Filed 6/4/15 P. v. Valenciz CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B252996

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA124850)
         v.

JUAN DIEGO VALENCIA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin
D. Filer, Judge. Modified and affirmed with directions.
         Joseph Shipp, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Victoria B. Wilson, Supervising Deputy Attorney General, and Erika D.
Jackson, Deputy Attorney General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Juan Diego Valencia appeals from the judgment entered following a
jury trial in which he was convicted of second degree murder and evading an officer with
willful disregard. Defendant raises numerous contentions of error. We agree he was
subject to two, not four, prior prison term enhancements, but otherwise affirm.
                                     BACKGROUND
1.     Events preceding shooting
       Selene Mayoral, aged 24, lived with her parents and worked part-time at
Kenwood. On the evening of September 5, 2012,1 Selene told her mother, Graciela
Mayoral, that she was going out with a male friend from work and would be back the
next day. Selene packed a bag with clothing that she said she intended to launder and left
the family home on foot. Mrs. Mayoral was concerned about Selene because she had
been staying with friends a lot, and Mrs. Mayoral feared Selene had relapsed into using
methamphetamine, as she had when she was a teen.
       About 3:00 p.m. the next day, Mrs. Mayoral spoke to Selene by phone and all was
well. Selene said she was sleepy. Selene phoned Mrs. Mayoral around 5:00 p.m., but
Mrs. Mayoral missed the call. She called Selene back about 20 times, but Selene did not
answer. At 5:32 p.m., Selene sent Mrs. Mayoral a text message asking to be picked up.
A little later, they spoke about Selene’s location. Selene said the address was written
down in her room, but Mrs. Mayoral did not find it. Selene told her she was in
Hawthorne on Chadron and 139th Street. Selene said someone wanted to take her cell
phone, and Mrs. Mayoral told her to “tell the gentleman who had her to return her to me.
If not I would call the police.”
       Selene’s father’s drove to the area, and Selene and Mrs. Mayoral exchanged
several text messages around 5:55 p.m. One said, “‘Mom, I’m going.’” Nonetheless,
Selene’s father returned home without her. Selene phoned her mother around 6:30 p.m.
and said “they” were threatening her and keeping her in a dark room, and she could not

       1   Undesignated date references pertain to 2012.



                                             2
leave. Later, Selene called her mother from a different phone and said her cell phone had
been taken. Mrs. Mayoral heard Selene telling “Juan” not to hurt her, to let her go home
to her mother, and that she believed he was good. Thereafter, Mrs. Mayoral heard
“conversation back and forth.” Selene then said, “‘I’m okay, the person is taking me
home.’” Mrs. Mayoral said she was at Selene’s location; Selene told her to leave because
Juan did not want her to know where he lived. The last thing Mrs. Mayoral heard was
Selene screaming.
       At 8:11 p.m. Mrs. Mayoral sent Selene a text message telling her to come outside
where they were waiting for her. There was no response and Selene did not emerge.
Mrs. Mayoral went onto the grounds of one of the apartment buildings on the block and
asked people about Selene, but no one had information. Mrs. Mayoral kept looking and
yelling. She saw two men carrying Selene’s bag, ran up to them, and grabbed the bag
from them. They claimed they had merely found the bag and denied knowledge of
Selene.
2.     The shooting, pursuit, and dumping of the victim’s body
       Deputy Jonathan Montes was on patrol in Lynwood in a marked Sheriff’s
Department car at 11:15 p.m. on September 6 when he saw a green Mercury driving with
its high-beam headlights on. After the car made an unsignaled left turn, Montes followed
it. Montes could see there were two occupants who appeared to be conversing. Montes
turned on his flashing lights to effect a traffic stop. The Mercury pulled to the curb, and
Montes parked one or two car lengths behind it. Montes immediately saw a flash of light
inside the Mercury and heard a gunshot. The Mercury then sped away.
       Montes pursued the Mercury with all of his car’s emergency lights on and radioed
for assistance. Soon, several other sheriff’s patrol cars and a helicopter joined the
pursuit. The Mercury drove in excess of the speed limit and ran several stop signs and a
red light. As the Mercury made a turn, Montes saw the passenger’s head slide toward the
center of the car, but he never saw it come back up.




                                              3
      The Mercury slowed as it reached the intersection of Josephine and Harris Streets
in Lynwood, then came to a stop. Montes stopped his patrol car behind it. The driver of
the Mercury, whom Montes identified at trial as defendant, reached across the car,
opened the passenger-side door, pushed the passenger (Selene) out into the street, then
drove away. A video recording of this was played at trial.2
      Most of the deputies resumed the pursuit of the Mercury, but several stopped
where the body was dumped. Deputy Victor Rascon testified Selene appeared to be dead
when he first saw her. Paramedics later pronounced her dead at the scene.
      Pursued by Montes and many other deputies, defendant drove west on the 105
Freeway at an average of 85 miles per hour and drove to 14005 Chadron Avenue in
Hawthorne. Defendant stopped his car in the middle of the street and ran toward an
apartment building, leaving the engine and headlights on and the driver’s door open.
Montes saw a gun fall from defendant’s “waistband area” onto the ground. The gun was
a loaded .45-caliber Colt semiautomatic.
      Montes testified the entire pursuit, from the time he originally stopped the
Mercury until defendant abandoned the car, lasted 20 to 25 minutes.
3.    Defendant’s arrest, postarrest statements, and conduct
      Montes and Deputy Nikolai Vavakin pursued defendant on foot and saw him enter
a third floor apartment. Vavakin kicked in the door of the apartment and saw defendant
standing in front of him. Vavakin ordered defendant to come out, but defendant ran out
of sight. Defendant’s cousin, Jesse Valencia, came out, but defendant ignored the
deputies’ orders to surrender. The deputies summoned a special team that had police
dogs, and defendant eventually surrendered and was arrested. Thereafter, defendant’s
half brother also emerged from the apartment.




      2  Outside the presence of the jury, the prosecutor informed the court this video
recording was made by “a citizen” who was “at the corner anticipating the pursuit route.”



                                            4
         Deputies Christopher Gomez and Brandon Patin escorted and guarded defendant
at the scene. Patin told Gomez he was waiting for a gunshot residue (GSR) kit before
putting defendant into a patrol car. Defendant then made a spontaneous statement to
which both deputies testified. According to Patin, defendant said, “‘You’re going to
execute me. If you’re going to execute me look me in the face when you do it. I looked
at her.’” According to Gomez, defendant said, “‘Oh, you’re going to GSR me? You’re
going to execute me? If you’re going to execute me you should look at me in my face
like I looked at her.’”
         Patin testified defendant made another spontaneous statement as he and Gomez
were driving defendant to the command post: “‘You’re going to shoot me in the head
like I did her.’” Later, as the deputies were taking Jesse Valencia out of Patin’s patrol car
to put defendant in that car, defendant said to Jesse in a low voice, “‘Hey, fool, I killed
her.’”
         Gomez testified that defendant at some point spontaneously said, “‘Hey, I know
you’re going to execute me. If you’re going to do it, do it in my head like I did her.’”
         Patin testified that before he took defendant out of his car at the sheriff’s station,
defendant asked, “‘Did you know Blair?’” Patin did not answer, and defendant said,
“‘We will be remembered forever because we killed Blair. We killed the deputy.’” Patin
then realized defendant was talking about Deputy Steven Blair, who had been killed by a
member of the Young Crowd gang in 1994.
         During the booking process, defendant admitted he was a member of the Young
Crowd gang and he made a gang hand signal while Patin photographed him. Defendant
also said he lived in the apartment from which he was extracted and he had used
methamphetamine on September 6.
4.       Search of the car and the apartment
         The front passenger window in the Mercury was shattered and there was glass on
the center console and dashboard, as well as on the passenger seat. There was also a
great deal of blood in the car, and an expended .45-caliber casing was found lodged



                                                 5
between the rear seat and the car frame. Deputies found Selene’s identification inside a
wallet in a purse on the floorboard of the Mercury. A glass smoking pipe was on the
driver’s seat. Deputies did not find any cell phones in the car, but there were three in the
bathroom in defendant’s apartment. The batteries had been removed from two of the
phones. There was blood on the wall of the bathroom. In the only bedroom in the
apartment, deputies found defendant’s identification, a glass smoking pipe, two handguns
in the pockets of a jacket in the closet, and “Young” and “Crowd” written on a pad of
paper. In a cabinet in the hall, deputies found assorted ammunition, a loaded magazine
for a .45-caliber gun, and a magazine for a .25-caliber gun.
5.     Forensic evidence
       Deputy Medical Examiner Paul Gliniecki, who performed the autopsy on Selene,
testified she had been shot through the head, with the bullet entering her left ear and
exiting behind her right ear. The trajectory of the shot was left to right, 10 degrees
downward, and 20 degrees front to back. The presence of soot and absence of stippling
demonstrated it was a contact shot, i.e., the gun was close to the skin. It would have been
“rapidly fatal.”
       Gliniecki noted numerous contusions and abrasions on Selene’s body, including
abrasions above her right eye; abrasions on the right side of her neck extending onto her
shoulder; a diamond shaped abrasion below her chin “consistent with possible ligature”;
ligature marks on her neck with and abrasions around those marks, possibly from
fingernails; abrasions and contusions on her upper left chest; and contusions on her right
arm above her elbow and on both hands. Her inner lip was lacerated. In response to a
hypothetical question regarding a woman’s body being pushed out of a car onto the street
approximately 16 minutes after she was shot through the head, Gliniecki testified he
would not expect to see all of the bruising he saw on Selene.
       Testing revealed Selene had methamphetamine and amphetamine in her system.
       Sheriff’s firearms examiner Tracy Peck examined and test-fired the .45-caliber
Colt recovered by deputies. She discovered it had both a manual thumb safety lever and



                                              6
an unusual grip safety. The latter must be depressed by holding the rear of the grip in
order to fire the gun. In addition, the trigger had to be pulled all the way back to fire the
gun, which required three and one-quarter pounds of pressure. The gun was working
properly. Peck also compared casings obtained from test-firing the gun to the casing
recovered from the Mercury and determined the Colt had ejected the casing that was in
evidence.
6.     Gang evidence
       Gang Detective Grant Roth testified as the prosecution’s gang expert regarding
Young Crowd, a Hispanic criminal street gang on the east side of Lynwood with about
100 members. In September of 2012, Young Crowd’s rivals were the Neighborhood
Crips, Cross Atlantic Piru, and South Side Lynwood. Roth opined that the primary
activities of the Young Crowd gang are vandalism, narcotic sales, batteries, street
robberies, murders, carjackings, extortion, and shootings. Roth further opined gangs
strive to intimidate both their rivals and the residents of the area claimed by the gang
because doing so allows the gang to commit crimes without fear of being reported to the
police and prevents rival gangs from taking over their territory and recruiting new
members from within their territory. Roth also testified it was becoming increasingly
common for gang members to live outside of the territory claimed by their gang. Doing
so shielded them from police pressure to some extent.
       Although Young Crowd was one of the gangs upon which Roth claimed expertise,
he had never met or heard of defendant. A fellow detective knew defendant to be a
member of Young Crowd known as Scarface and had heard that defendant had a
reputation within the gang as a shooter. Defendant had several tattoos related to the
gang, including “Y” and “C” on his abdomen and on each bicep; “Lynwood” with bullet
holes depicted over the “n,” signifying disrespect to the rival Neighborhood Crips; and
“SSLA” on his leg, meaning South Side Los Angeles and signifying allegiance to the
Mexican Mafia. Roth opined defendant was a member of the Young Crowd gang.




                                              7
         According to Roth, the location where Selene’s body was dumped was within the
territory claimed by the Neighborhood Crips. In response to a hypothetical based upon
the prosecution’s evidence, including that the victim was held against her will prior to the
shooting, Roth opined that the homicide was committed for the benefit of the Young
Crowd gang. He explained that because the victim was killed in Lynwood, the body was
dumped in the territory of a rival gang in a “display of force,” and the shooter had
associated the instant killing with a deputy’s murder, the homicide would enhance the
gang’s reputation for violence, and thereby intimidate rival gangs, the community, and
even law enforcement officers.
7.       Defendant’s testimony
         Defendant testified he grew up in Lynwood and only joined the Young Crowd
gang for protection after he was shot in the face at a restaurant. At the time of trial he no
longer considered himself an active member of the gang.
         Defendant admitted that he had served time in prison for three drug-selling
convictions, and on cross-examination he admitted he also had been convicted of
possessing a gun and evading the police. He obtained his first tattoos in prison in 2005
and liked them, so he kept getting more. Some of his tattoos were gang-related and
others were not.
         Defendant testified he had been using methamphetamine on and off since 2003,
though not while he was incarcerated. He resumed in April of 2012 and was using one to
two grams per day, which members of his gang gave him for free “just [to] show [him]
love.”
         Defendant testified that he met Selene at Kenwood in February of 2012. Two or
three months later, they began spending every other weekend together. They always
used methamphetamine when they were together.
         Defendant picked up Selene and her friend Betty on September 5. Defendant’s
cousin Jesse was also at the apartment. On September 6 defendant went to work in the
morning and got home around 5:00 or 5:30 p.m. He made food, then they got high.



                                              8
When defendant ran out of methamphetamine, Selene said she wanted to go home. He
did not care whether she left, but he told her to get a ride from someone else because
there was too much traffic. Selene called her mother. Defendant did not know what she
said to her mother, but she left around 7:00 or 8:00 p.m.
       Defendant called a friend and arranged to visit the friend at home. As he left
around 8:00 p.m., he saw Selene standing in the lobby of the apartment building. She got
in defendant’s car when he told her he was going to pick up more drugs. They went to
the friend’s house, then to a gas station, where they got high.
       While they were driving through Lynwood defendant noticed a police car behind
him. He was worried because he had a loaded gun under the seat of his car. He pulled
over and told Selene to hide the gun. Holding the gun by the slide with the barrel pointed
forward, toward the windshield of the Mercury, defendant handed her the gun. He felt
their hands touch, but he was looking in the rear view mirror, not at Selene. He heard a
loud bang, saw muzzle flash, and felt the gun discharge. Defendant testified he thought
someone, perhaps the deputy behind him, was shooting at him from outside the car, so he
sped away. He insisted he did not know Selene had been shot and denied that he shot
her. Later, as he made a turn, she slid toward him. He tapped her to see if she was okay.
He thought she was ducking, but eventually realized she was slumped over and must be
injured. Defendant saw people standing at the corner of Josephine and Harris and
thought they could help Selene, so he pulled over and gently pushed her out.
       Defendant drove home because he was thirsty and he thought he would be safe
there. When he parked his car outside his building, he knew the police were still chasing
him, so he ran to his apartment. He drank some milk, then went in the living room. He
did not know what happened with the gun because he did not have it at any point after he
handed it to Selene. When Vavakin kicked in the door and aimed a gun at defendant,
defendant thought Vavakin was going to shoot him, so he ran and hid in the bathtub. He
heard deputies say they were going to shoot him and “sink him,” so he thought they
intended to kill him. After he came out, he heard deputies refer to “GSR” and thought it



                                             9
meant kill him. He recalled telling a cameraman that they were going to execute him, but
did not remember telling the deputies to look him in the eye.
       Defendant told the deputies he was high, but they did not test him for drugs. He
remained numb for two weeks, after which he mourned Selene. He admitted that when
he spoke to detectives, he told them that the only thing he remembered was driving
around.
8.     Verdicts and sentencing
       The jury convicted defendant of second degree murder and evading an officer with
willful disregard. With respect to the commission of the murder, the jury found
defendant fired a gun, causing death, but found the gang enhancement allegation was not
true. The jury also found four Penal Code section 667.5, subdivision (b)3 prior prison
sentence enhancements true. The court sentenced defendant to prison for an aggregate
term of 47 years to life, consisting of consecutive terms of 15 years to life for murder, 25
years to life for the gun enhancement, 3 years for evading, and 4 years for the prior prison
sentence enhancements.
                                      DISCUSSION
1.     Denial of motion to bifurcate trial of gang enhancement allegation
       Before trial, defense counsel sought to bifurcate trial of the gang enhancement.
The prosecutor opposed, telling the court that the gang evidence was relevant to proof of
defendant’s intent to kill because it explained why the body was dumped at the particular
location and why defendant referred to a prior crime committed by his gang.
       The trial court declined to bifurcate, saying: “I certainly understand the
defense’[s] concern, but I have to recognize the reality of apparently the evidence that’s
going to come in, and it appears that there are statements or evidence that the People
intend on using to show why the offense may have been committed, why certain things
were done, why certain things were said. [¶] And it appears to the Court that the gang

       3   Undesignated statutory references are to the Penal Code.



                                             10
evidence is inextricably tied in and connected with the evidence regarding the People’s
case in chief. And I found that when you do voir dire on the gang issues that we’re able
to get jurors who can separate that. So I think it is important that the jury is aware of it
up front and that they aren’t ambushed or surprised or challenged by that information
coming out unannounced. [¶] So I’m going to overrule the defense objection. However,
I am going to voir dire on that issue and I’ll allow counsel to voir dire as well. And also,
if the defense requests, my intentions would be to give a limiting instruction as to how
they’re to consider that evidence.”
       Defendant contends that the trial court erred by denying defendant’s motion to
bifurcate trial of the gang enhancement allegation. He argues that although the jury did
not find the gang enhancement allegation true, presentation of the gang evidence
prejudiced the jurors against him and influenced their “determination on significant
issues of accident or gross negligence turning on [defendant’s] credibility.” He contends
this error violated his right to due process.
       a.     Pertinent principles of law
       A gang enhancement allegation differs from a prior conviction allegation, in that it
is “attached to the charged offense and is, by definition, inextricably intertwined with that
offense.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) The need
for bifurcation of a gang enhancement allegation is therefore far less than that for a prior
conviction allegation. (Ibid.) Where the gang evidence is “relevant to, and admissible
regarding, the charged offense” there is no need to bifurcate, “[e]ven if some of the
evidence offered to prove the gang enhancement would be inadmissible at a trial of the
substantive crime itself.” (Id. at pp. 1049–1050.) The trial court’s discretion to deny
bifurcation of a gang enhancement is broader than its discretion to admit gang evidence
when no enhancement is charged, and a defendant must “‘clearly establish that there is a
substantial danger of prejudice requiring that the charges be separately tried.’” (Id. at
p. 1050.)




                                                11
       We review the trial court’s ruling for an abuse of discretion, in light of the record
that was before the trial court at the time of the ruling. Even if the trial court’s ruling was
correct at the time it was made, however, reversal is required if the defendant shows the
failure to bifurcate resulted in “‘“‘gross unfairness’ amounting to a denial of due
process.”’” (People v. Burch (2007) 148 Cal.App.4th 862, 867 [bifurcation of section
667.5, subdivision (b) prior prison term allegation].)
       b.     The trial court did not abuse its discretion
       Defendant cast Selene’s shooting in the light of a gang-related crime by his
spontaneous statement to Patin that his gang would be remembered forever because they
killed Deputy Blair. The theory subsequently developed by the prosecutor that the crime
was gang-related was supported by certain attributes of the crime, such as the brazenness
of shooting her in front of a deputy sheriff and pausing during a police chase to dump her
body in the territory claimed by a rival gang, in full view of pursuing deputies. If
defendant’s motive for killing Selene was a gang-related reason, it would show he
intended to kill and completely undermine his accident defense. Thus, at least some of
the gang evidence was cross-admissible on the issues of intent and motive. Accordingly,
we cannot conclude the trial court abused its broad discretion by declining to bifurcate.
       c.     Defendant was not prejudiced by a unitary trial
       Even if we were to conclude the trial court erred by denying bifurcation, we
necessarily would conclude such error was harmless beyond a reasonable doubt. First,
the mere fact that the jury did not find the gang enhancement to be true indicates it was
not swayed by the gang evidence.
       Furthermore, evidence of defendant’s guilt was overwhelming. Although
defendant refers to the existence of “live identification issues,” there was no question that
defendant was the person in the car with Selene when she was fatally shot. Not only was
he observed by Montes, he also admitted that he and Selene were in the car together at
the time. Thus, there were no identification issues, “live” or otherwise. The jury’s
determination in this case instead turned on a single issue: Did defendant intentionally



                                              12
shoot Selene or was the shooting an accident?4 If defendant intentionally shot Selene,
additional aspects of his mental state, such as premeditation, were also at issue.
       The two versions of events presented to the jury were not equally credible, as
defendant suggests by characterizing this as “an unusually delicate
intent/malice/credibility case.” The prosecution’s theory of an intentional shooting was
supported by defendant’s several postarrest statements to deputies and to his cousin that
he had killed or shot Selene and had looked her in the face when shooting her. It was
also supported by the forensic evidence. Selene was killed by means of a contact shot
through her left ear, with a slight front to back trajectory, which would have been
extremely difficult—perhaps impossible—for her to inflict upon herself, especially given
that she was right-handed. Self-infliction of such a shot was even less plausible in light
of the grip safety on the Colt, which required holding the back of the gun’s grip to
depress that safety, and the three and one-quarter pound trigger pull. Defendant’s
alternative theory of accidental discharge during the gun handoff was even more
implausible, given the location and trajectory of the bullet wound, that it was a contact
wound, and the necessity of depressing the gun’s grip safety and fully retracting the
trigger with three and one-quarter pounds of force.
       Numerous aspects of defendant’s testimony further reduced his credibility, and
thus the likelihood of the jury’s acceptance of his accidental discharge theory. First,
defendant’s claim that he thought someone outside the car, possibly Deputy Montes, was
shooting at him was both inherently implausible, given the large caliber of the gun and
the extremely close proximity in which it was fired, and contradicted by defendant’s own
testimony that he felt the gun discharge. Defendant also testified that he did not have the
gun and did not know what happened to it after he handed it to Selene, yet Montes
testified he saw the gun fall from the vicinity of defendant’s waistband when defendant
fled from his car outside the apartment building and the gun was recovered from just

       4   Defendant did not claim Selene purposely shot herself.



                                             13
outside the driver’s door of the Mercury. Other inherent implausibilities in defendant’s
testimony included that he pushed Selene’s body out of the car so bystanders could help
her, and that he drove home at the end of the pursuit because he was thirsty and thought
he would be safe there. Defendant’s failure to tell investigators that the gun must have
discharged accidentally during handoff also detracted from his credibility, as did his prior
felony convictions, which the jury was instructed it could consider with respect to a
witness’s credibility. (CALCRIM No. 226.)
       In addition, the bruises and ligature marks on Selene clearly indicated someone
had abused her, and as far as the record revealed, defendant was the only one of the three
people at the apartment that knew Selene or interacted with her.
       In light of the highly implausible defense and the forensic evidence supporting the
prosecution’s theory of an intentional shooting, any error in failing to bifurcate trial of the
gang enhancement was harmless beyond a reasonable doubt.
2.     Denial of motion to exclude victim’s and mother’s statements on telephone
       Prior to trial, defendant sought to prevent Mrs. Mayoral from testifying to the
contents of her telephone conversations with Selene while Selene was in defendant’s
residence on the ground such testimony would be hearsay. The prosecutor argued it was
relevant to Mrs. Mayoral’s state of mind and her conduct. Defendant argued Mrs.
Mayoral’s state of mind and conduct were not relevant. The prosecutor then argued the
conversations were relevant to “defendant’s state of mind at the time of the shooting and
what’s happening when he decides to shoot her,” in that defendant was holding Selene
hostage and thought Mrs. Mayoral had called the police.
       The trial court denied exclusion, saying, “[I]t does appear that the exception to the
hearsay that’s coming in not for the truth of the matter asserted but to explain the
mother’s conduct, and also, I think it is somewhat circumstantial to connect the victim,
the location of the victim, where she might have been and where she was at the time the
officers made the observations they did, and even the defendant’s action at the time of the




                                              14
shooting. . . . But I will give a limiting instruction to the jury as to how they are to
consider that evidence.”
       The court seemingly forgot to give the promised limiting instruction, and counsel
did not request such an instruction.
       Defendant contends the trial court erred by permitting Mrs. Mayoral to testify that
Selene said someone wanted to take her cell phone away and later that someone had
taken it; Selene said “‘they’” had her in a room, they were threatening her, and she could
not leave; Selene told “Juan” not to hurt her, that she believed he was good, and asked
that he let her go to her mother; and Mrs. Mayoral told Selene to tell the man who had
her to return her or she would call the police. He argues admission of this evidence
without “a nontruth instruction” violated his right to due process. He contends it was
inadmissible hearsay and, even if nonhearsay, should have been excluded as unduly
prejudicial pursuant to Evidence Code section 352.
       The Attorney General does not address the hearsay issue, but her citation of
authorities suggests she views all of these statements as nonhearsay. She contends the
statements were relevant to defendant’s mental state “because it showed [defendant] had
a motive to kill Selene, i.e., he believed he would be accused of harming or keeping her
against her will.”
       The Attorney General also argues that the prosecutor did not argue the challenged
statements for their truth. A review of the prosecutor’s arguments, however, reveals that
he argued the truth of these statements by arguing, “She wants to go home”; “She’s
locked up and she cannot leave. Juan is trying to take the phone from her. She’s talking
to him in the background”; “Selene stops talking and the mom hears her scream as the
phone call ends. What’s happening is the defendant is telling Selene, call your mom and
tell her to stop what she’s doing, that you’re going home. That’s what’s happening. And
once she says, I’m okay, and the message is given to the mother the phone is taken away
so nothing else is said”; and, “Her phone is taken away. We know that because the mom
heard it happen, told her, I can’t call you my phone is taken away.”



                                              15
       a.     Pertinent principles of law
       An out-of-court statement that is offered to prove the truth of the matter stated
therein constitutes hearsay and is inadmissible absent an applicable exception. (Evid.
Code, § 1200.)
       “Evidence of a statement of a declarant’s state of mind, when offered to prove or
explain the declarant’s conduct, is admissible, as long as the statement was made under
circumstances indicating its trustworthiness. (Evid. Code, §§ 1250, subd. (a)(2), 1252.)
A prerequisite to this exception is that the [declarant] victim’s mental state or conduct be
placed in issue. [Citation.] Evidence of the murder victim’s fear of the defendant is
admissible when the victim’s state of mind is relevant to an element of an offense.
[Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1114 (Guerra) [finding victim’s
state of mind relevant to disprove consent in context of attempted rape felony-murder
theory and special circumstance allegation], disapproved on another ground in People v.
Rundle (2008) 43 Cal.4th 76, 151.) If the victim’s conduct in conformity with his or her
fear is not in dispute, statements reflecting the victim’s state of mind are irrelevant.
(People v. Jablonski (2006) 37 Cal.4th 774, 819; People v. Noguera (1992) 4 Cal.4th
599, 621–622.) “[E]vidence of the decedent’s state of mind, offered under Evidence
Code section 1250, can be relevant to a defendant’s motive—but only if there is
independent, admissible evidence that the defendant was aware of the decedent’s state of
mind before the crime and may have been motivated by it.” (People v. Riccardi (2012)
54 Cal.4th 758, 820.)
       “An out-of-court statement is properly admitted if a nonhearsay purpose for
admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in
dispute.” (People v. Turner (1994) 8 Cal.4th 137, 189, overruled on another ground in
People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
       We review any ruling on the admissibility of evidence for abuse of discretion.
(People v. Elliott (2012) 53 Cal.4th 535, 577.)




                                              16
       b.     Error by the trial court in admitting the challenged statements was
harmless
       Only defendant’s state of mind was in issue in this case, not that of Selene or her
mother. While all of Selene’s statements, if admitted for their truth, tended to show
misconduct by someone, possibly defendant, neither the prosecutor nor the Attorney
General established the applicability of any hearsay exception. Notably, the Attorney
General does not rely upon Evidence Code section 1250, perhaps because there was no
independent, admissible evidence that the defendant was aware of Selene’s state of mind
before the crime and may have been motivated by it. Although the Attorney General
argues defendant was “confronted” by the prosecutor “about his statement to his sister
during a telephone call after his arrest that Graciela had him investigated,” defendant said
he did not remember it, even after being shown a transcript. The prosecutor did not
follow up by introducing a recording or other evidence of that phone call to prove
defendant made the statement about which he was “confronted.” Accordingly, no
evidence of such a statement was introduced, and jurors were instructed that attorneys’
“questions are not evidence. Only the witnesses’ answers are evidence.” (CALCRIM
No. 222.)
       At most, only two of the challenged statements could be viewed as nonhearsay
relevant to defendant’s state of mind: Mrs. Mayoral’s statement directing Selene to tell
the man who had her to return her or Mrs. Mayoral would call the police and Selene’s
statement telling Juan not to hurt her, etc. These statements were potentially admissible
to demonstrate their effect upon defendant when he heard them, if in fact he did hear
them. (People v. Marsh (1962) 58 Cal.2d 732, 737–738; People v. Bolden (1996) 44
Cal.App.4th 707, 715.)
       For the reasons set forth with respect to the preceding issue, any error in admitting
these statements would be harmless beyond a reasonable doubt given the evidence of the
ligature marks on Selene’s neck—testimony far more damaging than Mrs. Mayoral’s
testimony regarding Selene’s statements in defendant’s apartment.



                                            17
3.     Instructions regarding gang evidence
       Defendant contends that aspects of CALCRIM No. 1403, regarding the use of
gang evidence, and CALCRIM No. 332, regarding testimony by an expert witness,
permitted the jury improperly to consider the gang evidence for purposes other than proof
of the gang enhancement allegation.
       As given in defendant’s trial, CALCRIM No. 1403 stated: “You may consider the
evidence of gang activity only for the limited purpose of deciding whether: [¶] The
defendant acted with the intent, purpose, and knowledge that are required to prove the
gang-related crime and enhancement; [¶] OR [¶] The defendant had a motive to commit
the crimes charged; [¶] You may also consider this evidence when you evaluate the
credibility or believability of a witness and when you consider the facts and information
relied on by an expert witness in reaching his or her opinion. [¶] You may not consider
this evidence for any other purpose. You may not conclude from this evidence that the
defendant is a person of bad character or that he has a disposition to commit crime.”
       Defendant contends that this instruction erroneously permitted the jury to consider
evidence of gang activity with respect to “intent to kill and knowledge for implied malice
(versus accident or involuntary manslaughter).” He further argues the instructions failed
to “specify and segregate the various types of gang and other crimes evidence admitted
for various purposes,” thus allowing the jury to consider matters such as the expert’s
testimony regarding primary activities and predicate offenses on all the intent and
mitigation issues. He also complains the trial court failed to instruct jurors “they could
not consider other crimes or gang activities that were not at least proven to a
preponderance.” In addition, he argues the trial court should have instructed the jury that
“expert anecdotes and other hearsay references” were limited “to nontruth basis of
opinion.” Defendant also contends it was improper to allow jurors to consider gang
evidence with respect to his credibility as a witness.
       Defendant also challenges CALCRIM No. 332, which provides in pertinent part:
“Witnesses were allowed to testify as experts and to give opinions. You must consider



                                             18
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 evaluating the believability of an
expert witness, follow the instructions about the believability of witnesses generally. In
addition, consider the expert’s knowledge, skill, experience, training, and education, the
reasons the expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. You must decide whether information on which the
expert relied was true and accurate. You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence.”
       Defendant contends this instruction “permitted expansive substantive
consideration even of gang expert testimonial hearsay and anecdotes (which is supposed
to be limited to nontruth basis of opinion [citation]) by telling jurors they had to
determine whether all the ‘information’ on which the expert relied was ‘true and
accurate.’”
       a.     Pertinent principles of law
       A trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence, including the elements of an offense. (People v. Acosta (2014) 226
Cal.App.4th 108, 118.) A party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete unless the party has
requested modification or amplification. (People v. Lee (2011) 51 Cal.4th 620, 638.)
Purportedly erroneous instructions are reviewed in the context of the entire charge to
determine whether it is reasonably likely the jury misconstrued or misapplied the
challenged instruction. (People v. Wallace (2008) 44 Cal.4th 1032, 1075.) “A defendant
challenging an instruction as being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the instruction in the way
asserted by the defendant.” (People v. Cross (2008) 45 Cal.4th 58, 67–68.)
       We independently assess whether instructions correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.)



                                             19
       Evidence of gang affiliation and activity is admissible where it is relevant to an
issue such as motive, intent, the truth of a gang enhancement allegation, or a witness’s
credibility. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gardeley (1996)
14 Cal.4th 605, 619–620; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167–
1168 (Samaniego).)
       b.     The instructions were not erroneous
       CALCRIM No. 1403 correctly states the law both generally (Samaniego, supra,
172 Cal.App.4th at p. 1168) and the law applicable to defendant’s case. The murder
charge was expressly alleged to be gang-related, and, pursuant to the prosecutor’s theory,
the gang evidence was relevant to defendant’s intent and motive. Indeed, defendant
expressly injected the gang element into the case through his spontaneous postarrest
statement regarding the murder of Deputy Blair and, to a lesser extent, making a gang
hand sign while being photographed during booking for this crime. The gang evidence
was also relevant to defendant’s credibility because he denied that dumping Selene’s
body had anything to do with gang rivalries or promoting his gang, as the prosecution
theorized and its gang expert testified. “By taking the stand, defendant put his own
credibility in issue and was subject to impeachment in the same manner as any other
witness.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)
       There no reasonable likelihood the jury considered matters such as the expert’s
testimony regarding the gang’s primary activities and other members’ offenses with
respect to defendant’s mental state. The topics of primary activities and predicate
offenses, as well as other matters required to find that Young Crowd constituted a
criminal street gang were expressly addressed in the instruction on the elements of the
gang enhancement (CALCRIM No. 1401), and the prosecutor explained to jury the
purpose of the predicate offense testimony and primary activities evidence and even
added that he did not mean to imply defendant was involved in those offenses.
Moreover, defendant does not explain how or why a jury would view such testimony as
relevant to his mental state, especially in light of the final sentence of CALCRIM No.



                                             20
1403, which expressly prohibited the jury from concluding from the gang evidence that
the defendant was a bad person or predisposed to commit crimes.
       If defendant believed the instructions required modification or that limiting
instructions were required, it was incumbent upon him to request such changes, additions,
or other instructions. His failure to do so resulted in forfeiture of the issue on appeal.
(Guerra, supra, 37 Cal.4th at p. 1138; Hernandez, supra, 33 Cal.4th at p. 1051.)
       With respect to CALCRIM No. 332, we disagree that it “permitted expansive
substantive consideration even of gang expert testimonial hearsay and anecdotes.” The
sentence upon which defendant principally relies tells the jury to “decide whether
information on which the expert relied was true and accurate,” not that “they had to
determine whether all the ‘information’ on which the expert relied was ‘true and
accurate,’” as defendant contends. Reading the instruction as a whole, it would be clear
to jurors that their consideration of the truth and accuracy of the information upon which
the expert relied was for the sole purpose of determining the weight to give the expert’s
opinion testimony.
       Finally, we note defendant suggests CALCRIM No. 332 violates the confrontation
clause. The confrontation clause applies to admission of evidence, not instructions.
Moreover, defendant never asserted a confrontation objection to admission of the gang
expert’s testimony. Accordingly, we do not further consider this argument.
       c.     Any instructional error regarding gang evidence was harmless beyond
a reasonable doubt
       For the reasons set forth in the context of the trial court’s denial of defendant’s
bifurcation motion, any error was harmless beyond a reasonable doubt. Notably, the
jury’s rejection of the gang enhancement allegation indicates the jury either did not find
the gang expert’s testimony credible, or it gave that testimony very little weight. It would
be unreasonable to conclude that the jury utilized the gang expert’s testimony with
respect to issues and matters not specified by CALCRIM No. 1403. For all of the same
reasons, counsel’s failure to request modification of the instructions or limiting



                                              21
instructions was not prejudicial and cannot support a claim of ineffective assistance of
counsel.
4.     Precluding consideration of intoxication with respect to implied malice
       Defendant also challenges CALCRIM No. 625 and the statute upon which it is
based, section 29.4 (formerly section 22) on the ground they violate his rights to present a
defense and equal protection. Defendant contends the decisions rejecting identical claims
were wrongly decided.
       In pertinent part and as given at defendant’s trial, CALCRIM No. 625 stated:
“You may consider evidence, if any, of the defendant’s voluntary intoxication only in a
limited way. You may consider that evidence only in deciding whether the defendant
acted with an intent to kill, or the defendant acted with deliberation and premeditation, or
the defendant fled intending to evade the deputy. [¶] . . . [¶] You may not consider
evidence of voluntary intoxication for any other purpose.”
       a.     Pertinent principles of law
       Section 29.4 (formerly section 22) provides as follows:
       “(a) No act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of voluntary
intoxication shall not be admitted to negate the capacity to form any mental states for the
crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
       “(b) Evidence of voluntary intoxication is admissible solely on the issue of
whether or not the defendant actually formed a required specific intent, or, when charged
with murder, whether the defendant premeditated, deliberated, or harbored express
malice aforethought.
       “(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking
by any other means of any intoxicating liquor, drug, or other substance.”




                                             22
       b.     Defendant’s claims have no merit
       As defendant acknowledges, his contentions regarding the constitutionality of
section 29.4, subdivision (b) were rejected in People v. Timms (2007) 151 Cal.App.4th
1292 and People v. Martin (2000) 78 Cal.App.4th 1107. For the reasons stated in Timms,
at pages 1299 through 1302, we conclude defendant’s equal protection and right to
present a defense (due process) claims have no merit. CALCRIM No. 625 correctly
states the law regarding voluntary intoxication (People v. Turk (2008) 164 Cal.App.4th
1361, 1381), and defendant’s challenge to it therefore lacks merit for the same reasons.
5.     Use of “may” in CALCRIM No. 625
       Defendant also challenges the validity of CALCRIM No. 625 because it “provided
only that the jury ‘may’ consider the evidence of voluntary intoxication,” whereas
defendant argues that to protect his right to a fair trial, the instruction should have told the
jury that it “must” consider such evidence.
       Reading the instruction as a whole and in light of the entire set of jury instructions,
we conclude there was no reasonable likelihood that jurors understood the use of “may”
in the instruction to mean they were free to disregard the evidence of voluntary
intoxication. CALCRIM No. 220 expressly instructed the jurors that in determining
whether the prosecution proved its case beyond a reasonable doubt, they “must” consider
all of the evidence. In light of that directive, the combined use of “may” and “only” in
the first two sentences of CALCRIM No. 625 served to convey a restriction on the
permitted use of intoxication evidence, not a freedom to disregard it. Indeed, merely
giving the instruction served to focus the jury’s attention on the evidence of defendant’s
alleged intoxication. In addition, defendant’s testimony regarding intoxication played a
key role in defense counsel’s arguments. The prosecutor briefly addressed the same
evidence in his arguments, but he never suggested the jury should disregard it. Indeed,
the prosecutor expressly urged the jury to consider defendant’s testimony, but not to
believe it.




                                              23
6.       Flight instruction
         The trial court instructed the jury with CALCRIM No. 372, as follows: “If the
defendant fled immediately after the crime was committed, that conduct may show that
he was aware of his guilt. If you conclude that the defendant fled, it is up to you to
decide
the meaning and importance of that conduct. However, evidence that the defendant fled
cannot prove guilt by itself.”
         Defendant contends instructing on flight was error because defendant’s “flight
activity . . . said nothing about the nature or degree of his guilt or about which crime(s) he
was fleeing from.”
         a.     Pertinent principles of law
         “In any criminal trial or proceeding where evidence of flight of a defendant is
relied upon as tending to show guilt, the court shall instruct the jury substantially as
follows: [¶] The flight of a person immediately after the commission of a crime, or after
he is accused of a crime that has been committed, is not sufficient in itself to establish his
guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or
innocence. The weight to which such circumstance is entitled is a matter for the jury to
determine. [¶] No further instruction on the subject of flight need be given.” (§ 1127c.)
         “To obtain the instruction, the prosecution need not prove the defendant in fact
fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled
and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla
(2007) 41 Cal.4th 313, 328.) The pattern flight instruction does not assume that flight
was established, but instead permits the jury to make that factual determination and to
decide what weight to give it. (People v. Abilez (2007) 41 Cal.4th 472, 522.) It also
permits the jury to consider alternative explanations for that flight other than defendant’s
consciousness of guilt. (People v. Avila (2009) 46 Cal.4th 680, 710.) It “does not create
an unconstitutional permissive inference or lessen the prosecutor’s burden of proof.”
(Ibid.) It also “does not address the defendant’s specific mental state at the time of the



                                              24
offenses, or his guilt of a particular crime, but advises of circumstances suggesting his
consciousness that he has committed some wrongdoing” (People v. Zambrano (2007) 41
Cal.4th 1082, 1160, disapproved on another ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 ), and allows “‘the jury to determine to which offenses, if any,
the inference [of consciousness of guilt] should apply.’ [Citation.]” (Avila, supra, 46
Cal.4th at p. 710.)
       b.      Instruction with CALCRIM No. 372 was not error
       After shooting Selene in front of Deputy Montes, defendant sped away from the
scene, leading a number of sheriff’s patrol cars on a chase during which defendant broke
numerous traffic regulations. After defendant dumped Selene’s body, he continued to
flee, first by leading deputies on a high-speed freeway chase, and then on foot when he
reached the vicinity of his apartment building, abandoning his car in the middle of the
street with its lights on and engine running. This evidence amply supported instruction
upon flight.
       All of defendant’s contentions regarding CALCRIM No. 372 have been rejected
by the California Supreme Court as set forth ante.
7.     Cumulative error
       Defendant contends that reversal is required due to the cumulative effect of the
errors he raises. His cumulative error claim has no greater merit than his individual
assertions of error, which we have rejected or found to be harmless.
8.     Number of prior prison enhancements
       Defendant contends, and the Attorney General concedes, that he should have been
sentenced for only two section 667.5, subdivision (b) enhancements, not four, because he
served concurrent terms for three of the four convictions. Section 667.5, subdivision (b),
provides for an enhancement “for each prior separate prison term” if other conditions are
met. Defendant served only two separate prison terms for the four convictions alleged
and found true by the jury. Accordingly, we strike two of the four enhancements and
direct the trial court to issue an amended abstract of judgment.



                                             25
                                    DISPOSITION
      Two of the four Penal Code section 667.5, subdivision (b) enhancements imposed
upon defendant are struck. Defendant’s aggregate sentence is now 45 years to life. The
judgment is otherwise affirmed. The trial court is directed to issue an amended abstract
of judgment reflecting these changes.
      NOT TO BE PUBLISHED.


                                                BENDIX, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



                                           26
