume that Villareal preserved his objection to the jail assault evidence, t here was no abuse o f discretion here. The evidence was relevant as a basis for Zuniga’s opinion that Villareal was an active gang member on January 15, 2009

. It was highly probative because e vidence that he engaged in gang

- related activities both before
and after January 15, 2009 , strongly supported a n inference that he was an active gang
member on the date itself. As the trial court noted moreover, e vidence that Villareal joined with other Sureños to commit a violent act was probative “ in a way that is
different from sim ply being housed in a [Sureño] gang pod

. ” This qualitative difference
refutes Villareal’s argument that the evidence was cumulative.
T he probative value of the jail assault evidence was not “substantially outweighed” by its potential for prejudice. (E vid. Code, § 352.) The evidence was significantly sanitized , with all mention o f “blood, cuts, number of stab wounds, and that29

sort of thing” excluded. The vicious attack was described simply as an assault with “ a shank ” or “j ailhouse makeshift knife.” Testim ony about the incident was very brief , consuming only two of the 6,000 reporter’s transcript pages devoted to the presentation
of the evidence. P ermitting Zuniga to testify about the jail assault did not exceed the
bounds of reason

. ( Valdez , supra , 58 Cal.App.4th at p. 511.) It was not an abuse of
discretion.
Villareal argues that the evidence was unduly prejudicial because it revealed that
he was in custody. His failure to assert this argument below has forfeited it on appeal. ( People v. Pearson (2013) 56 Cal.4th 393, 460

. ) We do not find it persuasive in any

event. The jury was already aware that he was in custody , having heard that he obtained
the most recent of his facial gang tattoos there

. There was additional testimony that gang members visited him in jail , that his numerous calls from the jail were recorded, and t hat Fletes made regular deposits to his jail account

. All of t his testimony was received
without any objection that it revealed Villareal’s in

- custody status

. Villareal claims the evidence was cumulative and unduly prejudicial because h is gang membership was “undisputed” in light of his tattoos and his request to be housed in the Sureño pod of the jail. Even if we assume that he preserved th is argument for appeal,

we cannot agree that the issue was undisputed

. There was no stipulation that Villareal was an active gang member. Neither the prosecutor nor the trial court knew a t the in limine stage whether V illareal’s alleged gang membership would be vigorously challenged or t acitly conceded at trial

. Even if it was conceded , “ the prosecution ’ s burden to prove every element of the crime is not relieved by a defendant ’ s tactical
decision not to contest an essential element of the offense. ” ( Estelle v. McGuire (1991)
502 U.S. 6 2, 69

- 70.) The trial court could not reasonably discount the possibility that
Villareal would argue at trial t hat he obtained most of his tattoos many years earlier
and /or that he was ( as a result of Fletes’s claimed efforts to reform him ) in the process of disassociating from the gang on the date of the charged crimes. Nor could the court30

assume that Villareal’s tattoos and his request for Sureño housing would be sufficient to
establish beyond a reasonable doubt that he was an active gang member on January 15, 2009

. Permitting Zuniga to testify about the jail assault was not an abuse of
discretion.
Villareal argues that the trial court should have excluded the jail assault evidence as improper character evidence under Evidence Code sectio n 1101. We disagree.
Evidence of a defendant ’ s character in the form of specific instances of his or her
conduct is inadmissible to prove the defendant’ s conduct on a specific occasion. ( Evid. Code, § 1101, subd. (a) .) However, such evidence is admissible if relevant to prove some
fact (such as motive or intent) other than the defendant’s disposition to commit such an

act. ( Evid. Code, § 1101, subd. (b) .) To be relevant on the issue of intent, the uncharged crimes need only be “ sufficiently similar [to the charged offenses] to support the
inference that the defendant ‘ “ probably harbor[ed] the same intent in each instance. ” [Citations.] ’ ” ( People v. Ewoldt (1994) 7 Cal.4th 380, 402 ( Ewoldt ) .) “ ‘ If evidence of an uncharged of

fense is relevant, there is no distinction between an offense that is prior and
one that is subsequent to the date of the charged offense.’ [Citation.]” ( People v. Balcom ( 1994) 7 Cal.4th 414, 425.) The trial court has discretion to admit such evidence after weighing its probative value against its prejudicial effect. ( People v. Fuiava (2 012) 53 Cal.4th 622, 667

- 668 ( Fuiava ) .) The jail assault evidence was relevant on the issue of Villareal’s motive and intent for purposes of the gang enhancements in this case

. In the jail incident, Villareal acted in

concert with other Sureños to commit a violent assault on a rumored gang dropout. Zuniga explained that dropouts are “the lowest of the low” in the gang culture

. Active gang members do not trust th em and will often assault them “so that they are removed from that housing facility.” A reasonable factfinder could infer from this evidence that Villareal committed the jail assault for the benefit of the gang with the specific inten t to further criminal conduct by gang members. That, in turn, was probative of his intent and31

motive on the assault on a peace officer with a firearm count . Zuniga testified that firearms are “tools of the trade” that gang members possess “for their capability to be
used as an offensive tool . . . .” He explained that police officers are considered “road blocks” or “hurdles” to gang members’ ability to conduct “their business as normal.” He noted that Villareal’s Long Beach gang had “an extensive history of challenging law enforcement and committing assaults on law enforcement” and that in Salinas as well, various Sureño gang members had challenged and assaulted police officers. A key issue
at trial was whether the charged assault on Pinon was committed for the benefit of t he gang with the specific intent to further criminal conduct by gang members. The jail assault evidence had some tendency in reason to show that it was. We reject Villareal’s argument that there was “nothing similar” about the two incidents. Both the jail assault and the charged assault involved gang members acting together to commit violent acts to remove a perceived impediment to the gang ’s success. “ The least degree of similarity ( between the uncharged act and the charged offense ) is requ ired in order to prove intent.” ( Ewoldt , supra , 7 Cal.4th at p. 402.) In our view, the jail incident and the charged offenses were “ sufficiently similar

. . . to support the inference that [Villareal]

‘ “ ‘ probably harbor[ed] the same intent in each inst ance. ” [Citations.] ’ ” ( Ewoldt , at
p. 402.) Any potential prejudice w as mitigated by the trial court’s repeated reminders throughout Zuniga’s testimony that “the incidents that he’s basing his opinion on, the information that he receives from reports, fr om other people . . . is . . . not being offered for the truth . . . [but] only for the purpose of helping you understand on what basis he reached his opinion.” “So you can only use it for that purpose.” The trial court also instructed the jury that it c ould not use any “gang

- related” e vidence to “conclude . . . that the defendant is a person of bad character or that he has a disposition to commit crime.” We presume that the jury understood and followed the court’s instructions. ( People v.
Edwards (2013) 57 Cal.4th 658, 723 ( Edwards ) .)32

Villareal argues that admission of the jail assault evidence rendered his trial fundamentally unfair in violation of his right to due process

. We disagree.

“ ‘ [ A ] pplication of the ordinary rules of evidence genera lly does not impermissibly impinge on a

. . . defendant’s constitutional rights. ’ ” ( People v. Lindberg (200 8 ) 45 Cal.4th 1, 26

. ) “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process . Eve n then, the evidence must be ‘of such quality as necessarily prevents a fair trial.’ [Citation.]” ( Jammal v. Van d e Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Since we have concluded that admitting the jail assault evidence was a proper exercise of the trial court ’s discretion, we find no due process
violation. ( People v. Yeoman (2003) 31 Cal.4th 93, 122

- 123 ( Yeoman ). )

2. Evidence of Fletes’s Active Gang Membership
Fletes complains that the trial court admitted an overabundance of “cumulative,
irreleva nt and unreasonably prejudicial gang evidence ” over his Evidence Code section 352 objection to explain the bases of Zuniga’s expert opinions

. He divides th e evidence into five categories : (1) evidence of his participation in gang activity before 2002; (2 ) evidence of his “proximity” to Sureño gang members and activity after he was paroled in 2003; (3) evidence about Villareal’s gang activities; (4) evidence of predicate offenses; and (5) Zuniga’s two brief references to the Mexican Mafia. We a ddress each in turn

.

a. Evidence of Fletes’s Active Gang Membership Before 2002
Fl etes contends that the trial court abused its discretion by allowing Zuniga to explain how Fletes’s involvement in gang activity before 2002 supported his expert opin i ons

. He argues that none of th at evidence made it more likely “in any but the most tenuous sense” that he remained an active gang member or that he acted to advance criminal conduct by gang members on January 15, 2009. Instead, its impact was to incline jurors to convict him “ based on his ostensible bad character.” We reject these
contentions

.33

Contrary to Fletes’s assertion , the pre

- 2002 evidence was both relevant and probative. T he section 186.22, subdivision (a) charge required the prosecutor to prove Fletes’s “ active participation in a criminal street gang, in the sense of participation that is more than nominal or passive ,” his “ knowledge that the gang ’ s members engage in or have engaged in a pattern of criminal gang activity ,” and his “ willful promotion,
fur therance, or assistance in any felonious criminal conduct by members of that gang. ” ( Rodriguez , supra , 55 Cal.4th at p. 1130.) The enhancement allegation required the prosecutor to prove that the January 15, 2009 offenses were “ ‘ “ gang related ” ’ ” and that Fletes committed them “ with the specific intent to promote, further, or assist in any criminal conduct by gang members .

. . .” ( Albillar , supra , 51 Cal.4th at p. 60; § 186.22, subd. (b).) Evidence of his pre

- 2002 gang activities was probative of these issues. ( People v. Tran (2011) 51 Cal.4th 1040, 1048 ( Tran ).) It was relevant as a basis for Zuniga’s opinions. It showed Fletes’s immersion in and dedication to the gang before he went to prison. It provided the jury with a context in which to v iew his later gang contacts and his assertion that he changed his life when he was paroled from prison. It
thus had some tendency in reason to prove elements of the prosecution’s case and to disprove a defense theory of the case. (Evid. Code, § 210)
Zun iga’s testimony about Fletes’s pre

- 2002 gang activities was not unduly prejudicial. It did not consume an unreasonable amount of time. It was not confusing. Nor was it likely to inflame the jury. The most serious incident , a 1995 shooting at Fletes’s h ouse, was sanitized to remove potentially inflammatory details. T he jury heard only that “a Sureño was a victim of a shooting” a t Fletes’s house in August 1995 , that
Fletes initially lied to police about his “ involvement , ” that he later told them h e threw t he gun over the fence , and that he was placed on probation

. In three other incidents, Fletes

was the target rather than the aggressor. In our view, t hese incidents were no more inflammatory than the charge of assaulting a police officer with a firearm. As our high court has observed, t he potential for prejudice is decreased when it “is no stronger or34

more inflammatory than the testimony concerning the charged offense.” ( Tran , s upra , 51
Cal.4th at p. 1047.) Further, the trial court instructed the jury on the limited purpose of the evidence and issued repeated reminders during Zuniga’s testimony. The jury was
also instructed that it could not use any gang e vidence to conclude th at either defendant had a bad character or a disposition to commit crime. On this record, the trial court’s
de cision to allow expert testimony about Fletes’s pre

- 2002 gang involvement was not an
abuse of discretion.
Fletes maintains that the evidence was cumulative because other evidence

“ unequivocally showed that he had extensive and close association with Sureño gang members, that he was aware the Sureños were a criminal gang, and that its members engage in or have engaged in a pattern of criminal gang a ctivity. ” He cites his own testimony about his early gang membership, photos showing him in “ostensibly gang clothing” and with other gang members, his possession of gang lyrics, his “several” telephone conversations with and visits to Villareal in jail a fter January 15, 2009, and the deposits that he made to Villareal’s and other Sureños’ jail accounts.
We see two problems with Fletes’s argument. The first is that the evidence he claims would have been sufficient was not nearly as strong from a prosecu tion standpoint
as the evidence he deems cumulative. Fletes cites no authority for the proposition that the prosecution must forgo the use of relevant, persuasive evidence to prove an element of a crime because that element might also be established throu gh other evidence. We
are aware of none. ( Tran , supra , 51 Cal.4th at p. 1049 [rejecting a similar argument; stating that “the pros ecution cannot be compelled to ‘ “ present its case in the sanitized
fas hion suggested by the defense. ” ’ [Citation.] ” ]

. ) The second problem with Fletes’s argument is that we review the trial court’s Evidence Code section 352 ruling based on the information available to the court when the ruling was made. (See People v. Jenkins (2000) 22 Cal.4th 900, 1009.) When the
trial c ourt ruled here, it could not know what Fletes would tell the jury because he had not35

yet testified. The in limine motion that the court had before it urged the exclusion of “any and all” gang evidence. The motion asserted that there was “no evidence” th at the alleged crimes were gang related. “This is not a gang case. Just because the prosecution has stuck a ‘gang’ label on it and has a pseudo

- expert ready to come in and parrot rhetoric about gangs and their crimes does not mean that the evidence is re levant to the issues in this case.” Fletes’s counsel maintained that position when he re newed his objections before Zuniga testified . Counsel assert ed that Fletes had “turned his life around” and that there was “a clear . . . demarcation point where he’s no longer a gang
member. ” On this record, the trial court w as well within its discretion when it responded,

“ I have no idea actually what you’re going to do with your case, to be honest with you, and I don’t want to know necessarily, but I do understand he’s got a burden to meet and I
think relevant evidence is admissible. And I don’t really think this is cumulative. I think it provides the immersion aspect of the involvement . . . . ”
Fletes argues that the amount of pre

- 2002 gang evidence admitted “f ar exceeded the quantum of such evidence” that was held unreasonably prejudicial in Williams and People v. Leon (2008) 161 Cal.App.4th 149 ( Leon ). Those cases are readily distinguish ed

. The defendant in Williams “ch allenged the cumulative impact of admitting evidence of dozens of prior crimes,” some of which were introduced “ multiple times and for multiple purposes. ” ( Williams , supra , 170 Cal.App.4th at pp. 598, fn. 5, 610.) T he Court of Appeal found “plain ” but ha rmless error in the admission of “ unnecessary quantities of evidence ” that “ turned the trial of this routine drug and weapons possession
case into a weeks

- long marathon

. ” ( Williams, at p. 595 .) The court further concluded
that it was an abuse of discreti on ( but a harmless one ) “ to admit cumulative evidence concerning issues not reasonably subject to dispute. ” ( Id . at p. 611 .) The “sheer volume”
of the evidence in Williams extended the trial and the burden on the judicial system and the jurors “b eyond reasonable limits, and the endless discussions among the trial court36

and counsel concerning the admissibility of such evidence amounted to a virtual street
brawl. ” ( Ibid. ) Nothing like that occurred here. The trial court did not admit evidence of

“ dozens” of prior crimes

. ( Williams , supra , 170 Cal.App.4th at pp. 595, 598.)
Discussions about admissibility we re neither “ endless ” nor contentious. ( Id . at p. 611.)
Presentation of the evidence did not consume an un due amount of time or extend the tri al beyond reasonable limits

. Also unlike in Williams , the issue of Fletes’s involvement in the gang was reasonably subject to dispute when the trial court ruled. Fletes’s reliance on
Williams is misplaced

. Fletes’s reliance on Leon is similarly misplaced

. There was “overwhelming” evidence of the defendant’s active gang membership i n Leon

. ( Leon , supra , 161 Cal.App.4th at p. 169.) On that record, the court held that evidence of the defendant’s prior juvenile adjudication was “ ‘ merely cumulative regardi ng an issue that was not reasonably subject to dispute

. ’ ” ( Ibid. ) Here, Fletes’s counsel stated at the in limine hearing that Fletes’s active gang membership was a contested issue. Leon is inapposite
here

. b
. Evidence of Fletes’s Active Gang Membership After 2003
Fl etes contends that the trial court abused its discretion by allowing Zuniga to explain how Fletes’s involvement in gang activity after he was paroled in 2003 supported his expert opinions

. Fletes complains that “much of the testimo ny ” had “no relevance except to further incline the jury to convict [him] based on his association with criminal gang members.” We disagree. Contrary to Fletes’s assertions, the evidence was probative of more than his mere “proximity” to active gang membe rs. Evidence of the 2005 traffic accident that killed a Sureño gang member was probative of Fletes’s active participation in the gang because the victim was driving a car that was registered to Fletes and he had a loaded handgun in
his waistband. Evidenc e about the white Nissan Altima that was taken after the father of37

Sureño gang members was murdered in January 2009 was probative of Fletes’s gang involvement because the Altima was found outside his shop several days after the shooting

. Evidence of Flete s’s telephone conversations with jailed Sureños and about the regular deposits he made to their jail accounts was probative of his “ more than nominal or passive ” support of active Sureño gang members. (§ 186.22, subd. (a).) Like the pre

2002 evidence, th e post

- 2003 evidence had some tendency in reason to prove elements of the prosecution’s case a nd to disprove the defense theory that Fletes was no longer a gang member on January 15, 2009. (Evid. Code, § 210.) Thus, i ts probative value was high.
On the r ecord before us, the high probative value of the evidence was not substantially outweighed by its potential for prejudice. The post

- 2003 evidence was not confusing. It did not consume an unreasonable amount of time. It was not cumulative
because it described Fletes’s gang involvement at a later point in time, after he claimed to
have turned his life around.
To the extent Fletes contends that the post

- 2003 incidents that Zuniga relied on

w ere likely to inflame the jurors’ emotions against him, we disa gree. Fletes complains for example that Zuniga told the jury that one of the many bases for his opinions was t he shooting by unknown males of a Sureño who was waiting for a quote outside Fletes’s
sh op in 2008. He also complains that Zuniga told the jury that he relied on st atements by
witnesses after the 2008 shooting that they saw persons “they believed to be gang members going to and from the body shop at all hours of the day.” This evidence was
not beneficial to Fletes’s case, but it was not prejudici al as Evidence Code section 352 defines that term. ( Tran , supra , 51 Cal.4th at p. 1048.) There was no suggestion of criminal conduct by Fletes in connection with the 2008 shooting. The jury had already
heard about th e incident from Plummer, who testifie d that he was familiar with JR’s Auto Body because it was “the site of a homicide, a gang

- related homicide, where somebody was murdered outside of the shop.” Fletes later testified about the incident. We see nothing about the 2008 shooting or about any o f the post

- 2003 evidence that was likely to38

inflame the jurors’ emotions and motivate them to use the evidence for an illegitimate purpose. ( Scott , supra , 52 Cal.4th at p. 491.) The trial court gave the appropriate limiting instructions. The court also instructed the jury that it could not use the evidence to conclude that Fletes was a person of ba d character. The jury acquitted Fletes on the assault charge , which shows that it did not accept the evidence uncritically or use it for an imp roper purpose

. The trial court’s decision to allow expert testimony about Fletes’s post

- 2003 gang involvement was not an abuse of discretion.
Fletes maintains that evidence that the body shop “ apparently was linked to an
unsolved murder was

. . . highly p rejudicial. ” This overstates Zuniga’s very brief testimony about the white Nissan Altima taken during one of the January 2009 homicides. The jury had already heard about that incident from Hoskins and the other gang task force officers and evidence techn icians who testified about it . Zuniga stated that the victim was the father of known Sureño gang members, that the victim’s white Altima was found outside Fletes’s shop on Dayton Street after the murder, and that that fact played into his opinion about Fl etes’s involvement in the Sureño gang. Fletes later testified that that he was aware the Altima was parked there because the driver asked him if he could park it there. “I told them, yes, if the car wasn’t stolen.” “They said it’s just something had hap pened and they just needed somewhere to park it. I said, ‘As long as you park it on the street and not in my business facility. ’ ” Fletes disclaimed any knowledge that the Altima had come from the home of a Sureño whose father had been
killed. We do not consider Zuniga’s testimony about the Altima inflammatory.
Fletes also complains that Zuniga told the jury that the green minivan used in one of the January 2009 homicides “was located at Fletes’[s] shop.” This mischaracterizes Zuniga’s testimony. Neith er Zuniga nor any other witness testified or even suggested that the green minivan was ever found at Fletes’s shop

. What Zuniga actually said was that there was information that the green minivan “was supposed to be at [ the body shop].” (Italics added.) This was consistent with Plummer’s direct testimony that gang39

task force officers were briefed on January 15, 2009 , that the minivan might be at one of several body shops “getting painted or getting some kind of work done on it to alter its appearance.” It was also consistent with Pinon’s and Salas’s testimony that they went to Fletes’s shop to look for the green minivan. Zuniga’s testimony about the green minivan was not inflammatory

.
c. Zuniga’s Testimony About Villareal
Fl etes complains that the tria l court abused its discretion in permitting Zuniga to testify about Villareal’s active participation in the Sureño gang . Fletes claims that this “inflammatory” and “entirely cumulative” evidence prejudiced him because the prosecution urged that his associ ation with Villareal was probative of his own active gang membership and gang motivation in committing the charged offenses

. Fletes’s argument
lacks merit

. The evidence was relevant as a basis for Zuniga’s opinions. It was relevant to the
gang enhancement allegations, which required proof that Fletes committed his crimes

“ for the benefit of, at the direction of, or in association with any criminal street gang .” (§ 186.22, subd. (b) , italics added .) It was particularly probative of Fletes’s kno wledge that Villareal remained an active gang member. Fletes ’s testimony implied that he was unaware of the extent of Villareal’s gang involvement. He claimed th at they never spoke about “gang stuff” or committing crimes or owning guns. He told the jury that he “never paid attention” to the gang tattoos on Villareal ’s arms and had not seen the gang tattoo on his stomach. He denied knowing that Villareal was from Long Beach, although the “Longos” tattoo on his neck suggested “a possibility” that he might be. Zuniga’s testimony about the extent of Villareal’s active gang involvement was probative of Fletes’s knowledge. It was not cumulative

. ( Tran , supra , 51 Cal.4th at p. 1049.) It did not consume an unreasonable amount of time, requiring fewer than 30 of the 6,000 reporter’s transcript pages devoted to the presentation of the evidence.40

Fletes argues that the evidence was unreasonably prejudicial. He does not explain
how evidence about Villareal ’s gang participation would inflame the jurors’ emotions against himself. We do not believe that it would

. Evidence of Villareal’s participation in
the jail assault was significantly sanitized , and evidence of his other police contacts was no stronger or more inflammatory than the testimony about the offenses both defendant s

were charged with

. ( Tran , supra , 51 Cal.4th at p. 1047.) The jur y had already heard direct testimony about the gang indicia found during the search of Fletes’s house. Further, the jury heard from Klein and from Fletes himself that Fletes was trying to show Villareal that “there was another life, instead of the one that he grew up around.” The trial court gave appropriate limiting instructions. It was not an abuse of discretion to admit expert testimony about Villareal’s active gang membership against both
defendants.
d. Evidence of Predicate Offenses A section of Fletes’s opening brief on appeal complains that the trial court admitted “cumulative and unreasonably prejudicial evidence of predicate offenses” but
the precise nature of his argument is unclear. He argued in limine (1) that it “would be wrong” to introduce a predicate involving “any particular defendant . . . or defense attorney ” in volved in th is case a nd (2) that that it would be “ unduly prejudicial and not very probative at all” to admit evidence of his 2001 conviction as a predicate offense since he was going to admit that he “was once a gang member.” To the extent he reasserts those arguments here, we reject them. “[A] predicate offense can be established by proof of an offense committed by the
defendant. ” ( Tran , supra , 51 Cal.4th at p. 1046.) “Further, that the prosecution may have the ability to develop evidence of predicate offenses committed b y other gang members does not require exclusion of evidence of a defendant’s own separate offense to show a pattern of gang activity.” ( Id. at p. 1044.) The high court’s holding in Tran disposes of Fletes’s first argument.41

His second argument also lacks merit. We have already determined that the trial
court did not abuse its discretion in admitting evidence of his pre

- 2002 gang activities
over his irrelevance and Evidence Code section 352 objection s to support Zuniga’s expert opinions on motive and intent

. ( Ante , pp. 32

- 36. ) The fact that the evidence served an additional purpose by showing a predicate offense increased its probative value in our view, and did so without increasing its potential fo r prejudice. Zuniga’s testimony about Fletes’s 2001 conviction was brief. It was less inflammatory than the testimony in this case, where Fletes was charged with pointing his illegally possessed firearm at Pinon. ( Tran , supra , 51 Cal.4th at p. 1047.) T he jur y was instructed that the evidence was admitted only as a basis for Zuniga’s opinions and that it could not be used to conclude
that Fletes had a bad character or a criminal disposition

. The trial court did not abuse its
discretion in admitting the evidence

.

e. Zuniga’s Mention of the Mexican Mafia
In a two

- sentence argument at the end of his argument about predicate offenses, Fletes complains that “Zuniga twice told jurors that the Sureños were connected to the ‘Mexican Mafia’ prison gang.” He argues that this was “virtually immaterial to the prosecution’s case” and “highly inflammatory.” Even if we assume that Fletes preserved this argument for appeal, it lacks merit. Zuniga traced the origins of today’s Hispanic street gangs to the Nuestra Fa milia and Mexican Mafia prison gangs. He stated that “[t]he supreme Sureño gang, being the Mexican Mafia, is one of the oldest prison gangs.” He went on to describe various Sureño gangs in Salinas , telling the jury that they identify with the color blue and with the number 13, “which stands for the 13th letter of the alphabet showing their allegiance towards the letter ‘M’ for the Mexican Mafia.” He described the violent rivalry between Sureño and Norteño gangs. He explained that Norteños identify with the color red and the number 14, “showing their allegiance towards the supreme Norteño gang, which would be the Nuestra Familia . . . the . . . 14th letter of the alphabet being the letter N.”42

We find nothing inflammatory about Zuniga’s mention of the Me xican Mafia in
this context . His testimony about Sureño gang history, culture, and activities was
relevant to the active gang participation charges and to the gang enhancement allegations

. His two reference s to the Mexican Mafia w ere exceedingly brief. Fletes has not
demonstrated that he was prejudiced by them. Nor can he. His acquittal on the most
serious count makes it apparent that the jury did not use Zuniga’s mention of the Mexican
Mafia for an illegitimate purpose. Fletes’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214 ( Albarran ) is misplaced. In that case, a “pa noply” of incriminating gang evidence that “might have been tangentially relevant to the gang allegations ” but had “ no bearing on the underlying charges” was present ed at trial. ( Id. at p. 227) Albarran was convicted and the gang allegations were found true. The trial court granted a new trial on the gang allegations , finding insufficien t evidence to support them. ( Id . at p. 217.) On appeal, Albarran argued that the gang evidence was so prejudicial that a new trial should have been granted on all counts. ( Ibid. ) The majority agreed. “Certain gang evidence, namely

. . . the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial.” ( Albarran , at p. 230.) The admission of gang evidenc e with “no connection to [Albarran’s] crimes” was so prejudicial “ that it raised the distinct potential to sway t he jury to convict regardless of Albarran’s actual guilt.” ( Id. at pp. 227

- 228 .) Thus,
Albarran was “one of those rare and unusual occasions where the admission of
evidence

. . . violated federal due process and rendered the defendant’s trial
fundamental ly unfair.” ( Id . at p. 232.)
This case is not one of th ose rare and unusual occasions to which the Albarran
court referred

. Unlike in Albarran , Zuniga’s testimony about gangs was relevant and probative. H e briefly mention ed the Mexican Mafia in th e context of providing general background information about gang rivalry in Salinas

. That testimony was neither43

inflammatory nor prejudicial . It did not render Fletes’s trial fundamentally unfair.
Albarran is inapposite here

. f . Due Process
Fletes conten ds that the admission of “excessive” gang evidence rendered his trial fundamentally unfair and violated his right to due process. Not so. The evidence was properly admitted. There was no denial of due process. ( Yeoman , supra , 31 Cal.4th at pp. 122

- 123

. )

C . Confrontation Clause Challenge to Zuniga ’s Testimony Defendants contend that Zuniga’s opinion about the “primary activities” of the Sureño gang was based on testimonial “hearsay basis evidence” admitted in violation of their Sixth Amendment right to confrontation. (§ 186.22, subd (f).) Specifically, they challenge Zuniga’s testimony about the predicate offenses. As we understand their argument, (1) under the “holding” of Williams v. Illinois (2012) __ U.S. __ [ 132 S.Ct.
2221 ] ( Williams ), Zuniga’s testimony about the predicate offenses was based on hearsay necessarily admitted for its truth, in violation of the confrontation clause ; (2) Zuniga’s testimony about the convictions of Rivas and Carrillo was “by necessity, the result of police interrogation” and therefore testimonial hearsay admitted in violation of the
confrontation clause ; and (3) without competent evidence of th e Rivas and Carrillo convictions, it cannot be said that the jury would have found that the gang “ ‘ consistently and repeatedly’ committed crimes and acts listed in section 186.22, subdivision (e) as their ‘primary activity. ’ ” De fendants urge that these errors require revers al of the ir gang crime convictions and the gang enhancements. We disagree.
1. Williams The starting point of defendants’ argument is their entirely erroneous assertion that “[t]he United States Supreme Court recently held that hearsay basis evidence, rel ied on by an expert at trial, is introduced for the truth of the matter asserted and, thus, is subject44

to the Sixth Amendment Confrontation Clause.” Defendants cite Williams for this proposition.
In Williams , the United States Supreme Court considered w hether a n expert ’s testimony that a DNA profile produced by an outside laboratory matched a profile produced by the state police lab using a sample of the defendant’s blood violated the confrontation clause. ( Williams , supra , 132 S.Ct. at p. 2227

. ) In a 4

- 1

- 4 opinion, the plurality held that there was no c onfrontation c lause violation. ( Id. at p . 2228 [ plur. opn. of Alito, J., joined by Roberts, C. J., Kennedy & Breyer, JJ. ] .) The court gave two reasons for its decision. The first was that the “basis evidence” was not offered for its
truth

. ( Id . at pp. 2228, 2239.) “Out

- of

- court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not
offered for their truth and thus fall outsi de the scope of the Confrontation Clause.” ( Id. at p. 2228

. ) Five justices disagreed with the plurality on this point, concluding that the basis
evidence was offered for its truth. ( Williams , supra , 132 S.Ct. at p p

. 2257 [ conc. opn. of Thomas, J. ], 2268 [ dis. opn. of Kagan, J., joined by Scali a, Ginsburg, and Sotomayor, JJ.] .)
A second and “independent” reason for the plurality’s decision was that even if the
basis evidence was offered for its tr uth, it was not testimonial. ( Williams , supra , 132
S.Ct. a t p

. 2228 [ plur. opn. of Alito, J., joined by Roberts, C. J., Kennedy & Breyer, JJ. ] The DNA report was “produced before any suspect was identified , ” it was sought “for the purpose of finding a rapist who was on the loose” rather than to obtain evidence a gainst
the defendant (who was not a suspect at the time) , and it was “not inherently inculpatory.” ( I

bid .) Justice Thomas agreed with the plurality on this point, concluding that the basis evidence was not testimonial because it “lack[ed] the solemnity of an affidavit or deposition” and “although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling

cus todial interrogation.” ( Id. at p. 2260 [ conc. opn. of Thomas, J. ] .)45

Defendants mischaracterize William s
. The common view expressed by Justice Thomas and the four dissenting justices (that hearsay basis evidence is necessarily offered for its truth) canno t properly be characterized as the “ holding ” of the case. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Mem bers who concurred in the judgments on the narrowest grounds. . . .’ [Citation.]” ( Marks v. U nited States (1977) 430 U.S. 188, 193 , italics
added .) The four dissenting justices in Williams plainly did not concur in any judgment. ( I bid .) “[D]issenting opinions are not binding precedent. [Citations.]” ( People v. Lopez (2012) 55 Cal.4th 569, 585.) Contrary to defendants’ assertion, Williams does not hold that hearsay basis evidence is necessarily offered for the truth of the matter and therefore subjec t to the confrontation clause. It remains the rule, as reaffirmed in Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ) , “ that the [confrontation clause] ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the
matter asserted. ’ ” ( Williams , supra , 132 S.Ct. at p. 2224 [ plur. opn. of Alito, J., joined by Roberts, C. J., Kennedy & Breyer, JJ. ] , quoting Crawford , at p. 59, fn. 9.) It has long been and remains the rule in California that an expert may testify “[b] ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony
relates . . . .” (Evid. Code, § 801; People v. Gardeley (1996) 14 Cal.4th 605, 617

- 620 ( Gardeley ).) “The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.” ( Gardeley , at p. 617.) “So long as the threshold requirement of reliability is satisfied, even matter that is ordinaril y inadmissible can form the proper basis for an expert’s opinion testimony.” ( Id. at p. 618.) Evidence Code section 802 permits an expert witness to “ state on direct examination the reasons for his opinion and46

the matter (including, in the case of an exp ert, his special knowledge, skill, experience, training, and education) upon which it is based . . . .” (Evid. Code , § 802.) An expert’s
recitation of out

- of

- court statements for the nonhearsay purpose of showing the basis for the expert’s opinion “does not transform inadmissible matter into ‘independent proof’ of any fact. [Citations.]” ( Gardeley , at p. 619.) “Consistent with these well

- settled principles,” the Gardeley court held that a police detective “could testify as an expert
witness and could r eveal the information on which he had relied in forming his expert opinion, including hearsay.” ( I bid .) We are bound by that holding. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Here as in Gardeley , Zuniga could testify as an expert and could properly reveal the information on which he relied in forming his opinions, including hearsay. 5 ( Gardeley , at p. 619 .)

2. “Primary Activities” and Predicate Offenses Even if we were to accept defendant s ’ assertion that hearsay basis evidence is necessarily offered for its truth and absent cross

- examination violates the confrontation clause, we would find no violation here because they have not established that the challenged predicate offense and primary activities evidence they was hearsay or, if it was, that it was testimonial hearsay

. Establishment of the substantive gang offense requires proof of the defendant’s active participation in a “criminal street gang.” (§ 186.22, subd. (a); Rodriguez , supra , 55
Cal.4t h at p. 1130.) The gang enhancement similarly requires proof of the defendant’s conviction of a felony “ committed for the benefit of . . . any criminal street gang.” (§ 186.22, subd. (b); Gardeley , supra , 14 Cal.4th at pp. 609

- 610.) A “ criminal street
g ang ” is a group of three or more persons that has as “one of its primary activities the commission of one or more of the criminal acts enumerated” in the statute. (§ 186.22,

5 The Calif

ornia Supreme Court is currently considering whether a defendant’s Sixth Amendment right to confrontation was violated by a gang expert’s reliance on testimonial hearsay. ( People v. Sanchez , rev iew granted May 14, 2014 , S216681.)47

subd. (f).) It must also have a common name or common identifying sign or symbol and its members must “engage in or have engaged in a pattern of criminal gang activity.” ( Ibid .) “A gang engages in a ‘pattern of criminal gang activity’ when its members participate in ‘two or more’ specified criminal offenses (the so

- called ‘ predicate offenses’ ) that are committed within a certain time frame and ‘on separate occasions, or by two or more persons. ’ ” ( People v. Loeun (1997) 17 Cal.4th 1, 4; § 186.22, subd. (e).) “The phrase ‘ primary activities ,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘ chief ’ or

‘ principal ’ occupations . [Citation.]” ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323 ( Sengpadychith ).) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” ( Id . at p. 324.) The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied. ( Sengpadychith , at pp. 320, 323.) “Also sufficient might be expert testimony,
as occurred in Gardeley , supra , 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Garde ley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang member s, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]” ( Sengpadychith , at p. 324.) Here, Zuniga test ified that “a lot” of the gang crimes in Salinas are very violent crimes involving firearms, which gang members obtain by burglarizing homes where they know firearms are present. These violent crimes range from shootings to carjackings to murders. The pr imary activities thus involved a number of statutorily enumerated offenses. (E.g., § 186.22, subd. (e)(1) [assault with a deadly weapon or by48

means of force likely to produce great bodily injury], (3) [unlawful homicide or manslaughter], (5) [shooting at an inhabited dwelling or occupied motor vehicle], (21) [carjacking], (31) [prohibited possession of a firearm].) The prosecution introduced certified court records establishing seven predicate offenses. Those offenses included murder, shooting at an occu pied vehicle, assault on a peace officer, assault with a deadly weapon, and the prohibited possession of firearms. Zuniga’s testimony, together with the
certified court records that were admitted into evidence without any hearsay or
confrontation clause o bjection s , were sufficient to establish that the primary activities of the Sureño gang in Salinas were violent firearms

- related crimes ranging from shootings to carjackings to murder. ( Gardeley , supra , 14 Cal.4th at pp. 613, 620 )
Defendants claim that Z uniga’s testimony about the gang’s primary activities was inadmissible hearsay. The record does not entirely support that assertion. Zuniga described his experience as a gang task force officer. He testified that he had “seen”
violent crimes such as mur der, attempted murder, and carjackings committed by Sureños not only against Norteños but also against in nocent civilians. He had “absolutely” seen Sureños commit those crimes against police officers. Thus, h is opinion about the gang’s primary activities appears to have been based to a large extent on his personal knowledge. In fact, he testified that his opinions about the predicate offenses were “based off my knowledge and experience working with Sureño gang members and Norteño gang members in the stre ets of Salinas as well as the prior predicates that I just went over with you.” To the extent he described the predicate offenses, his testimony seems to have been based on the certified court documents that the prosecution offered
into evidence to establ ish those predicate offenses

. Such documentation is not hearsay. ( People v. Duran (2002) 97 Cal.App.4th 1448, 1453 , 1460

- 1461 ( Duran ). )
Defendants acknowledge two predicate offenses that were supported by certified
court documents. They assert, however, that Zuniga’s testimony about other predicate offenses, specifically those of Rivas and Carrillo, was not supported by certified49

documents

. D efendants summarily assert that Zuniga’s testimony about those two convictions “was, by nece ssity, the result of police interrogation” and thus testimonial.
The i r overall argument appears to be that without these two predicates, there was insufficient evidence to establish the gang’s primary activities. The argument lacks
merit. Zuniga testifie d that he was “very familiar” with the case against Rivas and
Carrillo because he was t he gang expert in that case. He was shown People’s e xhib it 275 , and he testified that it accurately reflected Rivas’s and Carrillo’s murder convictions with multiple gu n and gang enhancements. People’s e xhibit 275 is a 19

- page document that includes certified copies of the amended information against Rivas and Carrillo, certified copies of the court minutes reflecting the jury’s verdicts and the trial court’s imposition of sentence, and abstracts of the judgments against them. These certified court records
establish the conv ictions of Rivas and Carrillo. ( Duran , supra , 97 Cal.App.4th at
pp. 1448, 1453, 1460

- 1 461.) Such records do not constitute “ ‘ testimonial ’ ” evidence, and Zuniga’s reliance on them did not give rise to a confrontation clause violation. ( People v. Taulton (2005) 129 Cal.App. 4th 1218, 1225 [records “prepared to document acts and events relating to convictions and imprisonments” are beyond the s cope of Crawford. ] ; see Crawford , supra , 541 U.S. at p. 56. ) The prosecution submitted certified court documents establishing seven predicate offenses. Those predicates and Zuniga’s testimony were more than sufficient to establish that a primary activity of the gang was the commission of certain statutorily enumerated offenses. Defendant’s confrontation
clause challenge to the primary activities and predicate offense evidence lacks merit.

D . A lleged Instructional Error
D efendants contend that their su bstantive gang crime conviction s must be reversed
because the trial court mis instructed the jury with former CALCRIM No. 1400 . Th at instruction provided in pertinent part that “[t]he defendants are charged in Count 5 with50

participating in a criminal stree t gang, in violation of Penal Code Section 186.22(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant actively participated in a criminal street gang; two, when the defendant participated in t he gang, he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; and three, the defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by, A, directly
and act ively committing a felony offense; or B, aiding and abetting the felony offense.” Defendants argue that this instruction misstated the law on an element of the offense by permitting the jury to convict them o f violating section 186.22, subdivision (a) even if
each acted alone

. We need not reach this question because even if we assume that former CALCRIM No. 1400 misstated the elements of the substantive gang offense , any error here was harmless. 6 Generally speaking, “an instructional error that improp erly describes or omits an element of an offense . . . is not a structural defect in the trial mechanism” that requires
automatic reversal. ( People v. Flood (19 98) 18 Cal.4th 470, 502

- 503.) Rather, misinstruction on the elements of an offense is subject to a harmless error analysis under
the Chapman standard of review. ( Chapman v. California (1967) 386 U.S. 18, 24; Neder
v. United States (1999) 527 U.S. 1, 9; People v. Cox (200 0) 23 Cal.4th 665, 677, fn. 6.) “The beyond

- a

- reasonable

- doubt standard of Ch apman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] . . . Thus, the focus is what the jury actually decided and whe ther the error might have tainted its decision. ” ( People v. Neal (2003) 31 Cal.4th 63, 86.) “An instructional error presenting the jury

6 We note that former CALCRIM No. 1400 has been amended to add language stating that “[a]t least two gang members of that same gang must have participated in committing the felony offense. The defendant may count as one of those members if you find that the defendant was a member of the gang.” (CALCRIM No. 1400.)51

with a legally invalid theory of guilt does not require reversal . . . if other parts of the
verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory.” ( People v. Pulido (1997) 15 Cal.4th 713, 727 ( Pulido ) .) Here, other parts of the verdict demonstrate that the jury necessarily found defendants guilty on a proper theory. ( Pulido , sup ra , 15 Cal.4th at p. 727.) The jury found the gang enhancement allegations against both defendants true. It could only have done so by finding th at each acted with “the specific intent to promote, further, or assist in any criminal conduct by gang member s . . . .” (§ 186.22, subd. (b)(1).) Since Villareal and Fletes were the only gang members present at the time, the jury necessarily found that each acted with the specific intent to promote, further, or assist in the other’s
criminal conduct. Thus, it necessarily found that each aided and abetted the other in committing his firearm possession offense . On this record, the claimed instructional error was harmless beyond a reasonable doubt.

E. A lleged Prosecutorial Misconduct
Defendants contend that the prosecutor’s “pervasive” misconduct denied them due process. We disagree.

“ ‘ “ The applicable federal and state standards regarding prosecutorial misconduct
are well established. ‘ “

A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. ’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundament ally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘ the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. ’ ” ’ ” ’ [Citation.]” ( People v. Gray (2005) 37 Cal.4th 168, 215

- 216.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the5 2

evidence. [Citation.]” ( People v. Ledesma ( 2006 ) 39 Cal.4th 641, 7 26 ( Ledesma ) .) “When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained

- of remarks in an objectionable fashion.’ [Citati ons.]” ( People v. Cole (2004) 33 Cal.4th 1158, 1202

- 1203 ( Cole ).) “ A s a general matter, an appellate court
reviews a trial court’ s ruling on prosecutorial misconduct for abuse of discretion

. ” ( People v. Alvarez (1996) 14 Cal.4th 155, 213.)

“ ‘ To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citati ons.]” ( People v. Earp (1999) 20 Cal.4th 826, 858 .) “Simply to object or make an assignment of misconduct without seeking a curative admonition is generally not enough. [Citation.] ‘The reason for this rule, of course, is that “the trial
court should b e given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury. ” ’ [Citation.]” ( People v. Bonin (1988) 46 Cal.3d 659, 689 ( Bonin ) , overruled on another ground in People v . Hill (1998) 17 Cal.4th 800, 823, fn. 1 ( Hill ) , overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 .) Forfeiture does not result, however, if a timely objection or request for admonition would have been f utile, but this exception is applied only in “unusual circumstances.” ( Hill , at p. 821.)
1. Villareal’s Contentions
a. Reference to Prior Misdemeanor Conviction
Vill areal asserts various instances of prosecutorial misconduct , the first of which occurred during the prosecutor’s cross

- examination of Sandra Fletes

. T here were pretrial discussions about Villareal’s prior misdemeanor conviction for engaging in lewd or dissolute conduct in a public place (§ 647, subd. (a))

. The trial court
ruled that evidence of sta tements Villareal made about his gang membership after he was53

arrested could be elicited , but reference s to “the [indecent] exposure aspect ” of th e offense were inadmissible. Villareal’s trial counsel raised t he subject again before Zuniga took the stand

. During a discussion about predicate offenses, c ounsel reminded the court that there was a

“ conviction of [Villareal] for a 647(a), which started out as a 314.1. The Court had
indicated

. . . that this might come in under an 1101 or in the gang expert’s testimony, and

. . . [that] it would sanitize that; that, in fact, the only thing from that particular conviction or arrest was that [ Villareal ] said he was a Sureno. ” The court responded that “ w e went through all those at the beginning

. ” The prosecutor stated that “[t]he People are not getting into that.” The subject did not come up again until the prosecutor was cross

- examining
def ense witness Sandra Fletes about Fletes’s gang contacts . He a sked whether she knew
that Villareal was a Su reño , and she responded that she never asked him about his past

. The prosecutor then elicited testimony that Villareal was like a family member, that he
had a room in the family home and stayed with the family “on occasion , ” and that Sandra
Fletes “ let hi m hang out” with her children. The prosecutor then asked, “And that’s based on your knowing him at that time and that he

-- you thought he was of upstanding

-

- of upstanding character; correct?” A unspecified defense objection to th at question was sustained

. The following exchange then occurred. “Q : Why did you let him hang out with your children? [¶] A: I didn’t see him as a threat. And he got along well with them and my children got along well with him. [¶] Q: Would it change your m ind if you knew that he was convicted of a crime associated with his masturbating in front of a neighbor

-- ” Both defense counsel objected . T he prosecutor asserted , “It goes to character evidence.”
The defense moved for a mistrial

. A t a sidebar confer ence, the trial court characterized the question as coming “just out of nowhere” and without prior clearance
from the court. “[Y] ou did not approach this in a typical cross

- examination of a character54

witness. This witness was hardly that. This witness w as very vaguely presented as something to do with character. In asking a character witness questions on cross

examination, one fundamental aspect of that is 352. I can’t go through a balancing process when you blurt out the question. ” After extended dis cussions off the record, the
trial court announced its ruling. “So, I am going to admonish the jury to disregard that question . . . . [¶] The Court finds that it is appropriate in this case, and with this particular witness, to limit in every way any f urther cross

- examination related to impeaching or cross

- examining her as a character witness. You aren’t going to ask her
anymore [ sic ] questions, have you heard, like that. That is this Court’s ruling.” At the start of the afternoon session, the trial court gave the following admonish ment : “ So, last time we saw each other there was an objection we had at sidebar. We’ve discussed it
since then. The Court’s ruling is that you are to disregard the last question. Do not consider it for any pur pose whatsoever. ”
Villareal contends that the prosecutor committed misconduct and that the trial court’s admonition was inadequate

. The Attorney General agrees that the question was improper “ given the court’s ruling and the lack of relevance to the dir ect examination or any evidence that Villareal elicited .” She argues, however, that the court was w ell within
its discretion in concluding that an admonition was sufficient to cure the harm. W e agree with the Attorney General

. “A trial court should grant a motion for mistrial ‘only when “ ‘ a party’s chances of receiving a fair trial have been irreparably damaged ’ ” ’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation].” ( People v.
Avila (2006) 3 8 Cal. 4th 491 , 573 ( Avila ) .) “ ‘ Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” ( Ibid. ) “[W]e review a trial court’s ruling on a motion for mistrial for abuse of discretion.” ( Ibid

. )55

There was no abuse of discretion here. The offending reference came in the form of a single question that went unanswered . In the context of a trial that lasted mo re than a month, the reference was fleeting. The jury was instructed that “nothing” the attorneys said was evidence, that the attorneys’ questions were not evidence, and that they should not assume that something was true “just because one of the attorney s asked a question that suggest[ed] it [was] true.” “We presume that jurors are intelligent and capable of understanding and applying the court’s instructions. [Citation.]” ( People v. Butler (2009) 46 Cal.4th 847, 873.) That the jury did so here is est ablished by the fact that the y acquitted both defendants on the most serious charge s

.

b. A lleged Misconduct During Closing Argument (1) A lleged Referenc es to Facts N ot in Evidence
Villareal contends that the prosecutor committed misconduct by arguing facts not
in evidence. The prosecutor stated, “Let’s look at the direct evidence that was presented to you . . . . [¶] January 2009, a month of gang violence. And I’m going to go through this, ladies and gentlemen. It’s basically going to be rehashing the case

. . . . [¶] Basically, a month of gang violence. You had

. . . six murders during that month, none of which occurred after January 15th, th e day the two defendants were arrested and taken into custody. [¶] . . . [¶] January 15th , Salinas Police Department and the Monterey County Joint Gang Task Force come together. We got to do something. We got to share intelligence about what’s going on here

. . . . [¶] And so, that’s the reason why these two gentlemen, the two officers who came up here and testified, told you they went out there

. . . . Just to do intel on the shop , to see if these two cars associated with two of the murders . . . were there at the shop.”
Villareal claims the prosecutor committed misconduct “ when he stat ed that no
murders occurred ‘ after January 15th, the day the two defendants were arrested and taken
into custody. ’ ” He claims that there was no evidence that the murders ceased after that56

date and that the comment was “improperly designed to get the jury to speculate that [he and Fletes] were responsible for the six murders . . . .”
Villareal forfeited this claim by failing to raise it below

. ( People v. Panah (2005) 35 Cal.4th 395, 462 ( Panah ) .) It lacks merit in any event. The prosecutor’s statement was consistent with the evidence. Hoskins testified
that there were “sixteen shootings in the month of January and five or six homicides, I believe it was six, in the month of January.” Plummer testified that five of the Januar y homicides occurred between January 9 and January 12, 2009. Cline testified that there were “nearly a dozen shootings, five of those resulting in homicides,” in the first two weeks of January 2009. Thus, n one of the “ five or six ” referenced mu rders occu rred after January 15, 2009. It is not reasonably likely that the jury construed or applied the complained

- of
remark in the objectionable fashion that Villareal suggests

. ( Cole , supra , 33 Cal.4th at
pp. 1202

- 1203.) The jury heard the officers’ testimony. The gang task force met on January 15, 2009. Pinon and Salas surveilled Fletes’s shop on that date

. Fletes was shot
and defendants were arrested on that date. Viewed in context, the complained

- of remark merely highlighted the central date in the case. It was not misconduct.
V illareal next complains that there was no evidentiary support for the prosecutor’s

comment s that the prosecutor had been “mo rtared” and that anesthesia is “like truth
serum.” He forfeited any objection to the “mortared” comment by failing to object to it below. ( Panah , supra , 35 Cal.4th at p. 462 .) We think he forfeited any objection to the “truth serum” comment as well, although his unspecified objection to th e statement (“I object to that”) was sustained. ( People v. Fernandez (2013) 216 Cal.App.4th 540, 560 [objections “on the vague ground of ‘improper argument ’ ” did not preserve arguments for appeal ] ( Fernandez )

. ) In any event, neither complained

- of statement was misconduct

. When prosecutorial misconduct is alleged, “we must view the statements in the context of the57

argument as a whole.” ( People v. Dennis (1998) 17 Cal.4th 468, 522.) The remarks that Villareal challenges here were made during the prosecution’s argument that Fletes knew why he was shot, as e videnced by the absence of any testimony besides his own that he
ever asked anyone why he had been shot . The prosecutor referred to Detective Bret Spiers’s account of his interaction with F letes at the hospital. Spiers testified that he was with Fletes i n the intensive care unit (ICU) of the hospital and that he walked behind the
gurney w hen Fletes was moved out of the ICU to a nother area of the hospital. He
testified that Fletes was awake, slightly propped up on the gurney, and speaking to his
wife and his sister in Spanish as orderlies wheeled him head

- first down the hallway

. When Fletes noticed Spiers at the foot of the gurney , “he looked at me, he raised his right hand just like this, and said, ‘The officer was a good shot. ’ ” The defense tried to
establish that Fletes was “ too drugged” t o know what he was saying. In closing argument, the prosecutor stated, “ The officers, the hospital records, the
radio transmissions all prove that

. . . he was fine in regards to his mental capacity. He was shot, don’t get me wrong. He was shot. And I don’t know what it’s been like being
shot. I’ve been mortared at, but I’ve never been shot

. I don’t know what he’s going through. [¶] But the fact is, as you look at all of the surrounding circumstance s, and it’s clear that he knew what was going on. He knew why he was shot. And not once did he ask, Why am I shot? There’s no evidence of that, besides his incredible testimony. Deputy Pinon told you, he didn’t ask me. Deputy Hoskins told you, he didn ’t ask me. Officer Salas told you, he didn’t ask. Chris Plummer told you, he didn’t ask

. . . . [¶] He didn’t ask why he was shot because he knew why he was shot. He

. . . knows

. . . what happens when you point a gun at a police officer, and that’s why he didn’t ask. He could have asked, he had the mental capacity to ask, but he didn’t because he knew the

answer. ” (Italics added.) The prosecutor later stated, “What would be the reaction of a person [who had just been shot]? You know what i t would be. First of all, you would be surprised. You would be shocked. You would ask what the heck just happened. You58

would ask, Why was I shot? And then, when you were in the hospital . . . , you wouldn’t see an officer and the first thing you say t o him was ‘Officer was a nice shot.’ No. It’s not the reaction of someone who is painting in the warehouse and just gets shot.

. . . [¶] Now, I know he was under anesthesia. I’ve been under anesthesia, and to me it’s like
truth serum

. You say what’s on your mind. It comes out. ” (Italics added.)
Villareal complains that the prosecutor “put unsworn testimony on a critical point before the jury” and that the claimed misconduct “had the prejudicial effect of discrediting the defense and corroborating the prosec ution.” Not so. The statements plainly had no prejudicial effect, because the jury acquitted both defendants on the section 245, subdivision (d) counts. (2) A lleged Invitation That Jurors View Evidence Through Their Own Eyes
Villar eal contend s that three times during closing argument, the prosecutor improperly invited the jury to view the evidence through their own eyes

. The first
instance occurred when t he prosecutor was describing the moment at which the investigation changed from “just doing a straight intel” to “investigating a Sureño, a felon with a gun.” The prosecutor argued, “ That’s their job. Their job as Monterey County Joint Gang Task Force members [is] to investigate gang members, [is] to i nvestigate gang members with guns. Who’s going to do that?

. . . Would you do that?

. . . No. They do
that. That is their job, and that is what they do. ”
The second instance occurred when the prosecutor was marshalling the evidence
that in his view established defendants ’ active gang members hip

. He stated , “ The guns and ammo at work, the guns and ammo at home. That’s the life of a Sureño gang member. Who here has ammunition in their kitchen cabinet? Who here has guns lying throughout the house? Who here has guns at their work? . . . [¶]

. . . [ ¶]

. . . Sureño gang members. The two Sureño gang members that are in this courtroom do. And they did on January [15] , 2009. Just another piece of the puzzle showing they’re Sureños

. ”59

The third instance of claimed misconduct occurred when the prosecutor asked, “What would be the reaction of a person [who had just been shot]? You know what it would be. First of all, you would be surprised. You would be shocked. You would ask
what the heck just happened . . . .”
Villareal contends that the se statements were improper appeal s to the jurors’ passions and prejudices

. We disagree. A prosecutor “enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom.” ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95.) There is nothing improper about a prosecutor’s use of rhetorical questions based on the evidence. In People v. Hughes (200 2) 27 Cal.4th 287, it was fair comment on the evidence when the prosecutor stated during closing argument, “ ‘ Why do you bring a knife if you don ’ t intend to use it, if you’re not willing to kill somebody with that knife that you bring with you to somebody else’s home when you go to rob them or burgle their apartment? ’ ” ( Id. at pp. 374

- 375.)
In People v. Frye (1998) 18 Cal.4th 894 ( Frye ), disapproved on another point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ( Doolin ), “ t he prosecutor’s use of rhetorical questions, f

or example, why ‘would [ the prosecution’s chief witness ] be making this stuff up?,’ was not impermissible” because “there is no impropriety in attempting to persuade jurors to draw inferences based on the evidence.” ( Frye , at p. 972.)
Here as in Hughes and Frye , the prosecutor used rhetorical questions to illustrate
reasonable inferences that could be drawn from the evidence. His questions were fairly grounded in the evidence . There was nothing inflammatory about them. His argument was not “directed t o passion or prejudice rather than to reason and to an understanding of the law.” Cunningham v. Zant (11 th Cir. 1991) 928 F.2d 1006 , 1020 ( Cunningham ) .) This distinguishes the prosecutor’s argument here from the cases on which Villareal
relies.60

I n N eumann v. Bishop (1976) 59 Cal.App.3d 451 , the prosecutor asked whether jurors would trade places with the plaintiff accident victim for $500,000. ( Id. at p. 484.)

“ ‘ Someone comes up to you with a handful of diamonds and says, “This is worth $500,000.00 .” Would you take it and would being crippled for the rest of your life be
worth it? ’ ” ( Ibid .) In People v. Vance (2010) 188 Cal.App.4th 1182 , the prosecutor told the jury (over objections that the trial court repeatedly sustained) that “[i] n order for you as jurors to do your job, you have to walk in [the murder victim’s] shoes. You have to literally relive in your mind ’ s eye and in your feelings what [he] experienced the night he
was murdered. ” ( Id . at p. 1194.) “ ‘ There’ s nothing more t errifying than a feeling of not being able to breathe. You ’ re totally trapped. [¶ ]

. . . [ ¶] You don ’ t know what ’ s going

on. How long are you conscious in this situation? When do you know to fight? When do you get to fight? What are you thinking to yourself at that time, what did I do, why

me. This hurts .” ( Ibid. ) Nothing like that occurred here. Nor do t he challenged

statements here bear any resemblance to the “outrageous” statements that the prosecutor
made in Cunningham or to the blatant appeal to the jurors’ self

- interest that the prosecutor made in People v. Pitts (1990) 223 Cal.App.3d 606 ( Pitts ). ( Cunningham , supra , 928 F

. 2d at pp. 1019

- 1020; Pitts , at pp. 694

- 696 .) Villareal’s reliance on those cases is misplaced. The s tatements that he challenges were not misconduct.

(3) A lleged Disparagement of Defense Counsel Villareal contends that the prosecutor committed misconduct by asking the jurors
to consider what defense expert Wong’s testimony would have been had he been paid by the prosecution instead of by the defense. We reject the argument . “[A] n attorney is free to argue that the opinions of paid expert witnesses may be biased. ” ( People v. Cook (2006) 39 Cal.4th 566, 613 ( Cook ). ) Such arguments do not dispar age defense counsel. ( Cook , supra , 39 Cal.4th at
p. 613 .) In Cook , the California Supreme Court rejected a claim by the defense that the prosecutor’s statement that an expert had been paid to “ ‘ come[] up with something ’ ” that61

excused the defendant’s responsibility implied that the expert “ ‘ gave false testimony for a fee,’ thereby impugning defense counsel ’ s integrity for having, in effect, bought the expert ’ s testimony.” ( Id. at pp. 613

- 614; see also People v. Spector ( 2011) 194 Cal.App.4th 1335, 1407 [no misconduct where prosecutor referred to “ ‘ paid

- to

- say witnesses ’ ”

] ; People v. Monterroso (2004) 34 Cal.4th 743, 783

- 784 ( Monterroso ) [no
misconduct where prosecutor referred to the “industry of these defense experts that bounce around from trial to trial, state to state, collecting good money for testimony”].) The prosecutor’s comments here were within the bounds of proper argument.
V illareal also challenges the prosecutor’s argument about the computer animation
tha t illustrated Wong’s testimony. The prosecutor stated, “They got an inaccurate

cartoon . . . . That’s what it comes down t o. They paid $30,000 for a cartoon. [¶] The People, we can’t afford to pay $30,000 for a cartoon. We can’t afford to pay $30,000, that much money, for something that gives you ‘possibly,’ ‘it could be,’ ‘maybe,’ ‘might be.’ It’s got to be exact, if that’s what we’re paying for. And trust me, if I had

. . . a cartoon made like this, for this case, I wouldn’t be working here anymore

. . . . [¶]

. . . [¶] We cannot pay for ‘would be,’ ‘possibly,’ and ‘could be.’ We don’t need to do it in this case. You have the credible testimony of the officers. They want science. T hey didn’t get it. They got ‘ possibly,’ they got ‘could be,’ and they got ‘might be.’ What I presented to you was credible testimony, by the officers, which proved this case beyond
all doubt. ”
Villareal claims that th e prosecutor’s argument undermined the defense “by casting aspers ions on the character and integrity of defense counsel.” His nonspecific objection (“I object to that”) has forfeited th is argument on appeal. ( Fernandez , supra , 216 Cal.App.4th at p. 560.)
Even if we assume that he preserved the argument , there is no reasonabl e likel ihood that the jury construed or applied any of the complained

- of remarks in the way Villareal suggests. ( Cole , supra , 33 Cal.4th at pp. 1202

- 1203.) We “ ‘ “ do not lightly62

infer” that the jury drew the most damaging rather than the least damaging meaning to the prosecutor’s statements.’ [Citation.]” ( People v. Dykes (2009) 46 Cal.4th 731, 772 ( Dykes ). ) When the statements are viewed in context, it is clear that the prosecutor was arguing that the payments to Wong and Fries influenced th eir testimony. “[A] prosecutor ‘is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness ’ s testimony is unbelievable, unsound, or even a patent “lie. ” ’ [Citations.]” ( Peo ple v. Parson (2008) 44 Cal.4th 332, 360.) The prosecutor had earlier argued that the experts Wong and Fries “are biased because they’re paid” and that “[m]oney plays a role in this. You have to look at that in your determination on the credibility of th ese experts.” In any event, Villareal cannot show prejudice. The c hallenged remarks related only to the assault counts, and the jury acquitted defendants on those counts. Villareal next complains that the prosecutor committed misconduct by “insinuat[ing] that he wanted the jury to hear everything [while] the defense was trying to hide behind [the] rules of evidence” and “objecting all the time.” Assuming that his nonspecific objection preserved the issue for appeal , we disagree.

“ It is ge nerally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsel ’ s credibility risk focusing the jury ’ s attention on
irrelevant mat ters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citations.]” ( People v.
Bemore (2000) 22 Cal.4th 809, 846 ( Bemore ).) However, a “ prosecutor has wide latitude
in describi ng the deficiencies in opposing counsel ’ s tactics . . . .” ( Ibid. ; see Frye , supra , 18 Cal.4th at p. 978 [no misconduct where prosecutor accused counsel of making an

“ irresponsible” third party culpability claim] .) The complained

- of argument here attacked the defense strategy. The prosecutor
discussed the DNA evidence, noting that prosecution expert “Josh Sehhat told you, the63

results are inconclusive.” The prosecutor then argued, “ Now, the u nderlying facts that

are proven. . . . Direct evidence presented through the credible testimony of the
officers

. . . . That was enough to prove the guilt of the defendant beyond all doubt. But
we have more. We have all of those corroborating facts that I just presented as we ll. That’s why I put on all of that evidence, to show you everything that happened. I’m not hiding anything. I’m not objecting all the time . . . . [¶ ]

. . . [ ¶]

. . . I put on the evidence.

. 

### . . I wanted you to hear everything, because it’s up to you to look at all of that evidence when you’re making that de termination, not just one thing

. . . . You must
look at all the facts of the case

. . . . [¶] What does the Defense want you to look at? They want you to focus on an instant of the case. The y want you to focus on one second of this case, and that’s when Deputy Pinon shot that gun. That’s what they want you to
focus on. Nothing else. ” The prosecutor’s argument was fair comment on the evidence and on the defense strategy , specifically, Wong’ s testimony that Pinon’s account of the shooting was “just physically impossible.” (4) Alleged Misstatement of the Law and Shifting of the Burden of Proof
Villare al complains that the prosecutor misstated the law and improperly shifted the burden of proo f when he allegedly argued “that the defense was required to produce evidence that the firearms were planted in order for the jury to find reasonable doubt

. ” The prosecutor made no such argument . T he argument that he did make was fair
comment on the evid ence. (a) Background A consistent if not expressly articulated theory of the defense was that the police planted the two guns that were found in the shop. In discussions outside the jury’s presence, the trial court referred to it as “this flavor that has been

-- it is inserted into this trial. There is no question about it, that’s the flavor.” Fletes ultimately testified that he believed the officers planted both guns. He conceded that he had no evidence to support
that claim.64

It was against this background that the prosecutor argued in closing that the jury
had two factual determinations to make

. “Was Mr. Fletes painting? Was he painting when Deputy Pinon entered into that warehouse? Did he have a large, loud, silver paint
spr ayer, or did he have a small black revolver? . . . In order to reach your verdict, you’ve got to make this first determination. [¶] Second determination is did the police plant those guns? Where did those guns come from? Did the defendants, as felons and Sureños, possess those guns, or did the police plant those guns? That’s the other determination you must make in reaching your verdict.” The prosecutor reiterated the point in summing up his argument. “Make two determinations. What did he have in h is hand? Small black gun? Silver large paint sprayer? [¶] Did they possess those guns or did the officers plant those guns?” “[T]hat second determination. Did the officers plant those guns? . . . Of course not. There’s absolutely no evidence

. . . . [¶] The Defense wants to imply it.

. . . I challenge them to get up here and state it, but they’re not. Instead, they’re going to dance around it. They’re going to dance around it and point to all this other evidence, which leads you to the question of where did the guns come from?
Where did the guns come from? [¶] You heard Defendant Fletes. He told you, I think, yes, the officers planted the guns. And what was the response from the Defense Attorneys? Objection. Objection. ” “ They don’t want you to make that decision, but that’s the determination you have to make. . . . That’s what it’s about

. . . . Not only about this evidence, not only about

. . . what was in Defendant Fletes’s hand, but where did those guns come from? The evidence shows where those guns come from. The two
defendants. There’s absolutely nothing to show that it was planted by anybody else. [¶] You cannot separate the guns from this case. If you believe Fletes and his experts, then you must then answer that question. T hat’s what it comes down to. If you believe Defendant Fletes and you believe his experts, then the next question that’s out there is then where did those guns come from? And you have to answer that

. ”65

At this point , Villareal’s counsel interposed a “bur den shifting” objection, which

was overru led. The prosecutor continued, “ You cannot separate the guns from this case. Like I told you, the answer to that question, based on all the credible evidence, is that the
defendants possessed those guns and they u sed those guns in the manner that you heard
about. Like I said, Defense won’t say this to you. Defense wants to imply this to you. Defense will not say it because there’s no evidence of it. I told you in my opening
statement there will not be any eviden ce of that, and there was not any evidence of that. They want you to think it though. But look at all of the evidence, and that’s what you
must do. [¶] No w , Attorney Hernandez [Fletes’s trial counsel] asked questions to, I
think one of the officers, Well, do you know officers carry backup guns? Of course, the

answer was no. Yet, why would he ask that? Because he want[ed] to plant these seeds

-- ” “Attorney Murphy [Villareal’s trial counsel] . . . in his opening statement, he wants you to believe that this was just a mistake. It was a mistake by the officers. What he’s actually saying it i t’s malevolence by the officers

. . . . [¶] He wants you to stop at the mistake. No, you can’t. If you’re going to believe that it was just a mist ake, you must take the next step of where did those guns come from

. He wants you to believe that it was malevolence, not just a mistake. He won’t say that, he will not say that; but trust me, when he says it was just a mistake, where did those guns come from? You look at them and you look at them and you think, where did those guns come from? Because if it’s just a mistake, it’s malevolence. T hat’s what he’s saying. Malevolence by these police officers. That’s what he wants you to believe.” “Do not allow them to imply anything
without evidence . . . . Make sure that . . . if there are implications, that there better be evidence of it. [¶] The only explanation . . . in this case as to where those guns came from, it’s clear. Based on all the evidenc e that we’ve seen . . . , it’s clear. [T]he guns came from the defendants.”66 (b) Analysis

“ ‘ [T]he prosecutor has a wide

- ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and t o urge whatever conclusions he deems proper. ’ ” ( Panah , supra , 35 Cal.4th at p. 463 .) “[A] prosecutor may comment that a defendant has not produced any evidence.” ( People v. Young (2005) 34 Cal.4th 1149, 1195 ( Young ).) “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his innocence.” ( People v. Bradford (1997) 15 Cal.4th 1229, 1340 ( Bradford ).)
In Young , the de fendant argued that the prosecutor improperly attempted to shift the burden of proof when he argued, “ ‘ What fact

— what fact other than conjecture and insinuation do you have to say there is a reasonable in terpretation of that evidence that leads to the defendant’s innocence? What? None. You don ’ t have any. There is none. [¶] Think of what set of circumstances that are reasonable that will hold water, that will hold together, that would say to you as a jury the defendant did not kill Sylvester Davis. There is no evidence. The only evidence you have is that the defendant went into that place alone and left alone. ’ ” ( Young , supra , 34 Cal.4th at p. 1195.) The California Supreme Court concluded that no misconduct occurred because there was “ no reasonable likelihood the jurors would have understood the prosecutor ’ s argument as imposing any
burden on the defense. ” ( Id . at pp. 1195

- 1196.)
In People v. Osband (1996) 13 Cal.4th 622 ( Osband ) , the defendant a rgued that the prosecutor improperly attempted to shift the burden of proof to the defense when he
asked the jury to consider what other explanation could account for evidence that was
found at the murder victim’s apartment . The evidence included the defe ndant’s shoe print impressions. The high court held that th e argument was not misconduct. “The prosecutor was suggesting that the most logical i nterpretation of the evidence was that67

defendant committed the crimes. It was ‘a fair comment on the state of the
evidence

. . . . ’ ” ( Id. at p. 696.) Nor was it misconduct when the prosecutor argued that
if the defendant “ ‘ denies these things [i.e., having committed most of the crimes at the [victim’s] apartment], and if you conclude

. . . that he is not telling you the truth, I think
it ’ s a fair inference to conclude the opposite must be true. ’ ” ( Id . at pp. 696

- 697.) The court “underst[ood] the prosecutor to have meant that if the jury did not believe [the] defendant’s statement that he did not commit the crimes, it would have to decide that he did commit them. There is no reasonable likelihood that the jury would understand the declaration to affect the burden of proof.” ( Id

. at p. 697.)
In People v. Samayoa (1997) 15 Cal.4th 795 ( Samayoa ) , the defen dant argued that the prosecut or improperly attempted to shift the burden of proof when he attacked the defense experts ’ finding that he suffered from brain damage. The prosecutor argued,

“ ‘ Now, has the defense been able to create a reasonable doubt in yo ur mind based on what these doctors have told you? I guess that would be the ultimate decision in this case, have they been able to create a reasonable doubt for you? ’ ” ( Id. at p. 842.) The high court held that the defendant’s trial counsel’s argument and the jury instructions had unambiguously communicated to the jury that the prosecution had the burden of proving every element of the case beyond a reasonable doubt. ( Ibid .) The court concluded in light of the entire record that there was no reasonabl e likelihood the jury erroneously
construed the prosecution ’ s burden of proof. ( Ibid

. )
Here as in the above cases, the prosecutor’s argument was fair comment on the
evidence . The evidence presented only two options

. The first was a finding that Fletes
and Villareal possessed the guns that were found where each defendant was last s een

. The second was that the officers planted them. The prosecutor’s argument that either defendants possessed the guns or the officers planted them was based on the o nly rational
inferences that could be drawn from the evidence presented . Th at evidence showed that the guns had recently been put where they were later found. The one found near where68

Fletes fell was “clearly” visible. “It wasn’t out of sight.” I t was “just at the edge of” the Corvette’s back bumper and “[i]t stood out because it was shiny.” Yet Fletes, who had been painting car parts in th e area since 5:30 or 6:00 o’clock that evening, claimed not to
have seen that gun or the gun found in the coupe

. Nor had he seen Villareal with a firearm that day. Since Fletes, Villareal, and the four gang task officers were t he only people who were inside the shop at the relevant time period , the only rational inference from Fletes’s testimony was that the officer s planted the firearms

. Here as in the above

cited cases, the prosecutor’s argument was fairly grounded in the evidence.
Also a s in the above

- cited cases, nothing in the record suggests that the prosecutor’s remarks caused the jury to believe the defense had any burden of proof

. The prosecutor several times described his burden to “prov e the guilt of the defendant [s] beyond all reasonable doubt.” He did not suggest that the defense had any burden of proof. Villareal complains , however, that the prosecutor misstated the burden of proof by describing the reasonable doubt standard as “low.” When the prosecutor’s use of the word “low” is v iewed in context, it could not have misled the jury.
The trial court ruled in limine that the defense attorneys could not refer to the prosecution’s burden as “beyond all doubt” or “beyond all possible doubt.” In his closing argument, the prosecutor was explain ing the difference between minor inconsistencies , reasonable doubt , and all doubt. He stated, “ Now, minor inconsistencies. Now, you’re going to look at every case, and there’s always going to be inconsistencies. You can scrutinize every case, but it’s human nature. That’s why the burden is just beyond a reasonable doubt, not all doubt. Because i t’s human nature, you’re going to have these
minor inconsistencies. That’s why the burden is low. That’s why it’s not beyond all
doubt

-- ” (Italics added.) Defense counsel immediately objected that “the burden is not
low , ” and the trial court sustained the objection. The prosecutor then stated, “It’s not beyond all doubt, but it’s beyond a reasonable doubt. That’s it . . . . ” He subsequently69

stated that “[o] ur burden has been met. We have proved this case beyond a reasonable doubt. We don’t have to prove it beyond all doubt, but we definitely proved it beyond a reasonable doubt.” On these facts, i t is not reasonably likely that the jury believed that the prosecution’s burden was “low.” Any possible confusion would have been dispelled by defendants’ counsels’ subsequent arguments and by the court’s instructions. Villareal’s trial counsel emphasized , “T he fact is we don’t have to prove anything. ” “But you know, this insinuation . . . that I have to prove that a planting occurred . . . . It’s a dist raction . . . . We don’t have to show you anything like that.” Fletes’s trial counsel similarly explained that “we don’t have to pro duce any evidence, provide you with anything.” The court ’s
instructions included instructions o n the presumption of innoc ence , the People’s burden
of proof beyond a reasonable doubt , and the definition of reasonable doubt. The court

a dditionally instructed the jury that “ [t] he Prosecution has the burden of proving guilt beyond a reasonable doubt. The Defense has no burden or duty to prove anything, or present any evidence. There is no burden, no duty. However, either side is entitled to
comment on the failure to call a logical witness, or the failure to produce evidence. ” On this record, there was no reasonable likelihoo d that the jury misunderstood the prosecution ’ s burden of proof. ( Samayoa , supra , 15 Cal.4th at p. 842.) The complained

of argument was not misconduct. ( Osband , supra , 13 Cal.4th at p. 697; Young , supra , 34
Cal.4th at p p. 1195

- 1196; Samayoa , at p. 842.)
Villareal contends that the prosecutor’s alleged burden shifting was “wrong under due process.” We have concluded that the prosecutor’s argument was not misconduct. There is no predicate on which to base a claim of constitutional error. ( People v. Guru le (2002) 28 Cal.4th 557, 656.)
2. Fletes’s Contentions
Fletes claims the prosecutor committed misconduct by asking if he contended that
the officers planted the guns that were found in the shop. He a sserts that the question70

sought to elicit speculative and th us “manifestly” inadmissible testimony. He argues
further that the prosecutor “capitalized on the speculative answer that he wrongfully elicited” by “forcing” him to admit that he had no evidence to support his assertion that the guns we re planted. We reject the argument

. On cross

- examination, Fletes acknowledged the evidence pertaining to the l oaded guns found in the shop. He testified that he had not seen either gun that day, that he had

not seen Villareal with a gun that day, that it was “ possible ” he would have seen the gun
under the Corvette had it been there earlier , and that that gun did not come out of his
hands

. He acknowledged that the only people in the shop between the time he was shot
and the time the SWAT team went in and saw those guns were himself and Villareal, Pinon, Hoskins, Salas, and Plummer. The prosecutor then asked, “Are you saying that those officers put those guns there?” Th e question did not call for speculation. It asked
Fletes to clarify his position given the overwhelming evidence against him. There is nothing improper about such questions where the defendant has personal knowledge of
the events at issue. ( People v. Chatman (2006) 38 Cal.4th 344, 382 ( Chatman ) .) “The permissible scope of cross

- examinati on of a defendant is generally broad. ‘When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions . . . . ’ ” ( Ibid. ) “A party who testifies to a set of facts contrary to the testimony of others may be asked to clarify what his position is and give, if he is able, a reason for the jury to accept his testimony as more reliable.” ( Ibid

. ) Fletes maintains that the question s were improper because there was “ no reason to believe [he] had percipient knowledge of whether police placed the guns there.” He phrases the issue too narrowly. Fletes was in a position to know who had a ccess to his shop that day. He was in a position to know which of his employees were working that day and which customers came to the shop. He was in a position to know whether the shop had been left unattended at any point that day

. He thus had personal knowledge that71

would allow him to provide testi mony that could assist the jury in determining whether he and Villareal possessed the guns that were found in the shop that night. The prosecutor did not commit misconduct by asking Fletes to clarify his position and explain
wh ether he had any information to support it

. Fletes’s reliance on People v. Zambrano (2004) 124 Cal.App.4th 228 is misplaced. The prosecutor in that case “did not ask defendant one or two ‘were they lying’ questions to clarify his testimony.” ( Id . at p. 232.) She instead used the questions to “berate” the defendant, “repeatedly and painstakingly ask[ing] defendant whether the officers were ‘lying’ about every aspect of their testimony that differed from defendant’s testimony.” ( Id

. at p p

. 232, 242.) Nothing like that occurred her e. The prosecutor repeated the question several times, one time at Fletes’s request and the other times because Fletes’s

answer s were nonresponsive. It is not misconduct to repeat an unobjectionable question when the witness gives a nonresponsive answer. Fletes argues that the prosecutor improperly “capitalized” on the misconduct and mischaracterized the evidence when he stated during closing argument, “Defendants, guns, and ammo. More circumstantial evidence. They’re seen in the defendants’ hands,
the guns and the ammo, and gun cases that were found at 1367 Dayton, the guns and ammo that were found at 303 Navajo, in the kitchen, in the garage. And Fletes’ [s] explanation for all of these items? His explanation to you, for all of these items? ‘ I don’t know, ’ and, [‘] The police planted them. ’ ” This was fair comment on the evidence. Fletes denied knowledge of the firearms and ammunition found in the shop and at his
residence , and he stated his belief that the officers planted the two guns that were fou nd at the shop

. Fletes next complains that the prosecutor “falsely ” argued that Salas denied that police carry extra guns. The prosecutor stated, “Now, [Fletes’s trial counsel] asked questions to, I think one of the officers, Well, do you know officers carry backup guns? Of course, the answer was no. Yet, why would he ask that? Because he want[s] to plant72

these seeds.” Fletes’s trial counsel’s objection that the question misstated the testimony
was overruled. In fact, Salas testified very generally that he knew of “ other officers” who carry backup guns. The complained

- of testimony proceeded as follows. “ Q : And do you have a backup gun, as far as for your own safety, in case your gun jams? [¶] A : No, I do not. [¶] Q : Do you know if other officers have backup guns? [¶] A: Do I know of other
officers that do? [¶] Q : Yes. [¶] A: Yes. [¶] Q : All right. Do you know whether
Hoskins has one? [¶] A : No. [¶] Q : How about Pinon? [¶] A : No. [¶] Q : Now, do
you

— and I want to be a little bit more specific. Are you saying that you don’t know one way or the other, or that you know for a fact that they don’t? [¶] A : I do not know one way or the other. ” T here was no evidence that Pinon, Hoskins, or Plummer carried backup guns

. Plainly, that was the point the prosecutor was making. Moreover, the parties’ stipulation about the two guns that were found in the shop provided no reasonable basis for inferring that either of the gun s that were found was ever in the possession of Pinon , Hoskins, or Plummer. Th ose two guns were traced to other owners. The stipulation about how those owners would testify provided no link to the officers
involved in this case

. Fletes next argues that the prosecutor “repeatedly attacked defense counsel,” criticizing him for implying that the officers planted the guns. As already explained , it is
not misconduct to describe the deficiencies in opposing counsel ’ s tactics

. ( Frye , s upra , 18 Cal.4th at p. 978 .) The prosecutor’s remarks here were fair comment on the defense

case. ( Bemore , supra , 22 Cal.4th at p. 846 .) Fletes next argues that the prosecutor disparaged Fletes’s trial counsel in questioning Sandra Fletes about the pai nt sprayer. The evidence technicians did not initially collect the paint sprayer because “there was no indication it was involved.”
Sandra Fletes testified that Fletes’s sister collected the paint sprayer the day after73

defendants ’ arrest and delivered it to Fletes’s trial counsel. A police detective picked it
up on January 29, 2009 , and delivered it to the crime lab that same day

. The prosecutor cross

- examined Sandra Fletes about the paint sprayer as follows

. “Q: Okay. [¶] Who coll ected that? [¶] A: My sister

- in

- law. [¶] Q: And when was
that? [¶] A: That same day. [¶] Q: All right. And she then brought it to Miguel Hernandez? [¶] A: Yes. [¶] Q: Why did she bring it to Miguel Hernandez? [¶] A:
We believed that i t may be part of the case. [¶] Q: All right. But he is your husband’s attorney; right? [¶] A: Yes. [¶] Q: And has been your husband’s attorney; correct? [¶] A: Yes. [¶] Q: And he represented him back in 1988?” Fletes’s trial counsel interp osed a relevance objection at this point , which was overruled

. T he y continued as follows. “ Q: And so, that was the first person that [Isela] went to with this paint sprayer; correct? [¶] A: Who was it? [¶ ]

. . . [ ¶] Q: Isela. And that was the firs t person she went to; correct? [¶] A: I’m not sure if that was the first person she went to, but it’s assumed, yeah. [¶] Q: Okay. She didn’t call the police; right? [¶] A: Not to my knowledge.”
Fletes argues that the only plausible purpose of t he prosecutor’s questions was to imply that Fletes selected his attorney because he could rely on him to use dishonest tactics. He asserts that “[t]here was n o other likely inference the jury would have drawn”
from this evidence than that “Hernandez would have [been] inclined to tamper with the sprayer to advance Fletes’[s] defense.” We disagree. The questions were not improper. The y sought relevant testimony establishing the chain of custody for the paint sprayer , which the defense contended was in Fletes’s hand
when he was shot

. The most reasonable inference from Sandra Fletes’s testimony is that
his sister called his attorney about the paint sprayer because she knew he had represented
Fletes before and either assumed or knew that he would represent him again

. This was established by t he prosecutor ’s subsequent cross

- examination of Fletes’s sister

. “Q: [T]he first person you brought [the paint sprayer] to was Miguel Hernandez; correct? [¶]
A: Yes. [¶] Q: And th at’s because he’s your husband’s attorney? [¶] A: My brother’s74

attorney. [¶] Q: Your brother’s attorney. Thank you. . . . And he’s been your brother’s attorney for a long time? [¶] A: Yes.” In any event, i t is obvious that the jury did not
draw a harmful inference from the challenged questioning . The testimony was relevant only to the section 245, subdivision (d) counts. The jury acquitted both defendants on
those counts. Fletes contends that the prosecutor committed misconduct during closin g argument by mis stating the evidence during his argument that Villareal aided and abetted Fletes in assaulting Pinon. The prosecutor stated, “You have the principal, Fletes, committing the assault with
a firearm. Villareal knew Fletes intended to commi t that [assault with a] firearm. [¶] How do we prove that? He’s running back, he’s saying something to him. He’s saying something to him based on the cops that he just saw outside, the marked patrol car that he just saw outside. ” “Like I talked about, the Sureño knowledge. And then, the third element, ‘ Villarreal intended to aid and abet Fletes before or during the crime. ’ That’s what he was doing when he was s peaking to him as he was running back. He was telling him, Here come the cops, get ready

. ” (Italics added.) Fletes’s counsel objected that there
was “ no evidence that he said anything of that. ” The objection was overruled, and the prosecutor continued, “ Villarreal’s words or conduct did aid and abet. By telling him he’s coming, guess who go t ready? Guess who crouched down behind that grill and was coming around? Defendant Fletes. By yelling at him, he aided

-- h is words did aid and
abet Defendant Fletes. ”
Fletes argues that there was no evidence that Fletes yelled, “Here come the cops, get ready.” The Attorney General acknowledges the absence of direct evidence that
Villareal made that statement. She argues, however, that the incorre ct statement was not prejudicial. We agree. There is no reasonable likelihood that the jury construed or applied the prosecutor’s statement in an objectionable fashion. The statement was made75

in the context of an argument that Villareal aided and abetted Fletes in assaulting Pinon. The jury acquitted both defendants on the assault counts.
Fletes next a rgues that the prosecutor committed misconduct by eliciting evidence
in violation of t wo in limine ruling s . The first ruling excluded any mention of the indecent exposure aspect of Villareal’s prior misdemeanor conviction for engaging in
lewd or dissolute behavior in public

. We have already addressed Villareal’s complaint about the prosecutor’s improper questioning of Sandra Fletes. ( Ante , pp. 52

- 55 .) W e concluded that the trial court did not abuse its discretion in denying defendants’ mistrial
motion s

. Nothing in Fletes’s argument changes our conclusion.
The second in limine ruling permitted the prosecution to elicit testimony that Fletes was contacted by police in a known Sureño gang area on September 2, 1997 , but prohibited mention that he was seen engaging in hand

- to

- hand narcotics transactions.
Fletes complains that the prosecutor violated this ruling during his examination of Zuniga. The complained

- of question ing proceeded as follows. “Q: Fair enough. September 1997. Another law enforcement gang contact with Carlos Fletes? [¶] A: That’s correct. [¶] Q: Describe that, please. [¶] A: Basically, officers had obtained
information about a known Sureño hang out area that had been selling

-- o r Sureño gang members were selling drugs. They ultimately set up a surveillance and identified
Mr. Fletes making multiple hand

- to

- hand transactions, selling what they believed to be drugs. ” Fletes’s counsel objected and moved for a mistrial. At a sidebar conference, t he
trial court denied the mistrial motion. The court then told the jury, “Objection’s sustained. The answer is stricken.”
Fletes contends that the prosecutor engaged in prejudicial misconduct b y “manifestly” fail ing to warn Zuniga not to testify about the hand

- to

- hand transaction aspect of the September 2, 1997 contact with police

. We cannot agree.

“ It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. ” ( Pe ople v. Crew76

( 2003 ) 31 Cal.4th 822, 839.) “A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.] ” ( People v. Warren (1988) 45 Cal.3d 471, 481

- 482 ( Warren ) .) Here, i t was Zuniga’s answer rather than the prosecutor’s question that went too
far. We agree with Fletes that the prosecutor had a duty to warn Zuniga not to mention
the hand

- to

- hand aspect of the prior police contact. ( W arren , supra , 45 Cal.3d at p. 482 .)
But we cannot agree with his contention that the prosecutor “manifestly” fail ed to do so.
The record refle cts the prosecutor ’s admission outside the presence of the jury that Zuniga “went too far on the hand

- to

- hand.” His ready admission suggests to us that he
had in fact advised Zuniga o f the trial court’s in limine ruling but that Zuniga inadvertently blurt ed out more information than the ruling permitted. On this record, we cannot say that the prosecutor elicited or attempted to elicit inadmissible evidence in
violation of the trial court’s ruling. Even if we assume misconduct, Fletes has not shown preju dice. Zuniga’s
reference to hand

- to

- hand transactions was fleeting . The contact he described was less serious than Fletes’s other prior police contacts, several of which involved shootings

. The hand

- to

- hand exchange occurred in 1997 , when Fletes was admittedly an active gang
member , hanging out with the wrong crowd and committing crimes that ultimately sent him to prison. The trial court admonished the jury that the answer was stricken. It is not reasonably probable that Fletes wou ld have obtained a more favorable result had Zuniga
not mentioned the 1997 hand

- to

- hand transactions. ( People v. Barnett (1998) 17 Cal.4th 1044, 1133 ( Barnett ) .)
Fletes next argues that the prosecutor committed misconduct in arguing that
defendants had th e propensity as gang members to possess and to use guns.77

T he prosecutor began his closing argument as follows. “ [W]hen I first gave my opening statement, I

. . . basically told you what this case is about. And now we have seen, based on the evidence, b ased on the proven facts, based on all of the facts, it’s clear that this is a case about gangs and guns. That’s what it comes down to. Okay? [¶] It comes down to the two defendants, who are Sureño gang members; who are convicted felons, possessing guns; having a propensity, based on being a gang member , to use those guns; and basically pointing those guns at a police officer. That’s what this case is
about. ” (Italics added.) In summing up his argument , the prosecutor stated, “ After the presentation of all and only the evidence in this trial, it’s clear that the defendants are
felons. They are Sureño gang members. They possessed the guns. They had the propensity, as gang members to not only possess t hose guns but use those guns, and they did use those guns when Defendant Fletes pointed the gun at Officer Pinon. You apply
those facts to the laws that we just went through and you reach your verdict, and the verdicts are guilty. ” (Italics added.) Fletes contends that the prosecutor’s statement s amounted to an argument that the jury should convict him based on his apparent bad character. His failure to object on this basis below has forfeited the issue on appeal. (Evid. Code, § 353; Dykes , supra , 46 Cal.4th at p. 763.)
Even if we assume that he preserved the argument and even if we assume misconduct, Fletes has not shown prejudice. We presume that the jury understood and followed the trial court’s instructions, which included an instruction that gang

- related evidence could not be used to conclude that either defendant was a person of bad character or that he had a disposition to commit crime. ( Edwards , sup ra , 57 Cal.4th at
p. 723.) The jury acquitted defendants on the section 245, subdivision (b) counts, and the evidence supporting conviction on the firearm possession counts was overwhelming. The only reasonable inference that could be drawn from defendan ts’ actio ns outside the shop
and as they ran from the officers was that they were armed. Two loaded guns were78

subsequently found, one in the area where Fletes was shot and the other in the area where
Villareal was seen. There was no evidence that a shop employee, a customer, or a stranger put those guns where they were found . There was no evidence that the police planted those guns. It is not reasonably probable that defendants would have obtained a
more favorable result had the prosecutor not mentioned “propensity” in his closing argument. ( Barnett , supra , 17 Cal.4th at p. 1133 .)

F. Cumulative Error Defendants argue that while each of their asserted error was “ of federal
constitutional dimension and each of these errors requires reversal of [their] c onvictions, taken together they resulted in a fundamentally unfair trial, and . . . due process requi r es a new trial.” We disagree. Defendants were entitled to a fair trial, not a perfect one. ( People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have found no trial court error that resulted in prejudice to either defendant. Thus, there is no prejudice to cumulate.

G . Pitchess Motions
Defendants ask that we review the sealed transcripts of the trial court’s in camera hearings on their suppl emental Pitchess motions for discovery of additional materials in Pinon’s and Hoskins’s personnel files. A criminal defendant has a limited right to discovery of peace officer personnel
records. ( Pitchess , supra , 11 Cal.3d at pp. 537

- 538; Evid. Code, §§ 1043

- 1047; §§ 832.5,
832.7

- 832.8.) “The procedure requires a showing of good cause for the discovery, an in camera review of the records if good cause is shown, and disclosure of information ‘relevant to the subject matter involved in the pending litigat ion.’ [Citation.]” ( People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) “A motion for discovery of peace officer personnel records is addressed to the sound discretion of the trial court, reviewable for abuse.” (

Alford v. Superior Court (2003) 29 Cal .4th 1033, 1039.)79

The trial court granted defendants’ original Pitchess motions and a fter an in camera hearing on July 10, 2009 , ordered the disclosure to the defense of contact information for certain individuals who had filed complaints about the officer s. In March 2011, d efendants filed supplemental or follow

- up motions seeking any relevant information from July 2009 forward. The District Attorney did not oppose the supplemental motions. The trial court conducted an in camera hearing and determined
that there w ere no additional discoverable material s in the officers’ files. The court
denied the motions on April 22, 2011. We have reviewed the transcripts of the hearings on defendants’ or iginal and supplemental Pitchess motions and find those transcripts fully adequate to afford meaningful review. The trial court did not abuse its discretion in denying defendants’ supplemental Pitchess motions.

III. Disposition The judgment is affirmed

.80 ___________________________ Mihara, J.

WE CONCUR:

_____________________________ Premo , Acting P. J.

_____________________________ Elia , J.

People v. Villareal

, et al. H0 38081