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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
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 Superi or Court of Tulare County. Darryl B. Ferguson, Judge. Victor Blumenkrantz, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Julie A. Hokans and Jeffrey A. White, Deputy Attorney s General, for Plaintiff and Respondent.-ooOooINTRODUCTION Appellant/defendant Jesus Nabarette An guiano stabbed Benny Gallegos in the back of the head an d neck while Gallegos was at a ba r and dancing with defendant’s2. former girlfriend. Gallegos survived the assa ult. The bar’s secur ity cameras depicted defendant’s conduct immediately before and duri ng 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 memb er of the gang, de fendant 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 adm itted that he stabbed Gallego s, 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 testifie d that he attacked Ga llegos 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 specia l allegations that he personally used a deadly or dangerous weapon in th e 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 e ligibility date set at 15 years pursuant to section 186.22, subdivision (b). The court also imposed consecutive terms of three years for the great bod ily injury enhancement, one year for the dangerous weapon enhancement, and one y ear for the prior prison term enhancement. On appeal, defendant raises several i ssues based on a conflict that developed between his retained defense attorney and his retained de fense gang expert. As the prosecution was presenting its case, defens e 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 Pe nal Code unless otherwise indicated.3. moved for a mistrial because he could not con tinue without an expert. The court denied the motion and held that defenda nt could file a motion for new trial if he was convicted and the gang enhancement was found true. Af ter the verdict, defendant filed a motion for new trial and argued that his constitutional ri ghts to due process and a fair trial were violated because the court should have gran ted his motion for mistrial when the defense gang expert quit. The court denied th e 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 cour t 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 grante d his motion for mistrial when the defense gang expert quit; he suffered prejudice becau se 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 neve r heard contrary evidence on the disputed issues of whether the offense was attempte d voluntary manslaughter committed in the heat of passion, and that it was not committed for the be nefit of a gang. Defendant also contends the court faile d to investigate whether a juror was sleeping during trial, the court improperly allo wed the prosecution’s gang expert to offer speculative testimony about the co nduct of defendant and other people depicted on the bar’s surveillance videotape; the court did not correctly in struct 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 tatt oos were visible. He had a “CA” tattoo on top of his head, which meant “C alifornia.” A tattoo on the side of his head said “My4. 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 ha d a tattoo on the back of his head which said: “BPM.” It meant “Brown Pride Mexican,” which wa s his “hood” in Corcor an, 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 de rogatory word for Surenos. Gallegos testified he was wearing khaki pa nts, and a white and black striped shirt when he entered the bar that night. Galle gos admitted that he had a black bandana hanging out of his back pock et. 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 show ing 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 la rge numbers; predominat ely red shirts, red jerseys, red hats. It was more or less uno fficially known as a No rteno 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 pa trons 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 a rrived at the bar, he was showing a blue bandana out of his back po cket. 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 a nd entered the bar with his girlfriend. Kekauoha testified that once Gallegos wa s inside the bar, he pulled the blue bandana out of his pocket and displayed it. Kekauoha agai n told Gallegos to put away the bandana, and Gallegos complied. Late r in the evening, Kekauoha saw Gallegos dancing while the blue band ana was wrapped around his kn uckles. Another security guard told Gallegos to put the bandana away. Kekauoha testified that despite the ad monishments about the bandana, Gallegos appeared to be “minding his own business” while he danced with his girlfriend. Gallegos testified he did not have any conf licts 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 an y gang slurs. Howeve r, 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 wh en 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 wa s 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 th e bar that night. He did not know Gallegos, but he saw the tattoos on the back of Gallegos’s head an d thought Gallegos was connected to a gang. Mendoz a testified that he saw a ma n “creep up” behind Gallegos,6. and “the guy just struck” Gallegos twice in th e back of his head. Mendoza testified the suspect was holding a small, sharp object in his hand. Kekauoha testified that he felt some tensi on in the bar that ni ght, but there were no fights or assaults. He sudden ly saw an unknown male rush behind Gallegos on the dance floor. The assailant raised his arm and “cam e down the back of [Gallegos’s] head.” Gallegos’s head jerked forward, and the a ssailant 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 st op the suspect because he believed the man still had a knife. Once the suspect le ft the bar, Kekauoha chased him from a distance. The suspect ran away by hims elf. After chasing him for a few blocks, Kekauoha broke off the pursuit because he wa s concerned the man might have a firearm. The initial investigation Around 11:00 p.m., police o fficers 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 foun d Deliliah Echavarria outside th e bar, and then drove her to the hospital where Gallegos had been take n. Echavarria told Cressall that “she was with her boyfriend [Gallegos] inside the ba r 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 recogn ize the suspect. Officer Cressall testified that Echavarria sa id the suspect’s name was “Jesse,” and she recognized him from a previous confr ontation at the “Blitz” bar, when the man

3 Gallegos was in the hospital for two or th ree days and returned to work within one week. He suffered at least two scars on th e back of his head and a scar on his right hand. At the time of trial, he still ha d sharp pains in the back of his head.7. brandished a weapon at her. 4 Echavarria said that about on e week later, she was at “WalMart” and saw “Jesse” as he was “driving arou nd the parking lot,” a nd said he gave her “menacing looks.” Identification of defendant The police did not identify a suspect un til Detective Luma Fahoum reviewed the bar’s security videotape, whic h depicted the activities of va rious patrons before, during, and after the stabbing. Fah oum, 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 pe rson who walked toward the victim, had an altercation with the victim, a nd then ran out of the bar. On January 20, 2010, Dete ctive 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 ha d seen his photo identification. Later that same day, Detective Lampe pr epared another photographic lineup which contained defendant’s picture from his driver’s license. Ke kauoha looked at the second photographic lineup, and identified defe ndant as the person who stabbed Gallegos. Echavarria’s statement On January 25, 2010, De tective Lampe interviewed Deliliah Echavarria after she had repeatedly refused to spea k to the police or return th eir 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 woul d find her. Echavarria seemed hesitant and nervous about giving a statemen t to the police, but she was not under the influence of drugs or alcohol. Echavarria said she had been dating Galle gos since the prior year, and she went out exclusively with him. Echavarria iden tified defendant from the photographic lineup as the man who stabbed Gallegos. Echa varria 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 testifie d 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 defe ndant; she never talked to the police about the stabbing; she never accused defendant of botheri ng her before the stabbing; and she never said defendant stabbe d Gallegos. Echavarria testified she could not remember anything because she was “always high.” On further examination, Echavarria even tually 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 insist ed that she did not k now where it happened because she was drunk and high that night.

5 Echavarria had been subpoenaed by the pr osecution, she failed to appear, and she was taken into custody just before her trial testimony.
6 Echavarria had tattoos of three stars ar ound 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 th at she knew defendant befo re she knew Gallegos, and that she previously went out with defendant. Echavarria cl aimed her previous statements about defendant were false b ecause 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 s ecurity 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 su spect and his companion walked toward a group of males. They stood and spoke with them. The suspect walk ed through the crowd to the dance floor. The suspectappeared to reach into his right pocket. The suspect stepped behind Gallegos, wh ile Gallegos faced the opposite direction. The suspect stabbed Gallegos in the back of the head, a nd then he ran out of the bar. Kekauoha testified that after reviewing the videotape, he was positive that defe ndant was the person who stabbed Gallegos. Evidence about other No rtenos 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 Madr id was a northern gang member with some “stature.” Alex Cervan tez was also a northerner.10. Evidence about defendant’s possible gang affiliation Detective Fahoum testified she knew de fendant and his brother from her prior experience in the gang unit. On April 13, 2007, Fahoum participat ed 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 r oom during the search. When Fahoum found the guns, defendant said he had them be cause “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 Asia n and southern gangs which conflicted with northerners. Detective Fahoum had never en countered defendant w ith 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 housi ng and safety purposes. Defendant initially said, “ ‘General populatio n 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 memb ership with a northern gang. THE PROSECUTION’S GANG EXPERT Visalia Police Officer Michael Carsten test ified as an expert on the Norteno gang, which had over 300 members and was the pre dominant 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 en emies of the Nortenos. The Surenos are associated with the Mexican Ma fia 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 repr esent “the northern star.” A five-pointed11. star “typically symbolizes” a completed missi on for the gang. Norteno gang members in Tulare County have al so adopted the logo fo r the Minnesota Twins, which consists of overlapping letters of “T an d C.” Carsten had seen Nort eno gang members wearing belt buckles with the letter “N”; apparel from the Nebraska Cor nhuskers, consisting of a red letter “N”; and red apparel from the Cincinnati Reds. Officer Carsten acknowledged that memb ers of the Norteno gang were not wearing red in Tulare County as frequently as before. Cars ten explained that Nortenos and other gang members have learned from th eir experiences in the court system to downplay their gang affiliations when talkin g to the police about their association with other gang members, the significance of thei r clothing and tattoos, and when asked about their affiliations while being booked. Primary activities/predicate offenses Officer Carsten testified the primary activitie s of the Norteno street gang in Tulare County included robbery, carjacking, murde r, attempted murder, au to theft, burglary, shooting at inhabited dwellings, witness intimid ation, 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 No rteno gang was to put in “work” for it, by committing a violent crime or a se ries of crimes at th e gang’s direction. A gang member would gain respect and cr edibility, 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 pred icate offenses committed by members of the Norteno gang in Tulare County, but which did not involve defendant. In December 2008, Isaac Sanchez and Dani el Quintano, active members of the Norteno gang, were convicted of armed robbery, with personal us e 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 sa id no, and they robbed him at gunpoint. In May 2007, Richard Contreras and Javier Solis, active me mbers of the Norteno gang, were convicted of, respectfully, second degree murder and voluntary manslaug hter, 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, ba sed 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 no t in their gang. On June 13, 2003, the mother of a Sureno gang member reporte d that someone was following her car. Defendant was subsequently identified as th e person who followed he r. When defendant was contacted, he was wearing a belt buckle w ith 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 20 07, when Detective Fahoum searched defendant’s house and foun d two guns, a grenade, and ammunition. Defendant said he had the firearms for pr otection because of gang tensions in the neighborhood. Carsten though t defendant’s reason was signi ficant 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 c ontentions that the prosecutor committed misconduct during closi ng argument because he alle gedly referred to facts not in evidence about the So lis/Contreras homicide.
8 While appellant/defendant’s middle name is spelled “Nabar ette” throughout the record, it is noted that it alternativ ely 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 them selves 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 No rteno, and two Norteno associates. The traffic stop was conducted beca use defendant’s car was descri bed 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 cl assification forms during the bo oking process. In January 2002, defendant indicated his enemies were “southerners.” In May 2006, defendant indicated he did not associate with any crimin al 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 de fendant was booked into jail on this case, he denied any associa tion with a street gang and asked to be placed in general population. The b ooking 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 ha d a tattoo of a “five-pointed star” on his neck, with a picture of the state of Californi a on top of it, which indicated that he was a Norteno from California. He al so 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 no t 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 defe ndant was not weari ng 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 Gallego s’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 Corc oran. Carsten testified th at he spoke to a former Corcoran police officer who iden tified 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 Ga llegos showed a blue bandana in the bar, and he had Sureno tattoos. Cars ten further testified that Ga llegos’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 ad mitted he had served time in prison.15. Deliliah Echavarria’s gang status Officer Carsten was aware of Deliliah Echa varria’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 testimon y 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 asso ciated 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 al so showed that Mike Ruiz, Felix Ruiz, and Alex Cervantez were at the bar that nigh t. Detective Fahoum testified Mike Ruiz was a Norteno; Felix Ruiz, his brother, wa s a high ranking northern gang member in Tulare County; and Alex Cerv antez 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 be lieved 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 show ed 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 A dney, another security guard at the bar, told an officer that th e stabbing suspect had entered the ba r 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 po lice report, Mike Ruiz said he was at the bar with Cervantes, but he denied knowi ng Madrid, and he claime d he never spoke to anyone else that night. Carsten testified the videotape refuted Mike Ruiz’s claims because it showed Ruiz and Ma drid “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 wa nt 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.” Cars ten testified that Salazar’s statement was important because it showed th at more than one person kne w there was going to be an attack. Officer Carsten testified about the condu ct of “posting up,” which meant “standing watch. Guarding.” Carsten testified to hi s belief that videotape showed the man in the red shirt, who was standing next to Cervan tez and Madrid, was lo oking in the general direction of the area where Gallegos was. Ca rsten believed the man in the red shirt was

12 The court overruled defendant’s objec tions 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 Cars ten’s testimony and interpretation of the videotape.17. discussing something with Madrid. At th e same time, Cervantez and Salazar were looking in the opposition direction. Officer Carsten testified to his opin ion 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 Madr id, 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 appear s to be some sort of communication between Ruiz and the others. And th ey’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 betw een 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 assa ult with Gilbert Salaza r. Carsten conceded that he could not be sure about the conversa tion because there was no sound on the tape. Carsten also conceded that he did not have any informati on that defendant previously knew the Ruiz brothers, Madrid, or Cervan tes prior to the night of the stabbing. Officer Carsten testified that the videotap e 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.” Ca rsten testified that defendant was standing next to Madrid, and they appear ed to be discussing something. Officer Carsten testified the videotape show ed that defendant wa lked to the dance floor, followed by Salazar. Sala zar stood next to Cervantes. Defendant reached into his

13 Defense counsel objected to Carsten’s opi nion testimony on this point; the court overruled the objection.18. pocket and walked up to Gallegos. Defe ndant’s hand went up and down toward Gallegos’s head as he stabbed him. Officer Carsten testified th e 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 “t ough 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 test ified 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 gotte n 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 affiliate d 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 pe rform the assault by another gang member. Carsten conceded that he did not have an y evidence that defendant received direction from anyone to attack Gallegos, but believe d 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 hi m very closely as he enters the bar. And then throughout the course of the vi deo, 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 defenda nt discussed with Ruiz, Salazar, and/or Madrid. In his expert opinion, however, he believed the videotape showed that defendant, Mike Ruiz, Salazar, and Tommy Ma drid were looking at Gallegos and talking about him. Officer Carsten conceded that the vide otape 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 ab out 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 a nd forth posting up close to a Sureno gang member, and after these i ndividuals go back and forth and communicate with each other, then the person that came into the establishment with that high ranki ng 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 opini on, the crime would ha ve 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 Su renos. This is one more attack in an attempt to take out, disable, or at least in jure a rival gang memb er.” Carsten further testified the crime would have been comm itted in association with the Norteno gang based “on persons present with the a ssailant prior to the act occurring.” Officer Carsten testified the offense woul d further the Norteno gang because of “the rivalry between Nortenos and Surenos. It’s a struggle for power. It’s a show of20. dominance. It is a direct attack against the rival. It promotes the gang. It spreads fear into other people and let’s them know th at 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 Norte no gang because Norte nos discuss and brag about their crimes with each other, and the assa ilant’s status would be elevated within the gang. “That he’s willing to attack a rival ga ng member in front of ... a group of people, not caring about himself, but ... caring more ab out attacking that ga ng member.” There was “no question” about the significance of “apublic display” of committing a crime in front of other gang members. Officer Carsten was asked about a hypoth etical 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 an d 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 th at that person would need to be punished.” The other gang members would react by standing up for their fellow gang memb er, if the girl was dating a rival gang member. Cross-examination; hy pothetical questions On cross-examination, defe nse counsel asked Officer Carsten whether a person would be a Norteno if that person went ou t 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 counse l’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 prom ote 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 pers on has no readily apparent gang tattoos, uses no gang epithets, and says no – gives no indication as to what the motivation for the assau lt is, how is that for the benefit of a street gang? “A. That by itself with no other inform ation, 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 th e 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 epit hets, no apparent gang motivation, is that correct? “A. No, I can’t say that. There is cer tainly 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 vide otape whether he was looking at Gallegos or “the woman that he dated.” DEFENDANT’S TRIAL TESTIMONY Defendant’s trial testimony wa s the only defense evidence presented. Defendant denied being a member of any gang, but th e 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 we re found in his house. He had the guns to protect his family and children because me mbers 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. Defendan t had been giving a ride to Lynette Barba when she asked defendant if Cortez and anot her man could also get a ride. Defendant explained that he did not know Cortez, that Co rtez 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, wh ich 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 woul d “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 ha d listed “southerners” as his

17 In rebuttal, Officer Carsten testified th e Oriental Troops claimed the color blue, and their rivals were the Nortenos a nd another Asian gang which claimed red.23. enemies in jail: “Well, I mean , if you run into them in ja il, 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 sociali zed 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 20 09. They started dating, and he thought they were in an exclusive relationship, although defenda nt was married to another woman. Defendant testified they br oke up because Echavarria was jealous that he had other girlfriends. Defendant testifie d that he saw Echavarria at the Blitz bar, when he was there with a couple of girlfriends. Echavarria b ecame “a little hostile” toward him, and called the girls various names. The bar’s bounc ers threw her out. Defendant denied brandishing a weapon during that incident. De fendant testified he later saw Echavarria at Walgreens while he was with two other girl friends. Echavarria “f lipped [him] off” and was hostile toward the girls. The night of the stabbing Defendant testified that he worked fo r an almond warehouse and carried a box cutter for his work. On the day of the stabbi ng, he finished work and went to a friend’s house. Defendant and his fri end split a 12-pack of beer. Defendant left the friend’s house and went to the Spor ts Zone bar by himself. Defendant testified he di d not enter the bar with Tommy Madrid. Defendant initially testified he did no t know Tommy Madrid, but then admitted he knew him from high school. Defendant had worked as a bo uncer 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 follo wed Madrid to the bar, where he shook hands with a couple of guys, shook hands with Madrid, and bought a beerfor Madrid and a drink for24. himself. Madrid introduced him to severa l people. The music was very loud, and defendant did not hear their names or anythi ng Madrid said about them. Based on his prior experience working at other bars, defend ant recognized Felix and Mike Ruiz, Alex Cervantez, and Gilbert Salazar, but he did not know their na mes and did not know if they were gang members. Defenda nt, Madrid and the other men did not discuss Gallegos, or whether Gallegos had engaged in a ny type of gang-related activity. The stabbing Defendant testified that as soon as he en tered the bar, he saw Echavarria dancing with a man, later identified as Gallegos. De fendant 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 st anding with Madrid, he kept looking at Echavarria. He became upset about the way she was dancin g 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. Defe ndant admitted that the videotape showed him talking with Tommy Madr id just before the stabbing. De fendant testified that he might have told Madrid that he was going to leave. Defendant testified that he walked towa rd Echavarria and Gallegos. He still had his box cutter from work, took it out of his pocke t, 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 be hind Gallegos, “acted out,” and stabbed Gallegos in the back of his he ad and neck. He stabbed Galle gos because he felt too drunk25. to fight him, and he thought the stabbing was “the best way” to hurt him. Defendant testified he did not in tend to kill Gallegos. “All I wanted to do was hurt him because she was hurting me, and I was mad.” Defendant woul d have sliced Gallegos’s throat if he had wanted to kill him. De fendant 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 attempte d 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 streetgang (§ 186.22 , subd. (b)(1)(C)). PROCEDURAL HISTORY As set forth above, Officer Carsten tes tified as the prosecution’s gang expert. Defendant was the only defense witness, and the defense did not introduce any expert testimony to contradict Officer Cars ten’s testimony for the prosecution. As we will explain, Victor Perez, defe ndant’s retained atto rney, had retained Michael Hurtado as a gang expert to testif y for the defense. However, Hurtado resigned in the middle of trial because of an alle ged dispute with defe nse counsel. Defense counsel moved for a mistrial. The court deni ed 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 presen t 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 tr ial, and because the defense expert’s resignation prevented defendant from presen ting a defense to contradict the prosecution’s expert testimony relative to the charged offe nse and the gang enhancement.26. As relevant to these issues, we must re view the procedural history of this case which led up to the resignation of the defendan t’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 a ttorney, Victor Perez, for the entirety of these proceedings. Perez hired Michael Hurta do as a defense expert witness on gangs. On August 31, 2010, af ter the information was filed, th e court granted defense counsel’s application to allow Hurtado to interview defendant in jail. Defendant’s motions in limin e about the defense expert In anticipation of Hurtado’s trial testim ony 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 inci dents 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 th at case as research on his dissertation. 18 A bailiff overheard the conversati on and believed Hurtado had falsely represented himself as a newspaper reporter. However, the court reporter later signed a declaration that Hurtado accurately identif ied himself, he never claimed to be a newspaper reporter, and the bailiff misundersto od what happened. Nevertheless, the prosecution had attempted to use this incide nt 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 inci dent 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 cu rriculum 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 a llowed 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 credib ility with this incident. The court’s rulings about Hu rtado’s expected testimony On Wednesday, December 8, 2010, de fendant’s trial bega n with motions in limine, and the court reviewed defendant’s two motions to prevent impeachment of Hurtado with the tw o prior incidents. The court stated that it would not allo w 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 de cide whether Hurtado would be allowed to testify as the defense expert. The court belie ved Hurtado had previous ly testified before it. The prosecutor requested a hearing purs uant to Evidence Code section 405 to determine Hurtado’s qualifications as a gang expe rt. The prosecutor also complained that he had not received discovery as to Hurtad o’s expected opinion testimony. Defense counsel replied that Hurtado had no t provided him with a written report. The court ordered defense counsel to pr ovide written discovery to the prosecution about Hurtado’s expected opinion testimony. Defense counsel was not sure if Hurtado could provide a wr itten report because he was “in finals ,” but he was “definitely going to be here.” The court declined to impose the discove ry 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 Hu rtado’s whereabouts. Defense counsel replied that Hurtado was “in Fresno in classe s taking finals.” The court ordered Hurtado to appear the following mornin g with a written report for discovery and to testify in a28. 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 coul d not sit in the courtroom and listen to trial testimony until a written report was disclosed. After a brief recess, defense counsel stat ed that he had contacted Hurtado, who said he was scheduled to testify in Contra Costa County the followi ng morning. Counsel stated that Hurtado had final examinations on the morning of Friday, December 10, but he could appear in court on Friday afte rnoon for the hearing on his expertise. The court agreed to conduct the heari ng on Hurtado’s testimony on the afternoon of Friday, December 10. The court further he ld that the defense sh ould 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 ju ry 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 wa s 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 summa rized information about defe ndant’s alleged contacts with the Norteno gang, based on the pros ecution 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 prosecu tion’s opposition to that motion.29. Hurtado’s report offered the following co nclusions, based on the same factual background later addressed by Officer Carsten at trial: “In my review of the discovery, [def endant] never admitted membership, and never admitted in a custodial f acility that he was a gang member. However, [defendant] has admitted to a ssociation 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, [def endant’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 ba r’s security videotape, defendant’s interaction with other alleged Norteno memb ers at the bar, his conduct before, during, and after the stabbing, his pr ior 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 impeachm ent 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 wo rking around what the DA wants. I am extremely behind on my preparati on .... 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 de fendant and his prior Norteno contacts, as testified to by the prosecu tion 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 c onfusing 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] w ith 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 accuse d of bullshit by the DA, and yet this officer, after examinati on has made some foul accusations on his report. [T]he DA can do these extra mo ves to throw me off the case, which has happened, I feel my time in what y ou allowed has taken my time from the case. And, yet no one hold s these officers accountable for these bold accusations against citizens, main ly Latinos. I would expect you to hold them more accountable and not a llow 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 thei r 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 shoul d have done last month.” (Italics added.) Introduction of evidence Later on December 9, 2010, th e jury was impaneled in defendant’s case and the prosecution began to introduce evidence. During the in itial course of trial, defense counsel extensively cross-exam ined the witnesses as to whether they could identify defendant or anyone else as the person wh o stabbed Gallegos, and whether the bar’s surveillance videotapes clearly de picted defendant as the suspect. On December 10, 2010, Officer Carsten be gan his direct exam ination 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 schedu led for that day. According to the prosecution, the court rescheduled th e hearing for Monday, December 13, 2010. Hurtado withdraws from defense case On the morning of Monday, December 13, 2010, the court co nvened outside the jury’s presence. Defense counsel advised the court that Hurtado, the defense expert, had31. resigned from the case. Counsel said he me t with Hurtado on Sa turday, 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. [¶] Sunda y 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 ar isen 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 mi ddle ground for.” (Italics added.) The court asked defense counsel whethe r Hurtado was under subpoena. Defense counsel said no because he ne ver subpoenaed his own expert witnesses. Defense counsel continued: “I don’t think my client can get a fa ir 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 ineff ective assistance of Counse l. But, certainly, I don’t think my client can go forward a nd have a fair trial without his expert present.” The court brought the juro rs into courtroom and excu sed them until the afternoon, when it would determine “whether or not we ’re going to go forwar d with this trial.” The court’s denial of defe ndant’s motion for mistrial After a recess, the court reconvened ou tside the jury’s presence. The court acknowledged the issue was how to proceed based on defe nse 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 th ey 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 co mfortable with the way that I was planning to handle certain aspects of the cross-examin ation and certain aspects of the evidence. And my position with him was I’m the attorney. I dictate how that’s supposed to be hand led. 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 coun sel 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 wh ether a mistrial could be granted for ineffective assistance based on legal necessi ty. 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 ha s 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 ch arged 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 inef fective assistance, but whether there were “extreme circumstances” in that particular ca se 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 gu ilty, 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 conflic t 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 ab ility 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 forwar d 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 ex pert 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 gr ant a continuance of a ny kind. Based on the entirety of the pleadings in this case, the pa rties agree that after the court denied the motion for mistrial, it offered a “short” conti nuance for the defense to secure a new gang expert. The parties also agree that defe nse 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 de fense counsel’s cross-examination of the prosecution’s witnesses up to that point focu sed on identity.
24 It is unclear from the court’s statemen ts whether it would have considered a motion for new trial on this ground if defend ant had only been convicted of attempted murder and the gang enhancement was not found true.34. to prepare. The record is si lent 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 pr osecution rested. Defend ant testified as the only defense witness. The prosecution recalled Offi cer Carsten for brief rebuttal, and then the court read the instru ctions to the jury. On December 15, 2010 , the jury heard closing argum ents and began deliberations at 1:57 p.m. At 4:20 p.m., the jury return ed the verdicts and fo und defendant guilty of attempted premeditated murder an d 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 Pere z, 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 defe ndant, and Hurtado prepared the written report that has been previously discussed. Defense counsel further declared that Hu rtado was upset that counsel failed to establish him as a qualified e xpert and that the prosecutor requested a hearing on the admissibility of his expert testimony. Defe nse 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 requesta continuance in th e 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 ar gued 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 alle gations in the case, and there was insufficient time for him to retain another expert who coul d have been prepared to tes tify at trial. Defendant was forced to “press forward” and present “an incomplete defense,” which “severely compromised” his defense to the gang alle gations. “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 de fendant’s previously retained gang expert. This translated into the defendant being denied a fa ir and impartial trial.” As a separate ground for new trial, defenda nt also argued that his retained defense attorney, Perez, was prejudicially ineffectiv e because he failed to request a continuance when the defense expert resigned. In th e motion, Perez essentially argued his own ineffectiveness and conceded th at while he moved for a mist rial, 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 declar ation, the only supporting exhibit was Hurtado’s report which had been prepared fo r 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 c ourt offered defense counsel a “short continuance” to find a new expe rt, but defense counsel declined the offer because he did not believe he would have enough time to reta in an expert who would be prepared to testify.36. The prosecution’s opposition On January 7, 2011, the prosecution f iled opposition to defendant’s new trial motion. 27 The prosecution ar gued 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 Hurtad o 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 faile d to mention whether he had reviewed the bar’s security videotape, talked to defend ant’s family, or talked to the people who defendant associated with in the bar that night. The prosecution ar gued that based on defendant’ s initial reliance on the identity defense, Hurtado’s failure to te stify about defendant’s alleged gang status “did not create incurable prejudice” to the defendant, and th e 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 te stified about “an issue that the People did not need to prove in orde r to satisfy the elem ents” of the gang enhancement – whether defendant was a member of the Nortenos. The prosecution separately argued that defendant was no t denied his constitutional right to a fair trial because defendant faile d to demonstrate how Hurtado’s anticipated testimony would have provided a meritori ous defense. Defense counsel was not prejudicially ineffective because of the br eakdown 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 issu es” about Hurtado’s attitude toward law enforcement, which the prosecutor would ha ve 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, compar ed to the minute orders.37. As for defense counsel’s alleged failure to seek a continuan ce, the prosecution asserted that this option was explored on th e afternoon of Monday, December 13, 2010, after the court denied defendant’s motion fo r mistrial. “The defendant was given an option of a short continuance in order to secu re 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 offere d “a short continuance” after Hurtado quit, but it would not have gi ven defense counsel sufficient time to obtain an alternate gang expert who could have reviewed discovery and prepar ed 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 de fendant’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 i ssues: whether the offense was attempted murder or attempted voluntary manslaughter ; and the truth of the gang enhancement. The court found the bar’s security vide otape was the “key” piece of evidence because it showed the events before and during the st abbing, and Officer Carsten’s testimony was not “given in a vacuum.” Th e court noted the videotape showed that defendant entered the bar with Tommy Ma drid, a Norteno “shot caller,” and that defendant greeted other Nortenos, including Mike Ruiz and Gilbert Salazar. Other witnesses established that Gallegos, the vict im, 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 a nd around on the victim. While so posted, the defendant went to the vic tim 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 prov ided by Mr. Hurtado establishes essentially everything that O fficer 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 no t been found at his house. However, defendant admitted he kept guns at his house because of gang tensions, he had been stopped with other Norten os 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 a nd 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 ... wa s 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 Hurtad o appeared to be “a very angr y man. He’s angry with the system. And he’s angry with [d efense counsel] in particula r. He feels that he was not treated fairly and that these gang cases unf airly single out Latinos by law enforcement for prosecution.” Hurtado also co mplained in his e-mail about being accused of something by the prosecutor. However, the court stated th at 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, whic h defendant filed in support of his new trial motion, was limited to th e contested issue of the gang enhancement and did not address the substantive charge of attempted mu rder 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 suppor ted 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 th ere is even a reasonable likelihood that the outcome would ha ve been different had Mr. Hurtado or any expert been there to testif y regarding the nature of the assault on the victim. No special expertise is requir ed 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 de termine whether this assault was a coordinated attack by the defendan t and other indivi duals 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 tes tify that this wa s absolutely a gang – gang attack. Itappeared to him that it was a gang attack. It appeared to him that it was a gang attack. And taking in a ll 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 persuasi ve 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 coun sel 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 c ould 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 th e 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 motion s for new trial; legal error Based on the procedural history set forth ante , defendant contends the court abused its discretion when it denied his motio n 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 cour t’s denial of his new trial motion resulted in the violation of his constitutional righ ts to due process, a fair trial, and effective assistance of counsel. Defendant further argues that th e constitutional violati ons were prejudicial because the jury only heard testimony from the prosecu tion’s expert, Officer Carsten, about his interpretation of defendant’s possibl e gang status and de fendant’s conduct as depicted on the surveillance videotape. Defend ant asserts that the court’s refusal to grant a mistrial or a continuance prevented the ju ry from hearing the cont rary 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 comm it the stabbing to benefit the Nortenos. In this section, we will review whethe r the court properly denied defendant’s motion for a new trial based on the allegation that the court committ ed an error of law when it denied his motion for mistrial. In is sue II, we will review the court’s denial of defendant’s new trial motion based on the a lleged 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 ab sent 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 notempty .... [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 defe ndant’s motion for mistrial Defendant contends the c ourt should have granted hi s posttrial motion for new trial because it committed an e rror 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 onl y 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 de nying a motion for mistrial under the deferential abuse of discretion standard. [Cita tion.] ‘Under this standard, a trial court’s ruling will not be disturbed, an d reversal of the judgment is not required, unless the court exercised its discretion in an arbitrary, capri cious, or patently absu rd 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 up on notifying the court that Hurtado, the42. defense expert, had resigned a nd 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 tr ial 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 convicti on, if indeed a conviction occurs. It is unwise for a judge to declare a mistrial due to counsel’s alleged in effectiveness 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 b ecause he allowed the ju ry 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 tr ied to retry the defendant, he argued that principles of double je opardy barred retrial because the c ourt 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 circ umstances, a defendant could not be retried if he did not consent to the mistrial and the discharge of th e jury, unless the trial court’s decision had been base d on “legal necessity.” ( Carrillo , supra , 145 Cal.App.4th at pp. 1523-1524.) Carrillo focused on three cases wh ich “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 defenda nt 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 ca se to proceed to judgment and then consider whether the defendan t is entitled to a new trial . [Citations.] This is what should have occu rred 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 decisi on 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 discharg e 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 mi strial and held that the matter should be deferred until after the verdict. Carrillo did not hold that a trial cour t 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 unt il 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 re ad this language into the record as justification for the denial of defendant’s moti on 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 cour t’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 consen t, and whether such orders implicated principles of doubl e jeopardy and barred retrial. Carrillo was particularly critical of the trial court’s failure in that ca se to realize that defense counsel’s tactical decision about the coerced conf ession would not have constitute d ineffective assistance if the defendant expressly agreed with the decision, the court’s failure to determine whether the defendant and defense counsel had discusse d 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 grante d 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 ba sed 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 mist rial based on ineffective assistance, and the better practice was to defer the le gal issues until there was a verdict. We note that Carrillo criticized the trial court in th at case for failing to determine whether the defendant consented to his defens e 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 th e 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 discreti on when it denied defend ant’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 deni ed a motion for mistrial after the defense expert failed to appear. In that case, the defendant was charged with the sexual45. molestation of a child. Near the end of th e prosecution’s case, defense counsel advised the court that his retained expert witness wa s 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 expect ed 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 movi ng party (or any other witness expected to testify on behalf of the moving party) une xpectedly 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 fo r new trial, which “should be granted when necessary ‘to insure an ac cused a fair trial.’ [Citation.]” ( Id . at p. 1095.)
Dunn held the following four factors shoul d be considered to determine whether the court should have granted the defenda nt’s motion for mistrial based on the unavailability of the expert witness: “(1) [T]he defendant’s d iligence in securing the attendance of the witness [citations]; (2) the defendant’s use of available alternative means to obtain the desired evidence [citations]; (3) th e 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 di scretion 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 reta ined 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 s eek a stipulation from the People as to [the46. 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 tria l commenced that [the expert] was scheduled to leave for vaca tion 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 counse l’s inability to contact her during trial and her pot ential 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 ch anged 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 re quire 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] expect ed 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 re sult 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 argum ent 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 ther efrom created the realistic possibility’ of a better outcome for him at trial,” since the de fense expert’s expected opinion would have47. 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 th e defendant’s claim because defense counsel “conceded he had not discussed” these particul ar 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 enum erated above ..., except the due diligence factor to which we attribut e 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 fa ir 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 fa ilure 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 gui lt, “ ‘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 mo lestation, 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 deve loped 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 th e 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 obtain ed an order for Hurtado to interview defendant in jail. As in Dunn , defense counsel did not subpoena Hurtado, but Dunn noted that it was not48. 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 altern ative 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 requ est a continuance and refused the court’s offer of a short continuance to determine whet her 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 defend ant’s fault for the witness’s nonappearance – also weighs ag ainst 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 thatHurtado had potentia l scheduling problems with the December trial because of his academ ic schedule. More importantly, defendant was aware of Hurtado’s anger about various aspect s of the case based on Hurtado’s e-mail of December 9, 2010. Hurtado accu sed defense counsel of not protecting his interests. He was upset that he had to produce a written re port 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 hearin g for the court to determine whether he could testify as an expert. Based on the instant reco rd, 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 hear ing on the witness’s qualifications as a potential gang expert. Indeed, defense counse l could have requested the same type of hearing or conducted voir dire on Officer Cars ten’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 stro ngly implies that defense couns el did not explain this matter to Hurtado, or Hurtado erroneously believe d 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 th e e-mail that he received with the report. The combination of counsel’s conflicts w ith 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 mist rial should have been granted is based on “the nature of the testimony expected fromthe 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 fo r the trial court to evaluate the nature of the testimony that Hurtado would have offered. Hurtado’s belated discovery report was limited to the conflicti ng evidence about whet her defendant was a member of the Norteno gang. Hurtado’s report did not address the surveillance videotape, whether the videotape showed thatdefendant 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 th e victim because he was dancing with Echavarria. Hurtado’s report also failed to a ddress any aspects of th e charged offense of attempted murder and defendant’s motive. Defendant argued that the trial court shou ld 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 th e realistic possibility’ of a better outcome for him at trial,” since the defense expert’s expected opini on would have differed from the prosecution’s expert about the nature of the victim’s physical injuries in that case. ( Dunn , supra , 20550. 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 particul ar 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 findi ngs about the nature of defendant’s case at the time of the mistrial ruling. “So far, the defense in this case has be en ‘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 ca n see the defendant do what he’s charged with doing. So fi rst 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 ga ng testimony or not, is irrelevant. It doesn’t matter.” The court accurately summarized defens e counsel’s cross-examination of the prosecution’s witnesses up to that point. Wh ile defense counsel may have requested jury instructions on heat of passion, it was not cl ear 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 frequ ented by Nortenos, for the benefit of the Norteno gang, or even if defe ndant’s prior relationship with Echavarria contributed to his motive to commit th e offense to benefit the gang. Based on the record before the trial court, we cannot say that it abused its discretion when it denied defe ndant’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 base d on an alleged error of law when it denied his motion for mistrial.51. In reaching this conclusion, we are mindf ul that a criminal defendant has the due process right to the assistance of expert witne sses, 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 fundamenta lly unfair if the State proceeds against an indigent defenda nt without making certain that he ha s 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 assistan ce of counsel has been found to provide additional support for the entitleme nt 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 th us 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 ap pellate record. The only evidence about the possible expert testimony consisted of Hurta do’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 videotap e showed that defendant entered the bar and associated with other Norteno members; whet her they repeatedly watched the victim’s conduct in the bar; and whether defendant sta bbed 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 effec tive assistance of an expert or any other witness. ( People v. Samayoa (1997) 15 Cal.4th 795, 838.)52. II. Denial of new trial moti on; ineffective assistance Defendant also moved for a new trial base d on the denial of his right to effective assistance of counsel as a result of the resi gnation of the defense e xpert. As explained above, defendant’s motion for new trial was pr epared by the same re tained attorney who represented him during trial, and supported by th at attorney’s declara tion, so that counsel effectively argued his own ineffective assistance during trial. A. New trial/ineffective assistance A motion for new trial may be granted base d 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 ineffec tive assistance are permitted pu rsuant to ‘the constitutional duty of trial courts to ensure that defendants be accorded due process of law.’ [Citation.] We review such orders for an abus e 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 pe rformance fell below an objective standard of reasonableness under prevailing profe ssional norms, and counsel’s deficient representation prejudiced the defendant, i.e., there is a “r easonable probability” that, but for counsel’s failings, defe ndant 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 confid ence in the outcome.” ( Strickland , supra , 466 U.S. at p. 694.) 31

31 While defense counsel in this case wa s retained, the same standard for ineffective assistance app lies to both retained and appointed counsel. ( Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345; People v. Montoya (2007) 149 Cal.Ap p.4th 1139, 1147.)53. In many cases, however, a claim of ineff ective assistance is more appropriately decided pursuant to a petition fo r 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 defe ndant’s motion for new trial, it rejected defendant’s ineffective assist ance arguments about Hurtado’ s resignation and held “it’s not reasonable to believe that another ou tcome would have occu rred had the defense called Mr. Hurtado or any othe r gang expert.” (RT 709) “No special expertise is required to ev aluate 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 a nd 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 wh at 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 [i n] 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 th e 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 ruli ng was erroneous because it failed to acknowledge that defense counsel’s conflict with Hurtado, and hi s failure to retain another expert, allowed the ju ry to hear Officer Carsten’ s testimony as the only expert opinion on the gang issues and the inte rpretation 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 absen ce of a defense expert. In54. 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 resi dential 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 nu merous 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 tes timony at trial on the reliability of eyewitness identification. The defendant argued an expe rt’s testimony on this topic would have been the only way for the jury to evaluate whethe r 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 sh ow 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 k now 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 w ould have depended on wh ether 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 tr ial 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 tria l motion for defense counsel’s alleged ineffective assistance significantly based on its belief that the imag es on the surveillance videotape could not have been explained an y differently if defense counsel had called Hurtado or another defense e xpert. On appeal, defendant speculates that the jury was unable to clearly watch the videotape during trial and that it likely did not watch the55. videotape during deliberations. However, th e videotape was played for the jury during Officer Carsten’s testimony, and there is no ev idence that it was unable to view the tape during the trial itself. Our review of the videotape shows defenda nt was in the bar with several other men, whom Officer Carsten identified as No rteno gang members – Madrid, Cervantez, and the Ruiz brothers. The men were gene rally dressed in black or white, with the exception of one man, identified as Bro, in a re d 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 ne ver 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 a ssociates. There is no evidence that gang slurs or slogans were shouted before, during, or after the stabbing. While defendant’s associates assumed various strategic vantag e points on and around the dance floor, they did not surround or restrain the victim befo re or during the stabbing. The videotape seems to show that Bro was closely monitori ng Gallegos’s general location on the dance floor and defendant’s movement s 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 an d without assistance, a nd then he ran away by himself. His associates re sumed 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 depi cted 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 a nd circumstances of the stabbing.56. The record in this case raises several concerns ab out defense counsel’s conduct after Hurtado resigned, particularly his failu re to request a continuance or accept the court’s offer of a “short” continuance. Ho wever, “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 deficien cies,” and in many cases, an ineffective assistance claim may be dispos ed 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 ex pert would have affected the verdict, based on the appellate record before this court. Wh ile defendant’s motion for new trial alleged ineffective assistance, his motion was not suppor ted by any declarations or exhibits that would have demonstrated the possible prejud ice 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 e xpert who would have provided favorable testimony to refute Officer Carsten’s opinions a bout the crucial aspects of the stabbing, or that the offer of a short continuance was inade quate. It would be “s imply speculation” to find a reasonable probability that the defendan t 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 adequa te inquiry into allegations that a juror fell asleep during the trial, and his conviction must be reversed because it is impossible to dete rmine from the record whether the jury heard the disputed testimony.57. A. Background On December 9, 2010, defe ndant’s jury trial began with opening statements and the prosecution case. Toward the end of the afternoon, defense counsel was crossexamining Shon Kekauoha, the ba r’s security guard, about hi s review of the photographic lineup. The court interrupted the examination and had th e 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 yo u 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 fo rth, 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 car e 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 inst ructions, 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, whic h includes sleeping through a58. material portion of the trial. (§ 1089; People v. Bradford (1997) 15 Cal.4th 1229, 1349 ( Bradford ); In re Hamilton (1999) 20 Cal.4t h 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 in quiry is reasonably necessary’ to determine whether the juror should be discharged. [C itation.] We have re cently explained, however, that the mere suggesti on 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 in quiry and the ultimate decision whether to retain or discharge a juror are committed to the so und 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 si mply 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 sleepi ng through a material portion of the trial may be good cause for the di scharge of the juror ( People v. Bonilla, supra, 41 Cal.4th at p. 350; Bradford, supra, 15 Cal.4th at pp. 1348-1349), info rmation 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 ab sent evidence the juro r 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 in sufficient to apprise the trial court that good cause might59. 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 severa l jurors to determin e 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 wa s 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 juro r inattentiveness, when th e court and defense counsel acknowledged that a juror ap peared 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 inattentivene ss “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 ha ve been asleep. The court immediately addressed the jurors and encouraged them to as k for a break if they felt they were “dozing a little bit or nodding off.” It is noteworth y that neither the pr osecutor nor defense counsel agreed with the audi ence-member’s statements or asked the court to further investigate the matter. The court’s comments indicated thatit was alert to the possible risk of jurors falling asl eep 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 respo nded to the comments of the anonymous member of the audience, and it was not required to further inve stigate based on the record before it. As in Bradford , defense counsel’s failure to reques t 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 warra nted such a hearing.” ( Bradford , supra , 15 Cal.4th at p. 1349.) We will not speculate base d on the record before this court.60. IV. Defendant’s objections to Offi cer Carsten’s expert testimony In our discussion of Officer Carsten’s tr ial testimony, we noted several instances where Carsten testified to his belief about wh at the videotape showed, and the trial court overruled defense counsel’s objections ba sed on speculation and other grounds. Defendant contends the court abused its discretion when it overruled his objections, and that Carsten improperly tes tified 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 [c itation]. 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 expe rt 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 expe rt opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to jus tify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the ju ry has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded on ly when it would add nothing at all to the jury’s common fund of info rmation, i.e., when “the subject of inquiry is one of such common knowledge that me n of ordinary education could reach a conclusion as intelligently as th e 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 di sturbed 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 t ypically 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 incl ude testimony “about the size, composition or existence of a gang [citations], gang turf or terr itory [citations], an individual defendant’s membership in, or association with, a gang [c itations], the primary activities of a specific gang [citations], motivation for a particular crime, generally reta liation or intimidation [citations], whether and how a crime was co mmitted to benefit or promote a gang [citations], rivalries between ga ngs [citation], gang-related tatt oos, 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, disapprov ed on other grounds in People v. Vang (2011) 52 Cal.4th 1038, 1047-1048.) The court did not abuse its discretion wh en 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 subjec tive 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 ab out his interpretation of the videotape, an exhibit which was played for the jury and introdu ced into evidence. Carsten testified that defendant was in th e bar with well-recogn ized members of the Norteno gang, and he identifie d 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; defenda nt 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 areaaround themselves. The jury was capable62. of watching the videotape and determini ng whether defendant entered the bar with Madrid, the men were talking and associa ting with each other, and the men were watching Gallegos. At one point during his testimony, Office r 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 associ ates were talking with each other, and they were looking at the dance floo r, in Gallegos’s direction, before defendant walked behind Gallegos and stabbed him. While such testim ony may have been speculative, any error in its admission is necessarily harmless give n the nature of defe nse counsel’s crossexamination. Carsten conceded that the vide otape was silent and did not have an audio track, none of the witnesses in the bar tes tified about overhearing the conversations that occurred between defendant and the other me n, and he did not know whether defendant and the other men were talki ng about Gallegos. However, Carsten explained that his opinion was based on his observa tions of the videotape, that defendant and the other men appeared to be looking toward Gallegos’s di rection, and they we re talking about each other as they looked at him. Officer Carsten’s opinion testimony wa s based on his interpretation of the videotape, and di d not constitute inadmissible speculation evidence. (Cf. People v.
Ramon (2009) 175 Cal.Ap p.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 re ad the full version of CALCRIM No. 1401 to the ju ry; they also agree that th e printed version of CALCRIM No. 1401 omitted the definition of a gang’s primary activities as certain enumerated63. crimes. Defendant argues the error is prej udicial 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 stre et 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 commi ssion of one or more of the criminal acts enumerated [in section 186.22, subdivis ion (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 cer tain 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 ma nufacture of narcotics; shooting at an inhabited dwelling or occurred vehicle, grand theft, witne ss 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 offe nses have some tendency in reason to show the group’s primary activity [citation] and th erefore 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 Pe ople must prove that: One, the defendant committed the crime for the bene fit 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 on going 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, assau lt with a deadly weapon, witness intimidation, auto theft, grand theft ; Three, whose members, whether acting alone or together, engage d 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 activ ities rather than an occasional act committed by one or more persons wh o happen to be members of a group....” (Italics added.) Both defendant and the People also agree th at 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 writte n and oral instructions The parties agree that the printed version of CALCRIM No. 1401 omitted the phrase which defined certain o ffenses 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 ju ry to use during deliberations, no prejudicial error occurs from deviations in the oral inst ructions. [Citations.]” ( People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.) We are presented with the opposite situ ation: the court correctly read CALCRIM No. 1401, but the written inst ruction erroneously omitted the definition of a gang’s65. primary activities. There is no indication in the minute order that the court gave the printed instructions to the ju ry during deliberations, or th e jury asked for the printed instructions. When the court began to read th e instructions to the jury, however, it stated that it would “give you a c opy of the instructions to use in the jury room.” “Although this court gives priority to th e written version of an instruction when a conflict exists between the written and oral ve rsions, the jury is no t 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 proc ess.” ’ [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 estab lished not merely that the instruction is undesirable, e rroneous, 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 differenc es between the written and oral instructions, and the weight of evidence ag ainst the defendant are all fact ors 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 st andard of review, “before a federal constitutional error can be held ha rmless, 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 demo nstrate that the omission in the written instruction was harmless. The entirety of th e record reflects that the existence of the Nortenos as a criminal street gang was es tablished by overwhelmi ng evidence, and that the defense never challenged the existence of the gang itself. Officer Carsten testified66. that the Nortenos were a crimin al street gang in Tulare County , they were associated with the Nuestro Familia prison ga ng, the gang claimed the color red and the number 14, and there were approximately 300 Nortenos in Tulare County. Officer Carsten testified the primary activitie s of the Norteno street gang in Tulare County included robbery, carj acking, murder, attempted murd er, 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 mu rder, and voluntary manslaughter. In closing argument, the prosecutor argued the Nortenos were a criminal street gang as required by statute, and cited O fficer 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 th at the primary activities of the Nortenos included “murder, attempted murder, assault w ith a deadly weapon, carjacking, witness intimidation. List goes on what these guys do and how random.” Defense counsel extensively cross-exam ination 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 Tula re County. In his closing argument, defense counsel did not challenge the pr emise that the Nortenos were a criminal street gang, but pointed out that there was no evidence that defe ndant committed any of the predicate offenses or any othe r gang-related crimes. Finally, the jury heard th e 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 po ssible the jury followed the oral instruction.” ( People v. Wilson, supra , 44 Cal.4th at p. 804.) Even if the jury received67. 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 fi nd the omission of the primary activities definition in the written version of CA LCRIM 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 re garding the limited purpose of gang evidence. First, he argues the court misread an in troductory phrase in the instruction’s first paragraph, which alle gedly led the jury to believe that it had a mandatory duty to rely on the gang evidence for cer tain purposes. Second, defendant contends the court se lected the wrong optional language and improperly used the phrase “g ang-related crime” instead of “gang-related enhancement” when it read the inst ruction to the jury. A. Limited admissibility of gang evidence We begin with the limited ad missibility of gang evidence. “California courts have long recognized the po tential prejudicial effect of ga ng evidence. As a result, our Supreme Court has condemned the introducti on of such evidence ‘if only tangentially relevant, given its highly inflammatory impa ct.’ [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, ‘tri al courts should care fully 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 tr ial where its sole relevance is to show a defendant’s criminal dispos ition or bad character as a m eans of creating an inference the defendant committed the charged offense. [Citations.]” ( People v. Sanchez (1997) 5868. Cal.App.4th 1435, 1449.) “None theless, evidence related to gang membership is not insulated from the general rule that all relevant ev idence 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 admi ssible 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 behavi or, its probative value generally exceeds its prejudicial effect, and wide latitude is permit ted 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 inst ruction on the limited admissibility of gang evidence. The court does not have a sua sponte to give the lim iting 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 term s that gang evidence is not admissible to show that the defendant is a bad person or has a crim inal propensity. It allows such evidence to be considered only on the i ssues germane to the gang enhancement, the motive fo r the crime and the credib ility 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 subs tantive offense pursuant to section 186.22, subdivision (a), or the gang en hancement 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 offe nse. 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 gu ilt 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 ap propriate in such cases when gang evidence is introdu ced 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, defenda nt contends the court erroneously used mandatory language when it r ead the first paragraph of CA LCRIM No. 1403 to the jury. As given in this case, th e written version of CALCRI M No. 1403 was consistent with the pattern instruction and contained th e 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, purpo se, and knowledge that are required to prove the gang-relate d crime and enhancements charged;
“OR
“The defendant had a motive to commit the crime charged.

“ You may also conside r 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 w itness 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 th e 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 th at are required to prove the gangrelated crime and enhancem ents charged or the de fendant 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 a nd erroneously said that th e 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 instruc tion, using the permissive “may” or “may not” as required by the pattern instruction, and it did not repeat the error. Defendant now contends th at the court’s erroneous use of the phrase “must consider” in the first sentence of the fi rst paragraph of CALCRIM No. 1403 was prejudicial. Defendant argues that when th e court used the mandatory word “must,” the jury likely believed that it was requi red to rely on the gang evidence. Defendant’s argument is meritless. Firs t, 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 i mmediately 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 misstateme nt was brief and promptly corrected, and it is not reasonably likely that the jury misunders tood 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.) Th e 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 a ttempting to resolve a conflict between the oral and written ve rsions. “[M]isreading instru ctions is at most harmless error when the written instructions rece ived by the jury are correct.” ( People v. Box (2000) 23 Cal.4t h 1153, 1212.)71. C. “Gang-related” offense Defendant raises a second issue abou t CALCRIM No. 1403, based on the court’s selection of certain optional language in th e first paragraph, as provided by the pattern instruction. The pattern instruction for CA LCRIM 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 defe ndant acted with the intent, purpose, and knowledge that are required to prove the gang-related (crime[s]/ [and] enhancement[s]/ [and] special circ umstance allegations) charged (;/.)] ....” (Italics added.) As set forth ante , the court read the first paragr aph of CALCRIM No. 1403 to the jury as follows: “You must consider or you may co nsider 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 phras e when it read CALCRI M No. 1403 to the jury in this case. Defenda nt 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-rela ted crime” in CALCRIM No. 1403’s first paragraph, it essentially direct ed 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 issu es raised in this cas e, 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 phr ase “gang-related crime” shou ld only be used when a party is charged with the gang substantive of fense pursuant to secti on 186.22, subdivision (a), which was not alleged in this case. Defe ndant 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 desc ribed the charges in this case. As with his other instructional issues, de fendant did not object to the version of CALCRIM No. 1403 given by the court or as k the court to modify the instructional language. ( Hernandez , supra , 33 Cal.4th at p. 1051.) “Gen erally, ‘ “[a] party may not complain on appeal that an instruction correct in law a nd responsive to the evidence was too general or incomplete unless the part y 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 interp reted the instruction in the manner suggested by defendant. “M otive 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 und erlying 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 charge d 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 ac tivity has been preced ed by gang signs or identification ( People v. Villegas (2001) 92 Cal.App.4th 1217, 1222, 1224). In this case, the court properly adm itted the gang evidence as relevant and probative for the section 1 86.22, 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 de fendant was guilty of attempted murder and73. not some lesser offense, based on evidence th at defendant was a Norteno, he was at the bar with other Nortenos, they saw Gallego s 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 defenda nt 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 de fendant was not guilty of attempted murder but might be guilty of attempted voluntary mans laughter 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/Sure no gang rivalry, and not because he was upset that Gallegos was there with a formergirlfriend. The ga ng 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 co mmit error when it instru cted the jury that it could consider the gang evidence to de termine whether defe ndant committed “the gang-related crime and enhan cements charged or the defendant had a motive to commit the crime charged.” VII. Prosecutorial misconduct/closing argument In the course of his testimony, Office r Carsten testified about two predicate offenses committed by members of the Norte no gang in Tulare Co unty. One of these offenses involved a homici de committed by Norteno gang members Javier Solis and Richard Contreras on May 7, 2007. Defendant wa s not involved in either of the predicate offenses. Defendant contends the prosecutor co mmitted prejudicial misconduct during closing argument because he discussed de tailed facts about Solis/Contreras case which Officer Carsten had not testifie d about. Defendant argues the prosecutor’s reference to facts not in evidence was prejudicial becaus e he addressed a particularly violent and74. random crime committed by the Norteno gang, which could have been compared with the stabbing in this case. Defe ndant acknowledges his defense co unsel did not object to the alleged misconduct, and alternatively ar gues defense counsel was prejudicially ineffective for failing to object. A. Prosecutorial misconduct/ineffective assistance “A prosecutor’s misconduct violates th e Fourteenth Amendment to the United States Constitution when it ‘infects the tria l with such unfairne ss as to make the conviction a denial of due proc ess.’ [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 invol ves ‘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, th e question is whether there is a reasonable likelihood that the jury construed or applie d any of the complained-of re marks 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 f acts 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 admonish ed to disregard the impropriety. [Citation.]” ( People v. Samayoa , supra , 15 Cal.4th at p. 841.) Defendant concedes that defense counse l did not object to any of his alleged appellate claims of prosecutorial misconduct. In the alternative, defendant argues that his attorney was prejudicially in effective for failing to object . “To establish ineffective75. assistance, defendant bears the burden of showing, first, th at counsel’s performance was deficient, falling below an objective sta ndard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict woul d 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.4t h 101, 110 and People v. Blakeley (2000) 23 Cal.4th 82, 89.) B. Trial evidence about predicate offenses We begin with Officer Carsten’s test imony about the Contreras/Solis homicide case as one of the predicate offenses required to prove the Nortenos were a criminal street gang in Tula re County.
“The victim in this case was walkin g 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 we re contacted by three individuals. These three individual were Richard Contreras, Javier Solis, and Daniel Contreras. The ... two Contreras and the Solis males, th ey stopped when they meet these three walk ing 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 knoc ked down and beaten as was the victim, Matthew Main. Richard Cont reras stabbed Matthew Main during this fight. Villagomez was also stabbe d 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 th ey committed the offenses. Carste n 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 info rmation, which alleged jointly charged Contreras and Solis with murd er of Main, with a gang sp ecial circumstance, and the76. substantive gang offense; Contreras was sepa rately charged with attempted murder of Villagomez; and Solis was separately charged w ith assault with a deadly weapon, a knife, on Villagomez. The inform ation also alleged gang and personal use (knife) enhancements. The certified documents also showed th at Contreras pleaded guilty to second degree murder of Main, attempted murder of Villagomez, admitte d to gang and weapon (knife) enhancements, and was sentenced to 23 years to life. So lis pleaded guilty to voluntary manslaughter of Main, assault with a deadly weapon of Villagomez, admitted gang, weapon (knife) and great bodily inju ry 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 al so the prosecutor when Cont reras and Solis entered their pleas. In his closing argument in this ca se, 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 a nd Erica Enos. They were walking towards Houston Street when three No rtenos, all juveniles, approached from the opposite direction on the opposite side of th e street. One of them from the Norteno group said, ‘What ar e 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 Ma tthew left Erica E nos’ 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 hi s knees and like a fetal protection to protect his head where the knife co mes right in his shoulder as he’s protecting his head. “At this time, Matthew Main, justoutside of high school, goes over to protect Eric Villagomez. The three th en turn their attention on him. And Richard Contreras stabs Matthew Main th ree 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 th at this person belongs to. “And is this crime any different? These are the primary activities of the Norteno street gang. “And you can look attheir 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 diffe rent than this?” Defense counsel briefly referred to th e 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 explai ned 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 pr osecutor in the Contreras/Solis case and, contrary to defense counsel’s statement, Co ntreras 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 prosecu tor’s discussion of the Solis/Contreras case during closing argument and has waived any prosecutorial misconduct claims. However, he argues defense counsel was prejudici ally 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 discu ssion about the Contreras/Solis case was based on facts which were intr oduced before the jury, either through Officer Carsten’s78. testimony or the documentary exhibits. The prosecutor briefly strayed from Carsten’s testimony, however, when he mentioned that Contreras r ode 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 th e 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 th e contested issues in this case – whether defendant attempted to murder Gallegos for th e benefit of the Nortenos. Defense counsel never challenged the evidence in support of th e predicate offenses, ex cept to clarify that defendant was not involved in either offense. The prosec utor’s limited discussion of facts not in evidence did not rais e the inference that defend ant was involv ed in the Solis/Contreras case. Defens e 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 wh ether the Nortenos were a criminal street gang. DISPOSITION The judgment is affirmed.

_____________________ Poochigian, Acting P.J. WE CONCUR:

_____________________ Detjen, J.

_____________________ Franson, J.