Filed 1/29/14 P. v. Prothro CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
MARCELLUS PROTHRO et al.,
Defendants and Appellants. B243045
(Los Angeles County Super. Ct. No. YA075724)

APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C. Taylor, Judge. Affirmed as modified. Joseph Shipp, under appointment by th e Court of Appeal, for Defendant and Appellant Marcellus Prothro. Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Shawn Simpson. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ _____________2 After a three-week trial, Shawn Simpson and Marcellus Prothro were convicted of murder and attempted murder. Defendants are members of the 135 Piru gang, which at
the relevant time was “at war” with the riva l Barrio 13, or B13, gang. The prosecutor argued the essence of this case was as follo ws: “[T]wo 135 gangsters got in a car, they drove to the shot caller of the rival gang’s house, they fired shots and drove away.” The murder victim, Juan Llanos, was a member of Barrio 13, and was at the top of the gang hierarchy in a position known as “shot ca ller.” Llanos was shot as he stood outside his mother’s home. Llanos’s cousin, Daniel Gutierrez, stood near Llanos when Llanos
was shot. Defendants raise numerous challenges to their convictions. We modify defendants’ sentences, but othe rwise affirm the judgment.
FACTS On February 8, 2008, at approximat ely 8:47 and 8:48 p.m., Prothro called Simpson. At approximately 9:11 p.m., Prothro drove Simps on to the house where Llanos lived. (The approximate time is based on a 9 11 call, which was received at 9:11 p.m.) Llanos and his cousin, Daniel Gutierrez, were each standing near opposite ends of the driveway in front of the house. Prothro drove the car to the front of the house. Simpson
fired several shots from the car. Llanos died of a single gunshot wound. Police found two expended gun cartridges at the scene of the shooting. They also observed markings consistent with a bullet strike on a pillar pos t, near where Gutierrez was standing at the time of the shooting. Llanos’s brother, Marcos Llanos (M arcos), witnessed the shooting. Marcos identified Simpson as the shooter and rememb ered that Simpson wo re a black hooded
sweater. Marcos heard one shot and saw the car in which Simpson was a passenger speed away. Simpson bragged to his friend (a nd later, informant) Ru fus Crowder that he murdered Llanos. Simpson told Crowder he wore a black hooded sweatshirt when he committed the murder. Simpson also told Crowder he fired three shots, then his gun jammed.3 Like Simpson, Prothro was a member of the 135 Piru gang. In February 2008, Prothro borrowed the car of his then girlfrie nd, K.G. Although he promised K.G. he would have her car detailed, Prothro did not do so. Instead, Prothro called K.G., telling her, “it’s hot over here. You need to come get the car.” Prothro told K.G. someone had
been shot in the hood and some “bad shit happened” in her car. When she retrieved her car, K.G. noticed someone had been sitting in the passenger seat, based on how the seat
was reclined. Prothro confided in K.G. that the “homies put somebody down” and described the “somebody” as “the Hispan ics” who had previously chased them. In March 2009, Simpson was arrested fo r Llanos’s murder. The day after his arrest, Simpson called Prothro. Simpson told Prothro, “if the police ask you, blood, you don’t even know me, blood. You feel me?” Prothro responded that Simpson did not have to tell him again and he needed to find out “who snitched.” Prothro understood he could not tell the police about Simpson, saying : “you. . . ain’t gotta tell me twice . . . I already know . . . .” Simpson repeated, “we ca n’t be seen together blood, all that blood, you don’t know me. If the police asked you, if they take you in, none of that blood, you don’t know where I was that night, none of that blood. You feel me?” On March 17, 2009, Prothro told a friend po lice had raided his house. He said he
was wanted for a murder of “some Mexicans.” Prothro was concerned that someone was “snitching” and police knew his “hood name.” Prothro explained police did not find “a burner [i.e. a gun] that was used in the mu rder” in his house. Also in March 2009, Prothro asked K.G. to tell police he was neve r in her car. Prothro entreated K.G. to provide him with an alibi if police questioned her on his whereabouts in early 2008. At trial, detective Armando Martinez testified about Prothro’s and Simpson’s phone calls around the time of the murder. Martinez testified th at Prothro’s call to Simpson pinged a cell phone tower that was just over one mile from the crime scene. At about 9:12 p.m., Prothro called K.G. The ca ll pinged off a cell tower just under two
miles from the crime scene. At 9:43 p.m., Simpson called Pr othro from less than a mile away from the crime scene.4 Detective John Duncan testified as a gang expert. He testified that gang members commit crimes to enhance the gang and earn the respect of fellow gang members. Gang
members feel safe in their terr itory. Llanos was an active me mber of Barrio 13. 135 Piru was Barrio 13’s main rival. The two gangs we re involved in a ga ng war, which involves substantial violence, shootings, and murders. Simpson told Duncan he was a gang
member and his moniker was Little Ye. Pr othro also identified himself as a gang member and reported his moniker was Be lly Bell or Celly Cell. When given a hypothetical based on the facts of this ca se, Duncan opined the murder and attempted murder benefitted the gang. He also opine d shooting Llanos woul d instill fear in the community and earn the respect of fellow gang members. Duncan testified that the
crimes were committed in association with a criminal street gang because the two gang members were together. Duncan testified that snitching and lying were different; only
the latter connoted a false statement. Neither defendant testified. Through cr oss-examination and the testimony of their witnesses, defendants elicite d evidence that Marcos di d not identify Simpson in a photographic lineup; Marcos identified the car in which Si mpson was the passenger as a Chevy Impala when K.G.’s car was a Honda Accord; the weapon us ed in the shooting was not recovered; the type of gun identif ied by Marcos differed from the type Simpson reported to Crowder; Prothro often spent tim e at a friend’s house; Simpson was lefthanded and the shooter used his right hand ; and Prothro’s girlfri end A.W. believed he was honest and trustworthy, but also belie ved it was possible for him to commit murder.
PROCEDURE In an amended information, Simpson and Prothro were charged with the murder of Llanos. With respect to bo th counts, the information a lleged Simpson personally and intentionally discharged a fi rearm and that a principal personally and intentionally discharged a firearm (§ 12022. 53, subd. (d)). The information further alleged the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang. In the second count, Simpson and Prothro were charged with the attempted willful, deliberate, and premeditated murder of Daniel Gutierrez. The information also5 alleged Simpson personally a nd intentionally discharged a firearm, and a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). A ga ng allegation also was allege d with respect to count 2. A jury convicted defendants of all allegati ons. Jurors found the murder was of the first degree and the attempted murder wa s willful, deliberate and premeditated. The court sentenced Simpson to 50 years to life for the murder and 40 years to life for the attempted murder. The court sentenced Prothro to 50 years to life for the murder and 32 years to life for the attempted murder.
DISCUSSION Prothro argues: (1) the court should have upheld his Wheeler/Batson challenges ; (2) the court should have conducted an in-cam era review of the wiretap; (3) the record
lacks sufficient evidence to support his murder conviction and his attempted murder conviction; (4) the court erred in admitting evid ence of a firearm not used in the current offense; (5) the court erred in refusing him a midtri al continuance to secure the testimony of a defense witness
, (6) the court erred in refusing to disclose the full contents of two jury notes; (7) the court should have granted his motion for a new trial ; (8) the gang instructions were incomplete and erroneous; (9) the court committed sentencing error; and (10) cumulative error requires reversal

. Simpson contends the court erred in cal culating his sentence, and joins in the italicized arguments advanced by Prothro. Respondent acknowledges sent encing error. Other than the sentencing challenges, respondent disputes each remaining contenti on. As noted above, we conclude Prothro’s and Simpson’s sentences require modification. We otherwis e find no prejudicial error.
I. Batson/Wheeler Challe nge (Prothro and Simpson) Citing Batson v. Kentucky (1986) 476 U.S. 79 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler ), defendants challenge the prosecutor’s use of a peremptory challenge to dismiss an African American juror. Simpson joins in Prothro’s argument. We find no error.6 A. Background Prior to starting jury selection, the ju dge informed the poten tial jurors: “[I]t’s important for the people in the audience to lis ten very carefully to what’s being said. The way that I like to do this is ask these folks [the potential ju rors seated in the jury box] most of the questions and then, when you [the remaining potential jurors] come up and ask you whether or not you’ve heard everything asked of everyone else. . . . So it’s important to listen to this.” S ubsequently the prosecutor asked all of the jurors to listen to the questions posed to the potential jurors in the box in order to avoid repeating the questions. When a potential juror was seated in the box, the court routinely asked the juror if he or she had heard all of the questions.
When Juror No. 15 was s eated in the box for voir di re, the trial court stated: “I think you walked out briefly, so I try to keep track of what I thought you might have missed . . . .” The prosecu tor asked Juror No. 15 if she had left during questioning and
Juror No. 15 answered affirma tively. At sidebar, the prosecu tor sought to have Juror No. 15 excused for cause, arguing reversal of a conviction may be warranted when a juror exits the courtroom during voir dire. Defens e counsel responded he would not challenge the verdict based on the poten tial juror leaving the courtroom . Defense counsel indicated
it was within the court’s discretion as to how to proceed. The court refused to dismiss
Juror No. 15 for cause. When the prosecutor exerci sed a peremptory challenge to excuse Juror No. 15, defense counsel objected, arguing: “I know that this is the first blac k person they kicked off. I wish I could have something to establis h a pattern. It is sufficient for me to bring the motion. [¶] The record should reflect that we have only had three black jurors. One is sitting in the panel presently. One [w a]s [dismissed] for cau se because she is a
corrections officer. Then we have this particular one.” The prosecutor responded she challenged the juror becau se the juror left the courtroom during voir dire. The trial court found no prima facie case of discrimination.7 The record identifies no other jurors who left the courtroom during the questioning. One juror stated he was not payi ng attention during th e questioning, but he was dismissed for cause on other grounds with the agreement of all counsel. B. Analysis Our Supreme Court recently explained the relevant legal principles: “Under both People v. Wheeler, supra , 22 Cal.3d 258, and its fede ral constitutional counterpart, Batson v. Kentucky [(1986) 476 U.S. 79], a party wh o believes his opponent is using peremptory challenges animated by a prohibited discriminatory purpose must first make a prima facie showing of such group bias. [C itations.] ‘In order to make a prima facie showing, “a litigant must raise th e issue in a timely fashion, ma ke as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.” ’ [Citation.] The objecting party must then produce evidence ‘ “sufficient to permit the trial judge to draw an inference that discri mination has occurred.” ’ [Citations.] This prima facie assessment is sometimes called ‘the first stage of a Batson inquiry.’ [Citation.] “If the defendant succeeds in establishing a prima facie case, the burden shifts to the prosecutor to justify the challenges. [Citation.] The court then evaluates the prosecutor’s responses to determine whether purposeful discrimination has been proven. At this so-called third stage of the Batson inquiry, the trial court often bases its decision on whether it finds the prosecut or’s race-neutral explanations for exercising a peremptory challenge are credible. ‘ “Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” ’ [Citations.]
“ ‘Review of a trial court’s denial of a Wheeler / Batson motion is deferential, examining only whether substantial evidence supports its conclusions.’ [Citation.] We have explained that ‘ “the trial court mu st evaluate not only wh ether the prosecutor’s demeanor belies a discriminatory intent, bu t also whether the juror’s demeanor can credibly be said to have exhi bited the basis for the strike attributed to the juror by the8 prosecutor,” ’ that ‘ “these determinations of credibility and demeanor lie ‘ “peculiarly within a trial judge’s province,” ’ ” ’ and th at, thus, ‘ “ ‘in the absence of exceptional circumstances, we would defer to [the trial court].’ ” ’ [Citations.]” ( People v. Jones (2013) 57 Cal.4th 899, 916-917.) Applying these principles here, defendant s fail to show the trial court abused its discretion in finding no prima facie case of discrimination. The re cord does not support
the inference that discrimination occurred. Prothro’s argument that the prosecutor’s reason for dismissing the juror was pretext for discrimination is not supported by any evidence. Even defense counsel acknowledged that dismissing Juror No.15 for cause was within the court’s discretion when the pros ecutor moved to have her dismissed.
Defendants fail to demonstrate an abuse of discretion in the denial of their
Batson / Wheeler motion. II. Pretrial Challenge to the Wiretap (Prothro) Following a spike in crim e in 135 Piru gang territory , police wiretapped phone calls of 135 Piru gang members from someti me in 2008 to some time in 2009. The wiretap was judicially approved. Before trial, Prothro challe nged the wiretap. Prothro’s counsel argued that after the wiretap was in place, a prosecution informant was
incriminated in an unrelated murder. Prothro’s counsel asse rted the trial court should review the propriety of the wiretap order permitting the wiretapping of Prothro’s phone
because the informant wa s implicated in a murd er. On appeal, Prothro contends the court erred in failing to conduct an in-camera revi ew of the wiretap whic h allowed officers to record his phone calls.
Prothro demonstrates no basis for review of the wi retap affidavit. Although he cites authority holding that in -camera review is appropriate where there are allegations of police misrepresentation, he identifies no su ch police misrepresentation occurring in this case. (See e.g. People v. Galland (2008) 45 Cal.4th 354, 364 .) The record indicates the wiretap was based on a spike in crime in territory claimed by the 135 Piru gang, not on
the informant’s statement to o fficers. Prothro therefore fa ils to show the informant’s criminal record compelled the trial court to review the wiretap affidavit.9 III. Sufficiency of th e Evidence (Prothro) “In reviewing a sufficiency of evidence claim, the re viewing court’s role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire reco rd, a rational trier of fact could find the defendant guilty beyond a reas onable doubt. [Citations.] On appeal, we must view the evidence in the light most fa vorable to the People and must presume in support of the judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.]” ’ [Citation.]” ( People v. Smith (2005) 37 Cal.4th 733, 738-739.)
A. Murder of Llanos Ample evidence supported Prothro’s murder conviction. The evidence established that prior to the murder, Prothro and Simp son spoke on the phone. Prothro borrowed K.G.’s car to use during the shooting. Pr othro pulled up the car in front of Llanos’s house, demonstrating his intent to aid Simpson in shooting Llanos. Prothro called K.G. immediately after the shooting to return the car. He later as ked K.G. to provide him with an alibi, explaining that some “bad shit ha ppened” in the car. Pr othro did not identify Llanos by name to K.G. but reported to her that his “homies” had murdered the “Hispanics” who had chased them. After he was arrested for Llanos’s murder, Simpson
called Prothro and warned him to pretend he did not know Simp son. From this evidence reasonable jurors could infer that Prothro borrowed K.G.’s car to drive Simpson to Llanos’s location, then rapidly returned the car after the shooting to avoid detection. Reasonable jurors could infer that Prothro was Simpson’s driver. B. Attempted Murder Gutierrez Similarly, we conclude substantial evidence supported th e attempted murder conviction. Attempted murder is a specific intent crime and requires “ ‘the specific intent
to kill and the commission of a direct but ineffectual act towa rd accomplishing the intended killing.’ ” ( People v. Smith, supra, 37 Cal.4th at p. 739.) Prothro was convicted10 of attempted murder as an aider an abetter. 1 To be an aider a nd abettor, the defendant must have acted “with knowledge of the crim inal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” ( People v. Beeman (1984) 35 Cal.3d 547, 560, italics omitted.) “When the offense charged is a specific intent crime, th e accomplice must ‘share the specific intent of the perpetrator’; this occurs when th e accomplice ‘knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.’ ” 2 ( People v. Prettyman (1996) 14 Cal.4th 248, 259.) As noted above, Prothro drove the car and pulled up in front of Llanos’s mother’s house. Llanos was standing near one side of the drivew ay; Gutierrez was standing near the other side. The eyewitness to the crime, Marcos Llanos, described the two men as being approximately “eight feet away.” Marcos testified he heard a vehicle approaching.

1 The prosecutor argued: “These two defe ndants were not just going to the market and, lo and behold, Mr. Simp son pulls out a gun and kills Coco [Lla nos]. Mr. Prothro specifically pulled that car into the red z one, up alongside Coco’s house so that Mr. Simpson could fire off those shots. That’s how you know he was in on it. That’s how you know he was an aider and abettor. Th at’s how you know that he shared Mr. Simpson’s intent.”

2 Under the instructions gi ven, Prothro c ould be guilty for the attempted murder of Gutierrez if he knew “of the perpetrator’s unlawful purpose and he or she specifically intend[ed] to and d[id] in fact , aid, facilitate, promote, encourage, or instigate the perpetrator’s commissi on of that crime.” The instruction given on th e kill zone was as follows: “A person may intend to kill a specific victim or victims and at th e same time intend to kill everyone in a particular zone of harm or ‘kill zone.’ In or der to convict the defendant of the attempted murder of Daniel Gutierrez, the People must prove that the defend ant not only intended to kill Juan Llanos but also either intended to kill Daniel Gutierrez, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Daniel Gutierrez or intended to kill Juan Llanos by killing everyone in the kill zone, then you must find the defendant no t guilty of the attempte d murder of Daniel Gutierrez.”11 He saw a car approach and an arm holding a gun extended out of the window. He yelled
to Llanos to watch out as he dove to the ground. Police found two expended gun cartridges at the scene of the shoo ting. They also observed markings on a pillar pos t, south of the driveway, th at were consistent with a bullet strike, next to where Gutierrez had been standing. According to informant Crowder’s testimony, Simpson said he fire d three shots, then his gun jammed.
There was also evidence that when Prothro spoke to K. G. after the shooting, he told her “the homies put somebody down.” She asked, “you mean, somebody got murked [killed]?” Prothro responded: “Yes. I believe it was the Hi spanics that chased us.” According to this testimony, Prothro referred to “Hispanics” plural, even though only Llanos was shot. Similarly, in a reco rded call with an unid entified male, Prothro said the police wanted inform ation on “some other shit.” Th e other person said: “What a shooting or something?” Prot hro answered: “Yeah, a murde r.” The other person asked
“Who?” Prothro answered: “Some Mexicans. . . . From up over there, you know?” Again, Prothro referred to multiple vic tims, even though onl y Llanos was shot.
There was also evidence of an ongoing gang war betwee n Prothro’s gang and the B13 gang to which Llanos belonged. The gang expert testified a gang war was characterized by shootings and murders. This evidence taken together was sufficient to allow the jury to conclude Prothro had the requisite intent to support a conviction for the a ttempted murder of Gutierrez on an aiding and abetting theory , either directly, or based on a kill-zone theory. The evidence suggesting Simpson and Prothro targeted Llanos specifically was his important position in the B13 gang, and the fact that he was shot and killed. But there was also evidence from which the jury could reasonably infer Simpson and Prothro in tended to kill more people than Llanos alone. K.G. testifie d that days or weeks before the shooting, she and Prothro were chased by people while dr iving. She did not recall how many people were in the other car, but she consistently re ferred to multiple Hispanic males. There was evidence Simpson fired three bullets, and a r easonable inference is that he would have fired more had his gun not jammed. In descri bing the shooting to others, Prothro referred12 to “Hispanics” and “Mexicans.” Even though only Ll anos was shot in the attack, the jury could reasonably infer Prothro’s references to multiple victims indicated Simpson’s and
Prothro’s intent was to kill Llanos and Gutierrez, or Llanos and any other Hispanic male with him. ( In re Juan G. (2003) 112 Cal.App.4th 1, 5 [p resence at the crime scene, companionship, and conduct before and af ter the offense are relevant factors in determining aiding and abetting].) Similarly, the evidence supported Prothr o’s conviction for attempted murder of Gutierrez based on a kill zone theory. A k ill zone theory will apply “ ‘where the
evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted vict im (i.e., the “kill zone”) as the means of accomplishing the killing of that victim. Under such circumst ances, a rational jury could conclude beyond a reasonable doubt that the sh ooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm.’ [Citation.]” ( People
v. Leon (2010) 181 Cal.App.4th 452, 466.) Thus, in People v. Bland (2002) 28 Cal.4th 313, 331, the court concluded the defendant could be found guilty of attempted murder on a kill zone theory where the “defendant and his cohort fired a flurry of bullets at [a] fleeing car” which had mu ltiple occupants. ( Id . at p. 331.) In this case, the jury had evidence to find Simpson fired three bullets and would have fired more had his gun not jammed. There was also evidence of a bullet strike on a post next to where Gutierrez stood, suggesting Simpson aimed in directions other than directly at Llanos. The jury could credit this evidence and conclude that, absent the gun jamming, Simpson planned to unleash a “flurry of bullets,” with the in tent to kill not only Llanos, but also Gutierrez, w ho was standing near him. To the extent the jury conc luded Prothro shared Simpso n’s intent to kill Llanos, it could equally find Prothro shar ed Simpson’s intent to kill those standing near Llanos. There was an ongoing gang wa r between Prothro’s gang and the B13 gang. Prothro was chased by unknown Hisp anic persons shortly before the shooting. He drove Simpson to Llanos’s house. He subseque ntly described the attack as a shooting of multiple Hispanic persons. The method of the shooting—a driv e-by shooting in which three bullets were13 fired at two people standing relatively close to one another, and in which more bullets would have been fired without a gun malf unction, and Prothro’s description of the murder which suggested his focus was on more than one Hispanic person, all provided the jury a basis to conclude Prothro shared Simpson’s specific intent to kill Gutierrez.
IV. Admission of Evidence of Firearm Possession (Prothro)
K.G. testified that in the summer of 20 08, several months after the murder of Llanos, she saw Prothro with a shotgun. A.W. also testifie d that she saw Prothro with a shotgun in 2008. A.W. told police Prothro “k ind of said he was using [the shotgun] for protection.” The prosecutor acknowledged th e shotgun was not the murder weapon, but argued it was relevant to corroborate Crowder’s testimony that the 135 gang was nervous
about retaliation after Llanos’s murder. Sh e asserted the eviden ce would also show Prothro was in fear of retaliation, either because he was a 135 ga ng member, or because he was a perpetrator in the murder of Llanos. At trial, Crowder did in fact testify that at a party he attended where 135 gang members were present, including Simpson, the
attendees were “on alert” about retaliation from the B13 gang.
We find no abuse of discre tion in the trial court’s ru ling admitting the evidence as
relevant. Relevant evidence is defined as “having any tendency in reason to prove or disprove any disputed fact that is of cons equence to the determination of the action.” (Evid. Code, § 210.) The shotgun evidence was relevant because it tended to corroborate Crowder’s testimony that the 135 gang was “ on alert” for retaliation from the B13 gang due to Llanos’s murder, a nd further suggested Prothro personally was “on alert.” Moreover, even had the trial court erre d in admitting the evid ence, we would find
Prothro has not demonstrated a ny prejudice. The shotgun evid ence did not tend to show Prothro was the driver or to place Prothro at the scene of the murder. Given the strong evidence that Prothro drove Simpson to the mu rder scene, and was an active participant in the murder and attempted murder, it is not reasonably probable that the admission of14 evidence Prothro possessed a shotgun prejudiced him. 3 (See People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary errors in violation of state rules of evidence evaluated under the standard of prejudice announced in People v. Watson (1956) 46 Cal.2d 818, 836].) V. Denial of a Continuance (Prothro and Simpson) Prothro and Simpson argue their convictions must be reversed because the court improperly refused Prothro’s co unsel’s request for a midtrial continuance to secure the testimony of an expert on cell phones. A. Background Jury selection commenced July 13, 2011. The court was scheduled to be dark August 9 thru August 22. On August 1st, the prosecution rested. Prothro’s counsel
indicated she had one witness fo r the afternoon of the 1st and had witnesses lined up for the following day. The court warned counse l she needed to ensure there would be no
breaks in trial. The court stated: “If we ha ve a break and it’s a significant break, you’re going to rest. So you need to get your folks in line.” On August 2nd, at about 2:30, Prothro decided not to call his gang expert and had no remaining witnesses scheduled for that af ternoon, but had one witness scheduled for the following morning. Prothro’s counsel requested a continuance to 10:00 a.m. Counsel’s offer of proof indi cated the scheduled witness would contradict detective Martinez’s testimony concerning cell phone to wers. Prothro’s counsel represented the scheduled expert would discuss whether on e could determine a person’s location based on a cell phone call. In conjunction with Pr othro’s motion for a new trial, the expert provided a declaration which in cluded the following conclusion: “[I]t appeared from the Government’s own findings that the defe ndant [Prothro] was us ing a cellular tower several miles away from the cr ime scene just 60-seconds afte r the incident, and was last

3 On appeal, Prothro contends the trial court should have excluded the evidence under Evidence Code section 352. Defense counsel did not ra ise section 352 in the trial court. But even had this objection been pres erved, we would still fi nd no reversible error for the reasons explained above.15 using equipment within the vicinity of the crime scene a full 20 minu tes before the crime occurred.” The expert concluded the cell phone evidence was exculpatory. B. Analysis “ ‘ “The granting or denial of a motion for continuance in th e midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party antic ipates but also the likelihood that such benefit will result, the burden on other witne sses, jurors and the court and, above all, whether substantial justice will be accomplishe d or defeated by a gr anting of the motion. In the lack of a showing of an abuse of di scretion or of prejudice to the defendant, a
denial of his motion for a continuance cannot result in a reversal of a judgment of conviction.” ’ [Citations.] Entitlement to a midtrial continuance requires the defendant ‘show he exercised due diligence in pr eparing for trial.’ [Citation.]” ( People v. Fudge,

supra, 7 Cal.4th at pp. 1105-1106.)
We need not decide whethe r the trial court erred in de nying the defense request for a continuance because even if the ruling was in error, neither Prothro nor Simpson demonstrate prejudice. With respect to Prot hro, Martinez’s testimony about cell towers was relevant, but it was not the key testim ony implicating Prothro. The prosecutor argued that based on Martinez’s testimony, “w e know that about 20 minutes before the murder takes place Mr. Prothro’s cell phone pi nged off of tower 508,” which is about a
mile from the crime scene. That is consiste nt with the defense expert’s declaration that Prothro was in the vicinity of the cr ime scene 20 minutes before the crime. The prosecutor also argued: “Now, I want to be clear to you , cell phone evidence, [is] not a GPS device. . . . Nobody is saying th at Mr. Prothro was definitely at this place
at this time based on the cell ev idence. This is just to give you an idea of the general area that he is within. [¶] If the cell phone can ping off this to wer, then clearly he is not in New York . . . .” Thus, the prosecutor’s argument was consistent with the defense16 expert’s proposed testimony. 4 Therefore, Prothro fails to demonstrate he suffered prejudice. Simpson also fails to demonstrate prejud ice. As Simpson’s counsel argued, the key evidence against him was Marcos’s identif ication of him and Simpson’s admission to
Crowder. 5 The cell phone evidence neither bol stered nor undermined the evidence implicating Simpson. A contin uance to call Prothro’s expert would not have affected the outcome with respect to Simpson. VI. Jury Notes (Pro thro and Simpson) Prothro and Simpson argue the court prejudic ially erred in refusing to disclose two juror notes to them. We conclude any error was not prejudicial. A. Background During deliberations, jurors sent the court a note stating: “We are currently having a misunderstanding on our decisions. 11-1. [¶] Juror #7 would like a word with the judge regarding decision.” The court responded as follows: “The a ttorneys are being called. Please continue to deliberate, and reveal to no one how you are split. I cann ot simply talk to individual jurors regarding your decision be fore it is made. What is th e nature of the problem, and what can the court do to help you.”

4 Similarly, we reject Prothro’s claim of ineffective assistance of counsel based on his counsel’s failure to secure the expert’s testimony on Augu st 2. Even if counsel’s performance was deficient, we would not fi nd Prothro has established it is reasonably probable a more favorable result would have re sulted in the absence of counsel’s failings. ( People v. Lewis (1990) 50 Cal.3d 262, 288.)

5 Simpson’s counsel argued: “The case against Shawn Simpson essentially rests upon the testimony of two individuals. Thos e individuals are Marc os Llanos and Rufus Crowder.”17 The court did not share the complete conten ts of this note with counsel. The court described the note as a request from one or more jurors to talk to the court. About fifteen minutes later, the court re ceived the following note: “foreperson
stated that no evidence of a murder committed by Simpson & Pr othro. [¶] Phone calls – ‘especially the call’ [¶] maps ‘nothing register for me’ The car – Llanos stated ‘it was an impalla’ [¶] The line up . [¶] Absolutely decided (t old us) before coming into the jury room. Would not even discuss reasons for her decision was quite adamant & very arrogant ‘already saw everything.’ ” The court did not share the complete cont ent of this note with counsel. Instead, the court explained the gist of the note was that some jurors “aren’t willing to deliberate.” Counsel for Simpson requested the court re read CALCRIM No. 3550. The prosecutor requested the court also ask jurors if a ju ror was refusing to deliberate; counsel for Prothro objected to that request. Prothro’s counsel argued that reinstructing the jury with
CALCRIM No. 3550 was sufficient. The court responded to the jurors: “Ple ase review and follow Instruction #3550. Please advise the court of anything I can pr ovide to assist you.” Instruction No. 3550 stated in pertinent part: “It is your duty to talk with one another an d to deliberate in the jury room. You should try to agree on a verdic t if you can. Each of you must decide the case for yourself, but only afte r you have discussed the eviden ce with the other jurors. Do not hesitate to change y our mind if you become convinced that you are wrong. But do not change your mind just because other juro rs disagree with you. [¶] Keep an open mind and openly exchange your thoughts an d ideas about this case. Stating your opinions too strongly at the beginning or imme diately announcing ho w you plan to vote may interfere with an open discussion. Please treat one another courteously. Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.” Prothro argues he suffered prejudice from the court’s refusal to divulge the contents of the jury notes b ecause “[c]ounsel had no opportunity to seek inqu iries into a deadlock or misconduct warranting motions for mistrial. But most important, they had no opportunity to request furthe r readbacks or at least clarification if this is what was18 being requested.” Prothro also argues the tr ial court’s reference to instruction number 3550 was “coercive of a verdict on the part of the foreperson. . . .” According to Prothro, if counsel had been aware of the note, counse l could have requested an instruction that reminded all jurors including those in the majo rity and the minority of their obligation to deliberate. Simpson jo ins in the argument. B. Analysis First, requesting that jurors follow instru ction 3550 was not co ercive. To analyze coercion, “ ‘[t]he basic question . . . is whethe r the remarks of the court, viewed in the totality of applicable circumstances, operate to displace the independent judgment of the jury in favor of considerations of compro mise and expediency. . . .’ [Citations.]” ( People v. Santiago (2009) 178 Cal.App.4th 1471, 1476 .) Here, jurors were simply reminded of a standard instruction previously given by the trial court. The court did not express its view of the evidence or suggest ju rors should reach a gu ilty verdict. Nor did the court urge the jurors to reach a verdic t. The instruction requires each juror to deliberate, not only jurors in the minority. Th e record does not support the assertion that the court pressured the foreperson to change his or her verdict.
A defendant and his counsel are “entitled to be timely informed of [any questions that may be posed by the jury] and to be provided an adequate oppo rtunity to participate in the court’s determination of the proper response.” ( People v. Garcia (2005) 36 Cal.4th 777, 802-803.) Penal Code section 1138 (sec tion 1138) states, in pertinent part, that when a deliberating jury disagrees “as to the te stimony, or if they desire to be informed on any point of law arising in the case,” the trial cour t must provide the required information “in the presence of, or after no tice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called. Although the language of section 1138 refers to notice, the statute ha s been interpreted to afford the defense the right “to be present and to have an opportunity to have meaningful input into the court’s response to the jury’s inquiry.” ( Garcia, supra , at p. 802.) “[T]he procedural safeguards embodied in section 1138 recognize that bot h defense counsel and prosecuting attorneys frequently [] play a crucial role” when a deliberating jury seeks information. ( People v.19 Garcia, supra, 36 Cal.4th at p. 802; see also People v. Jenkins (2000) 22 Cal.4th 900, 1028 [“Counsel should be notif ied in order to ensure that counsel has an opportunity to object to the course of action undertaken by th e court or suggest an alternative course but the primary goal served by section 1138 is to provide the jury with the evidence it needs for its deliberations.”].)
We need not decide whethe r the trial court must always read the entirety of a jury’s note to counsel becaus e, in this case, neither Prothro nor Simpson demonstrate prejudice from the failure to provide th e complete notes to counsel. (See People v. Frye (1998) 18 Cal.4th 894, 1007-1008, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn . 22.) Although Prothro sugges ts with the benefit of the notes his counsel could have requ ested an instruction requiring all jurors to deliberate,
that is what the court instruct ed the jurors to do. Specific ally, the court instructed the jurors: “Each of you must d ecide the case for yourself, but only after you have discussed
the evidence with the ot her jurors. Do not hesitate to change your mind if you become convinced that you are wrong. But do not ch ange your mind just because other jurors disagree with you.” Under this instruction, jurors were told not to change their mind simply because other jurors disagreed, and al l jurors were instruct ed to deliberate. Prothro fails to identify any prejudice from th e court’s refusal to read the entire note. Simpson likewise identifies no prejudice alle gedly suffered from the court’s refusal to provide the complete text of th e juror notes, and we find none.
VII. Prothro’s Motion for New Trial (Prothro and Simpson) Prothro argues the court erred in denyi ng his motion for a new trial based on prosecutorial misconduct, the absence of f oundation for Martinez’s testimony concerning cell phone towers, and ineffective assistance of counsel. Simpson purp orts to join in the arguments except for the ineffe ctiveness argument, but fails to show how the argument is relevant to him, or any prejudice allegedl y flowing to him from the claimed errors.20 A. Alleged Prosecutorial Misconduct During rebuttal, the prosecutor argued: “Mr. Brown argued that how do we know Mr. Prothro is the shooter because nobody is sa ying specifically that he is the shooter? Well, there is somebody – excuse me – the dr iver. I apologize. I misspoke. We do know that Mr. Prothro is the driver by process of elimination. We know there’s a driver and a shooter in this drive-by. Bo th counsel agreed on how this drive-by took place. They didn’t argue that. There’s no evidence that an ybody else was there.” [¶] You know that that someone is driving the car because how does the car get there and get away. Mr. Prothro has been identified as the driver by Marcos, by Mr. Crowder. So we know
that Mr. Prothro is the dr iver.” (Italics added.) The prosecutor misspoke when she stat ed that Prothro was identified as the driver by Marcos and Crowder. Marcos and Crowder identified Simp son, not Prothro. No objection was interposed. Prothro forfeited his argument of prosecut orial misconduct by failing to raise it at the time the prosecutor made the misstatemen t, and by failing to request a curative instruction. ( People v. Lopez (2013) 56 Cal.4th 1028, 1210; People v. Fernandez (2013) 216 Cal.App.4th 540, 561.) With an objecti on, the prosecutor easily could have corrected her obvious misstatement. Assuming the qu estionable proposition that the failure to object constituted deficient performance, Prothr o fails to demonstrate any prejudice. Immediately before the misstatement, the pr osecutor clarified that no one identified Prothro. Earlier, the prosecutor argued jurors had to rely on circ umstantial evidence to convict Prothro, but could rely on direct evidence to convict Simpson. When the argument is considered as a whole, jurors could not have been misled into believing
Marcos and Crowder identified Prothro. Moreover, in addition to argument, the testimony at trial made clear that Marcos did not identify Prothro. Crowder testified he
did not know whether Prothro was the driver. Finally, although Simp son purports to join in this argument, he identifies no prejudice to him from the failure to object to the prosecutor’s argument and we find none.21 B. Foundation for Martinez’s Testimony Prothro argues detective Martinez’s te stimony lacked adequate foundation. Prothro asserts Martinez’s experience “was no substitute for specialized foundation in expertise or data for such specific test imony regarding this cluster of towers.” 1. Background
Martinez testified that he received traini ng from Verizon. Martinez took a class in how to analyze various issues relating to ce ll phones. When Martinez was asked whether “he heard the principle of ‘the closest towe r, the stronger signal,’ ” Simpson’s counsel objected. Over objection, Martinez testif ied: “When your phone is off and it’s not – you’re not making any phone calls, it’s in your pocket, the telephone is racking and stacking. So basically it communicates with th e cell towers that are near the telephone.
It can communicate with two or three different ce ll towers. [¶] That data is not recorded. So it racks and stacks, so that when you’re ready to make a phone call, it automatically grabs the nearest cell tower with the strong est signal.” Counsel for Prothro objected. The court requested the prosecutor lay fu rther foundation. Martinez testified that he spoke to technicians and analysts from va rious phone companies. Martinez testified that, in his experience, where the cell site places the caller can be, and is, corroborated
with other evidence. When the prosecutor asked about the general range of a cell tower, Prothro’s counsel objected. Over objection, Martinez testified he spoke to technicians, and analysts, and representatives at Verizon abou t the coverage for the different towers. Martinez testified the general range is a half a mile to two and a ha lf miles. Martinez personally went to the cell site locations to verify the address of the towers. 2. Analysis Even if the court erred in allowing Mar tinez to testify regarding cell phone towers, which we do not decide, neither Prothro no r Simpson demonstrates prejudice. As previously noted, Martinez’s testimony was not the key test imony implicating Prothro or Simpson. The key evidence against Prothro was the evidence that he borrowed K.G.’s car, called her shortly after the murder to return the vehicle, and informed her that “bad22 shit” happened in her car. Prothro also asked K.G. for an alibi and understood Simpson’s reference when Simpson warned Prothro to stay away from him the day after Simpson was arrested for Llanos’s murder. Although Prothro correctly describes this evidence as circumstantial, it is strong evidence that Prothro drove Simpson to kill Llanos and
Gutierrez. Had the court excluded Martinez’ s testimony it is not reasonably probable
Prothro would have received a more favorable verdict. Simpson also fails to show any prejudice. With respect to Simpson, the key
evidence was Marcos’s identifi cation and Crowder’s summary of Simpson’s confession. Martinez’s testimony had no bearing on this evidence and the admission of Martinez’s testimony did not prejudice Simpson. (See People v. Fudge
, supra , 7 Cal.4th at p. 1103 [state standard of prejudice a pplies to evidentiary errors in violation of state rules of evidence].) 3. Alleged Ineffective Assistance of Counsel Prothro argues his counsel rendered ine ffective assistance because she counseled him not to testify. On this record Prothr o demonstrates no ineffe ctive assistance of counsel. Without knowing what Prothro’ s testimony would have been, Prothro’s argument that the outcome would have been different if he had testified lacks merit. ( People v. Williams (2013) 218 Cal.App.4th 1038, 1074 [to prevail on claim of
ineffective assistance of counsel de fendant must show prejudice].) VIII. Alleged Instructional E rror (Prothro and Simpson) A. No Further Definition Required Relying on Justice Werdegar’s co ncurring and dissenting opinion in People v.
Albillar (2010) 51 Ca l.4th 47, 73 ( Albillar ), Prothro argues the tria l court should have sua sponte instructed the jurors on the meaning of the term “in association with a criminal street gang.” Albillar does not support Prothro’s argument.
In Albillar , the majority held ther e was sufficient evidence that sex offenses were
committed in association with the gang because the “defe ndants relied on their common gang membership and the apparatus of the ga ng in committing the sex offenses . . . .” ( Id . at p. 60.) In her separate opinion, Ju stice Werdegar found the record lacked23 sufficient evidence to show the defendants acted in association with a gang and questioned the majority’s analysis. ( Id . at p. 73.) Neither the majority nor Ju stice Werdegar held that the phrase “in association with” was a technical phrase that required definition. Albillar does not support Prothro’s argument that the court was required to sua sp onte define the phrase “in association with any criminal street gang.” Instead, the Albillar court simply explained why sufficient evidence supported the gang enhancement. The high court relied on evidence demonstrating common gang membership and th e apparatus of the gang in committing
the offenses as factors showin g substantial evidence, but did not require those factors in

every case. Even if the court should have instructed the jurors that “in association with the gang” means defendants rely on their common gang membership and the apparatus of the gang in committing the offense, the only reasonable conclusi on in this case is that
defendants acted in association with the gang. Defendants were self-admitted members of the 135 Piru gang. At the relevant time, the 135 Piru gang wa s at war with the B13 gang. Together Simpson and Prothro comm itted a shooting at a rival gang member’s house. Simpson then bragged about killing Ll anos. Prothro reported that his “homies” “put . . . down” the Hispanic persons who had chased him. We reject defendants’ argument. B. Defendants Demonstrate No Other Instru ctional Error Prothro argues the following instructi on was erroneous: “You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, an d knowledge that are required to prove the gang-related crimes and enhancements charged; OR [¶] The defendant had a motive to commit the crimes charged. [¶] You may also consider this eviden ce when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expe rt witness in reaching his or her opinion. [¶] You may not consider this evidence for any other pu rpose. You may not conclude from this evidence that the defendant is a person of ba d character or that he has a disposition to24 commit crime.” Prothro failed to request any modification to the instruction, fails to show it is erroneous, and fails to show prejud ice. Although Simpson purports to join in the argument he demonstrates no e rror and identifies no prejudice. Finally, Prothro also challenges the st andard instruction on expert witness testimony. He argues that under the instruc tion, jurors could consider the hearsay and anecdotes of the gang expert. 6 Simpson joins in these challenges to the court’s instructions. But, neither Prothro nor Si mpson identify specific hearsay testimony or anecdotes they contend the juro rs should not have been a llowed to consider. Neither demonstrates error in the instruction, a depr ivation of due process, or prejudice from the instruction, which was not cha llenged in the trial court. Even assuming that defendants demonstrated error, they demonstrat ed no prejudice under any standard. IX. Prothro’s Sentence (Prothro) Prothro argues the firearm enhancement on the attempted murder count must be reversed because it was neither alleged, no r presented to the jury for a finding. The People agree, as do we. A gun en hancement pursuant to section 12022.53, subdivisions (d) and (e)(1) was not alleged or sought at trial as to the attempted murder count. In addition, Gutierrez did not suffer d eath or great bodily injury. The trial court

6 The expert witness testimony instru ction (CALCRIM No. 332) provides: “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In eval uating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, sk ill, experience, training, and education, the reasons the expert gave for a ny opinion, and the facts or in formation on which the expert relied in reaching that opinion. You must decide whether info rmation on which the expert relied was true and accurate. Y ou may disregard any opi nion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypoth etical question asks the witness to assume certain facts are true and to gi ve an opinion based on the assume d facts. It is up to you to decide whether an assumed fact has been proved . If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.”25 had no authority to impose the enhancement at sentencing. ( People v. Botello (2010) 183 Cal.App.4th 1014, 1026-1029.) Prothro’s sentence must ther efore be reduced by 25 years to life. However, as the People point out, the trial court imposed a seven-years-to-life sentence on the attempted premeditated murder count, which was unauthorized. Pursuant to section 186.22, subdivision (b)(5 ), the trial court should have imposed a sentence of life with a minimum of 15 years. ( People v. Campos (2011) 196 Cal.App.4th 438, 447-454.) X. Simpson’s Sentence (Simpson) Simpson argues his sentence of 15 ye ars to life for attempted murder is
unauthorized. He also contends the cour t improperly sentenced him under section 12022.53, subdivision (d ), when he was charged under sec tion 12022.53, subdivision (c). We agree with the la tter contention only. Although the sentence for attempted murder with de liberation and premeditation generally is life with the possib ility of parole, in this case Simpson also was convicted of the gang enhancement under section 186.22, subdivision (b)(5). That enhancement set a minimum parole eligibility date of 15 years. Therefore, the trial court correctly sentenced Simpson to 15 years to life. The court however erred in sentencing Simpson to an uncharged enhancement. As respondent acknowledges, Simpson’s sent ence must be correct ed to reflect the enhancement for which Simp son was charged and convict ed. Section 12022.53, subdivision(c) provides: “Notwithstanding a ny other provision of law, any person who, in the commission of a [specified] felony . . . personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.” Under this stat ue, Simpson should have been sentenced to 20 years. XI. Cumulative Error (Prothro and Simpson) Defendants argue that cumulative error re quires reversal. Having reviewed the entire record, we find no cumula tive error requiring reversal.26 DISPOSITION With respect to Simpson, th e judgment is modified to reflect a 20-year sentence on Count 2 (attempted murder) for the section 12022.53, subdivision (c) enhancement. With respect to Prothro, the ju dgment is modified to reflect a 15 years to life sentence on Count 2 (attempted murder). The clerk of the trial court is directed to prepare amended abstracts of judgment reflecting these modi fications and send certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.

BIGELOW, P. J.

We concur:

FLIER, J.

GRIMES, J.