Filed 4/23/13 P. v. Anguiano CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

JESUS NABARETTE ANGUIANO, 

Defendant and Appellant. 

F062011 

(Tulare Super. Ct. No. VCF233282) 

OPINION

 APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. 

Ferguson, Judge. 

 Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. 

White, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOooINTRODUCTION

Appellant/defendant Jesus Nabarette Anguiano stabbed Benny Gallegos in the 

back of the head and neck while Gallegos was at a bar and dancing with defendant’s 
2. 

former girlfriend. Gallegos survived the assault. The bar’s security cameras depicted 

defendant’s conduct immediately before and during the stabbing. At trial, a prosecution 

expert testified that defendant committed the offense for the benefit of the Norteno gang 

because he was an active member of the gang, defendant was at the bar with other 

members of the Norteno gang, Gallegos was a member of a Sureno gang, and the bar’s 

security videotape depicted defendant and other Nortenos watching Gallegos just before 

the stabbing. 

Defendant testified and admitted that he stabbed Gallegos, but claimed he did not 

intend to kill him, he was not a member of the Norteno gang, and he did not commit the 

offense to benefit a gang. Defendant testified that he attacked Gallegos because he was 

angry that Gallegos was dancing with defendant’s former girlfriend. 

After a lengthy jury trial, defendant was convicted of attempted premeditated 

murder (Pen. Code,1 §§ 664/187, subd. (a)), with special allegations that he personally 

used a deadly or dangerous weapon in the commission of the offense (§ 12022, subd. 

(b)(1)); he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); and he 

committed the offense for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)(C)). Defendant admitted he suffered prior prison terms. He was sentenced to life 

with the possibility of parole, with the minimum parole eligibility date set at 15 years 

pursuant to section 186.22, subdivision (b). The court also imposed consecutive terms of 

three years for the great bodily injury enhancement, one year for the dangerous weapon 

enhancement, and one year for the prior prison term enhancement. 

On appeal, defendant raises several issues based on a conflict that developed 

between his retained defense attorney and his retained defense gang expert. As the 

prosecution was presenting its case, defense counsel advised the court that his gang 

expert had just quit the defense case and would not testify. Defendant immediately 

 1 All further citations are to the Penal Code unless otherwise indicated. 
3. 

moved for a mistrial because he could not continue without an expert. The court denied 

the motion and held that defendant could file a motion for new trial if he was convicted 

and the gang enhancement was found true. After the verdict, defendant filed a motion for 

new trial and argued that his constitutional rights to due process and a fair trial were 

violated because the court should have granted his motion for mistrial when the defense 

gang expert quit. The court denied the motion and found that defendant was not 

prejudiced from the absence of a defense gang expert because it was evident from the 

bar’s security videotape that the attempted murder was gang-related. 

Defendant contends the court should have granted his motion for new trial because 

his constitutional rights to effective assistance of counsel, due process, and a fair trial 

were violated; the court should have granted his motion for mistrial when the defense 

gang expert quit; he suffered prejudice because the jury only heard testimony from the 

prosecution’s gang expert that the stabbing constituted an attempted murder committed 

for the benefit of a gang; and the jury never heard contrary evidence on the disputed 

issues of whether the offense was attempted voluntary manslaughter committed in the 

heat of passion, and that it was not committed for the benefit of a gang. 

Defendant also contends the court failed to investigate whether a juror was 

sleeping during trial, the court improperly allowed the prosecution’s gang expert to offer 

speculative testimony about the conduct of defendant and other people depicted on the 

bar’s surveillance videotape; the court did not correctly instruct the jury on the gang 

enhancement; and the prosecutor committed misconduct during closing argument. We 

will affirm. 

FACTS

Around 10:00 p.m. on Wednesday, January 13, 2010, Benny Gallegos went to the 

Sports Zone Pizza and Grill in Visalia to meet Deliliah Echavarria. At that time, 

Gallegos’s head was shaved so that several tattoos were visible. He had a “CA” tattoo on 

top of his head, which meant “California.” A tattoo on the side of his head said “My 
4. 

Crazy Life.” A tattoo of “SD” was below his left ear. Gallegos testified the “SD” tattoo 

stood for the San Diego Padres and Chargers, and he was a fan of both teams, which had 

blue uniforms. 

Gallegos testified he also had a tattoo on the back of his head which said: “BPM.” 

It meant “Brown Pride Mexican,” which was his “hood” in Corcoran, Kings County. 

Gallegos testified that “BPM” was an independent gang and it was not allied with the 

Nortenos or Surenos.2 However, Gallegos admitted that he played Sureno gang music in 

his car, and he had previously been called a “scrap,” a derogatory word for Surenos. 

Gallegos testified he was wearing khaki pants, and a white and black striped shirt 

when he entered the bar that night. Gallegos admitted that he had a black bandana 

hanging out of his back pocket. A security guard asked him to put it away. Gallegos 

folded the bandana and put it in his pocket. Gallegos testified his bandana was black, it 

was not blue, and he was not showing any gang colors that night. 

Gallegos’s conduct in the bar

Shon Kekauoha was a security guard and bouncer at the Sports Zone. Kekauoha 

testified that the bar’s patrons were usually “people who we thought to be more or less 

gang affiliated. They would come in large numbers; predominately red shirts, red 

jerseys, red hats. It was more or less unofficially known as a Norteno bar or Norteno 

spot, really.” The bar had a dress code to “keep down any gang presence there as far as 

clothing articles.” The bar did not allow patrons to wear bandanas because of possible 

gang affiliations. Kekauoha and the other bouncers often had to kick out self-admitted 

Norteno patrons who got into gang disputes with other bar patrons who represented 

where they were from. 

 2 As we will discuss, post, the prosecution’s gang expert testified that Brown Pride 

Mexican was a Sureno gang. 
5. 

Kekauoha testified that when Gallegos arrived at the bar, he was showing a blue 

bandana out of his back pocket. Kekauoha was positive that Gallegos’s bandana was 

blue and not black. Kekauoha also saw Gallegos’s tattoos. Kekauoha told Gallegos that 

the bandana was not allowed and to either put it entirely in his pocket or take it back to 

his car. Gallegos put it in his pocket and entered the bar with his girlfriend. 

Kekauoha testified that once Gallegos was inside the bar, he pulled the blue 

bandana out of his pocket and displayed it. Kekauoha again told Gallegos to put away 

the bandana, and Gallegos complied. Later in the evening, Kekauoha saw Gallegos 

dancing while the blue bandana was wrapped around his knuckles. Another security 

guard told Gallegos to put the bandana away. 

Kekauoha testified that despite the admonishments about the bandana, Gallegos 

appeared to be “minding his own business” while he danced with his girlfriend. 

 Gallegos testified he did not have any conflicts with anyone in the bar. He did not 

notice any Norteno gang members in the bar; he did not see anyone throwing gang signs; 

and he did not hear any gang slurs. However, Gallegos admitted that at one point, he 

“threw up a dub” sign for “W,” representing “West Coast,” but he did not direct the sign 

at anyone. 

The stabbing

Gallegos testified he was having a drink when he suddenly felt “some sharp pains” 

in the back of his head. He raised his hand to the back of his head and felt pain in his 

hand. He looked at his hand and saw “a whole bunch of blood was coming out.” He 

realized he had been stabbed, but he had not seen the assailant because the person came 

from behind him. 

Nathan Mendoza was another patron at the bar that night. He did not know 

Gallegos, but he saw the tattoos on the back of Gallegos’s head and thought Gallegos was 

connected to a gang. Mendoza testified that he saw a man “creep up” behind Gallegos, 
6. 

and “the guy just struck” Gallegos twice in the back of his head. Mendoza testified the 

suspect was holding a small, sharp object in his hand. 

Kekauoha testified that he felt some tension in the bar that night, but there were no 

fights or assaults. He suddenly saw an unknown male rush behind Gallegos on the dance 

floor. The assailant raised his arm and “came down the back of [Gallegos’s] head.” 

Gallegos’s head jerked forward, and the assailant retracted the blade from Gallegos’s 

head and then ran out of the bar. Gallegos was very disoriented and bleeding from the 

head. 

Kekauoha decided not to immediately stop the suspect because he believed the 

man still had a knife. Once the suspect left the bar, Kekauoha chased him from a 

distance. The suspect ran away by himself. After chasing him for a few blocks, 

Kekauoha broke off the pursuit because he was concerned the man might have a firearm. 

The initial investigation

 Around 11:00 p.m., police officers responded to the bar. Officer Richard Cressall 

found Gallegos lying on the ground in front of the bar. Several patrons and staff 

members were trying to help him. Gallegos was taken to the hospital.3

 Officer Cressall also found Deliliah Echavarria outside the bar, and then drove her 

to the hospital where Gallegos had been taken. Echavarria told Cressall that “she was 

with her boyfriend [Gallegos] inside the bar when a group of Hispanic males came up 

behind him, and one of them with an unknown type instrument stabbed him 

approximately three to four times in the back of the neck.” Echavarria initially said that 

she did not recognize the suspect. 

Officer Cressall testified that Echavarria said the suspect’s name was “Jesse,” and 

she recognized him from a previous confrontation at the “Blitz” bar, when the man 

 3 Gallegos was in the hospital for two or three days and returned to work within 

one week. He suffered at least two scars on the back of his head and a scar on his right 

hand. At the time of trial, he still had sharp pains in the back of his head. 
7. 

brandished a weapon at her.4 Echavarria said that about one week later, she was at “WalMart” and saw “Jesse” as he was “driving around the parking lot,” and said he gave her 

“menacing looks.” 

Identification of defendant

 The police did not identify a suspect until Detective Luma Fahoum reviewed the 

bar’s security videotape, which depicted the activities of various patrons before, during, 

and after the stabbing. Fahoum, who previously worked in the gang suppression unit, 

recognized defendant as the man who stabbed Gallegos. Fahoum knew defendant from 

prior contacts. 

Fahoum testified that the videotape showed defendant had been in the bar with a 

group of people. Defendant was the only person who walked toward the victim, had an 

altercation with the victim, and then ran out of the bar. 

On January 20, 2010, Detective Lampe showed Shon Kekauoha a photographic 

lineup which contained defendant’s “mug shot.” Kekauoha could not identify anyone as 

the suspect. Kekauoha said he had actually “carded” the suspect at the door when he 

entered the bar that night and had seen his photo identification. 

Later that same day, Detective Lampe prepared another photographic lineup which 

contained defendant’s picture from his driver’s license. Kekauoha looked at the second 

photographic lineup, and identified defendant as the person who stabbed Gallegos. 

Echavarria’s statement

 On January 25, 2010, Detective Lampe interviewed Deliliah Echavarria after she 

had repeatedly refused to speak to the police or return their telephone calls. She was 

staying at a motel in Visalia under a false name. Echavarria said she used the alias 

 4 Officer Cressall later determined that a police report had been filed about the 

incident at the “Blitz” bar, but there was no mention about a weapon being brandished at 

Echavarria. 
8. 

because she was afraid that defendant would find her. Echavarria seemed hesitant and 

nervous about giving a statement to the police, but she was not under the influence of 

drugs or alcohol. 

 Echavarria said she had been dating Gallegos since the prior year, and she went 

out exclusively with him. Echavarria identified defendant from the photographic lineup 

as the man who stabbed Gallegos. Echavarria said she knew defendant from prior 

incidents at the Blitz bar and “Walgreens.” During the Blitz bar incident, defendant 

swore at her and pulled something from his waistband, which she believed was a gun. 

 Detective Lampe asked Echavarria if she was in a gang. She said no. He asked if 

Gallegos was in a gang. She replied that he would have to talk to Gallegos himself. 

Echavarria’s trial testimony

 At trial, Deliliah Echavarria testified as a reluctant prosecution witness.5 She 

initially testified that she had never been to Sports Zone; she was not present when 

Gallegos was stabbed; she did not know defendant; she never talked to the police about 

the stabbing; she never accused defendant of bothering her before the stabbing; and she 

never said defendant stabbed Gallegos. Echavarria testified she could not remember 

anything because she was “always high.” 

 On further examination, Echavarria eventually admitted that she knew Gallegos, 

and she was dating him at the time of the stabbing.6 She also admitted that she was with 

Gallegos when he was stabbed, but still insisted that she did not know where it happened 

because she was drunk and high that night. 

 5 Echavarria had been subpoenaed by the prosecution, she failed to appear, and 

she was taken into custody just before her trial testimony. 

6 Echavarria had tattoos of three stars around her right eye, and more stars on her 

neck. She also had “Lucky” tattooed on her neck. She claimed that she did not know 

Gallegos’s nickname was “Lucky,” and she just happened to get that tattoo before she 

met him. 
9. 

Echavarria also testified that she knew defendant before she knew Gallegos, and 

that she previously went out with defendant. Echavarria claimed her previous statements 

about defendant were false because she did not like defendant. Echavarria testified that 

she did not know if defendant was in a gang, he never brandished a weapon at her at the 

Blitz bar, and he never “maddogged” her at “Walgreens” or any other place. Echavarria 

testified she never identified defendant in a lineup or saw defendant do anything to 

Gallegos. 

Kekauoha’s trial testimony

At trial, Kekauoha watched the bar’s security videotape and testified that it 

showed that the suspect entered the bar with a person in a white hooded sweatshirt. The 

suspect was wearing a black shirt. The suspect and his companion walked toward a 

group of males. They stood and spoke with them. The suspect walked through the crowd 

to the dance floor. The suspect appeared to reach into his right pocket. The suspect 

stepped behind Gallegos, while Gallegos faced the opposite direction. The suspect 

stabbed Gallegos in the back of the head, and then he ran out of the bar. Kekauoha 

testified that after reviewing the videotape, he was positive that defendant was the person 

who stabbed Gallegos. 

Evidence about other Nortenos in the bar

The officers determined that the patrons at the bar that night included Mike Ruiz, 

Feliz Ruiz, and Alex Cervantez, who were sitting together at a table when the officers 

arrived to investigate the stabbing; Gilbert Salazar; and Tommy Madrid. 

Detective Fahoum testified that based on her prior experience with the gang unit, 

Mike Ruiz was a Norteno and the brother of Felix Ruiz, who was a high ranking northern 

gang member in Tulare County. Tommy Madrid was a northern gang member with some 

“stature.” Alex Cervantez was also a northerner. 
10. 

Evidence about defendant’s possible gang affiliation

Detective Fahoum testified she knew defendant and his brother from her prior 

experience in the gang unit. On April 13, 2007, Fahoum participated in a search of 

defendant’s home and seized two firearms from his closet. Fahoum testified that she did 

not find any gang indicia in defendant’s room during the search. When Fahoum found 

the guns, defendant said he had them because “gang tensions were high” in his 

neighborhood “on the north side of town.” Defendant lived in a predominately northern 

gang area, but there were also some Asian and southern gangs which conflicted with 

northerners. Detective Fahoum had never encountered defendant with any gang indicia 

during her prior contacts with him. 

Detective Lampe testified that he booked defendant into jail in connection with 

this case and asked defendant if he was affiliated with any gang for housing and safety 

purposes. Defendant initially said, “ ‘General population is fine.’ ” Lampe told 

defendant that he did not want him to be hurt and asked if he “might feel more 

comfortable being housed with a particular group” for his own safety. Lampe may have 

asked defendant if he wanted to be “ ‘housed north or south?’ ” In response, defendant 

said that he “hangs around with the northerners. He would prefer to be put with them.” 

Defendant never acknowledged membership with a northern gang. 

THE PROSECUTION’S GANG EXPERT

 Visalia Police Officer Michael Carsten testified as an expert on the Norteno gang, 

which had over 300 members and was the predominant criminal street gang in Tulare 

County. The Nortenos are associated with the Nuestro Familia prison gang and claim the 

color red and the number 14. The Surenos are rivals and enemies of the Nortenos. The 

Surenos are associated with the Mexican Mafia prison gang and claim the color blue and 

the number 13. 

Officer Carsten testified that tattoos which are common among Nortenos include 

city names or area codes and stars which represent “the northern star.” A five-pointed 
11. 

star “typically symbolizes” a completed mission for the gang. Norteno gang members in 

Tulare County have also adopted the logo for the Minnesota Twins, which consists of 

overlapping letters of “T and C.” Carsten had seen Norteno gang members wearing belt 

buckles with the letter “N”; apparel from the Nebraska Cornhuskers, consisting of a red 

letter “N”; and red apparel from the Cincinnati Reds. 

Officer Carsten acknowledged that members of the Norteno gang were not 

wearing red in Tulare County as frequently as before. Carsten explained that Nortenos 

and other gang members have learned from their experiences in the court system to 

downplay their gang affiliations when talking to the police about their association with 

other gang members, the significance of their clothing and tattoos, and when asked about 

their affiliations while being booked. 

Primary activities/predicate offenses

Officer Carsten testified the primary activities of the Norteno street gang in Tulare 

County included robbery, carjacking, murder, attempted murder, auto theft, burglary, 

shooting at inhabited dwellings, witness intimidation, and drug transactions. Carsten had 

personally investigated vandalisms, robberies, burglaries, carjackings, witness intimation 

incidents, and auto thefts involving Nortenos. 

Officer Carsten explained that one way to get into the Norteno gang was to put in 

“work” for it, by committing a violent crime or a series of crimes at the gang’s direction. 

A gang member would gain respect and credibility, and rise within the gang, by 

committing crimes or missions for it, which included attacking or killing a rival gang 

member, particularly in front of witnesses. A Norteno did not need permission from a 

higher ranking gang member to kill a Sureno. 

 Officer Carsten testified about two predicate offenses committed by members of 

the Norteno gang in Tulare County, but which did not involve defendant. In December 

2008, Isaac Sanchez and Daniel Quintano, active members of the Norteno gang, were 

convicted of armed robbery, with personal use of a firearm and the gang enhancement. 
12. 

The convictions were based on an incident when they confronted a victim and asked if he 

“ ‘bang[ed].’ ” The victim said no, and they robbed him at gunpoint. In May 2007, 

Richard Contreras and Javier Solis, active members of the Norteno gang, were convicted 

of, respectfully, second degree murder and voluntary manslaughter, with knife and gang 

enhancements. The convictions were based on an incident where Contreras and Solis 

confronted two victims and challenged them for being on their block, attacked them with 

knives, killed one victim, and injured the another person.7

Defendant’s gang status

 Officer Carsten testified to his opinion that defendant, also known as “Chewy,” 

was a validated member of the Norteno gang, based on previous contacts with defendant, 

inmate classification forms, and his tattoos. 

Carsten testified that on April 23, 2000, defendant and three other Nortenos 

assaulted a person because that person was not in their gang. On June 13, 2003, the 

mother of a Sureno gang member reported that someone was following her car. 

Defendant was subsequently identified as the person who followed her. When defendant 

was contacted, he was wearing a belt buckle with the letter “N” on it. Carsten conceded 

that defendant’s middle name was “Navarrete.”8

 Officer Carsten was also aware of the incident in April 2007, when Detective 

Fahoum searched defendant’s house and found two guns, a grenade, and ammunition. 

Defendant said he had the firearms for protection because of gang tensions in the 

neighborhood. Carsten thought defendant’s reason was significant because “[a] person 

who has a problem with rival gangs is going to need to arm themselves for protection.” 

 7 In issue VII, post, we will address defendant’s contentions that the prosecutor 

committed misconduct during closing argument because he allegedly referred to facts not 

in evidence about the Solis/Contreras homicide. 

8 While appellant/defendant’s middle name is spelled “Nabarette” throughout the 

record, it is noted that it alternatively appears as “Navarette” here. 
13. 

On cross-examination, Carsten conceded that there were quite a few people who lived in 

the north side who had guns to protect themselves in the neighborhood, and not every 

person was a gang member. 

On February 19, 2010, defendant was contacted by police while driving his 

vehicle with Anthony Cortez, a validated Norteno, and two Norteno associates. The 

traffic stop was conducted because defendant’s car was described as a vehicle involved in 

an incident where a passenger brandished a gun. When the car was stopped, the officers 

found that Cortez had a gun in his shoe. Defendant denied being a gang member, and 

denied any knowledge of the gun. 

Officer Carsten also testified about the information which defendant had 

previously given on inmate classification forms during the booking process. In January 

2002, defendant indicated his enemies were “southerners.” In May 2006, defendant 

indicated he did not associate with any criminal street gangs. In July 2007, defendant 

again stated that he did not associate with any criminal street gangs, but identified 

“southerners” as enemies for his own safety. In October 2007, defendant indicated he 

associated with “northern prison or street gangs.” 

Officer Carsten testified that on January 28, 2010, when defendant was booked 

into jail on this case, he denied any association with a street gang and asked to be placed 

in general population. The booking officer asked defendant whether his safety would be 

in jeopardy if he was placed with southerners. Defendant replied: “ ‘Okay. Well, put me 

with northerners.’ ” 

Officer Carsten testified that defendant had a tattoo of a “five-pointed star” on his 

neck, with a picture of the state of California on top of it, which indicated that he was a 

Norteno from California. He also had tattoos of “Tulare,” “County,” and “TC,” in black 

and red ink, on his right arm. The “TC” tattoo was similar to the Minnesota Twins 

symbol, which has been adopted by Norteno gang members. 
14. 

Officer Carsten conceded that he did not know whether defendant had served time 

in prison.9 Carsten testified that he was not aware that defendant had any prior 

convictions for gang-related offenses. 

Officer Carsten also conceded that defendant was not wearing red clothing on the 

night of the stabbing. There was no evidence that he had previously been seen in red 

clothing, or that gang paraphernalia had ever been found at defendant’s house. 

Defendant did not have any tattoos which signified “14” or the Huelga bird. 

Gallegos’s gang status

 Officer Carsten testified to his opinion that Benny “Lucky” Gallegos was an active 

member of the Sureno gang, based on Gallegos’s tattoos and prior admissions. On 

January 24, 2010, after the stabbing, Gallegos told an officer that he was an active BPM 

Sureno gang member from Corcoran. Carsten testified that he spoke to a former 

Corcoran police officer who identified BPM as a Sureno gang. He did not know the basis 

for that officer’s opinion about BPM’s affiliation. 

 Officer Carsten admitted that Gallegos claimed that he had left the gang life 

behind him. On December 21, 2008, Gallegos was a victim of a gang offense, and said 

he used to be a Sureno. On the night of the stabbing, Gallegos told an officer that he was 

an inactive Sureno. 

However, Officer Carsten testified that Gallegos showed a blue bandana in the bar, 

and he had Sureno tattoos. Carsten further testified that Gallegos’s claimed affinity for 

San Diego teams, and his “SD” tattoo, represented the Sureno gang territory of Southern 

California. 

 9 Defendant testified at trial and admitted he had served time in prison. 
15. 

Deliliah Echavarria’s gang status

Officer Carsten was aware of Deliliah Echavarria’s tattoos, including three stars 

on her neck, but he did not know if she was a Surena. He testified that it was “[n]ot 

absolutely unheard of” for a Surena to date a Norteno. 

Officer Carsten’s testimony about the videotape

At trial, Officer Carsten narrated the bar’s security videotape as it was played for 

the jury, and identified several people with whom defendant associated before the 

stabbing. Carsten testified to his opinion that the videotape showed that defendant 

arrived at the bar with Tommy Madrid. Defendant was wearing a black T-shirt and 

Madrid was in a white hooded sweatshirt.10 Madrid was a Norteno of “some stature” 

because he had served prison time. He also had a “VISA” tattoo on the back of his head, 

which meant North Side Visalia.11

Officer Carsten testified the videotape also showed that Mike Ruiz, Felix Ruiz, 

and Alex Cervantez were at the bar that night. Detective Fahoum testified Mike Ruiz 

was a Norteno; Felix Ruiz, his brother, was a high ranking northern gang member in 

Tulare County; and Alex Cervantez was also a northerner. 

Officer Carsten testified that Shon Kekauoha, the security guard, stated that there 

was a group of people in the bar that he believed to be northern gang members, and the 

victim had possessed a blue bandana. Nathan Mendoza, a bar patron, said the victim 

showed off that he was a southern gang member. 

Officer Carsten testified videotape showed that defendant and Tommy Madrid 

stood together at the bar while Madrid spoke to Alex Cervantez. Gilbert Salazar and 

 10 On the night of the stabbing, Allen Adney, another security guard at the bar, 

told an officer that the stabbing suspect had entered the bar with a man in a white T-shirt. 

11 Carsten acknowledged the colors of black, white, and grey are generally neutral 

among the gangs. 
16. 

Alex Cervantez were at the same table and talking with each other. Defendant shook 

hands with Mike Ruiz as Salazar stood next to them. 

Officer Carsten noted that according to a police report, Mike Ruiz said he was at 

the bar with Cervantes, but he denied knowing Madrid, and he claimed he never spoke to 

anyone else that night. Carsten testified the videotape refuted Mike Ruiz’s claims 

because it showed Ruiz and Madrid “in close proximity” and engaged in “what appears to 

be a conversation between the two of them.” The videotape also showed Cervantez 

talking to defendant, Salazar, Mike Ruiz, and Madrid. Cervantez was standing just a few 

feet away from Gallegos, and he was facing the direction where the stabbing later 

occurred.12 The videotape showed Cervantez talking to the man in the red shirt, 

identified as “Bro.” 

Officer Carsten testified that Gilbert Salazar later told an officer that “the person 

he knew as Bro told him there was going to be an attack on a scrap at the bar. His 

indication was that he did not want to be part of that attack. He also indicated he was a 

Norteno gang member and said that he was not active at the time.” “Bro” was described 

as “a male adult wearing a red shirt.” Carsten testified that Salazar’s statement was 

important because it showed that more than one person knew there was going to be an 

attack. 

Officer Carsten testified about the conduct of “posting up,” which meant “standing 

watch. Guarding.” Carsten testified to his belief that videotape showed the man in the 

red shirt, who was standing next to Cervantez and Madrid, was looking in the general 

direction of the area where Gallegos was. Carsten believed the man in the red shirt was 

 12 The court overruled defendant’s objections to Carsten’s testimony on these 

points. In issue IV, post, we will address defendant’s contentions that the court 

erroneously overruled his objections to Carsten’s testimony and interpretation of the 

videotape. 
17. 

discussing something with Madrid. At the same time, Cervantez and Salazar were 

looking in the opposition direction. 

Officer Carsten testified to his opinion that the assault on Gallegos was a 

coordinated attack, based on his review of the security videotape. 

“In viewing the video, the persons that I’ve identified as Mike Ruiz, Alex 

Cervantez, [defendant], Tommy Madrid, and Gilbert Salazar, in watching 

those persons and Mr. Gallegos in the video, when Mr. Gallegos walks into 

the bar, he is noticed by or appears to be noticed by Mike Ruiz. And Mike 

Ruiz goes out of his way to keep an eye on Mr. Gallegos as he walks 

through the bar. And then there appears to be some sort of communication 

between Ruiz and the others. And they’re back and forth. There is 

communication between Ruiz and Madrid and Madrid and [defendant], also 

including Salazar and this other person we know as Bro in the red shirt. 

Also Alex Cervantez. There is communication between all of them leading 

up to the incident.”13

Officer Carsten testified that based on his review of the security videotape, it was 

his opinion that defendant discussed the assault with Gilbert Salazar. Carsten conceded 

that he could not be sure about the conversation because there was no sound on the tape. 

Carsten also conceded that he did not have any information that defendant previously 

knew the Ruiz brothers, Madrid, or Cervantes prior to the night of the stabbing. 

Officer Carsten testified that the videotape showed that the man in the red shirt 

appeared to walk to the dance floor and move closer to Gallegos. Cervantes appeared to 

be facing Gallegos’s “general direction.” Carsten testified that defendant was standing 

next to Madrid, and they appeared to be discussing something. 

Officer Carsten testified the videotape showed that defendant walked to the dance 

floor, followed by Salazar. Salazar stood next to Cervantes. Defendant reached into his 

 13 Defense counsel objected to Carsten’s opinion testimony on this point; the court 

overruled the objection. 
18. 

pocket and walked up to Gallegos. Defendant’s hand went up and down toward 

Gallegos’s head as he stabbed him. 

Officer Carsten testified the videotape showed that Tommy Madrid moved to a 

different location in the bar, away from the location of the assault, when defendant 

stabbed Gallegos. Carsten testified it was “tough to say what exactly he could see from 

that vantage point from the video, but it does appear that there is a surrounding-type of 

the victim.”14

On cross-examination, Officer Carsten testified that he did not have any evidence 

that defendant bragged about the stabbing of Gallegos. Carsten also conceded that there 

was no evidence as to exactly what defendant and the other men were talking about when 

they were seen together on the videotape, and no witnesses overheard their conversation. 

Officer Carsten testified to his opinion that defendant’s attack on Gallegos, as 

depicted in the video, could have gotten him into the Norteno gang based on his 

commission of that crime.15 Carsten conceded there was no evidence whether defendant 

or his associates knew Gallegos, whether Gallegos was affiliated with a gang, or they saw 

Gallegos with the bandana. However, defendant would not have to know that Gallegos 

was a Sureno if he had been directed to perform the assault by another gang member. 

Carsten conceded that he did not have any evidence that defendant received direction 

from anyone to attack Gallegos, but believed the videotape showed some nonverbal 

communications. 

“When Mr. Gallegos enters the bar, Mike Ruiz pays very close attention to 

that. As a matter of fact, he watches him very closely as he enters the bar. 

And then throughout the course of the video, you can see as the male in the 

red shirt known as Bro is standing in close proximity with Mr. Gallegos, as 

is Mr. Cervantez, as is Gilbert Salazar.” 

 14 The court overruled defendant’s objection to this question. 

15 The court overruled defendant’s objection to this question. 
19. 

Officer Carsten believed that Mike Ruiz’s actions showed him doing “more than 

just looking at somebody,” and that he “followed” Gallegos and watched him “very 

closely,” although Ruiz did not gesture or point at Gallegos. 

Officer Carsten conceded that he did not know whether any of these actions were 

communicated to defendant, or what defendant discussed with Ruiz, Salazar, and/or 

Madrid. In his expert opinion, however, he believed the videotape showed that 

defendant, Mike Ruiz, Salazar, and Tommy Madrid were looking at Gallegos and talking 

about him. 

Officer Carsten conceded that the videotape did not show Gallegos flashing the 

bandana at any time. However, both Shon Kekauoha and Nathan Mendoza stated that 

they saw Gallegos flashing the bandana inside the bar. 

Hypothetical questions

The prosecutor asked Officer Carsten about the following hypothetical question: 

“Let’s say an individual goes into a place with another high ranking 

Norteno gang member, meets up with some other Nortenos in that bar, and 

other members of that group go back and forth posting up close to a Sureno 

gang member, and after these individuals go back and forth and 

communicate with each other, then the person that came into the 

establishment with that high ranking individual then goes over to that 

Sureno and stabs him in the neck four times with a blade-type 

instrument ....” 

Officer Carsten testified that in his opinion, the crime would have been committed 

for the benefit of the Norteno gang because “it is an attack against a rival gang member. 

It’s a long time rivalry between Nortenos and Surenos. This is one more attack in an 

attempt to take out, disable, or at least injure a rival gang member.” Carsten further 

testified the crime would have been committed in association with the Norteno gang 

based “on persons present with the assailant prior to the act occurring.” 

Officer Carsten testified the offense would further the Norteno gang because of 

“the rivalry between Nortenos and Surenos. It’s a struggle for power. It’s a show of 
20. 

dominance. It is a direct attack against the rival. It promotes the gang. It spreads fear 

into other people and let’s them know that Norteno gangs and Sureno gang, one, are 

rivals, and, two, are willing to use deadly force when they attack one another.” The 

offense also would have promoted the Norteno gang because Nortenos discuss and brag 

about their crimes with each other, and the assailant’s status would be elevated within the 

gang. “That he’s willing to attack a rival gang member in front of ... a group of people, 

not caring about himself, but ... caring more about attacking that gang member.” There 

was “no question” about the significance of “a public display” of committing a crime in 

front of other gang members. 

Officer Carsten was asked about a hypothetical situation involving a former 

girlfriend: 

“Q. And in your expert opinion, what would be the reaction of a Norteno 

if he was to lose his girl to a Sureno? 

“A. In my opinion, he’d be upset and he would want to exact some sort 

of revenge.”16

Officer Carsten further explained that “[i]f that person was a rival gang member, 

that goes even farther to say that that person would need to be punished.” The other gang 

members would react by standing up for their fellow gang member, if the girl was dating 

a rival gang member. 

Cross-examination; hypothetical questions

On cross-examination, defense counsel asked Officer Carsten whether a person 

would be a Norteno if that person went out and had “a couple beers with a guy that 

happens to be an old school chum” who was a Norteno. Carsten replied that the person 

would not be a Norteno without more information. 

 16 The court overruled defense counsel’s objection to Carsten’s answer. 
21. 

Defense counsel also posed a hypothetical question as to whether an assault would 

constitute a public display of violence to promote the gang: 

“Q. Well, person beats up another person on their own, how is that 

promoting the street gang? Let me put some other factors involved. The 

person has no gang attire on, the person has no readily apparent gang 

tattoos, uses no gang epithets, and says no – gives no indication as to what 

the motivation for the assault is, how is that for the benefit of a street gang? 

“A. That by itself with no other information, no previous history of that 

person, no associations with that person, I can’t say that it is or it isn’t.” 

Defense counsel asked about Echavarria’s statements about her prior dating 

relationship with defendant. 

“Q. ... Isn’t it just as possible that the motivation for this particular 

assault was jealousy based on the factors you have in front of you?

“A. I won’t say it’s impossible, but that’s not my opinion. [¶] ... [¶] 

“ “ ............................................................................................................ 

“Q. And it’s further substantiated as a possibility based on the lack of 

factors from [defendant]; no gang clothing, no gang epithets, no apparent 

gang motivation, is that correct? 

“A. No, I can’t say that. There is certainly gang association. There is 

certainly gang-related tattoos. There is certainly previous contacts with 

gang members. That’s what I use to formulate my opinion.” (Italics 

added.) 

Officer Carsten further conceded that when defendant looked in a particular 

direction, he could not testify from the videotape whether he was looking at Gallegos or 

“the woman that he dated.” 

DEFENDANT’S TRIAL TESTIMONY

Defendant’s trial testimony was the only defense evidence presented. Defendant 

denied being a member of any gang, but the Nortenos were the primary gang at every 

place he had lived. 
22. 

Defendant admitted that he had previously been to prison for possession of 

narcotics and firearms which were found in his house. He had the guns to protect his 

family and children because members of the Oriental Troops Asian gang lived near him 

and occasionally jumped his fence when running through the neighborhood.17 Defendant 

denied having the guns because of any connection with the Nortenos, or to protect 

himself from Surenos. 

Defendant admitted that the police stopped his car in February 2010, and that 

passenger Anthony Cortez had a gun. Defendant had been giving a ride to Lynette Barba 

when she asked defendant if Cortez and another man could also get a ride. Defendant 

explained that he did not know Cortez, that Cortez was a Norteno, or that he had a gun. 

Defendant testified that his tattoos were not gang-related, and he did not have any 

Norteno or “14” tattoos. The “Tulare County” tattoo represented Tulare County, and the 

“TC” tattoo was for the Minnesota Twins. Defendant admitted he got the “TC” tattoo 

while he was in prison. Defendant claimed he was a fan of the Twins, and knew that 

Kirby Puckett had played for the farm club in Visalia. Defendant testified he designed 

the star and California tattoos on his neck, which meant “California porn star,” as a joke 

among his girlfriends. 

Defendant further testified he did not wear red clothing or hats, and did not have 

any apparel with the “TC” design. He usually wore dark colors like black and gray. His 

“N” belt buckle stood for his middle name. He denied that his nickname was “Chewy.” 

Defendant testified that he had never told any jail intake officers that he was a 

member of a gang. Defendant admitted that he would “hang out” with people who he felt 

comfortable with, and they might have been gang members. He denied doing anything to 

make Surenos angry at him. Defendant admitted that he had listed “southerners” as his 

 17 In rebuttal, Officer Carsten testified the Oriental Troops claimed the color blue, 

and their rivals were the Nortenos and another Asian gang which claimed red. 
23. 

enemies in jail: “Well, I mean, if you run into them in jail, then what are you going to 

do? You’re going to get hurt, right?” He thought that southerners would think that he 

was a Norteno because he socialized with them in high school. 

Defendant and Echavarria

Defendant testified that he met Deliliah Echavarria when she worked as a stripper 

at a private party in August 2009. They started dating, and he thought they were in an 

exclusive relationship, although defendant was married to another woman. 

Defendant testified they broke up because Echavarria was jealous that he had other 

girlfriends. Defendant testified that he saw Echavarria at the Blitz bar, when he was there 

with a couple of girlfriends. Echavarria became “a little hostile” toward him, and called 

the girls various names. The bar’s bouncers threw her out. Defendant denied 

brandishing a weapon during that incident. Defendant testified he later saw Echavarria at 

Walgreens while he was with two other girlfriends. Echavarria “flipped [him] off” and 

was hostile toward the girls. 

The night of the stabbing

Defendant testified that he worked for an almond warehouse and carried a box 

cutter for his work. On the day of the stabbing, he finished work and went to a friend’s 

house. Defendant and his friend split a 12-pack of beer. Defendant left the friend’s 

house and went to the Sports Zone bar by himself. 

Defendant testified he did not enter the bar with Tommy Madrid. Defendant 

initially testified he did not know Tommy Madrid, but then admitted he knew him from 

high school. Defendant had worked as a bouncer at different bars, and also recognized 

Madrid from seeing him at those bars. Defendant testified he knew Madrid enough to say 

hello to him. Defendant knew Madrid used to hang around with gang members in high 

school, but he did not know if he was a gang member because they never talked about it. 

Defendant testified he followed Madrid to the bar, where he shook hands with a 

couple of guys, shook hands with Madrid, and bought a beer for Madrid and a drink for 
24. 

himself. Madrid introduced him to several people. The music was very loud, and 

defendant did not hear their names or anything Madrid said about them. Based on his 

prior experience working at other bars, defendant recognized Felix and Mike Ruiz, Alex 

Cervantez, and Gilbert Salazar, but he did not know their names and did not know if they 

were gang members. Defendant, Madrid and the other men did not discuss Gallegos, or 

whether Gallegos had engaged in any type of gang-related activity. 

The stabbing

Defendant testified that as soon as he entered the bar, he saw Echavarria dancing 

with a man, later identified as Gallegos. Defendant testified that he felt upset, angry, and 

shocked. Defendant did not know or recognize Gallegos; he did not see Gallegos holding 

a blue rag; he did not see any Sureno tattoos on Gallegos; and he did not know or care if 

he was a Sureno. 

Defendant testified that while he was standing with Madrid, he kept looking at 

Echavarria. He became upset about the way she was dancing with the other man, and 

that was “building up my anger. That’s the only thing that was on my mind was 

watching her dance on this other man.” 

Defendant testified he did not talk to Madrid or the other men to plan the assault 

on Gallegos. However, defendant admitted that he told the other men that a man was 

“ ‘with my girl,’ ” and he was “ ‘going to kick his ass.’ ” Defendant might have told the 

man in the red shirt the same thing. Defendant admitted that the videotape showed him 

talking with Tommy Madrid just before the stabbing. Defendant testified that he might 

have told Madrid that he was going to leave. 

Defendant testified that he walked toward Echavarria and Gallegos. He still had 

his box cutter from work, took it out of his pocket, and opened the six-inch blade. “After 

seeing what she was doing, she was dancing on him, I just lost it.” 

Defendant testified that he walked behind Gallegos, “acted out,” and stabbed 

Gallegos in the back of his head and neck. He stabbed Gallegos because he felt too drunk 
25. 

to fight him, and he thought the stabbing was “the best way” to hurt him. Defendant 

testified he did not intend to kill Gallegos. “All I wanted to do was hurt him because she 

was hurting me, and I was mad.” Defendant would have sliced Gallegos’s throat if he 

had wanted to kill him. Defendant did not assault Echavarria because “I’m not going to 

touch a woman. I’m not going to put hands on a woman.” 

Verdict

Defendant was convicted of attempted premeditated murder, with special 

allegations that he personally used a deadly or dangerous weapon in the commission of 

the offense; he inflicted great bodily injury on the victim, and he committed the offense 

for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). 

PROCEDURAL HISTORY

 As set forth above, Officer Carsten testified as the prosecution’s gang expert. 

Defendant was the only defense witness, and the defense did not introduce any expert 

testimony to contradict Officer Carsten’s testimony for the prosecution. 

 As we will explain, Victor Perez, defendant’s retained attorney, had retained 

Michael Hurtado as a gang expert to testify for the defense. However, Hurtado resigned 

in the middle of trial because of an alleged dispute with defense counsel. Defense 

counsel moved for a mistrial. The court denied the motion and advised defendant to file 

a motion for new trial if he was convicted. After the verdicts, defendant filed a motion 

for new trial based on his inability to present any expert testimony to contradict Officer 

Carsten. The court denied the motion. 

In issues I and II, we will address defendant’s primary appellate contentions – that 

his constitutional rights to effective assistance of trial, due process, and a fair trial were 

violated when the court denied his motions for mistrial and new trial, and because the 

defense expert’s resignation prevented defendant from presenting a defense to contradict 

the prosecution’s expert testimony relative to the charged offense and the gang 

enhancement. 
26. 

As relevant to these issues, we must review the procedural history of this case 

which led up to the resignation of the defendant’s gang expert, and the court’s denial of 

defendant’s motion for new trial. 

Defense counsel hires gang expert

 Defendant was represented by a retained attorney, Victor Perez, for the entirety of 

these proceedings. Perez hired Michael Hurtado as a defense expert witness on gangs. 

On August 31, 2010, after the information was filed, the court granted defense counsel’s 

application to allow Hurtado to interview defendant in jail. 

Defendant’s motions in limine about the defense expert

 In anticipation of Hurtado’s trial testimony as the defense expert, defendant filed 

two motions in limine for the trial court to bar the prosecution from impeaching 

Hurtado’s credibility based on two prior incidents in separate and unrelated cases. 

The first motion was based on an incident which involved Hurtado’s contact with 

a court reporter. According to defendant’s motion, Hurtado contacted a court reporter in 

another gang case, and asked to obtain transcripts in that case as research on his 

dissertation.18 A bailiff overheard the conversation and believed Hurtado had falsely 

represented himself as a newspaper reporter. However, the court reporter later signed a 

declaration that Hurtado accurately identified himself, he never claimed to be a 

newspaper reporter, and the bailiff misunderstood what happened. Nevertheless, the 

prosecution had attempted to use this incident to impeach Hurtado’s testimony in another 

unrelated case. As relevant to this case, defendant asked the court to prevent the 

prosecution from impeaching Hurtado’s testimony with this incident. 

 The second motion was based on an incident from an unrelated juvenile case, 

where Hurtado was called as an expert, but the court did not allow him to testify. 

 18 According to Hurtado’s curriculum vitae, he had a master’s degree and was 

working toward a doctorate. 
27. 

Defendant asserted there was no evidence as to why Hurtado was not allowed to testify as 

an expert in the juvenile case. As relevant to this case, defendant asked the court to 

prevent the prosecution from impeaching Hurtado’s credibility with this incident. 

The court’s rulings about Hurtado’s expected testimony

 On Wednesday, December 8, 2010, defendant’s trial began with motions in 

limine, and the court reviewed defendant’s two motions to prevent impeachment of 

Hurtado with the two prior incidents. 

 The court stated that it would not allow the prosecution to impeach Hurtado with 

evidence from prior cases. However, it would require the defense to lay the foundation 

for Hurtado’s expertise, and then it would decide whether Hurtado would be allowed to 

testify as the defense expert. The court believed Hurtado had previously testified before 

it. 

 The prosecutor requested a hearing pursuant to Evidence Code section 405 to 

determine Hurtado’s qualifications as a gang expert. The prosecutor also complained that 

he had not received discovery as to Hurtado’s expected opinion testimony. Defense 

counsel replied that Hurtado had not provided him with a written report. 

 The court ordered defense counsel to provide written discovery to the prosecution 

about Hurtado’s expected opinion testimony. Defense counsel was not sure if Hurtado 

could provide a written report because he was “in finals,” but he was “definitely going to 

be here.” 

 The court declined to impose the discovery sanction of excluding Hurtado as the 

defense expert: 

“I’m not going to deny the defense the opportunity to call this witness. I’d 

get reversed in a heartbeat if I did that.” (Italics added.) 

The court asked defense counsel about Hurtado’s whereabouts. Defense counsel 

replied that Hurtado was “in Fresno in classes taking finals.” The court ordered Hurtado 

to appear the following morning with a written report for discovery and to testify in a 
28. 

hearing about his expertise prior to appearing at trial. Defense counsel asked the court 

what would happen if Hurtado could not produce a written report by the following 

morning. The court replied that Hurtado could not sit in the courtroom and listen to trial 

testimony until a written report was disclosed. 

After a brief recess, defense counsel stated that he had contacted Hurtado, who 

said he was scheduled to testify in Contra Costa County the following morning. Counsel 

stated that Hurtado had final examinations on the morning of Friday, December 10, but 

he could appear in court on Friday afternoon for the hearing on his expertise. 

The court agreed to conduct the hearing on Hurtado’s testimony on the afternoon 

of Friday, December 10. The court further held that the defense should have provided 

discovery of Hurtado’s report 30 days before trial, that Hurtado could not listen to the 

trial testimony until he filed a written report, that defense counsel could not mention 

Hurtado’s expected testimony in his opening statement “because I don’t know if he’s 

going to be allowed to testify,” and the jury would be admonished about the late 

discovery. Thereafter, the court and the parties proceeded with jury selection. 

Discovery of Hurtado’s written report

On or about December 9, 2010, as jury was being selected, the prosecutor received 

discovery of Hurtado’s written report about his proposed expert testimony.19

According to the report, Hurtado had been a paid gang expert for three years; he 

had testified in at least 75 gang cases in nine counties; and he had previously qualified as 

an expert in Tulare County. He had a master’s degree and was in the process of finishing 

his doctorate in forensic psychology. 

In the report, Hurtado summarized information about defendant’s alleged contacts 

with the Norteno gang, based on the prosecution reports received during discovery.20 

 19 Copies of Hurtado’s report were attached as exhibits in both defendant’s motion 

for new trial, and the prosecution’s opposition to that motion. 
29. 

Hurtado’s report offered the following conclusions, based on the same factual 

background later addressed by Officer Carsten at trial: 

“In my review of the discovery, [defendant] never admitted membership, 

and never admitted in a custodial facility that he was a gang member. 

However, [defendant] has admitted to association with gang members. His 

tattoos are also in question and are not proven to be gang related as the star 

is universal and Tulare County has not been proven to be Norteno, or 

Northern gang related. Lastly, [defendant’s] current crime accusation has 

not been judged by a jury of his peers and should not be considered at this 

point in time.” 

 Hurtado’s report did not address the bar’s security videotape, defendant’s 

interaction with other alleged Norteno members at the bar, his conduct before, during, 

and after the stabbing, his prior relationship with Echavarria, or whether defendant 

stabbed Gallegos because he was at the bar with Echavarria. 

Hurtado’s e-mail to defense counsel

 Also on December 9, 2010, Hurtado sent an e-mail to defense counsel. The 

substance of the message implies that it accompanied the discovery report.21 In the email, Hurtado addressed the prosecution’s possible impeachment of his credibility with 

the court reporter and the unrelated juvenile case incidents, and the prosecution’s demand 

for a hearing on the admissibility of his expert testimony in this case. 

“I have to remind you for the record. I am very upset with the way this 

turned out. I told you weeks ago about having to prepare for finals during 

these two weeks. You stated not to worry about it that you would work 

around it, however I feel like you are working around what the DA wants. 

I am extremely behind on my preparation .... Having to help you with this 

motion in limine (produced three times) because you either did not 

 20 Hurtado’s report summarized almost the identical information offered by 

Officer Carsten and other officers about defendant and his prior Norteno contacts, as 

testified to by the prosecution witnesses at trial. 

21 The prosecution included a copy of this e-mail in its opposition to defendant’s 

motion for new trial. Defendant has not challenged its veracity. 
30. 

understand the facts, or confusing the interpretation of the law or were not 

listening caused over a week of stress. I was confused because I did not 

want to let you down and help you and [defendant] with this case, and yet I 

should have just removed myself a week ago and consentrated [sic] on my 

finals. I don’t understand why I have to get accused of bullshit by the DA, 

and yet this officer, after examination has made some foul accusations on 

his report. [T]he DA can do these extra moves to throw me off the case, 

which has happened, I feel my time in what you allowed has taken my time 

from the case. And, yet no one holds these officers accountable for these 

bold accusations against citizens, mainly Latinos. I would expect you to 

hold them more accountable and not allow them to hold the cards and mess 

with my time. 

“At this point, I have completed my area of the agreement by giving this 

awesome report that has dissected their case and gives you something to 

fight with. However, I am going to look into this Friday business [about 

the hearing] because I do not believe you took into account my needed 

interests, which as you will read in the report has been your client[’]s best 

interests. If I can’t make it, and then the judge does not allow me to testify 

on this case, so be it. Once again, I have spent countless hours in the last 

week preparing for something you should have done last month.” (Italics 

added.) 

Introduction of evidence

Later on December 9, 2010, the jury was impaneled in defendant’s case and the 

prosecution began to introduce evidence. During the initial course of trial, defense 

counsel extensively cross-examined the witnesses as to whether they could identify 

defendant or anyone else as the person who stabbed Gallegos, and whether the bar’s 

surveillance videotapes clearly depicted defendant as the suspect. 

On December 10, 2010, Officer Carsten began his direct examination testimony as 

the prosecution’s gang expert. The court did not conduct a hearing on the admissibility 

of Hurtado’s proposed expert testimony, as previously scheduled for that day. According 

to the prosecution, the court rescheduled the hearing for Monday, December 13, 2010. 

Hurtado withdraws from defense case

 On the morning of Monday, December 13, 2010, the court convened outside the 

jury’s presence. Defense counsel advised the court that Hurtado, the defense expert, had 
31. 

resigned from the case. Counsel said he met with Hurtado on Saturday, December 11, 

2010, and they “discussed what I felt needed to happen in the case. And he had a lot of 

concerns that he was voicing. [¶] Sunday we had two phone conversations; last one 

culminating with his resignation from the case.” 

 Defense counsel advised the court: 

“I think it’s pretty obvious that I don’t believe my client can get a 

fair trial without the assistance of an expert in this matter. I don’t have any 

control over the conflict that had arisen between Mr. Hurtado and myself. 

Those services that he was contracted to do he did. He was not as yet paid 

for the trial appearance. That money was in my trust. He has a lot of 

concerns that, frankly, there is no middle ground for.” (Italics added.) 

 The court asked defense counsel whether Hurtado was under subpoena. Defense 

counsel said no because he never subpoenaed his own expert witnesses. Defense counsel 

continued: 

“I don’t think my client can get a fair trial without the expert. So it’s 

the conflict between him and I have that have caused my client to be in an 

inferior position at this point. Then, much as I would hate to say that, I 

think perhaps that’s ineffective assistance of Counsel. But, certainly, I 

don’t think my client can go forward and have a fair trial without his expert 

present.” 

 The court brought the jurors into courtroom and excused them until the afternoon, 

when it would determine “whether or not we’re going to go forward with this trial.” 

The court’s denial of defendant’s motion for mistrial

 After a recess, the court reconvened outside the jury’s presence. The court 

acknowledged the issue was how to proceed based on defense counsel’s representation 

that “his expert and he have arrived at an impasse in this trial that makes it impossible for 

him to use his expert.” 

The court asked defense counsel whether they disagreed over trial tactics or the 

expert’s ultimate opinion. Defense counsel replied: 
32. 

“But there was a number – there were a number of points of contention 

where candidly my expert was not comfortable with the way that I was 

planning to handle certain aspects of the cross-examination and certain 

aspects of the evidence. And my position with him was I’m the attorney. I 

dictate how that’s supposed to be handled. He felt differently about it and 

felt that he and I could no longer work on this case and told me that, 

literally, Sunday evening.” 

The court acknowledged that defense counsel claimed that if he was denied the 

opportunity to use a gang expert, then “that would amount to ineffective assistance of 

counsel.” The court reviewed Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511 

(Carrillo), and stated that the case addressed whether a mistrial could be granted for 

ineffective assistance based on legal necessity. The court read a lengthy excerpt from 

Carrillo and stated that it was “ ‘an extremely rare event’ ” to grant a mistrial because of 

the perceived ineffectiveness of defense counsel, and that “ ‘a far safer practice’ ” was for 

the court to intervene “ ‘only in ruling on posttrial motions following a conviction, if 

indeed a conviction occurs. It is unwise for a judge to declare a mistrial due to counsel’s 

alleged ineffectiveness because it’s a chancy business to predict a verdict a jury may have 

returned in this case.’ ”22

After reviewing Carrillo, the court made the following findings. 

“So far, the defense in this case has been ‘I didn’t do it. It wasn’t 

me.’ So far. ‘No one can identify me.’ There has [sic] been attacks on the 

video and the credibility of whether or not somebody actually can see the 

defendant do what he’s charged with doing. So first off, he’s claiming ‘I 

didn’t do it,’ at least so far. And let alone that ‘I’m not a gang member.’ If 

they find you didn’t do it, whether or not there’s gang testimony or not, is 

irrelevant. It doesn’t matter. 

 22 As we will explain, Carrillo did not address whether a trial court should grant 

or deny a motion for mistrial based on ineffective assistance, but whether there were 

“extreme circumstances” in that particular case to support the trial court’s decision to 

grant a mistrial and discharge the jury without the defendant’s consent, which prevented a 

retrial in the absence of “legal necessity” for the mistrial. (Carrillo, supra, 145 

Cal.App.4th at pp. 1527-1530.) 
33. 

“And at this point in time, taking my guidance from the Carrillo

court, I believe the better practice is to go forward with the trial and reach a 

verdict. If there is a verdict of guilty, then you can do a motion for new 

trial based upon the circumstances. But at this point in time, I don’t believe 

that a mistrial or termination of these proceedings is appropriate.”23

Defense counsel replied that his conflict with Hurtado only “came to light on 

Sunday well into the course of the trial.” As a result of that conflict, defendant was 

“being deprived of the ability to say that his actions, if he testifies to his actions, were not 

for the benefit of or furtherance of a gang-related crime.” 

The court disagreed that there was a conflict between defense counsel and 

defendant. 

“The conflict exists between you and your expert as to the tactics to be used 

during the trial. We’re going to go forward with the trial. And if there is a 

conviction, if he’s found – if the gang allegations are found to be true, then 

you can proceed with a new trial motion. We’ll deal with that at that point 

in time. But if he’s found guilty and the gang allegations are found not to 

be true, then the fact that this expert didn’t testify is moot. It’s 

irrelevant.”24

Continuance

 The reporter’s transcript is silent as to whether defense counsel asked for a 

continuance, or if the court offered to grant a continuance of any kind. Based on the 

entirety of the pleadings in this case, the parties agree that after the court denied the 

motion for mistrial, it offered a “short” continuance for the defense to secure a new gang 

expert. The parties also agree that defense counsel declined the short continuance 

because there would not be sufficient time to hire a new gang expert and for that person 

 23 The court accurately summarized that defense counsel’s cross-examination of 

the prosecution’s witnesses up to that point focused on identity. 

24 It is unclear from the court’s statements whether it would have considered a 

motion for new trial on this ground if defendant had only been convicted of attempted 

murder and the gang enhancement was not found true. 
34. 

to prepare. The record is silent as to what the court and/or defense counsel considered a 

short continuance.25

Resumption of trial

Later that day, the jury returned to the courtroom and the trial resumed with 

Officer Carsten’s direct examination testimony. 

On December 14, 2010, the prosecution rested. Defendant testified as the only 

defense witness. The prosecution recalled Officer Carsten for brief rebuttal, and then the 

court read the instructions to the jury. 

On December 15, 2010, the jury heard closing arguments and began deliberations 

at 1:57 p.m. At 4:20 p.m., the jury returned the verdicts and found defendant guilty of 

attempted premeditated murder and the gang enhancement true. 

Defendant’s motion for new trial

On December 29, 2010, defendant filed a motion for new trial, based on the 

court’s denial of his constitutional right to present a defense when it denied his motion 

for mistrial after his defense expert resigned. 

Defendant’s motion was prepared by Perez, his retained defense counsel, who 

filed an extensive declaration in support of the new trial motion. Defense counsel 

explained that he retained Hurtado as an expert, Hurtado reviewed the gang-related 

discovery and interviewed defendant, and Hurtado prepared the written report that has 

been previously discussed. 

Defense counsel further declared that Hurtado was upset that counsel failed to 

establish him as a qualified expert and that the prosecutor requested a hearing on the 

admissibility of his expert testimony. Defense met with Hurtado on Saturday, December 

11, 2010, and Hurtado never indicated that he was considering whether to quit the case. 

 25 When a defense attorney does not request a continuance in the trial court, the 

defendant cannot be heard to complain on appeal that the trial court failed to grant a 

continuance on its own motion. (People v. Alcala (1992) 4 Cal.4th 742, 782.) 
35. 

On Sunday, December 12, 2010, however, Hurtado advised defense counsel that he had 

not “protected” Hurtado’s interests, he was going to quit, and he would not testify for 

defendant. 

In his motion for new trial, defendant argued that Hurtado’s resignation placed 

defendant “in an untenable position” because he was left without the testimony of a gang 

expert to refute the gang allegations in the case, and there was insufficient time for him to 

retain another expert who could have been prepared to testify at trial. Defendant was 

forced to “press forward” and present “an incomplete defense,” which “severely 

compromised” his defense to the gang allegations. “As a result, the jury was only 

presented with the opinion of the gang expert retained by the prosecution, an opinion that 

different dramatically from that given by the defendant’s previously retained gang expert. 

This translated into the defendant being denied a fair and impartial trial.” 

As a separate ground for new trial, defendant also argued that his retained defense 

attorney, Perez, was prejudicially ineffective because he failed to request a continuance 

when the defense expert resigned. In the motion, Perez essentially argued his own 

ineffectiveness and conceded that while he moved for a mistrial, he failed to request a 

continuance for adequate time to retain another expert to testify, and that failure 

constituted ineffective assistance.26

 In addition to defense counsel’s declaration, the only supporting exhibit was 

Hurtado’s report which had been prepared for discovery purposes on the eve of trial. 

Defendant did not file any other supporting declarations from Hurtado or another expert 

about how a gang expert might have testified in this case. 

 26 The parties later agreed that the court offered defense counsel a “short 

continuance” to find a new expert, but defense counsel declined the offer because he did 

not believe he would have enough time to retain an expert who would be prepared to 

testify. 
36. 

The prosecution’s opposition

 On January 7, 2011, the prosecution filed opposition to defendant’s new trial 

motion.27 The prosecution argued that based on Hurtado’s written report, prepared for 

the belated discovery order, his opinion was going to be “restricted to the sole issue of the 

defendant’s gang status,” and that Hurtado would testify that defendant “was not a 

norteno gang member,” based on the discovery provided by Officer Carsten. The 

prosecution noted that Hurtado’s report failed to mention whether he had reviewed the 

bar’s security videotape, talked to defendant’s family, or talked to the people who 

defendant associated with in the bar that night. 

 The prosecution argued that based on defendant’s initial reliance on the identity 

defense, Hurtado’s failure to testify about defendant’s alleged gang status “did not create 

incurable prejudice” to the defendant, and the court properly denied his motion for 

mistrial. The prosecution conceded that defendant testified at trial and raised the heat of 

passion defense, but argued that Hurtado only would have testified about “an issue that 

the People did not need to prove in order to satisfy the elements” of the gang 

enhancement – whether defendant was a member of the Nortenos. 

The prosecution separately argued that defendant was not denied his constitutional 

right to a fair trial because defendant failed to demonstrate how Hurtado’s anticipated 

testimony would have provided a meritorious defense. Defense counsel was not 

prejudicially ineffective because of the breakdown in communications with Hurtado. 

Since Hurtado failed to appear at the hearing, “there is no evidence before the court or in 

the record that he would have qualified as a gang expert.” Hurtado’s e-mail to defense 

counsel also raised “serious bias issues” about Hurtado’s attitude toward law 

enforcement, which the prosecutor would have addressed during cross-examination. 

 27 The prosecution’s opposition sets forth an incorrect timeline of the trial and the 

court’s rulings on defendant’s motions in limine, compared to the minute orders. 
37. 

As for defense counsel’s alleged failure to seek a continuance, the prosecution 

asserted that this option was explored on the afternoon of Monday, December 13, 2010, 

after the court denied defendant’s motion for mistrial. “The defendant was given an 

option of a short continuance in order to secure another gang expert,” but defense counsel 

“elected not to explore this option as there would not be enough time.” 

Defendant’s response to the prosecution’s opposition

On February 1, 2011, defendant filed a response to the opposition, and asserted 

that Hurtado had previously qualified as a gang expert in Tulare County, and there was 

“little doubt” he would have qualified in this case. 

Defendant conceded the trial court offered “a short continuance” after Hurtado 

quit, but it would not have given defense counsel sufficient time to obtain an alternate 

gang expert who could have reviewed discovery and prepared for trial. “Had the 

defendant allowed an unprepared gang expert to testify during the trial, this would have 

ultimately worked to his disadvantage.” 

The court’s denial of defendant’s new trial motion

On February 25, 2011, the court denied defendant’s motion for new trial and made 

lengthy findings. The court acknowledged that defendant admitted that he stabbed the 

victim, but the jury was faced with two issues: whether the offense was attempted 

murder or attempted voluntary manslaughter; and the truth of the gang enhancement. 

The court found the bar’s security videotape was the “key” piece of evidence 

because it showed the events before and during the stabbing, and Officer Carsten’s 

testimony was not “given in a vacuum.” The court noted the videotape showed that 

defendant entered the bar with Tommy Madrid, a Norteno “shot caller,” and that 

defendant greeted other Nortenos, including Mike Ruiz and Gilbert Salazar. Other 

witnesses established that Gallegos, the victim, was a Sureno, and he was showing tattoos 

and flashing a blue bandana. 
38. 

“It is also clear from the video that the defendant and the other 

alleged Nortenos were posting up and around on the victim. While so 

posted, the defendant went to the victim without hesitation and stabbed the 

victim in the neck three to four times. The defendant fled out the door and 

the other individuals that defendant was communicating with melted back 

into the crowd. 

“A review of the report provided by Mr. Hurtado establishes 

essentially everything that Officer Carsten testified to.” 

The court noted that defendant testified he was not a gang member, his tattoos 

were not gang related, and gang paraphernalia had not been found at his house. 

However, defendant admitted he kept guns at his house because of gang tensions, he had 

been stopped with other Nortenos while wearing an “N” belt buckle, and he admitted that 

he was housed with northerners because he felt safe around them. As for defendant’s 

tattoos, Officer Carsten testified the star and state tattoos were often worn by Norteno 

gang members, although it was also established “that it could mean something 

completely different.” 

“It is clear that ... Mr. Hurtado ... was prepared to testify to all the 

things that Officer Carsten testified to, but he was also going to state that 

there was no evidence the defendant was or is a Norteno gang member.”28

The court believed that based on Hurtado’s statements in his report and the e-mail 

to defense counsel, that Hurtado appeared to be “a very angry man. He’s angry with the 

system. And he’s angry with [defense counsel] in particular. He feels that he was not 

treated fairly and that these gang cases unfairly single out Latinos by law enforcement for 

prosecution.” Hurtado also complained in his e-mail about being accused of something 

by the prosecutor. However, the court stated that it had not heard any accusations against 

Hurtado “during this trial that related to this instant case and ... officers.” 

 28 Hurtado’s belated discovery report, which defendant filed in support of his new 

trial motion, was limited to the contested issue of the gang enhancement and did not 

address the substantive charge of attempted murder or defendant’s possible motive for the 

stabbing. 
39. 

The court believed that Hurtado had “an inflated [view] of his report and his 

ability to effect the outcome of this instant case simply is not supported by his report.” 

(RT 707-708) Hurtado’s e-mail referred to his “ ‘awesome report’ ” and accused the 

prosecutor of trying to get him off the case. 

“Quite simply, the issue boils down to whether there is even a reasonable 

likelihood that the outcome would have been different had Mr. Hurtado or 

any expert been there to testify regarding the nature of the assault on the 

victim. No special expertise is required to evaluate the video and determine 

what the motivation in the attack was. A lay person without any gang 

expertise can watch the video and determine whether this assault was a 

coordinated attack by the defendant and other individuals who were 

validated Norteno gang members. The gang expert could not render any 

opinion about what was happening in the video other than speculation 

based on what the video shows. That’s essentially what Officer Carsten 

testified to. Officer Carsten could not testify that this was absolutely a 

gang – gang attack. It appeared to him that it was a gang attack. It 

appeared to him that it was a gang attack. And taking in all the evidence 

and all the other materials, it appeared to him that [in] his opinion it was a 

gang attack. But, again, that’s really up to the jurors to make that decision. 

And the jurors can make that decision by looking at the video and listening 

to the testimony. But to me, the persuasive evidence is the jury. 

“And [defense counsel] argued all of those issues before the jury. He got 

most of what Mr. Hurtado was going to testify to out of Officer Carsten. 

The jury just didn’t buy it.” (Italics added.) 

The court also found that defense counsel was not prejudicially ineffective 

because “it’s not reasonable to believe that another outcome would have occurred had the 

defense called Mr. Hurtado or any other gang expert.” 

“The video speaks for itself. And a gang expert may have speculated that it 

could have been heat of passion. It could have been. Or as Officer Carsten 

testified to in his opinion it appeared to be a gang case. And that would be 

speculation on both sides. And that’s the ultimate decision of fact that the 

jury has to reach. 

“They reached that decision of fact. Took them an hour to reach 

their verdict. 
40. 

“And I’m going to deny the motion for a new trial. I don’t believe 

there is a reasonable probability or possibility that the verdict would have 

been different.” 

DISCUSSION

I. Denial of defendant’s motions for new trial; legal error

 Based on the procedural history set forth ante, defendant contends the court 

abused its discretion when it denied his motion for new trial based on the resignation of 

the defense expert, Hurtado. Defendant argues the court should have granted a new trial 

based on an alleged error of law when it denied his motion for mistrial, and for the 

ineffective assistance of his defense counsel which led to the resignation of his defense 

gang expert. 

Defendant contends the court’s denial of his new trial motion resulted in the 

violation of his constitutional rights to due process, a fair trial, and effective assistance of 

counsel. Defendant further argues that the constitutional violations were prejudicial 

because the jury only heard testimony from the prosecution’s expert, Officer Carsten, 

about his interpretation of defendant’s possible gang status and defendant’s conduct as 

depicted on the surveillance videotape. Defendant asserts that the court’s refusal to grant 

a mistrial or a continuance prevented the jury from hearing the contrary opinions from a 

defense gang expert that the evidence showed he attacked Gallegos because of his anger 

about Echavarria and his heat of passion; he did not intend to murder Gallegos; he was 

not a member of the Nortenos; he did not discuss the stabbing with other Norteno 

members at the bar; and he did not commit the stabbing to benefit the Nortenos. 

In this section, we will review whether the court properly denied defendant’s 

motion for a new trial based on the allegation that the court committed an error of law 

when it denied his motion for mistrial. In issue II, we will review the court’s denial of 

defendant’s new trial motion based on the alleged violation of his right to effective 

assistance of counsel. 
41. 

A. Motion for new trial

A motion for new trial may be granted when the court has “erred in the decision of 

any question of law arising during the course of the trial ....” (§ 1181, subd. 5.) “A trial 

court’s ruling on a motion for new trial is so completely within that court’s discretion that 

a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of 

that discretion. [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) This 

standard of review is deferential but “it is not empty .... [I]t asks in substance whether the 

ruling in question ‘falls outside the bounds of reason’ under the applicable law and the 

relevant facts [citations].” (People v. Williams (1998) 17 Cal.4th 148, 162.) 

B. The court’s denial of defendant’s motion for mistrial

 Defendant contends the court should have granted his posttrial motion for new 

trial because it committed an error of law when it denied his midtrial motion for mistrial. 

We must thus review the court’s denial of his motion for mistrial. 

 “A trial court should grant a mistrial only when a party’s chances of receiving a 

fair trial have been irreparably damaged,...” (People v. Bolden (2002) 29 Cal.4th 515, 

555.) “Whether a particular incident is incurably prejudicial requires a nuanced, factbased analysis. The trial court is entrusted with broad discretion in ruling on mistrial 

motions. [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) 

“We review a trial court’s order denying a motion for mistrial under the 

deferential abuse of discretion standard. [Citation.] ‘Under this standard, a trial court’s 

ruling will not be disturbed, and reversal of the judgment is not required, unless the court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted 

in a manifest miscarriage of justice.’ [Citation.]” (People v. Dunn (2012) 205 

Cal.App.4th 1086, 1094 (Dunn).) 

C. Carrillo

In the instant case, defendant brought a motion for mistrial while the prosecution 

was presenting its case, and immediately upon notifying the court that Hurtado, the 
42. 

defense expert, had resigned and would not appear at trial. Defense counsel argued the 

court should grant a mistrial because defendant could not receive a fair trial without the 

testimony of a defense expert. The trial court denied the motion based on Carrillo v. 

Superior Court, supra, 145 Cal.App.4th 1511, stating that Carrillo held that it was “ ‘an 

extremely rare event’ ” to grant a mistrial because of the perceived ineffectiveness of 

defense counsel, and that “ ‘a far safer practice’ ” was for the court to intervene “ ‘only in 

ruling on posttrial motions following a conviction, if indeed a conviction occurs. It is 

unwise for a judge to declare a mistrial due to counsel’s alleged ineffectiveness because 

it’s a chancy business to predict a verdict a jury may have returned in this case.’ ” (RT 

338-339) 

The trial court’s reliance on Carrillo in this case was misplaced. Carrillo involved 

a complex situation triggered by a trial court’s decision to grant a mistrial on its own 

motion, and without the defendant’s consent, based on its belief that the defense counsel 

in that case was prejudicially ineffective because he allowed the jury to hear evidence 

about a coerced confession. The trial court discharged the jury without the defendant’s 

consent, and over defense counsel’s repeated objections that he had valid tactical reasons 

for his trial strategy. When the prosecution tried to retry the defendant, he argued that 

principles of double jeopardy barred retrial because the court discharged the jury without 

his consent. (Carrillo, supra, 145 Cal.App.4th at pp. 1520-1522, 1524, 1528.) 

Carrillo agreed and held that in such circumstances, a defendant could not be 

retried if he did not consent to the mistrial and the discharge of the jury, unless the trial 

court’s decision had been based on “legal necessity.” (Carrillo, supra, 145 Cal.App.4th 

at pp. 1523-1524.) Carrillo focused on three cases which “held that ineffective 

assistance of counsel may, in extreme circumstances, constitute legal necessity for a 

mistrial. (People v. Manson (1976) 61 Cal.App.3d 102 ...; People v. McNally (1980) 

107 Cal.App.3d 387 ...; People v. Coleman (1992) 9 Cal.App.4th 493 ....)” (Carrillo, 

supra, 145 Cal.App.4th at p. 1525, italics added.) 
43. 

“Where, as here, a trial court becomes convinced that defense 

tactics are denying a defendant a fair trial, the proper course of action, in 

the absence of the type of extreme circumstances described in Manson, 

McNally and Coleman, is to allow the case to proceed to judgment and then 

consider whether the defendant is entitled to a new trial. [Citations.] This 

is what should have occurred in this case. Once [defense counsel] became 

aware of the trial court’s willingness to declare a mistrial, the decision as to 

the extent of the prejudice allegedly caused by [defense counsel’s] decision 

to introduce [defendant’s] confession was for [defendant] and his counsel. 

[Citation.] The trial court’s decision to declare a mistrial stripped 

[defendant] of his right to maintain primary control over his trial and may 

well have compromised his effort to prove his innocence.” (Carrillo, 

supra, 145 Cal.App.4th at p. 1529, italics added.)29

Carrillo concluded that there was no “legal necessity” for the trial court’s sua 

sponte declaration of a mistrial and discharge of the jury without the defendant’s consent 

and, as a result, the defendant could not be retried. (Carrillo, supra, 145 Cal.App.4th at 

p. 1529.) 

1. Analysis

 As applied to the instant case, the trial court improperly relied on Carrillo when it 

denied defendant’s motion for mistrial and held that the matter should be deferred until 

after the verdict. Carrillo did not hold that a trial court could never grant a motion for 

mistrial based on ineffective assistance in the absence of “legal necessity” or “extreme 

circumstances,” or that such motions should always be deferred until the conclusion of 

the trial. (Carrillo, supra, 145 Cal.App.4th at p. 1529.) Instead, Carrillo addressed a far 

more complex situation involving the definition of legal necessity for granting a mistrial 

 29 In the instant case, the trial court read this language into the record as 

justification for the denial of defendant’s motion for mistrial. The trial court in this case 

also cited additional language from State v. Harrison (Iowa 1998) 578 N.W.2d 234, 239, 

a case relied on by Carrillo, which held that a trial court’s sua sponte declaration of a 

mistrial because of perceived inadequacy of defense counsel should be “an extremely rare 

event. Even where an inadequacy exists, a far safer practice would be for the court to 

intervene only in ruling on posttrial motions following a conviction – if indeed a 

conviction occurs. [Citation.]” (Ibid., italics added; Carrillo, supra, 145 Cal.App.4th at 

p. 1529.) 
44. 

motion and discharging the jury without a defendant’s consent, and whether such orders 

implicated principles of double jeopardy and barred retrial. Carrillo was particularly 

critical of the trial court’s failure in that case to realize that defense counsel’s tactical 

decision about the coerced confession would not have constituted ineffective assistance if 

the defendant expressly agreed with the decision, the court’s failure to determine whether 

the defendant and defense counsel had discussed this strategic decision, and whether the 

defendant expressly waived his right to exclude the coerced confession. (Ibid.) 

 In contrast to Carrillo, defense counsel in this case expressly moved for a mistrial

based on the sudden resignation of Hurtado, the defense gang expert, in the middle of 

trial. If the court had granted the mistrial motion, it would have been with defendant’s 

consent to discharge the jury, and defendant could have been retried without determining 

whether the mistrial motion was properly based on “legal necessity.” (See, e.g., Carrillo, 

supra, 145 Cal.App.4th at p. 1528.) The trial court in this case incorrectly asserted that 

Carrillo limited consideration of motions for mistrial based on ineffective assistance, and 

the better practice was to defer the legal issues until there was a verdict. 

 We note that Carrillo criticized the trial court in that case for failing to determine 

whether the defendant consented to his defense attorney’s tactical decisions, which would 

have eliminated the ineffective assistance concerns. In this case, the trial court 

apparently failed to evaluate whether there were any alternatives to defendant’s motion 

for a mistrial, or whether it could address the situation without waiting for the verdict. 

D. Dunn

While the court’s reliance on Carrillo may have been misplaced, that does not 

mean that it necessarily abused its discretion when it denied defendant’s motions for new 

trial and mistrial. 

A situation very similar to the instant case was addressed in Dunn, supra, 205 

Cal.App.4th 1086, where the trial court denied a motion for mistrial after the defense 

expert failed to appear. In that case, the defendant was charged with the sexual 
45. 

molestation of a child. Near the end of the prosecution’s case, defense counsel advised 

the court that his retained expert witness was unavailable to testify because of scheduling 

conflicts; the witness had not been subpoenaed and would not appear; and he could not 

find a substitute. Defense counsel had expected the retained expert to testify about 

whether there was physical evidence that the defendant performed an alleged sexual act 

on the victim. (Id. at pp. 1093-1094, 1095.) 

Dunn extensively discussed how to review whether a mistrial should be granted 

“when an expert witness retained by the moving party (or any other witness expected to 

testify on behalf of the moving party) unexpectedly becomes unavailable or otherwise 

does not appear at trial.” (Dunn, supra, 205 Cal.App.4th at p. 1094, fn. omitted.) Dunn

compared the situation to those addressed in motions for new trial, which “should be 

granted when necessary ‘to insure an accused a fair trial.’ [Citation.]” (Id. at p. 1095.) 

Dunn held the following four factors should be considered to determine whether 

the court should have granted the defendant’s motion for mistrial based on the 

unavailability of the expert witness: 

“(1) [T]he defendant’s diligence in securing the attendance of the witness 

[citations]; (2) the defendant’s use of available alternative means to obtain 

the desired evidence [citations]; (3) the defendant’s fault for the witness’s 

nonappearance [citations]; and (4) the nature of the testimony expected 

from the witness and its probable effect on the outcome of the trial 

[citations].” (Dunn, supra, 205 Cal.App.4th at p. 1095.) 

Dunn held the trial court did not abuse its discretion based on these factors. First, 

while the defendant did not subpoena the expert, Dunn acknowledged it was not 

customary for a party to subpoena his own retained expert witness, and this factor was 

not particularly relevant to the situation. (Dunn, supra, 205 Cal.App.4th at p. 1096.) 

Second, the defendant did not use “available alternative means” to obtain the expert’s 

testimony. (Ibid.) “He did not request a continuance of the trial, present a declaration 

from or offer to depose [the expert], or seek a stipulation from the People as to [the 
46. 

expert’s] credentials or the substance of her expected testimony that could be read to the 

jury.” (Ibid.) Dunn held that the defendant’s “failure to at least explore these options” 

supported the court’s denial of his mistrial motion. (Ibid.) 

Dunn held that as to the third factor, the defendant was “not entirely free from 

fault” regarding the expert’s inability to testify. (Dunn, supra, 205 Cal.App.4th at p. 

1096.) 

“... [Defense counsel] knew before trial commenced that [the expert] was 

scheduled to leave for vacation near the time of trial. He therefore should 

have communicated more effectively with her and made more definitive 

arrangements to secure her appearance at trial. Although ordinarily that 

would not include service of a subpoena on [the expert] because she was a 

retained expert witness, the combination of counsel’s inability to contact 

her during trial and her potential unavailability suggested the need for a 

subpoena.” (Id. at p. 1096.) 

Dunn held that the fourth factor was the most important because the expert’s 

expected testimony “would not have changed the result of the trial.” (Dunn, supra, 205 

Cal.App.4th at p. 1096.) The defense expert was expected to testify that there was no 

physical evidence that the victim’s vagina was penetrated. However, Dunn noted that the 

charged offense did not require penetration of the victim’s vagina. (Id. at pp. 1096-

1098.) “Nothing in [the expert’s] expected testimony could have had any impact on the 

controlling law the jury had to apply. [Citation.]” (Id. at p. 1098.) 

“Thus, because [the expert’s] expected testimony concerning penetration 

would not have contradicted [the prosecution expert’s] testimony or 

negated the People’s legally sufficient theory of the case, [the expert’s] 

testimony would not have affected the result of the trial, a factor further 

supporting the trial court’s denial of [the] mistrial motion. [Citations.]” 

(Ibid., fn. omitted.) 

Dunn also addressed the defendant’s argument that his due process rights were 

violated in the absence of the defense expert’s testimony, because “ ‘the “battle of the 

experts” and the reasonable inferences therefrom created the realistic possibility’ of a 

better outcome for him at trial,” since the defense expert’s expected opinion would have 
47. 

differed from the prosecution’s expert about the nature of the victim’s physical injuries. 

(Dunn, supra, 205 Cal.App.4th at p. 1099.) Dunn rejected these arguments and held 

there was no factual foundation to support the defendant’s claim because defense counsel 

“conceded he had not discussed” these particular issues with the defense expert. Defense 

counsel “simply advised” the court “of his intention” to ask the expert about this topic. 

(Ibid., italics added.) 

“In sum, all of the factors enumerated above ..., except the due 

diligence factor to which we attribute little weight ..., support the trial 

court’s denial of [defendant’s] motion for mistrial. We therefore conclude 

the absence of [the defense expert’s] testimony did not irreparably damage 

[defendant’s] chances of receiving a fair trial, and the court did not abuse 

its discretion in denying the motion. [Citation.]” (Id. at pp. 1099-1100.) 

Finally, Dunn concluded that even if the trial court erroneously denied defendant’s 

motion for mistrial, based on the expert’s failure to appear, the error was harmless under 

either Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 

818, because the evidence of defendant’s guilt, “ ‘though [partially] circumstantial, was 

tight and strong.’ [Citation.]” (Dunn, supra, 205 Cal.App.4th at p. 1100.) The victim 

offered a detailed account of the sexual molestation, several witnesses corroborated 

various aspects of the sexual assault because they heard the victim tell the defendant to 

get off of her, the victim subsequently developed a sexually transmitted disease, and 

defendant tested positive for that same disease. (Ibid.) 

1. Analysis

We now apply Dunn’s analysis to the court’s denial of defendant’s motion for 

mistrial based on Hurtado’s resignation as the defense expert. Based on the first factor, 

defense counsel exercised diligence in this case because he retained Hurtado just after the 

information was filed and obtained an order for Hurtado to interview defendant in jail. 

As in Dunn, defense counsel did not subpoena Hurtado, but Dunn noted that it was not 
48. 

customary for a party to subpoena his own witnesses. (Dunn, supra, 205 Cal.App.4th at 

p. 1096.) 

An analysis of the second factor weighs against defendant because he did not even 

attempt to use available alternative means to somehow secure Hurtado’s testimony. As in 

Dunn, defendant did not offer to depose the expert in order to obtain his testimony. More 

importantly, however, defendant did not request a continuance and refused the court’s 

offer of a short continuance to determine whether he could convince Hurtado to return, or 

investigate possible alternatives to Hurtado’s appearance. Defendant’s failure to “at least 

explore these options” supported the court’s denial of his mistrial motion. (Dunn, supra, 

205 Cal.App.4th at p. 1096.) 

An analysis of Dunn’s third factor – the defendant’s fault for the witness’s 

nonappearance – also weighs against defendant. As in Dunn, defendant was “not entirely 

free from fault” for Hurtado’s resignation from the case. (Dunn, supra, 205 Cal.App.4th 

at p. 1096.) Defense counsel was aware that Hurtado had potential scheduling problems 

with the December trial because of his academic schedule. More importantly, defendant 

was aware of Hurtado’s anger about various aspects of the case based on Hurtado’s 

e-mail of December 9, 2010. Hurtado accused defense counsel of not protecting his 

interests. He was upset that he had to produce a written report for discovery so close to 

trial, that the prosecution was challenging his credibility as an expert, and that he had to 

appear at an evidentiary hearing for the court to determine whether he could testify as an 

expert. 

Based on the instant record, however, the prosecution was not engaging in 

improper tactics when it asked the defense to comply with discovery and produce a report 

from the expert, or when it requested a hearing on the witness’s qualifications as a 

potential gang expert. Indeed, defense counsel could have requested the same type of 

hearing or conducted voir dire on Officer Carsten’s qualifications as a gang expert. (See, 

e.g., Evid. Code, §§ 405, 720; People v. Watson (2008) 43 Cal.4th 652, 692; People v. 
49. 

Hill (2011) 191 Cal.App.4th 1104, 1120-1123; People v. Brown (2001) 96 Cal.App.4th 

Supp. 1, 36.) The record strongly implies that defense counsel did not explain this matter 

to Hurtado, or Hurtado erroneously believed that the court lacked jurisdiction to 

determine if he qualified as a gang expert. Defense counsel was aware of Hurtado’s 

reaction as of December 9, 2010, based on the e-mail that he received with the report. 

The combination of counsel’s conflicts with Hurtado and his potential unavailability 

during a December trial “suggested the need for a subpoena.” (Dunn, supra, 205 

Cal.App.4th at p. 1096.) 

Dunn’s fourth factor as to whether the mistrial should have been granted is based 

on “the nature of the testimony expected from the witness and its probable effect on the 

outcome of the trial [citations].” (Dunn, supra, 205 Cal.App.4th at p. 1095.) When 

defendant moved for the mistrial in this case, it was difficult for the trial court to evaluate 

the nature of the testimony that Hurtado would have offered. Hurtado’s belated 

discovery report was limited to the conflicting evidence about whether defendant was a 

member of the Norteno gang. Hurtado’s report did not address the surveillance 

videotape, whether the videotape showed that defendant was in the bar with the other 

Norteno gang members, whether it showed that the other gang members were watching 

Gallegos, and whether defendant stabbed the victim because he was dancing with 

Echavarria. Hurtado’s report also failed to address any aspects of the charged offense of 

attempted murder and defendant’s motive. 

Defendant argued that the trial court should grant a mistrial because there would 

be no defense expert to counter Officer Carsten’s expert testimony. Dunn rejected a 

similar argument that a mistrial should have been granted simply because the lack of a 

defense expert eliminated the possibility of a “battle of experts” and “ ‘the reasonable 

inferences therefrom created the realistic possibility’ of a better outcome for him at trial,” 

since the defense expert’s expected opinion would have differed from the prosecution’s 

expert about the nature of the victim’s physical injuries in that case. (Dunn, supra, 205 
50. 

Cal.App.4th at p. 1099.) While defendant may have planned to ask Hurtado about the 

videotape and other issues not included in his written report, there was no evidence that 

defendant discussed these particular issues with the defense expert or that the expert had 

reviewed the videotape, and defense counsel “simply advised” the court “of his intention” 

to ask the expert about these topics. (Ibid., italics added) 

While the trial court erroneously relied on Carrillo when it denied defendant’s 

motion for mistrial, it also made specific findings about the nature of defendant’s case at 

the time of the mistrial ruling. 

“So far, the defense in this case has been ‘I didn’t do it. It wasn’t me.’ So 

far. ‘No one can identify me.’ There has been attacks on the video and the 

credibility of whether or not somebody actually can see the defendant do 

what he’s charged with doing. So first off, he’s claiming ‘I didn’t do it,’ at 

least so far. And let alone that, ‘I’m not a gang member.’ If they find you 

didn’t do it, whether or not there’s gang testimony or not, is irrelevant. It 

doesn’t matter.” 

The court accurately summarized defense counsel’s cross-examination of the 

prosecution’s witnesses up to that point. While defense counsel may have requested jury 

instructions on heat of passion, it was not clear whether defendant or any other witness 

was going to offer evidence to support the potential theory that the stabbing constituted 

an attempted voluntary manslaughter performed in the heat of passion and for personal 

reasons because of the victim’s relationship with Echavarria, instead of an attempted 

murder of a Sureno, committed in a bar frequented by Nortenos, for the benefit of the 

Norteno gang, or even if defendant’s prior relationship with Echavarria contributed to his 

motive to commit the offense to benefit the gang. 

 Based on the record before the trial court, we cannot say that it abused its 

discretion when it denied defendant’s motion for mistrial even though it relied on an 

erroneous interpretation of Carrillo. The court similarly did not abuse its discretion when 

it denied defendant’s motion for new trial based on an alleged error of law when it denied 

his motion for mistrial. 
51. 

 In reaching this conclusion, we are mindful that a criminal defendant has the due 

process right to the assistance of expert witnesses, if necessary, to prepare his defense. 

(Ake v. Oklahoma (1985) 470 U.S. 68, 83 (Ake); People v. San Nicolas (2004) 34 Cal.4th 

614, 661.) “[A] criminal trial is fundamentally unfair if the State proceeds against an 

indigent defendant without making certain that he has access to the raw materials integral 

to the building of an effective defense....” (Ake, supra, 470 U.S. at p. 77.) The 

constitutional right to the effective assistance of counsel has been found to provide 

additional support for the entitlement to defense experts. (People v. Stuckey (2009) 175 

Cal.App.4th 898, 917.) The California Supreme Court has held that “the right to counsel 

guaranteed by both the federal and state Constitutions includes, and indeed presumes, the 

right to effective counsel [citations], and thus also includes the right to reasonably 

necessary ancillary defense services. [Citations.]” (Corenevsky v. Superior Court (1984) 

36 Cal.3d 307, 319, fns. omitted (Corenevsky); Mason v. Arizona (9th Cir. 1974) 504 

F.2d 1345, 1351.)30

As we have explained, however, we cannot say that the court’s ruling in this case 

was prejudicial, based on the nature of the appellate record. The only evidence about the 

possible expert testimony consisted of Hurtado’s rather sparse and belatedly-prepared 

report for discovery purposes. That report failed to address the crucial issues in this case, 

particularly whether the surveillance videotape showed that defendant entered the bar and 

associated with other Norteno members; whether they repeatedly watched the victim’s 

conduct in the bar; and whether defendant stabbed the victim because of his alleged anger 

about Echavarria. Thus, given the nature of the appellate record, we cannot find that the 

trial court’s denial of both the mistrial and new trial motions were prejudicial. 

 30 While a criminal defendant may have the right to the appointment of an expert, 

as part of the right to effective assistance of counsel, a defendant does not have a federal 

Constitutional right to the effective assistance of an expert or any other witness. (People 

v. Samayoa (1997) 15 Cal.4th 795, 838.) 
52. 

II. Denial of new trial motion; ineffective assistance

 Defendant also moved for a new trial based on the denial of his right to effective 

assistance of counsel as a result of the resignation of the defense expert. As explained 

above, defendant’s motion for new trial was prepared by the same retained attorney who 

represented him during trial, and supported by that attorney’s declaration, so that counsel 

effectively argued his own ineffective assistance during trial. 

A. New trial/ineffective assistance

A motion for new trial may be granted based on the nonstatutory ground of alleged 

ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582; 

People v. Reed (2010) 183 Cal.App.4th 1137, 1143.) “Although ineffective assistance of 

counsel is not among the grounds enumerated for ordering a new trial under ... section 

1181, motions alleging ineffective assistance are permitted pursuant to ‘the constitutional 

duty of trial courts to ensure that defendants be accorded due process of law.’ [Citation.] 

We review such orders for an abuse of discretion. [Citation.]” (People v. Callahan

(2004) 124 Cal.App.4th 198, 209.) 

 To prevail on a claim of ineffective assistance on a motion for new trial, the 

defendant must demonstrate that counsel’s performance fell below an objective standard 

of reasonableness under prevailing professional norms, and counsel’s deficient 

representation prejudiced the defendant, i.e., there is a “reasonable probability” that, but 

for counsel’s failings, defendant would have obtained a more favorable result. 

(Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland); People v. Andrade

(2000) 79 Cal.App.4th 651, 659-660.) “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 

694.)31

 31 While defense counsel in this case was retained, the same standard for 

ineffective assistance applies to both retained and appointed counsel. (Cuyler v. Sullivan

(1980) 446 U.S. 335, 344-345; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) 
53. 

 In many cases, however, a claim of ineffective assistance is more appropriately 

decided pursuant to a petition for writ of habeas corpus. (People v. Jones (2003) 30 

Cal.4th 1084, 1105; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) 

B. The trial court’s ruling

 When the court in this case denied defendant’s motion for new trial, it rejected 

defendant’s ineffective assistance arguments about Hurtado’s resignation and held “it’s 

not reasonable to believe that another outcome would have occurred had the defense 

called Mr. Hurtado or any other gang expert.” (RT 709) 

“No special expertise is required to evaluate the video and determine what 

the motivation in the attack was. A lay person without any gang expertise 

can watch the video and determine whether this assault was a coordinated 

attack by the defendant and other individuals who were validated Norteno 

gang members. The gang expert could not render any opinion about what 

was happening in the video other than speculation based on what the video 

shows. That’s essentially what Officer Carsten testified to. Officer Carsten 

could not testify that this was absolutely a gang – gang attack. It appeared 

to him that it was a gang attack. It appeared to him that it was a gang 

attack. And taking in all the evidence and all the other materials, it 

appeared to him that [in] his opinion it was a gang attack. But, again, 

that’s really up to the jurors to make that decision. And the jurors can 

make that decision by looking at the video and listening to the testimony. 

But to me, the persuasive evidence is the jury. 

“And [defense counsel] argued all of those issues before the jury. He got 

most of what Mr. Hurtado was going to testify to out of Officer Carsten. 

The jury just didn’t buy it.” (Italics added.) 

 Defendant contends the court’s ruling was erroneous because it failed to 

acknowledge that defense counsel’s conflict with Hurtado, and his failure to retain 

another expert, allowed the jury to hear Officer Carsten’s testimony as the only expert 

opinion on the gang issues and the interpretation of the security videotape. 

C. Datt

In People v. Datt (2010) 185 Cal.App.4th 942 (Datt), the court addressed a similar 

issue involving defense counsel’s ineffectiveness and the absence of a defense expert. In 
54. 

Datt, officers pursued a vehicle which failed to pull over for a traffic stop. After a 

lengthy chase, the driver stopped the car and ran away through a residential area. About 

30 minutes later, officers found the defendant hiding in a backyard. The officer who 

pursued the car identified the defendant as the driver who ran from the vehicle. The 

defendant was charged with numerous felony offenses. (Id. at pp. 944-946) 

Datt rejected the defendant’s contention that his trial counsel was prejudicially 

ineffective for failing to present expert testimony at trial on the reliability of eyewitness 

identification. The defendant argued an expert’s testimony on this topic would have been 

the only way for the jury to evaluate whether the officer correctly identified him as the 

driver who fled from the car. (Datt, supra, 185 Cal.App.4th at p. 952.) 

Datt held that the defendant failed to show prejudice, “that his trial counsel could 

have presented any favorable expert testimony. Defendant’s attempt to fill this gap at the 

hearing on his new trial motion fell short. Defendant produced testimony that a 

reasonably competent attorney would have consulted an expert on eyewitness 

identification, but his witness conceded that she did not know whether defendant’s trial 

counsel had consulted such an expert. And she admitted that the decision as to whether 

to call such an expert to testify at trial would have depended on whether the expert ‘said 

they could help me.’ ” (Datt, supra, 185 Cal.App.4th at pp. 952-953, italics in original.) 

Datt concluded that the defendant failed to establish that his trial counsel failed to consult 

an expert or that such an expert would have been able to provide favorable testimony. 

(Id. at p. 953.) 

D. Analysis

 The court denied defendant’s new trial motion for defense counsel’s alleged 

ineffective assistance significantly based on its belief that the images on the surveillance 

videotape could not have been explained any differently if defense counsel had called 

Hurtado or another defense expert. On appeal, defendant speculates that the jury was 

unable to clearly watch the videotape during trial and that it likely did not watch the 
55. 

videotape during deliberations. However, the videotape was played for the jury during 

Officer Carsten’s testimony, and there is no evidence that it was unable to view the tape 

during the trial itself. 

Our review of the videotape shows defendant was in the bar with several other 

men, whom Officer Carsten identified as Norteno gang members – Madrid, Cervantez, 

and the Ruiz brothers. The men were generally dressed in black or white, with the 

exception of one man, identified as Bro, in a red shirt. The bar’s security guard testified 

that Gallegos, the victim, entered the bar with a blue bandana, and displayed it two more 

times while he was there. However, Carsten never testified that the videotape showed the 

victim displaying the bandana, and it was not clear whether the victim’s head tattoos 

were visible to defendant and his presumed associates. There is no evidence that gang 

slurs or slogans were shouted before, during, or after the stabbing. While defendant’s 

associates assumed various strategic vantage points on and around the dance floor, they 

did not surround or restrain the victim before or during the stabbing. The videotape 

seems to show that Bro was closely monitoring Gallegos’s general location on the dance 

floor and defendant’s movements around the bar, while Madrid stood off to the side and 

appeared to watch everyone else. The videotape showed that defendant walked up and 

stabbed the victim in the back, by himself and without assistance, and then he ran away 

by himself. His associates resumed their positions in the bar, and they were still there 

when the police arrived. 

The court denied the new trial motion and held it was up to the jury to determine 

whether the stabbing was gang-related, that Officer Carsten only offered his opinion and 

speculation about what was depicted on the videotape, and “the jurors can make that 

decision by looking at the video and listening to the testimony.” In making this ruling, 

however, the court ignored the possibility that while a defense expert would have likely 

addressed the same factual issues discussed by Carsten, an expert might have offered 

different opinions from the facts and circumstances of the stabbing. 
56. 

The record in this case raises several concerns about defense counsel’s conduct 

after Hurtado resigned, particularly his failure to request a continuance or accept the 

court’s offer of a “short” continuance. However, “a court need not determine whether 

counsel’s performance was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies,” and in many cases, an ineffective 

assistance claim may be disposed of “on the ground of lack of sufficient prejudice.” 

(Strickland, supra, 466 U.S. at p. 697.) Defendant “must carry his burden of proving 

prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors 

or omissions of counsel. [Citation.]” (People v. Williams (1988) 44 Cal.3d 883, 937.) 

Even if defense counsel was ineffective for failing to take various steps after 

Hurtado resigned, we cannot conclude that defendant was prejudiced or that the 

testimony of any other gang expert would have affected the verdict, based on the 

appellate record before this court. While defendant’s motion for new trial alleged 

ineffective assistance, his motion was not supported by any declarations or exhibits that 

would have demonstrated the possible prejudice from defense counsel’s failure to make 

any attempt to secure another expert during trial. Defendant failed to establish trial 

counsel could have presented a defense expert who would have provided favorable 

testimony to refute Officer Carsten’s opinions about the crucial aspects of the stabbing, or 

that the offer of a short continuance was inadequate. It would be “simply speculation” to 

find a reasonable probability that the defendant would have obtained a more favorable 

result. (People v. Williams, supra, 44 Cal.3d at p. 937.) 

III. Allegations of juror inattentiveness

 Defendant contends the court failed to conduct an adequate inquiry into 

allegations that a juror fell asleep during the trial, and his conviction must be reversed 

because it is impossible to determine from the record whether the jury heard the disputed 

testimony. 
57. 

A. Background

 On December 9, 2010, defendant’s jury trial began with opening statements and 

the prosecution case. Toward the end of the afternoon, defense counsel was crossexamining Shon Kekauoha, the bar’s security guard, about his review of the photographic 

lineup. The court interrupted the examination and had the following exchange with 

someone in the courtroom: 

 “THE COURT: Excuse me. Is there something going on out 

there? 

 “AUDIENCE: The juror was falling asleep. 

 “THE COURT: Which juror? 

 “AUDIENCE: The young lady in the black, the third one. 

 “THE COURT: You know, if you feel yourself dozing a little 

bit or nodding off, let me know. We’ll stand up. Sometimes it can get kind 

of warm in here. 

 “A JUROR: She’s right. 

 “THE COURT: If you have a problem, talk to the bailiff. Don’t 

be chitchatting back and forth, okay. Thank you. 

“[DEFENSE COUNSEL]: Judge, were you talking to me? 

“THE COURT: No. I’m talking to the people in the audience.” 

The court further advised the audience: “If you have an issue or if you see a 

problem, talk to the bailiff, and he’ll take care of it.” Defense counsel resumed his crossexamination of Kekauoha. Shortly afterwards, the court excused the jury for the day. 

The court and the parties discussed jury instructions, and the court adjourned. Defense 

counsel did not address the juror’s status or ask the court to conduct any further inquiry. 

B. Analysis

 A defendant has a constitutional right to an impartial jury is protected by the trial 

court’s authority to replace a juror for good cause, which includes sleeping through a 
58. 

material portion of the trial. (§ 1089; People v. Bradford (1997) 15 Cal.4th 1229, 1349 

(Bradford); In re Hamilton (1999) 20 Cal.4th 273, 293-294.) 

 “Once a trial court is put on notice that good cause to discharge a juror may exist, 

it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine 

whether the juror should be discharged. [Citation.] We have recently explained, 

however, that the mere suggestion of juror ‘inattention’ does not require a formal hearing 

disrupting the trial of a case. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 821 

(Espinoza).) 

Both the scope of such inquiry and the ultimate decision whether to retain or 

discharge a juror are committed to the sound discretion of the trial court. (People v. 

Bonilla (2007) 41 Cal.4th 313, 350.) “[A] hearing is required only where the court 

possesses information which, if proven to be true, would constitute ‘good cause’ to doubt 

a juror’s ability to perform his duties and would justify his removal from the case. 

[Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 343.) If any substantial evidence 

exists to support the trial court’s exercise of its discretion, the court’s action will be 

upheld on appeal. (Bradford, supra, 15 Cal.4th at p. 1351.) 

“The court does not abuse its discretion simply because it fails to investigate any 

and all new information obtained about a juror during trial.” (People v. Ray, supra, 13 

Cal.4th at p. 343.) Although a juror’s sleeping through a material portion of the trial may 

be good cause for the discharge of the juror (People v. Bonilla, supra, 41 Cal.4th at p. 

350; Bradford, supra, 15 Cal.4th at pp. 1348-1349), information that amounts to no more 

than mere speculation that a juror is sleeping does not trigger the court’s duty to 

investigate. (Espinoza, supra, 3 Cal.4th at p. 821.) 

 Discharge of a juror is not required absent evidence the juror was asleep for a 

substantial period of material portions of the trial. (Bradford, supra, 15 Cal.4th at 

p. 1349.) For example, Espinoza held that defense counsel’s speculation that a juror 

might have been sleeping was insufficient to apprise the trial court that good cause might 
59. 

exist to discharge the juror, and therefore did not obligate the court to conduct any further 

inquiry. (Espinoza, supra, 3 Cal.4th at p. 821.) In People v. DeSantis (1992) 2 Cal.4th 

1198, the trial court closely observed several jurors to determine whether they were 

asleep, and determined that none were dozing. DeSantis held that the trial court’s “selfdirected inquiry” was sufficient, and that a more formal hearing was not required under 

the circumstances. (Id. at pp. 1233-1234.) 

Bradford held the trial court did not abuse its discretion when it failed to conduct 

an inquiry into alleged juror inattentiveness, when the court and defense counsel 

acknowledged that a juror appeared to be asleep on parts of two days. (Bradford, supra, 

15 Cal.4th at pp. 1348, 1349.) Bradford cited the absence of any reference in the record 

to the juror’s inattentiveness “over a more substantial period,” and defense counsel’s 

failure to allege juror misconduct or request a hearing on the subject “further indicates 

that the juror’s conduct had not warranted such a hearing.” (Id. at p. 1349.) 

 In this case, the court did not abuse its discretion when it addressed an audiencemember’s allegations that a juror might have been asleep. The court immediately 

addressed the jurors and encouraged them to ask for a break if they felt they were “dozing 

a little bit or nodding off.” It is noteworthy that neither the prosecutor nor defense 

counsel agreed with the audience-member’s statements or asked the court to further 

investigate the matter. The court’s comments indicated that it was alert to the possible 

risk of jurors falling asleep and properly conducted its own “self-directed inquiry.” 

(People v. DeSantis, supra, 2 Cal.4th at pp. 1233-1234.) Based on its own observations, 

the court adequately responded to the comments of the anonymous member of the 

audience, and it was not required to further investigate based on the record before it. As 

in Bradford, defense counsel’s failure to request a hearing or assert misconduct by a 

particular juror, at the time of this incident or later in the trial, “further indicates that the 

juror’s conduct had not warranted such a hearing.” (Bradford, supra, 15 Cal.4th at 

p. 1349.) We will not speculate based on the record before this court. 
60. 

IV. Defendant’s objections to Officer Carsten’s expert testimony

 In our discussion of Officer Carsten’s trial testimony, we noted several instances 

where Carsten testified to his belief about what the videotape showed, and the trial court 

overruled defense counsel’s objections based on speculation and other grounds. 

Defendant contends the court abused its discretion when it overruled his objections, and 

that Carsten improperly testified based on pure speculation about what happened in the 

bar that night. 

 “California law permits a person with ‘special knowledge, skill, experience, 

training, or education’ in a particular field to qualify as an expert witness [citation] and to 

give testimony in the form of an opinion [citation]. Under Evidence Code section 801, 

expert opinion testimony is admissible only if the subject matter of the testimony is 

‘sufficiently beyond common experience that the opinion of an expert would assist the 

trier of fact.’ [Citation.] The subject matter of the culture and habits of criminal street 

gangs ... meets this criterion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 

617.) 

 “ ‘[T]he admissibility of expert opinion is a question of degree. The jury need not 

be wholly ignorant of the subject matter of the opinion in order to justify its admission; if 

that were the test, little expert opinion testimony would ever be heard. Instead, the statute 

declares that even if the jury has some knowledge of the matter, expert opinion may be 

admitted whenever it would “assist” the jury. It will be excluded only when it would add 

nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry 

is one of such common knowledge that men of ordinary education could reach a 

conclusion as intelligently as the witness.” ’ [Citation.]” (People v. McAlpin (1991) 53 

Cal.3d 1289, 1299-1300.) The trial court exercises broad discretion in determining the 

admissibility of expert testimony, and its ruling will not be disturbed on appeal absent a 

manifest abuse of discretion. (People v. Davenport (1995) 11 Cal.4th 1171, 1207.) 
61. 

 A gang expert’s overall opinion is typically based on information drawn from 

many sources and on years of experience, which in sum may be reliable. (People v. 

Gonzalez (2006) 38 Cal.4th 932, 949.) Expert testimony about the “ ‘culture and 

habits’ ” of a criminal street gang include testimony “about the size, composition or 

existence of a gang [citations], gang turf or territory [citations], an individual defendant’s 

membership in, or association with, a gang [citations], the primary activities of a specific 

gang [citations], motivation for a particular crime, generally retaliation or intimidation 

[citations], whether and how a crime was committed to benefit or promote a gang 

[citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand 

signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 

Cal.App.4th 644, 656-657, fns. omitted, disapproved on other grounds in People v. Vang

(2011) 52 Cal.4th 1038, 1047-1048.) 

 The court did not abuse its discretion when it overruled defendant’s objections to 

Officer Carsten’s testimony about the conduct of defendant and the other men as depicted 

on the videotape. Carsten did not exceed the proper bounds of gang testimony by giving 

his opinion about a gang member’s subjective knowledge and intent. (See, e.g., People v. 

Killebrew, supra, 103 Cal.App.4th at pp. 647, 657-659; In re Frank S. (2006) 141 

Cal.App.4th 1192, 1196, 1199.) Instead, Cartsen testified about his interpretation of the 

videotape, an exhibit which was played for the jury and introduced into evidence. 

Carsten testified that defendant was in the bar with well-recognized members of the 

Norteno gang, and he identified them by their names and locations in the bar – that 

defendant entered the bar with Tommy Madrid; the Ruiz brothers, Gilbert Salazar, and 

Alex Cervantez were also at the bar; defendant and these men interacted with each other, 

and they also interacted with the man in the red shirt, known only as Bro. Based on his 

examination of the videotape, Carsten also testified to his opinion that these men were 

talking with each other before the stabbing; and that they were posting to watch Gallegos 

on the dance floor, and to also watch the area around themselves. The jury was capable 
62. 

of watching the videotape and determining whether defendant entered the bar with 

Madrid, the men were talking and associating with each other, and the men were 

watching Gallegos. 

 At one point during his testimony, Officer Carsten opined that defendant and the 

other men were likely talking about Gallegos. His opinion was based on his observations 

of the videotape, that defendant and his associates were talking with each other, and they 

were looking at the dance floor, in Gallegos’s direction, before defendant walked behind 

Gallegos and stabbed him. While such testimony may have been speculative, any error in 

its admission is necessarily harmless given the nature of defense counsel’s crossexamination. Carsten conceded that the videotape was silent and did not have an audio 

track, none of the witnesses in the bar testified about overhearing the conversations that 

occurred between defendant and the other men, and he did not know whether defendant 

and the other men were talking about Gallegos. However, Carsten explained that his 

opinion was based on his observations of the videotape, that defendant and the other men 

appeared to be looking toward Gallegos’s direction, and they were talking about each 

other as they looked at him. 

 Officer Carsten’s opinion testimony was based on his interpretation of the 

videotape, and did not constitute inadmissible speculation evidence. (Cf. People v. 

Ramon (2009) 175 Cal.App.4th 843, 851.) 

V. CALCRIM No. 1401

 Defendant was charged and convicted of attempted murder, and the jury found the 

gang enhancement true pursuant to section 186.22, subdivision (b). Defendant contends 

the gang enhancement must be stricken because the jury did not receive the complete 

version of CALCRIM No. 1401, which defines the elements of the gang enhancement. 

Both defendant and the People agree that the court correctly read the full version 

of CALCRIM No. 1401 to the jury; they also agree that the printed version of CALCRIM 

No. 1401 omitted the definition of a gang’s primary activities as certain enumerated 
63. 

crimes. Defendant argues the error is prejudicial and requires the gang enhancement to 

be stricken. The People argue the error is harmless since the court read the full 

instruction to the jury. 

A. Primary activities

 Section 186.22, subdivision (f) defines a criminal street gang as “any ongoing 

organization, association, or group of three or more persons, whether formal or informal, 

having as one of its primary activities the commission of one or more of the criminal acts 

enumerated [in section 186.22, subdivision (e)], having a common name or common 

identifying sign or symbol, and whose members individually or collectively engage in or 

have engaged in a pattern of criminal gang activity.” 

“To trigger the gang statute’s sentence-enhancement provision (§ 186.22, subd. 

(b)), the trier of fact must find that one of the alleged criminal street gang’s primary 

activities is the commission of one or more of certain crimes listed in the gang statute.” 

(People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) These enumerated offenses 

include assault with a deadly weapon, robbery, unlawful homicide or manslaughter, sale, 

possession for sale, transportation and/or manufacture of narcotics; shooting at an 

inhabited dwelling or occurred vehicle, grand theft, witness intimidation, burglary, and 

carjacking. (§ 186.22, subd. (e).) 

 “Evidence of past or present conduct by gang members involving the commission 

of one or more of the statutorily enumerated crimes is relevant in determining the group’s 

primary activities. Both past and present offenses have some tendency in reason to show 

the group’s primary activity [citation] and therefore fall within the general rule of 

admissibility [citation].” (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) 

B. The instructions

 Both defendant and the People agree that the court correctly read the following 

version of CALCRIM No. 1401 to the jury, which defined the elements of the gang 

enhancement: 
64. 

 “To prove this allegation, the People must prove that: One, the 

defendant committed the crime for the benefit of, at the direction of, or in 

association with a criminal street gang, and; Two, the defendant intended to 

assist, further, or promote criminal conduct by gang members. 

 “A criminal street gang is any ongoing organization, association, or 

group of three or more persons, whether formal or informal, that has: One, 

a common name or common identifying sign or symbol; Two, that has, as 

one or more of its primary activities, the commission of murder, attempted 

murder, robbery, car jacking, assault with a deadly weapon, witness 

intimidation, auto theft, grand theft; Three, whose members, whether acting 

alone or together, engaged in or having engaged in a pattern of criminal 

gang activity. 

 “In order to qualify as a primary activity, the crime must be one of 

the group’s chief or principal activities rather than an occasional act 

committed by one or more persons who happen to be members of a 

group....” (Italics added.) 

Both defendant and the People also agree that the printed instruction, contained in 

the clerk’s transcript, completely omitted the language italicized above, which defined 

the gang’s primary activities. The italicized language was the only part of the instruction 

which was omitted. 

C. Conflicts between written and oral instructions

 The parties agree that the printed version of CALCRIM No. 1401 omitted the 

phrase which defined certain offenses as a gang’s primary activities. The parties disagree 

about the impact of this omission. 

 “ ‘It is generally presumed that the jury was guided by the written instructions.’ 

[Citations.] The written version of jury instructions governs any conflict with oral 

instructions. [Citations.] Consequently, as long as the court provides accurate written 

instructions to the jury to use during deliberations, no prejudicial error occurs from 

deviations in the oral instructions. [Citations.]” (People v. Rodriguez (2000) 77 

Cal.App.4th 1101, 1112-1113.) 

 We are presented with the opposite situation: the court correctly read CALCRIM 

No. 1401, but the written instruction erroneously omitted the definition of a gang’s 
65. 

primary activities. There is no indication in the minute order that the court gave the 

printed instructions to the jury during deliberations, or the jury asked for the printed 

instructions. When the court began to read the instructions to the jury, however, it stated 

that it would “give you a copy of the instructions to use in the jury room.” 

 “Although this court gives priority to the written version of an instruction when a 

conflict exists between the written and oral versions, the jury is not informed of this 

rule.” (People v. Wilson (2008) 44 Cal.4th 758, 804.) In a criminal trial, “not every 

ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due 

process violation. The question is ‘ “whether the ailing instruction ... so infected the 

entire trial that the resulting conviction violates due process.” ’ [Citations.]” (Middleton 

v. McNeil (2004) 541 U.S. 433, 437; Estelle v. McGuire (1991) 502 U.S. 62, 72; People 

v. Huggins (2006) 38 Cal.4th 175, 192.) “ ‘[I]t must be established not merely that the 

instruction is undesirable, erroneous, or even “universally condemned,” but that it 

violated some [constitutional] right ....’ ” (Donnelly v. DeChristoforo (1974) 416 U.S. 

637, 643, fn. omitted; Estelle v. McGuire, supra, 502 U.S. 62, 72.) Correct oral 

instructions, the jury’s awareness of differences between the written and oral instructions, 

and the weight of evidence against the defendant are all factors considered in determining 

whether or not an erroneous instruction was harmless. (People v. Wilson, supra, 44 

Cal.4th 758, 804.) 

D. Analysis

 Under the heightened constitutional standard of review, “before a federal 

constitutional error can be held harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. 18, 

24.) There are several factors which demonstrate that the omission in the written 

instruction was harmless. The entirety of the record reflects that the existence of the 

Nortenos as a criminal street gang was established by overwhelming evidence, and that 

the defense never challenged the existence of the gang itself. Officer Carsten testified 
66. 

that the Nortenos were a criminal street gang in Tulare County, they were associated with 

the Nuestro Familia prison gang, the gang claimed the color red and the number 14, and 

there were approximately 300 Nortenos in Tulare County. 

Officer Carsten testified the primary activities of the Norteno street gang in Tulare 

County included robbery, carjacking, murder, attempted murder, auto theft, burglary, 

shooting at inhabited dwelling, witness intimidation, and drug transactions. Carsten had 

personally investigated vandalisms, robberies, burglaries, carjackings, witness intimation 

incidents, and auto thefts involving Nortenos. Carsten also testified about two predicate 

offenses committed by active members of the Nortenos in Tulare County, consisting of 

armed robbery, second degree murder, and voluntary manslaughter. 

In closing argument, the prosecutor argued the Nortenos were a criminal street 

gang as required by statute, and cited Officer Carsten’s testimony about the predicate 

offenses of murder and manslaughter committed by other members of the Nortenos. The 

prosecutor also cited Carsten’s testimony that the primary activities of the Nortenos 

included “murder, attempted murder, assault with a deadly weapon, carjacking, witness 

intimidation. List goes on what these guys do and how random.” 

Defense counsel extensively cross-examination Officer Carsten about several 

issues, but he did not challenge Carsten’s testimony about the very existence of the 

Nortenos as a criminal street gang in Tulare County. In his closing argument, defense 

counsel did not challenge the premise that the Nortenos were a criminal street gang, but 

pointed out that there was no evidence that defendant committed any of the predicate 

offenses or any other gang-related crimes. 

Finally, the jury heard the full and correct version of CALCRIM No. 1401 when 

the court read the instructions. As we have already noted, while the court “gives priority 

to the written version of an instruction when a conflict exists between the written and oral 

versions, the jury is not informed of this rule. It is thus possible the jury followed the oral 

instruction.” (People v. Wilson, supra, 44 Cal.4th at p. 804.) Even if the jury received 
67. 

the written instructions, there is no indication that it was aware of the difference between 

the oral and written versions of CALCRIM No. 1401 since it did not ask any questions on 

this point. (People v. Wilson, supra, at p. 804.) 

Based on these circumstances, we find the omission of the primary activities 

definition in the written version of CALCRIM No. 1401 was harmless beyond a 

reasonable doubt. (Chapman v. California, supra, 386 U.S. at pp. 23-24; People v.

Wilson, supra, 44 Cal.4th at p. 804.) 

VI. CALCRIM No. 1403

 Defendant raises two challenges to CALCRIM No. 1403 regarding the limited 

purpose of gang evidence. First, he argues the court misread an introductory phrase in 

the instruction’s first paragraph, which allegedly led the jury to believe that it had a 

mandatory duty to rely on the gang evidence for certain purposes. 

Second, defendant contends the court selected the wrong optional language and 

improperly used the phrase “gang-related crime” instead of “gang-related enhancement” 

when it read the instruction to the jury. 

A. Limited admissibility of gang evidence

 We begin with the limited admissibility of gang evidence. “California courts have 

long recognized the potential prejudicial effect of gang evidence. As a result, our 

Supreme Court has condemned the introduction of such evidence ‘if only tangentially 

relevant, given its highly inflammatory impact.’ [Citations.] Because gang evidence 

creates a risk that the jury will infer that the defendant has a criminal disposition and is 

therefore guilty of the charged offense, ‘trial courts should carefully scrutinize such 

evidence before admitting it.’ [Citation.]” (People v. Samaniego (2009) 172 Cal.App.4th 

1148, 1167 (Samaniego).) 

 “Gang evidence should not be admitted at trial where its sole relevance is to show 

a defendant’s criminal disposition or bad character as a means of creating an inference 

the defendant committed the charged offense. [Citations.]” (People v. Sanchez (1997) 58 
68. 

Cal.App.4th 1435, 1449.) “Nonetheless, evidence related to gang membership is not 

insulated from the general rule that all relevant evidence is admissible if it is relevant to a 

material issue in the case other than character, is not more prejudicial than probative, and 

is not cumulative. [Citations.]” (Samaniego, supra, 172 Cal.App.4th at p. 1167.) 

 “Gang evidence is relevant and admissible when the very reason for the 

underlying crime, that is the motive, is gang related. [Citation.] ‘ “[B]ecause a motive is 

ordinarily the incentive for criminal behavior, its probative value generally exceeds its 

prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” 

[Citations.]’ [Citations.] Gang evidence is also relevant on the issue of a witness’s 

credibility. [Citations.]” (Samaniego, supra, 172 Cal.App.4th at pp. 1167-1168, italics 

added.) 

CALCRIM No. 1403 is the appropriate instruction on the limited admissibility of 

gang evidence. The court does not have a sua sponte to give the limiting instruction, but 

it must be given when requested by a party and supported by the evidence. (People v. 

Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) CALCRIM No. 1403 is “neither 

contrary to the law nor misleading. It states in no uncertain terms that gang evidence is 

not admissible to show that the defendant is a bad person or has a criminal propensity. It 

allows such evidence to be considered only on the issues germane to the gang 

enhancement, the motive for the crime and the credibility of witnesses.” (Samaniego, 

supra, 172 Cal.App.4th at p. 1168.) 

 CALCRIM No. 1403 is not limited to only being given in cases where a defendant 

has been charged with either the gang substantive offense pursuant to section 186.22, 

subdivision (a), or the gang enhancement pursuant to section 186.22, subdivision (b). In 

cases not involving section 186.22, “evidence of gang membership is often relevant to, 

and admissible regarding, the charged offense. Evidence of the defendant’s gang 

affiliation ... can help prove identity, motive, modus operandi, specific intent, means of 

applying force or fear, or other issues pertinent to guilt of the charged crime. 
69. 

[Citations.]” (People v. Hernandez, supra, 33 Cal.4th 1040, 1049.) As explained in 

Samaniego, CALCRIM No. 1403 is relevant and appropriate in such cases when gang 

evidence is introduced regarding a defendant’s “motive and credibility.” (Samaniego, 

supra, 172 Cal.App.4th at pp.1168-1169.) 

B. Mandatory/permissive language

 With this background in mind, defendant contends the court erroneously used 

mandatory language when it read the first paragraph of CALCRIM No. 1403 to the jury. 

As given in this case, the written version of CALCRIM No. 1403 was consistent 

with the pattern instruction and contained the permissive language of “may” or “may 

not,” as italicized below: 

“You may consider evidence of gang activity only for the limited purpose 

of deciding whether: 

 “The defendant acted with the intent, purpose, and knowledge that 

are required to prove the gang-related crime and enhancements charged; 

 “OR 

 “The defendant had a motive to commit the crime charged. 

“You may also consider this evidence when you evaluate the 

credibility or believability of a witness and when you consider the facts and 

information relied on by an expert witness in reaching his or her opinion 

“You may not consider this evidence for any other purpose. You may 

not conclude from this evidence that the defendant is a person of bad 

character or that he has a disposition to commit crime.” (Italics added.) 

 As the parties agree, the court read the following version of the first paragraph of 

CALCRIM No. 1403: 

 “You must consider or you may consider evidence of gang activity 

only for the limited purpose of deciding whether the defendant acted with 

the intent, purpose, and knowledge that are required to prove the gangrelated crime and enhancements charged or the defendant had a motive to 

commit the crime charged.” (Italics added.) 
70. 

As illustrated ante, when the court read the first sentence of the first paragraph of 

CALCRIM No. 1403, it initially and erroneously said that the jury “must consider.” 

However, the court immediately corrected itself and said in that same sentence that the 

jury “may consider” the gang evidence for limited purposes. The parties agree that the 

court correctly read the rest of the instruction, using the permissive “may” or “may not” 

as required by the pattern instruction, and it did not repeat the error. 

Defendant now contends that the court’s erroneous use of the phrase “must 

consider” in the first sentence of the first paragraph of CALCRIM No. 1403 was 

prejudicial. Defendant argues that when the court used the mandatory word “must,” the 

jury likely believed that it was required to rely on the gang evidence. 

Defendant’s argument is meritless. First, while defendant requested CALCRIM 

No. 1403, he did not object to the court’s use of “must” instead of “may.” Having failed 

to do so, he has forfeited review of the issue. (Hernandez, supra, 33 Cal.4th at p. 1051.) 

Second, it is not reasonably likely the jury interpreted the instruction in the manner 

suggested by defendant because the court immediately corrected the mistake before it 

even completed the sentence. “[N]ot every ambiguity, inconsistency, or deficiency in a 

jury instruction rises to the level of a due process violation....” (Middleton, supra, 541 

U.S. at p. 437.) The trial court’s misstatement was brief and promptly corrected, and it is 

not reasonably likely that the jury misunderstood or misapplied the instruction given the 

court’s immediate correction of its momentary mistake. (People v. Smithey (1999) 20 

Cal.4th 936, 963; People v. Stansbury (1993) 4 Cal.4th 1017, 1060, reversed on other 

grounds in Stansbury v. California (1994) 511 U.S. 318.) The court correctly read the 

rest of the instruction using the permissive “may,” the jury received the correct written 

instruction, and the jury was not faced with the task of attempting to resolve a conflict 

between the oral and written versions. “[M]isreading instructions is at most harmless 

error when the written instructions received by the jury are correct.” (People v. Box

(2000) 23 Cal.4th 1153, 1212.) 
71. 

C. “Gang-related” offense

 Defendant raises a second issue about CALCRIM No. 1403, based on the court’s 

selection of certain optional language in the first paragraph, as provided by the pattern 

instruction. The pattern instruction for CALCRIM No. 1403 offers the following options 

for the first paragraph, as italicized below: 

“You may consider evidence of gang activity only for the limited purpose 

of deciding whether: [¶] [The defendant acted with the intent, purpose, 

and knowledge that are required to prove the gang-related (crime[s]/ [and] 

enhancement[s]/ [and] special circumstance allegations) charged(;/.)] ....” 

(Italics added.) 

As set forth ante, the court read the first paragraph of CALCRIM No. 1403 to the 

jury as follows: 

 “You must consider or you may consider evidence of gang activity 

only for the limited purpose of deciding whether the defendant acted with 

the intent, purpose, and knowledge that are required to prove the gangrelated crime and enhancements charged or the defendant had a motive to 

commit the crime charged.” (Italics added.)32

Defendant cites to the phrase “the gang-related crime,” as italicized ante, and 

argues the court erroneously used this phrase when it read CALCRIM No. 1403 to the 

jury in this case. Defendant notes that the disputed issue was whether the charged 

substantive offense of attempted murder was a gang-related crime. Defendant argues that 

when the court used the phrase “gang-related crime” in CALCRIM No. 1403’s first 

paragraph, it essentially directed the jury to find that the charged offense of attempted 

murder was a gang-related crime, and that the jury did not have to address or consider 

that disputed issue. 

 

32 In contrast to the other instructional issues raised in this case, the jury received 

the identical language about the “gang-related crime” in both the written and verbal 

versions of the CALCRIM No. 1403. 
72. 

Defendant asserts that the phrase “gang-related crime” should only be used when a 

party is charged with the gang substantive offense pursuant to section 186.22, subdivision 

(a), which was not alleged in this case. Defendant further asserts that the court should 

have instructed the jury that it could consider the gang evidence for the proof of the gangrelated enhancement, which would have accurately described the charges in this case. 

As with his other instructional issues, defendant did not object to the version of 

CALCRIM No. 1403 given by the court or ask the court to modify the instructional 

language. (Hernandez, supra, 33 Cal.4th at p. 1051.) “Generally, ‘ “[a] party may not 

complain on appeal that an instruction correct in law and responsive to the evidence was 

too general or incomplete unless the party has requested appropriate clarifying or 

amplifying language.” ’ [Citations.]” (Samaniego, supra, 172 Cal.App.4th at p. 1163.) 

Having failed to do so, he has forfeited review of this issue. 

In any event, we find it is not reasonably likely the jury interpreted the instruction 

in the manner suggested by defendant. “Motive is always relevant in a criminal 

prosecution.” (People v. Perez (1974) 42 Cal.App.3d 760, 767.) Gang evidence is 

relevant and admissible “when the very reason for the underlying crime, that is the 

motive, is gang related. [Citation.]” (Samaniego, supra, 172 Cal.App.4th at p. 1167, 

italics added.) Aside from allegations of the gang enhancement, evidence of a 

defendant’s gang membership and activity may be separately relevant to his motive and 

intent for committing the charged substantive offense against a rival or suspected rival 

(People v. Funes (1994) 23 Cal.App.4th 1506, 1517-1519; People v. Williams (1997) 16 

Cal.4th 153, 193-194); or when criminal activity has been preceded by gang signs or 

identification (People v. Villegas (2001) 92 Cal.App.4th 1217, 1222, 1224). 

 In this case, the court properly admitted the gang evidence as relevant and 

probative for the section 186.22, subdivision (b) gang enhancement, and also for 

defendant’s motive and intent to commit the charged offense of attempted murder. The 

prosecution’s theory of the case was that defendant was guilty of attempted murder and 
73. 

not some lesser offense, based on evidence that defendant was a Norteno, he was at the 

bar with other Nortenos, they saw Gallegos enter the bar, Gallegos showed the blue 

bandana and had Sureno tattoos, and defendant attempted to murder Gallegos because of 

the gang rivalry and to gain respect from the Nortenos. While defendant admitted that he 

stabbed Gallegos, he testified that he was upset because of his prior relationship with 

Echavarria, he knew he was too intoxicated to fight with Gallegos, and he decided to stab 

him instead. Defense counsel argued that defendant was not guilty of attempted murder 

but might be guilty of attempted voluntary manslaughter because he acted in the heat of 

passion, while he was drunk, when he saw Echavarria with Gallegos. 

 The gang evidence was thus relevant to establish defendant’s motive and intent to 

murder Gallegos because of the Norteno/Sureno gang rivalry, and not because he was 

upset that Gallegos was there with a former girlfriend. The gang evidence was also 

relevant and admissible to prove the elements of the gang enhancement. Given the dual 

relevancy of the evidence, the court did not commit error when it instructed the jury that 

it could consider the gang evidence to determine whether defendant committed “the 

gang-related crime and enhancements charged or the defendant had a motive to commit 

the crime charged.” 

VII. Prosecutorial misconduct/closing argument

 In the course of his testimony, Officer Carsten testified about two predicate 

offenses committed by members of the Norteno gang in Tulare County. One of these 

offenses involved a homicide committed by Norteno gang members Javier Solis and 

Richard Contreras on May 7, 2007. Defendant was not involved in either of the predicate 

offenses. 

 Defendant contends the prosecutor committed prejudicial misconduct during 

closing argument because he discussed detailed facts about Solis/Contreras case which 

Officer Carsten had not testified about. Defendant argues the prosecutor’s reference to 

facts not in evidence was prejudicial because he addressed a particularly violent and 
74. 

random crime committed by the Norteno gang, which could have been compared with the 

stabbing in this case. Defendant acknowledges his defense counsel did not object to the 

alleged misconduct, and alternatively argues defense counsel was prejudicially 

ineffective for failing to object. 

A. Prosecutorial misconduct/ineffective assistance

“A prosecutor’s misconduct violates the Fourteenth Amendment to the United 

States Constitution when it ‘infects the trial with such unfairness as to make the 

conviction a denial of due process.’ [Citations.] In other words, the misconduct must be 

‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ 

[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair 

nevertheless violates California law if it involves ‘the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole

(2004) 33 Cal.4th 1158, 1202.) “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.’ [Citations.]” (Id. at pp. 1202-1203.) 

A prosecutor commits misconduct if he or she mischaracterizes or misstates the 

evidence, or refers to facts not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 823, 

827-828, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 

1069, fn. 13; People v. Benson (1990) 52 Cal.3d 754, 794-795.) 

“As a general rule a defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion – and on the same ground – the defendant made an 

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at p. 841.) 

 Defendant concedes that defense counsel did not object to any of his alleged 

appellate claims of prosecutorial misconduct. In the alternative, defendant argues that his 

attorney was prejudicially ineffective for failing to object. “To establish ineffective 
75. 

assistance, defendant bears the burden of showing, first, that counsel’s performance was 

deficient, falling below an objective standard of reasonableness under prevailing 

professional norms. Second, a defendant must establish that, absent counsel’s error, it is 

reasonably probable that the verdict would have been more favorable to him. 

[Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds 

in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th 

82, 89.) 

B. Trial evidence about predicate offenses

 We begin with Officer Carsten’s testimony about the Contreras/Solis homicide 

case as one of the predicate offenses required to prove the Nortenos were a criminal street 

gang in Tulare County. 

“The victim in this case was walking on North Highland Street in the 

City of Visalia. He was with another male friend and a female. They were 

walking on North Highland when they were contacted by three individuals. 

These three individual were Richard Contreras, Javier Solis, and Daniel 

Contreras. The ... two Contreras and the Solis males, they stopped when 

they meet these three walking down the road. One of the Contreras or Solis 

was on a bike. The other two were on foot. They stop when they meet 

these other three and ask them if they know where they are, and ‘Did you 

know that you’re on our block?’ And the victims at that point were 

attacked. ... Eric Villagomez, was knocked down and beaten as was the 

victim, Matthew Main. Richard Contreras stabbed Matthew Main during 

this fight. Villagomez was also stabbed in the arm. Matthew Main died 

from his injuries.” 

 Officer Carsten testified that Solis and Richard Contreras were active members of 

the Norteno gang when they committed the offenses. Carsten also testified to his opinion 

that the offenses were “representative of the primary activities of the Norteno street 

gang.” 

The prosecution introduced certified copies of documents from the Contreras/Solis 

case. These documents included the information, which alleged jointly charged 

Contreras and Solis with murder of Main, with a gang special circumstance, and the 
76. 

substantive gang offense; Contreras was separately charged with attempted murder of 

Villagomez; and Solis was separately charged with assault with a deadly weapon, a knife, 

on Villagomez. The information also alleged gang and personal use (knife) 

enhancements. 

The certified documents also showed that Contreras pleaded guilty to second 

degree murder of Main, attempted murder of Villagomez, admitted to gang and weapon 

(knife) enhancements, and was sentenced to 23 years to life. Solis pleaded guilty to 

voluntary manslaughter of Main, assault with a deadly weapon of Villagomez, admitted 

gang, weapon (knife) and great bodily injury enhancements, and was sentenced to 25 

years to life. 

C. Closing argument

The abstract of judgments and minute orders state that Jason Liandes, the 

prosecutor in this case, was also the prosecutor when Contreras and Solis entered their 

pleas. In his closing argument in this case, Liandes addressed the Contreras/Solis 

predicate offense: 

 “You have Javier Solis and Richard Contreras. In that case, that was 

a murder case. A victim by the name of Matthew Main was walking down 

the street with Eric Villagomez and Erica Enos. They were walking 

towards Houston Street when three Nortenos, all juveniles, approached 

from the opposite direction on the opposite side of the street. One of them 

from the Norteno group said, ‘What are you doing on our block?’ These 

three victims just, ‘I don’t know.’ How do you respond to that? Just kind 

of laughed. All right. Just kind of laughed. Laughed it off. 

 “Richard Contreras’ little brother, Daniel Contreras, and Javier Solis 

were all part of this Norteno group. Richard Contreras was on a bicycle. 

These three people, Erica, Eric, and Matthew left Erica Enos’ house. They 

were about a block away from their house. All right. 

 “Richard Contreras on the bicycle circles back around, rolls up next 

to Eric Villagomez, flips out a knife, jumps off the bike, and immediately 

attacks Eric Villagomez. The other two, Javier and his little brother Daniel, 

joined in the attack. 
77. 

 “Eric Villagomez gets down on his knees and like a fetal protection 

to protect his head where the knife comes right in his shoulder as he’s 

protecting his head. 

 “At this time, Matthew Main, just outside of high school, goes over 

to protect Eric Villagomez. The three then turn their attention on him. And 

Richard Contreras stabs Matthew Main three times and lays bleeding in the 

street. And as the three of them take off, they yell ‘Norte. This is our 

street.’ That’s the group that this person belongs to. 

 “And is this crime any different? These are the primary activities of 

the Norteno street gang. 

 “And you can look at their convictions, Javier Solis and Richard 

Contreras. Richard Contreras pled out to second degree murder and 

attempted murder on Eric Villagomez. That random encounter, is that 

really anything different than this? Is that anything different than this?” 

 Defense counsel briefly referred to the Contreras/Solis case in his closing 

argument, and said that it was a foundational crime “to show that this is gang-related,” 

and that Solis was “found guilty” of voluntary manslaughter.” 

In rebuttal argument, the prosecutor explained the prior offenses were introduced 

to “show that the members of the Norteno gang do these primary type activities.” The 

prosecutor also pointed out that he was the prosecutor in the Contreras/Solis case and, 

contrary to defense counsel’s statement, Contreras and Solis were not convicted after a 

jury trial but they entered pleas, as indicated in the certified documents. 

D. Analysis

 Defendant never objected to the prosecutor’s discussion of the Solis/Contreras 

case during closing argument and has waived any prosecutorial misconduct claims. 

However, he argues defense counsel was prejudicially ineffective for failing to object. In 

making this ineffective assistance argument, however, defendant has failed to show the 

requisite prejudice. 

The majority of the prosecutor’s discussion about the Contreras/Solis case was 

based on facts which were introduced before the jury, either through Officer Carsten’s 
78. 

testimony or the documentary exhibits. The prosecutor briefly strayed from Carsten’s 

testimony, however, when he mentioned that Contreras rode his bicycle around the 

victims; that he jumped off the bicycle to stab Villagomez; that Solis and Daniel 

Contreras joined in the attack; that Villagomez went into the fetal position to protect his 

head while the knife came into his shoulder; that Main tried to protect Villagomez; and 

that Richard Contreras stabbed Main three times. 

 However, these facts were peripheral to the contested issues in this case – whether 

defendant attempted to murder Gallegos for the benefit of the Nortenos. Defense counsel 

never challenged the evidence in support of the predicate offenses, except to clarify that 

defendant was not involved in either offense. The prosecutor’s limited discussion of facts 

not in evidence did not raise the inference that defendant was involved in the 

Solis/Contreras case. Defense counsel’s failure to object was not prejudicial because 

defendant never challenged the underlying facts for the predicate offense or the 

evidentiary issue as to whether the Nortenos were a criminal street gang. 

DISPOSITION

 The judgment is affirmed. 

 _____________________ 

Poochigian, Acting P.J. 

WE CONCUR: 

 _____________________ 

Detjen, J. 

 _____________________ 

Franson, J.