Filed 9/15/15 P. v. Mendivil CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065515

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF27253)

LAWRENCE DANIEL MENDIVIL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, Raymond A.

Cota, Judge. Affirmed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff

and Respondent.
       Lawrence Daniel Mendivil appeals a judgment following his jury conviction of

assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 and the jury's true

findings he committed that offense for the benefit of, at the direction of, or in association

with a criminal street gang (§ 186.22, subd. (b)(1)) and personally inflicted great bodily

injury (GBI) on the victim (§ 12022.7, subd. (a)). On appeal, Mendivil contends: (1) the

evidence is insufficient to support his conviction for assault with a deadly weapon and the

jury's true finding on the GBI allegation; (2) the court erred by discharging a juror; (3)

the court erred by admitting evidence on his codefendant's jail telephone call and his

codefendant's prior conviction; (4) the court erred by denying his postverdict motion for a

continuance to allow his defense counsel to investigate possible juror misconduct; and (5)

if he forfeited any of the above contentions by not timely objecting, he was denied

effective assistance of counsel.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In May 2011, Alonso Pineda lived in a Brawley home with his girlfriend, Diane

Verdusco (Diane), her son, Mark Verdusco (Mark), Mark's girlfriend, Monique Arellano

(Monique), and Diane's ex-husband, Richard Pacheco. Mark was an associate of a

Brawley criminal street gang known as "Brole." Monique was associated with a rival

Calexico criminal street gang known as "Calexia." Their Brawley home was located

within territory claimed by Brole.




1      All statutory references are to the Penal Code unless otherwise specified.
                                              2
         At about 3:00 p.m. on May 11, Monique was in the front yard of her home when

Vanessa Miranda (also known as "Guera" or "Guerra," her gang moniker) and Vanessa

Mendoza (also known as "Terca," her gang moniker) confronted her and told her she was

disrespectful of the Brole gang because she was affiliated with Calexia and had a

relationship with Mark, a Brole associate. The three women, followed by Diane, walked

to the backyard where Monique and Mendoza began fighting. Hearing the fight, Pacheco

attempted to separate the women. Miranda punched Pacheco and helped Mendoza fight

Monique. When Diane pushed Miranda away from Monique, Diane and Miranda began

fighting. Pacheco separated the women and was able to end the fight. As Mendoza and

Miranda left, Mendoza yelled that she and Miranda would go get back-up and finish the

fight.

         At about 10:15 p.m., Diane and Monique were in the front yard when two cars

passed them and parked nearby. About 10 people got out of the cars and began shouting

profanities and "Brole, Brole. This is my hood. Better respect." The group, including

Miranda, Mendoza, Marie Hernandez (also known as "Cuca," her gang moniker),

Raymond Quezada (also known as "Spider," his gang moniker), and Mendivil (also

known as "Low Low," his gang moniker), approached the front yard. Some of the group

members pulled Diane from the front yard by her hair and she fell onto the street. She

was then punched and kicked in the face. Monique punched Miranda to get her away

from Diane. Pineda came out of the house, saw Diane lying on the street, and tried to

pick her up. Mendivil and Quezada pulled out pocket knives and stabbed Pineda. When



                                            3
someone yelled, "I'm calling the cops," the group's members, including Mendivil and

Quezada, ran to the cars and drove away.

       Veronica Castellano, a neighbor, was outside her home when the fight occurred.

She saw a group of people approach Pineda's home, yelling profanities and "Brole." She

went inside her home, called 911, and remained inside until police arrived.

       Shortly thereafter, police and emergency medical personnel arrived at the scene.

Pineda was taken to the hospital. He had five stab wounds, a collapsed lung, and a

fractured rib. Diane's eyes and face were swollen, her nose was bleeding, and her

forehead and lips had marks on them. Monique had bruises and marks on her face.

       An amended information charged Mendivil and Quezada with the willful,

deliberate, and premeditated attempted murder of Pineda (§§ 664, 187, subd. (a)) and

assault with a deadly weapon on Pineda (§ 245, subd. (a)(1)). It alleged they committed

those offenses for the benefit of, at the direction of, and in association with a criminal

street gang within the meaning of section 186.22, subdivision (b)(1), and that in

committing the assault they personally inflicted great bodily injury on Pineda (§ 12022.7,

subd. (a)).

       At the joint trial of Mendivil and Quezada, the prosecution presented testimony

substantially as described above. Brawley Police Detective Christian Romualdo testified

regarding statements made to him by eyewitnesses after the incident. Jeffrey Glaze, a

neighbor, told him two Hispanic males attacked Pineda and the others. One was tall with

tattoos on his head, and the other was short. Romualdo also testified as a gang expert that

in a hypothetical situation similar to the facts in this case, the gang members would have

                                              4
committed the charged offenses for the benefit of the Brole criminal street gang. He also

testified regarding a telephone conversation between Quezada and Ernesto Barraza

recorded while Quezada was in jail after his arrest.

       Many of the eyewitnesses testified inconsistently with the statements they made to

Romualdo after the incident. Diane testified she did not recognize anyone that night and

did not recall hearing any yelling. She could not tell who pulled her and kicked her. She

did not see any weapons. Monique admitted getting into a fight with a female that day,

but did not know who the female was. She was not in a fight later that evening. Pineda

testified he returned home from a store, placed beer in the refrigerator, and then saw

Diane lying on the street. There were three people standing about six feet away from

Diane. When he stooped over to pick Diane up, he was struck on his back. The next

thing he remembered was waking up in a hospital. He could not recall photographs being

taken of his stab wounds. Castellano testified she saw a group of people walking down

the street, but did not hear anyone yelling, "Brole, Brole." Glaze testified that from

inside his home he saw a group of females, but did not recall hearing anyone saying,

"Brole." One of the females knocked Diane down and the other started kicking and

hitting her. Glaze testified that as Pineda stepped toward Diane, one of the females hit

him and two more females "piled on him." Glaze went outside to help get the attackers

off Pineda. After he pulled two females off of Pineda, Glaze saw two Hispanic males out

by the street. One was short and the other was tall. He later identified Mendivil as

probably the shorter male he saw that night and Quezada was probably the taller male.

Glaze testified neither of the two males could have stabbed Pineda.

                                             5
       In his defense, Quezada presented the testimony of Miranda, Mendoza, and

Hernandez that they went back to Diane's house to ask her for money they had given her

for drugs she did not deliver to them. A fight broke out and Diane pulled out a pocket

knife. They testified neither Quezada nor Mendivil were present when Pineda was

attacked. They did not know who stabbed Pineda.

       Miranda testified she was no longer a Brole member, but still associated with

Brole members. Her boyfriend is a Brole associate and Quezada's friend. Hernandez

testified she was no longer a Brole member, but still associated with Brole members. She

was Quezada's former girlfriend.

       In rebuttal, Brawley Police Officer Stephanie Zamora testified Monique told her

that Mendivil and Quezada began to punch Diane and, when she tried to help Diane,

Mendivil and Hernandez punched her (Monique). Monique told Zamora she heard the

snap of a pocket knife being extended and then saw Mendivil and Quezada with knives in

their hands. When Pineda tried to break up the fight, Mendivil and Quezada attacked

him. However, she did not see who stabbed Pineda.

       The jury found Mendivil not guilty of attempted premeditated murder and guilty

of assault with a deadly weapon. It found true allegations he committed the assault for

the benefit of, at the direction of, or in association with a criminal street gang, and that in

committing that offense he personally inflicted GBI on Pineda. The trial court sentenced

Mendivil to the upper term of four years for the assault conviction, a consecutive 10-year

term for the gang enhancement, and imposed, but stayed execution of, a three-year term



                                               6
for the GBI enhancement, for a total term of 14 years in prison. Mendivil timely filed a

notice of appeal.

                                       DISCUSSION

                                              I

             Substantial Evidence to Support Assault with a Deadly Weapon
                    Conviction and True Finding on GBI Allegation

       Mendivil contends the evidence is insufficient to support his conviction for assault

with a deadly weapon and the jury's true finding on the GBI allegation. He argues that

although Pineda was stabbed by someone with a knife, the evidence is insufficient to

support a finding by the jury that he committed that assault with a deadly weapon.

                                             A

       When a defendant challenges a criminal conviction on appeal based on a claim of

insufficiency of the evidence, "the reviewing court's task is to review the whole record in

the light most favorable to the judgment to determine whether it discloses substantial

evidence--that is, evidence that is reasonable, credible, and of solid value--such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."

(People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d

557, 578.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive

province of the trier of fact. [Citation.] Moreover, unless the testimony is physically

impossible or inherently improbable, testimony of a single witness is sufficient to support

a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)




                                              7
       The substantial evidence standard of review involves two steps. "First, one must

resolve all explicit conflicts in the evidence in favor of the respondent and presume in

favor of the judgment all reasonable inferences. [Citation.] Second, one must determine

whether the evidence thus marshaled is substantial. While it is commonly stated that our

'power' begins and ends with a determination that there is substantial evidence [citation],

this does not mean we must blindly seize any evidence in support of the respondent in

order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean]

anything at all, it clearly implies that such evidence must be of ponderable legal

significance. Obviously the word cannot be deemed synonymous with "any" evidence.

It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate

determination is whether a reasonable trier of fact could have found for the respondent

based on the whole record." (Kuhn v. Department of General Services (1994) 22

Cal.App.4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins

and ends with the determination as to whether, on the entire record, there is substantial

evidence, contradicted or uncontradicted, which will support the determination, and when

two or more inferences can reasonably be deduced from the facts, a reviewing court is

without power to substitute its deductions for those of the trial court. If such substantial

evidence be found, it is of no consequence that the trial court believing other evidence, or

drawing other reasonable inferences, might have reached a contrary conclusion."

(Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

       The standard of review is the same in cases in which the prosecution relied

primarily on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) In

                                               8
applying the substantial evidence standard of review to cases primarily involving

circumstantial evidence, Bean stated: "Although it is the duty of the jury to acquit a

defendant if it finds that circumstantial evidence is susceptible of two interpretations, one

of which suggests guilt and the other innocence [citations], it is the jury, not the appellate

court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt.

' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the

reviewing court that the circumstances might also be reasonably reconciled with a

contrary finding does not warrant a reversal of the judgment." ' " (Id. at pp. 932-933.)

"Circumstantial evidence may be sufficient to connect a defendant with the crime and to

prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal.3d 199,

210.)

                                               B

        Based on our review of the record, we conclude there is substantial evidence to

support Mendivil's conviction for assault with a deadly weapon and that it was Mendivil

who committed an assault with a deadly weapon against Pineda. To prove the offense of

assault with a deadly weapon, the prosecution must prove beyond a reasonable doubt that

the defendant (1) willfully committed an act that by its nature would probably and

directly result in the application of physical force to another person; (2) he or she was

aware of facts that would lead a reasonable person to realize that as a direct, natural, and

probable result of that act, physical force would be applied to another person; (3) he or

she had the present ability to apply physical force to another person; and (4) he or she

used a deadly weapon in the assault. (CALCRIM No. 875; People v. Miller (2008) 164

                                               9
Cal.App.4th 653, 662; People v. Golde (2008) 163 Cal.App.4th 101, 108-109.) However,

the prosecution need not prove the defendant actually intended to use force against

someone when he or she acted or intended to cause injury to another person. (CALCRIM

No. 875; Miller, at p. 662; Golde, at pp. 108-109.)

       The record contains substantial evidence to support a finding by the jury that

Mendivil committed an assault with a deadly weapon on Pineda. According to

Romualdo's testimony, several percipient witnesses identified Mendivil as one of the two

men who stabbed Pineda with a knife. Soon after the incident, Diane and Monique told

police that Mendivil, Quezada, Miranda, Mendoza, and Hernandez approached their

home. They stated they saw Mendivil and Quezada stab Pineda and then flee. When

presented with a six-pack photographic lineup and asked if she recognized Pineda's

attackers, Diane identified Mendivil and Quezada as his attackers. Similarly, Pineda

described his attackers as two Hispanic males and when presented with a six-pack

photographic lineup, he pointed at a photograph of Mendivil and stated, "he attacked me,

he stabbed me." Romualdo's testimony regarding those statements made by percipient

witnesses is substantial evidence to support a finding that Mendivil stabbed Pineda with a

knife and, in so doing, committed the offense of assault with a deadly weapon.

       Contrary to Mendivil's assertion, the fact that many, if not all, of the percipient

witnesses testified inconsistently with their statements to Romualdo and testified they did

not see Mendivil commit the assault does not show the evidence is insufficient to support

his conviction of assault with a deadly weapon. To the extent he cites and relies solely on

the trial testimony of the percipient witnesses who testified they did not recall seeing

                                             10
Mendivil stab Pineda, he misconstrues and/or misapplies the substantial evidence

standard of review. In reviewing the sufficiency of the evidence, we consider all of the

evidence admitted at trial and do not reweigh the evidence or make inferences contrary to

those made by the jury. Furthermore, the percipient witnesses' trial testimony did not

make their prior statements to Romualdo inherently improbable, unreliable, or incredible.

Rather, their statements to Romualdo, to which he testified at trial, constituted substantial

evidence to support the jury's finding that Mendivil, and not some unidentified

perpetrator, committed the assault with a deadly weapon on Pineda. "Resolution of

conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.

[Citation.] Moreover, unless the testimony is physically impossible or inherently

improbable, testimony of a single witness is sufficient to support a conviction." (People

v. Young, supra, 34 Cal.4th at p. 1181.) The jury could reasonably infer that the

statements made by the percipient witnesses soon after the incident were more credible

than their inconsistent testimony at trial, which inconsistent testimony may have been the

result of their fear (e.g., possible threats of retaliation). The fact that no physical

evidence (e.g., the knife used to stab Pineda) was found by police tying Mendivil to the

assault does not show he did not, in fact, use a knife to stab Pineda. Mendivil has not

carried his burden on appeal to show the evidence is insufficient to support his conviction

for assault with a deadly weapon.

                                               C

       Based on our review of the record, we conclude there is substantial evidence to

support the jury's true finding that in committing the assault, Mendivil personally

                                               11
inflicted great bodily injury on Pineda within the meaning of section 12022.7, subdivision

(a). Contrary to Mendivil's assertion, there is substantial evidence to support the jury's

finding that he, and not some unidentified perpetrator, stabbed Pineda with a knife. As

discussed above, both Diane and Pineda identified a photograph of Mendivil to

Romualdo as showing one of his attackers. Accordingly, Romualdo's testimony

regarding their statements, as well as his testimony regarding the statements of other

percipient witnesses, is substantial evidence that Mendivil personally inflicted great

bodily injury on Pineda while committing the offense of assault with a deadly weapon.

The fact that those percipient witnesses testified inconsistently with their statements to

Romualdo does not show their statements were inherently improbable, unreliable, or

incredible. Mendivil has not carried his burden on appeal to show the evidence is

insufficient to support the jury's true finding on the allegation he personally inflicted GBI

on Pineda while committing the assault on him.

                                              II

                                     Discharge of Juror

       Mendivil contends the trial court erred by discharging a juror without good cause.

                                              A

       During trial, the trial court addressed one of the jurors in the presence of the entire

jury. The following dialogue occurred between the court and juror number one:

          "THE COURT: . . . [¶] It appears that one of you has been violating
          my instructions, [Juror No. 1] -- You are [Juror No. 1']?

          "JUROR: Yes.


                                             12
            "THE COURT: You've been going on Facebook, sir, apparently,
            and discussing this case.

            "JUROR: Not on Facebook. I just posted I was going on jury duty.

            "THE COURT: Pardon me?

            "JUROR: Going to jury duty. Going to jury duty. That's what I put.

            "THE COURT: Sir, I have them right here. And let me remind you
            of two things: every once in a while, I try [to] remember to tell
            everyone, please do not discuss this case with anyone. And also, I
            will read a portion of my instructions to you that I gave you at the
            beginning of this case: [¶] 'Do not use the internet in any way in
            connection with this case.'

            "Now, [Juror No. 1], we have spent three weeks picking this jury to
            try to see if we could put together a jury that could be fair and
            impartial . . . to all of the parties and the witnesses, but to follow my
            instructions.

            "And here you are talking about this case and about the jury, and
            about other people, you know, telling you things.

            "[Juror No. 1], I cannot believe that you have violated this
            instruction. [¶] You are excused." (Italics added.)

After that juror left the courtroom, the court replaced the excused juror with an alternate

juror.

                                                B

         Section 1089 provides for the discharge of a juror if the juror on "good cause

shown to the court is found to be unable to perform his or her duty." When a trial court is

on notice that good cause to discharge a juror may exist, the court must " ' " 'make

whatever inquiry is reasonably necessary' to determine whether the juror should be

discharged." ' " (People v. Martinez (2010) 47 Cal.4th 911, 941.) The California


                                               13
Supreme Court has stated: "[A] juror's inability to perform as a juror must be shown as a

'demonstrable reality' [citation], which requires a 'stronger evidentiary showing than mere

substantial evidence' [citation]. . . . 'To dispel any lingering uncertainty, we explicitly

hold that the more stringent demonstrable reality standard is to be applied in review of

juror removal cases. That heightened standard more fully reflects an appellate court's

obligation to protect a defendant's fundamental rights to due process and to a fair trial by

an unbiased jury.' " (People v. Wilson (2008) 44 Cal.4th 758, 821.) "Under the

demonstrable reality standard, . . . the reviewing court must be confident that the trial

court's conclusion is manifestly supported by evidence on which the court actually

relied." (People v. Barnwell (2007) 41 Cal.4th 1038, 1053.)

       In People v. Daniels (1991) 52 Cal.3d 815, the court held a juror may be removed

for "serious and willful misconduct." (Id. at p. 864.) In that case, the trial court

discharged a juror who, in violation of the court's instructions, read a newspaper article

about the case, discussed the case with nonjurors, and expressed an opinion on the

defendant's guilt before jury deliberations. (Id. at p. 863.) The California Supreme Court

concluded that misconduct showed the juror was unable to perform his duty, which "duty

includes the obligation to follow the instructions of the court, and a judge may

reasonably conclude that a juror who has violated instructions to refrain from discussing

the case or reading newspaper accounts of the trial cannot be counted on to follow

instructions in the future." (Id. at p. 865, italics added.) Daniels upheld the trial court's

discharge of the juror. (Id. at p. 866; see People v. Ledesma (2006) 39 Cal.4th 641, 743



                                              14
[juror who discussed case with his wife could not be counted on to follow instructions in

the future and was therefore unable to perform his duties as a juror].)

                                              C

       Assuming arguendo Mendivil did not forfeit his challenge to the trial court's

discharge of the juror by not objecting below, we conclude the trial court properly found

the juror was unable to perform as a juror within the meaning of section 1089.2 The

record on appeal reflects a demonstrable reality that the juror was unable to perform. In

the presence of counsel, the court questioned the juror about his purported misconduct,

giving the juror an opportunity to answer its questions and otherwise respond to the

assertion that the juror had discussed the case on the internet. After the juror denied

discussing the case and attempted to minimize his actions by claiming he only stated he

was "going on jury duty," the court stated, "I have them right here," presumably

indicating it had the juror's actual Facebook or other internet postings before it. The

court described those internet postings, stating, "here you are talking about this case and

about the jury, and about other people, you know, telling you things." Those internet

postings by the juror showed he had violated the trial court's prior instructions not to

discuss the case with others and not to use the internet in connection with the case. Based

on those violations of its instructions, the court could reasonably find the juror could not



2      Because we assume arguendo Mendivil did not forfeit his challenge to the court's
discharge of the juror, we need not address his claim of ineffective assistance of counsel.
Instead, we address the merits of his contention that the court erred by discharging the
juror.

                                             15
be counted on to follow its instructions in the future and was therefore unable to perform

his duties as a juror. (Cf. People v. Daniels, supra, 52 Cal.3d at pp. 863-865; People v.

Ledesma, supra, 39 Cal.4th at p. 743.) Because the juror's inability to perform was

shown on the record as a demonstrable reality, the trial court properly discharged the

juror. (People v. Wilson, supra, 44 Cal.4th at p. 821.)

       Contrary to Mendivil's assertion, the trial court was not required to state on the

record the actual Facebook or other internet postings that the juror made to find the juror

was unable to perform. Rather than state on the record the juror's actual postings, the

court described the types of postings he made. We presume the trial court and both

counsel had the juror's actual postings before them when the court addressed his

purported misconduct. Therefore, if the court had inaccurately described those postings,

we presume Mendivil's counsel and/or the prosecutor would have corrected the court.

Absent any affirmative showing on the record to the contrary, we presume the court

accurately described the juror's postings.

       Furthermore, contrary to Mendivil's apparent assertion, the record does not show

the juror posted on Facebook only that he was "going on jury duty." Although that is

what the juror represented to the trial court, it corrected him by describing his actual

postings (i.e., "here you are talking about this case and about the jury, and about other

people, you know, telling you things"). Accordingly, the record shows a demonstrable

reality that the juror was unable to perform his duty as a juror. Moreover, contrary to

Mendivil's assertion, the court did, in fact, conduct a hearing, albeit a brief one,

addressing the issue of the juror's purported misconduct before it found he committed

                                              16
such misconduct and was unable to perform. People v. Cleveland (2001) 25 Cal.4th 466,

cited by Mendivil, is factually inapposite to this case and does not persuade us to reach a

contrary conclusion.

       Finally, the fact that the court handled other instances of purported juror

misconduct differently from this instance does not show the court abused its discretion or

otherwise erred in discharging the juror here. Rather, our review of the record regarding

those other instances shows they were inapposite to this one and did not involve a juror's

disregard of the court's instructions not to discuss the case with others and not to use the

internet regarding this case.

                                             III

                          Admission of Evidence of Codefendant's
                         Jail Telephone Call and Prior Conviction

       Mendivil contends the trial court erred by admitting evidence of a jail telephone

call and prior conviction of Quezada (his codefendant).

                                              A

       Quezada's jail telephone call. Before trial, the prosecution filed an in limine

motion for admission of a recorded jail telephone call made by Quezada after his arrest in

this case. The call was made by Quezada to Ernesto Barraza, a Brole gang member, and,

according to the prosecution, discussed dissuading Pineda, Diane, and Monique from

testifying at trial. The prosecution argued the call was relevant to prove Quezada's

identity and guilt and to explain any inconsistencies between the trial testimony of Pineda

and other percipient witnesses and their prior statements.


                                             17
       At the hearing on the motion, the prosecution argued Romualdo would testify as a

gang expert to "decode" the substance of Quezada's call. Romualdo would testify that

Quezada asked Barraza to facilitate the intimidation of Diane and Monique, and that

witness intimidation is common in gang culture. Quezada's counsel objected to

admission of his client's telephone call, arguing its language was so vague and ambiguous

that it would be prejudicial for a gang expert to testify that witness intimidation was

discussed. He also argued the call had no probative value in proving the offenses charged

against Quezada. Mendivil's counsel submitted on the issue without argument.

       After hearing arguments of counsel, the trial court decided it would conduct an

Evidence Code section 402 hearing before ruling on the prosecution's motion. At that

subsequent hearing, the court heard the recording of Quezada's call and Romualdo's

testimony about it. Romualdo testified he could tell it was Quezada who made the call

because he (Quezada) identified himself by his gang moniker, "Spider," and stated the

date on which his trial in this case was to begin. He was also able to identify Barraza as

the recipient of the call based on his prior contacts with Barraza. Quezada stated: "My

trial starts November first, the victim ain't seen shit, and then them, those two people, the

girls, they already changed their story like three times, fool, so I got it beat. And the

homie Vinnie . . . was right here, right? He went home." Romualdo testified that during

the call Quezada asked Barraza to tell "Vinnie," who he believed was a fellow gang

member, Benny Hernandez, to continue threatening witnesses in his case. Romualdo

based that opinion on Quezada's statements that "he [i.e., Vinnie] went to make sure that

[inaudible] you know what I mean? . . . So, if you see that fool or you get word to him,

                                              18
make sure he, he keeps it going." Romualdo testified that Quezada repeated that request

later in the call, stating: "I told the short guy if he could, uhm, to ask you for something

for me, because he's going to do something for me." According to Romualdo, Quezada's

reference to the "short guy" was to "Vinnie," or Benny Hernandez. Quezada then told

Barraza to get "a hold of" the "short guy" and "make sure that fool does it." Barraza

replied, "Yeah, yeah, yeah, I already gave him an AK-47 and everything, so he . . . he . . .

you know?" Quezada asked him, "[Y]ou already hooked that up for him?" Barraza

replied, "Yeah, yeah." Quezada told him to "[g]et a hold of him. Tell him . . . to hook

that up for and don't trip, man." Romualdo testified that conversation meant Quezada had

provided Vinnie with a gun and told Barraza to contact him to keep the threat going.

       On cross-examination, Romualdo conceded Quezada's reference to "Vinnie" could

also have been to Vincent Verdusco, a Brole gang member who is related to Diane.

However, even if that reference was to him, it did not change Romualdo's opinion that the

recorded telephone call involved a threat.

       The prosecutor argued the call should be admitted as circumstantial evidence to

prove the gang enhancement because intimidation of witnesses and victims is one of the

gang predicate offenses. It was also relevant to show Quezada's consciousness of guilt.

Finally, it would be relevant to corroborate potential testimony by Pacheco that a

Hispanic male came to his house, brandished a gun, and instructed him not to testify.

Quezada's counsel argued the recorded call should be excluded because it was

unintelligible without Romualdo's speculative interpretation. He also argued the

prejudicial nature of the call outweighed its probative value. Mendivil's counsel joined in

                                              19
those arguments and also argued the admission of evidence on Quezada's call would

violate his constitutional right to confrontation of witnesses against him under the

Aranda/Bruton3 cases.

       The trial court concluded there was a sufficient evidentiary foundation for

Romualdo to testify as a gang expert regarding the meaning of the coded conversation

between gang members. The court stated the defense could then argue whether his

interpretation of the call was accurate. It further concluded the call evidence was

admissible to show Quezada's gang affiliation to prove the gang enhancement, as well as

his consciousness of guilt. Furthermore, if Pacheco testified he was intimidated, the call

would be relevant to corroborate his testimony. Regarding Mendivil's Aranda/Bruton

argument, the court stated a jury had already been selected for the joint trial and it could

not "undo" that. Nevertheless, the court agreed to instruct the jury that Quezada's call

was admissible only as to Quezada and it should not consider it for any purpose regarding

Mendivil.

       During the trial, the prosecution played the audio recording of Quezada's call to

Barraza. Romualdo then testified regarding the call substantially as he had during the

Evidence Code section 402 hearing. However, Pacheco did not testify that he had been

threatened.

       Quezada's prior conviction. During trial, the prosecution also sought to admit

evidence of Quezada's prior conviction for unlawful possession of a firearm. That


3      People v. Aranda (1965) 63 Cal.2d 518; Bruton v. U.S. (1968) 391 U.S. 123.

                                             20
conviction, along with three other convictions unrelated to Quezada or Mendivil, were

offered to show the predicate offenses necessary for the gang allegations. Quezada

objected to admission of his prior conviction, arguing that predicate offense was

cumulative and highly prejudicial and the prosecution could use other predicate offenses

unrelated to him or Mendivil to prove the gang allegations. Although Mendivil agreed

evidence on Quezada's prior conviction was relevant to prove the gang allegations, he

argued it should be excluded because there were other predicate offenses available for

use by the prosecution.

       Before the trial court ruled on the admissibility of evidence on Quezada's prior

conviction, all of the parties stipulated to its admission and the language to be used to

inform the jury of their stipulation. Thereafter, the prosecutor read the parties' stipulation

to the jury, stating:

           "The People and defendant stipulate that [Quezada] has a felony
           conviction for a violation of Penal Code section 1202.1, unlawful
           possession of a firearm in the Superior Court of California, County
           of Imperial on July 10th, 2009."

The prosecutor also presented evidence on three other predicate offenses committed by

Brole gang members (i.e., Brian Perez's 2010 second degree robbery conviction,

Barraza's 2010 vehicle theft conviction, and Barraza's 2010 conviction for unlawful

possession of a firearm by a felon).

                                              B

       Mendivil asserts the trial court erred by admitting evidence on Quezada's recorded

jail telephone call because that evidence improperly implicated him in violation of the


                                             21
Aranda/Bruton cases and his constitutional right to confront witnesses against him. We

disagree.

       Under the federal and California Constitutions, a criminal defendant is guaranteed

the right to confront and cross-examine witnesses against him or her. (U.S. Const., 6th

Amend.; Cal. Const., art. I, § 15; Pointer v. Texas (1965) 380 U.S. 400, 403-405; People

v. Anderson (1987) 43 Cal.3d 1104, 1119.) People v. Aranda, supra, 63 Cal.2d 518 and

Bruton v. U.S., supra, 391 U.S. 123 generally hold that a nontestifying codefendant's

extrajudicial self-incriminating statement that inculpates the other defendant is unreliable

and inadmissible as a violation of that defendant's constitutional right of confrontation

and cross-examination. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1176.)

However, since Aranda and Bruton were issued, the United States Supreme Court has

clarified that the confrontation clause of the Sixth Amendment applies only to

"testimonial" hearsay statements. (Crawford v. Washington (2004) 541 U.S. 36, 51-53,

68; Davis v. Washington (2006) 547 U.S. 813, 821-825.) Accordingly, the confrontation

clause does not apply to nontestimonial hearsay statements, including those by a

codefendant. (Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Arceo (2011)

195 Cal.App.4th 556, 571.) For example, an inmate's surreptitiously recorded jailhouse

conversation that does not involve law enforcement interrogation is not testimonial.

(People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402; cf. Davis v. Washington, at

p. 828 [recorded 911 call was to enable police to assist emergency and was not

testimonial]; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [codefendant's

statements to long-time friend were nontestimonial].) Although Crawford did not, and

                                             22
subsequent United States Supreme Court and California Supreme Court cases have yet to,

expressly overrule or limit the Aranda/Bruton holdings, it seems clear that the Sixth

Amendment confrontation clause applies only to testimonial hearsay statements. (Arceo,

at p. 575; People v. Loy (2011) 52 Cal.4th 46, 66; People v. Gutierrez (2009) 45 Cal.4th

789, 812; Whorton, at p. 420; Davis, at p. 821.)

       In this case, Mendivil does not argue, nor could he reasonably argue, that

Quezada's extrajudicial statements during his recorded jail telephone conversation with

Barraza were "testimonial" statements. None of Quezada's statements were made under

circumstances that would lead an objective witness to reasonably believe the statements

would be available for use at a later trial. (Crawford v. Washington, supra, 541 U.S. at

pp. 51-53; Davis v. Washington, supra, 547 U.S. at pp. 821-825.) Because Quezada and

Barraza spoke in code, Quezada could not have reasonably expected his statements

would be used at his (or Mendivil's) trial even though he had been warned his jail call

may be recorded. (Cf. Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 309-310;

People v. Loy, supra, 52 Cal.4th at pp. 66-67.) Accordingly, admission of evidence on

Quezada's recorded call did not violate Mendivil's Sixth Amendment right to

confrontation and cross-examination or the Aranda/Bruton holdings, as implicitly limited

by Crawford and its progeny.

       In any event, none of Quezada's extrajudicial statements facially inculpated

Mendivil. Neither Quezada nor Barraza made any reference to Mendivil during the

recorded call and Romualdo did not testify that Mendivil was referred to in that call.

Because the Aranda/Bruton rule does not apply to confessions or other inculpatory

                                            23
statements that are not incriminating on their face, admission of evidence on Quezada's

recorded call did not violate that rule as to Mendivil. (Richardson v. Marsh (1987) 481

U.S. 200, 207-208; People v. Hajek and Vo, supra, 58 Cal.4th at pp. 1176-117.) Contrary

to Mendivil's apparent assertion, the fact that both Quezada and Mendivil were charged

with the same offenses for the benefit of the same gang did not make Quezada's

statements during his recorded call facially inculpatory of Mendivil.

       Furthermore, Mendivil does not argue that Quezada's extrajudicial statements

during his recorded jail telephone conversation were inadmissible hearsay under our rules

of evidence. Evidence Code section 1230 provides that statements made against the

declarant's penal interest are not made inadmissible by the hearsay rule. Based on

Romualdo's testimony interpreting Quezada's coded jail telephone call, the trial court

could reasonably, and presumably did, conclude Quezada's statements were sufficiently

reliable as against his penal interest because he instructed Barraza to contact Vinnie to

ensure he would continue threatening or intimidating witnesses in his case. (Cf. People

v. Arceo, supra, 195 Cal.App.4th at pp. 576-577; People v. Cervantes, supra, 118

Cal.App.4th at p. 177; People v. Greenberger (1997) 58 Cal.App.4th 298, 334-335.)

                                             C

       Mendivil also asserts the trial court erred by admitting evidence on Quezada's

recorded jail telephone call because that evidence was not relevant to prove the offenses

charged against Quezada and that the recorded call, by itself, was "largely

incomprehensible" and was made relevant only by Romualdo's "speculation" regarding

its meaning.

                                             24
       " 'Relevant evidence' " is evidence that has "any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action."

(Evid. Code, § 210.) In criminal cases, evidence is relevant if it "tends logically,

naturally, and by reasonable inference to establish any fact material for the prosecution or

to overcome any material matter sought to be proved by the defense. [Citation.]

Evidence is relevant when no matter how weak it may be, it tends to prove the issue

before the jury." (People v. Slocum (1975) 52 Cal.App.3d 867, 891.) Only relevant

evidence is admissible (Evid. Code, § 350), and all relevant evidence is admissible except

as otherwise provided by statute (Evid. Code, § 351). On appeal, we review a trial court's

rulings on the relevance of evidence for abuse of discretion. (People v. Cole (2004) 33

Cal.4th 1158, 1195.) A court has no discretion to admit irrelevant evidence. (People v.

Alexander (2010) 49 Cal.4th 846, 904.)

       Contrary to Mendivil's assertion, we conclude the trial court properly found

Quezada's recorded jail call to Barraza was relevant to prove the charges against

Quezada. Assuming the court properly allowed Romualdo to provide expert testimony in

explaining the coded conversation (which issue we address below), the court could

reasonably conclude the recorded call, along with Romualdo's expert testimony, would be

probative on the issues of whether Quezada committed the charged offenses of

premeditated attempted murder and assault with a deadly weapon, and the truth of the

allegations he committed those offenses for the benefit of a criminal street gang and

personally inflicted GBI. The court could conclude that evidence would be probative in

showing his identity as one of Pineda's attackers, his participation in a criminal street

                                             25
gang, and his consciousness of guilt of those charged offenses. Furthermore, based on

Quezada's instructions to Barraza that he contact Vinnie and ensure he continued his

threats or intimidation against the eyewitnesses, the court could conclude that evidence

would help explain the trial testimony provided by Pineda, Diane, and Monique to the

extent it was inconsistent with their extrajudicial statements to Romualdo. (Cf. People v.

Vines (2011) 51 Cal.4th 830, 867.) To the extent Quezada's call was difficult to

comprehend or otherwise ambiguous, Romualdo's expert opinion on the meaning of

Quezada's call was admitted to help the jury understand it. To the extent any ambiguity

remained, it was the jury's function to weigh the evidence and determine the meaning and

import of that call.

                                              D

       Mendivil also asserts the trial court erred by allowing Romualdo to provide his

expert opinion regarding the meaning of Quezada's recorded jail telephone call. Expert

opinion testimony is admissible if the subject matter is "sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact." (Evid. Code,

§ 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617.) In particular, "[t]he

subject matter of the culture and habits of criminal street gangs" is sufficiently beyond

common experience so expert opinion testimony would be admissible. (Gardeley, at

p. 617.) Accordingly, gang expert testimony has been properly admitted on "the size,

composition or existence of a gang [citations], gang turf or territory [citations], an

individual defendant's membership in, or association with, a gang [citations], the primary

activities of a specific gang [citations], motivation for a particular crime, generally

                                              26
retaliation or intimidation [citations], [and] whether and how a crime was committed to

benefit or promote a gang [citations] . . . ." (People v. Killebrew (2002) 103 Cal.App.4th

644, 657.) Furthermore, "[t]estimony in the form of an opinion that is otherwise

admissible is not objectionable because it embraces the ultimate issue to be decided by

the trier of fact." (Evid. Code, § 805; People v. Prince (2007) 40 Cal.4th 1179, 1227

[opinion testimony may encompass ultimate issues].)

        In this case, the trial court properly allowed Romualdo to testify as a gang expert

and express his opinion regarding the meaning of the coded telephone conversation

between Quezada and Barraza. The court could reasonably conclude the meaning of that

conversation was sufficiently beyond common knowledge that Romualdo's expert

opinion on its meaning could be helpful to the jury in understanding it. (Cf. People v.

Gamez (1991) 235 Cal.App.3d 957, 964-965 [expert testimony was properly allowed on

gang graffiti, hand signals, and dress].) Contrary to Mendivil's assertion, Romualdo's

expert testimony was not made inadmissible because he testified regarding Quezada's

knowledge and intent. Rather, Romualdo was permitted to testify regarding ultimate

issues. (Evid. Code, § 805; People v. Prince, supra, 40 Cal.4th at p. 1227.) In any event,

he did not provide any expert testimony of Quezada's guilt on the charged offenses. (Cf.

People v. Vang (2011) 52 Cal.4th 1038, 1048.) The court properly allowed Romualdo to

provide his expert opinion testimony on the meaning of Quezada's recorded jail telephone

call.




                                             27
                                              E

       Mendivil also asserts the trial court erred by admitting evidence of Quezada's prior

conviction. However, as discussed above, the court did not make any ruling on

Quezada's and/or Mendivil's objection to admission of that evidence. Rather, the parties

stipulated to its admissibility before the court made a ruling. To the extent the evidence

was erroneously admitted, Mendivil forfeited or invited that error and cannot now

challenge it on appeal. (Evid. Code, § 353; People v. Lucero (2000) 23 Cal.4th 692, 723;

People v. Demetrulias (2006) 39 Cal.4th 1, 21; People v. Lewis (2008) 43 Cal.4th 415,

481; People v. Valdez (2012) 55 Cal.4th 82, 143.)

       Assuming arguendo Mendivil did not forfeit or invite the purported error, we

nevertheless conclude the trial court properly admitted evidence of Quezada's prior

conviction for unlawful possession of a firearm as a fourth predicate offense to prove the

gang allegation. For a section 186.22, subdivision (b), gang enhancement to apply, the

jury must find that one of the alleged criminal street gang's primary activities is the

commission of one or more of certain predicate crimes listed in that statute and that the

gang members engage in, or have engaged in, a pattern of criminal gang activity.

(CALCRIM No. 1401; People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.) A "pattern

of criminal gang activity" may be shown by the commission of two or more of the

predicate offenses listed in section 186.22, subdivision (e). (§ 186.22, subds. (e), (f);

CALCRIM No. 1401; Gardeley, at pp. 616-617.) A defendant's prior conviction for a

listed offense qualifies as a "predicate offense" for purposes of establishing a pattern of

criminal gang activity. (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Quezada's prior

                                             28
conviction for unlawful possession of a firearm qualified as a predicate offense and was

relevant to prove Brole was a criminal street gang within the meaning of section 186.22,

subdivisions (b) and (f). Furthermore, his prior conviction was also relevant to prove

Quezada actively participated in a criminal street gang (i.e., Brole) and knew Brole

engaged in a pattern of criminal street activity. (Tran, at p. 1048.)

       Mendivil argues the trial court nevertheless should have excluded evidence of

Quezada's prior conviction under Evidence Code section 352 because its probative value

was outweighed by its probable prejudicial effect. He argues that because the

prosecution introduced evidence of three other predicate offenses, evidence of Quezada's

prior conviction was cumulative and therefore its prejudice outweighed its probative

value. However, Mendivil does not cite, and we are unaware of, any authority holding

that the prosecution is limited to introducing evidence of no more than three predicate

offenses or cannot introduce evidence of a defendant's or codefendant's prior conviction

of a predicate offense. We believe there is no absolute limitation on the number of

predicate offenses the prosecution may introduce. Instead, evidence of predicate offenses

introduced by the prosecution is limited only by its probative value and the trial court's

exercise of its discretion to exclude that evidence under Evidence Code section 352.

Based on our review of the record in this case, we cannot conclude the trial court abused

its discretion by allowing the prosecution to introduce evidence of Quezada's prior

conviction for unlawful possession of a firearm. Although the prosecution introduced

evidence of three other predicate offenses committed by other gang members, evidence

of Quezada's prior conviction showed not only that Brole had a pattern of criminal street

                                             29
activity, but also that Quezada actively participated in Brole and knew it engaged in a

pattern of criminal street activity. (People v. Tran, supra, 51 Cal.4th at p. 1048.)

Furthermore, the court could reasonably conclude that the probative value of that

evidence outweighed its probable prejudicial effect. (Cf. Tran, at p. 1050.) The court

could reasonably conclude any potential prejudicial effect on Mendivil was minimal

because he was not involved in that prior offense by Quezada and the mere fact he was

being jointly tried with Quezada would not lead the jury to attribute that prior conduct to

him. Furthermore, the court gave a limiting instruction regarding the jury's use of

evidence of Quezada's prior conviction, stating the jury could not conclude from that

evidence that the defendant is a person of bad character or has a disposition to commit

crime. The court properly admitted evidence of Quezada's prior conviction for

possession of a firearm. People v. Hendrix (2013) 214 Cal.App.4th 216 and the other

cases cited by Mendivil are factually inapposite to this case and do not persuade us to

reach a contrary conclusion.

       Mendivil also argues he was denied effective assistance of counsel when his

counsel did not object to admission of evidence of Quezada's prior conviction. However,

we conclude that, had his counsel objected to admission of that evidence and the trial

court overruled that objection, the prejudicial effect of that evidence on Mendivil was

minimal, at most, and therefore it is not reasonably probable he would have obtained a

more favorable outcome had that evidence been excluded. (Strickland v. Washington

(1984) 466 U.S. 668, 687-688; People v. Frye (1998) 18 Cal.4th 894, 979.)



                                             30
                                             IV

                                  Denial of Continuance

       Mendivil contends the trial court erred by denying his postverdict motion for a

continuance to allow his defense counsel to investigate possible juror misconduct. He

argues he showed good cause for a continuance based on a juror's affidavit regarding the

jury's purported misunderstanding of the court's instructions.

                                             A

       On April 16, 2012, the jury returned its verdict convicting Mendivil of assault with

a deadly weapon. On July 18, Mendivil filed a motion for release of juror identifying

information. He argued that after the verdict was returned, his counsel and Quezada's

counsel were informed by three jurors that they did not believe either Mendivil or

Quezada personally attacked Pineda. In the supporting declaration of Mendivil's counsel,

he stated the jurors did not believe the defendants personally inflicted great bodily injury,

but instead found them guilty based on a theory of aiding and abetting as argued by the

prosecutor. However, the jury was not instructed on aiding and abetting.

       The prosecution opposed the motion, arguing Mendivil did not make a prima facie

showing of good cause, did not specifically identify any of the jurors his counsel or

Quezada's counsel spoke with, and did not show diligent efforts were made to contact

jurors through other means. Importantly, the prosecution also argued Evidence Code

section 1150, subdivision (a), barred admission of evidence on the subjective reasoning

processes of jurors and that is what Mendivil sought to discover.



                                             31
       On August 3, the trial court found Mendivil made a sufficient showing to warrant

a hearing to show cause why the identifying information for the three jurors should not be

provided to him and, if testimony of those three jurors supported his contention, that it

would then consider disclosing the identifying information for the remaining jurors. On

August 29, the court held a hearing to show cause why the identifying information of the

three jurors should not be provided to Mendivil. The court apparently provided

Mendivil's counsel with the names, addresses, and telephone numbers of the three

jurors.4 The court also continued Mendivil's sentencing hearing until September 26,

presumably to allow his counsel to investigate the alleged juror misconduct.

       At the scheduled September 26 sentencing hearing, the trial court continued

Quezada's sentencing because his counsel was not present. The court allowed Mendivil's

counsel to lodge a declaration from Juror No. 3, in which she stated the jurors

misunderstood the instructions on whether Mendivil and Quezada personally inflicted

great bodily injury on Pineda. She stated in part:

          "Once the trial was concluded and prior to all deliberations the jury
          agreed to apply the jury instruction as to Penal Code [section] 245[,
          subdivision] (a)(1), which did not require the Defendant's [sic] to
          personally attac[k] the victim, as to all charges and allegations,
          including the [section] 1202.7 [sic] allegation of Great Bodily Injury.
          [¶] . . . [¶] . . . As to the Penal Code [section] 12022.7 allegation, I
          understood that I could find the allegation true, even though I did not
          feel that either of the defendants personally used a deadly weapon. I
          did not use the jury instruction for [section] 12022.7 and neither did
          any of the other jurors. We applied the instruction from Penal Code


4     Although the record on appeal does not contain a transcript of that hearing,
subsequent proceedings in the record show the court took that action.

                                             32
          [section] 245[, subdivision] (a)(1) to the [section] 12022.7
          allegation. We did so based upon the District Attorney's statement
          that a person could be guilty . . . of all the charged offenses even
          though they did not personally participate in the attack. Using the
          statement from the District Attorney and applying the instruction
          from Penal Code [section] 245[, subdivision] (a)(1), I found the
          allegation true."

Mendivil's counsel represented to the court that he had tried to contact Juror No. 1 to

ascertain whether that juror would corroborate Juror No. 3's statements, but was unsure

whether he would cooperate. Accordingly, he requested a two-week continuance to

allow him additional time to contact Juror No. 1.

       The prosecution opposed a continuance of Mendivil's sentencing, arguing the

statements in the declaration of Juror No. 3 were inadmissible under Evidence Code

section 1150 and the possibility that another juror might corroborate those inadmissible

statements was insufficient to show good cause for a continuance. The trial court found

Mendivil had not shown good cause for a continuance and proceeded to sentence him.

                                             B

       A trial court has broad discretion in ruling on motions for continuance of

sentencing and new trial. (People v. Smithey (1999) 20 Cal.4th 936, 1011-1012.) We

review a court's denial of a motion for continuance for abuse of discretion. (People v.

Jones (1998) 17 Cal.4th 279, 318.)

       If a party does not comply with the requirements of section 1050 (i.e., written

notice of motion filed and served at least two days before hearing), the trial court must

deny the motion unless the party shows good cause. (People v. Smithey, supra, 20

Cal.4th at pp. 1011-1012.) In ruling on a motion for continuance, the court " ' "must

                                             33
consider not only the benefit which the moving party anticipates but also the likelihood

that such benefit will result, the burden on . . . witnesses, jurors and the court and, above

all, whether substantial justice will be accomplished or defeated by a granting of the

motion." ' " (People v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.) The court may also

consider the diligence exercised by trial counsel. (People v. Jenkins (2000) 22 Cal.4th

900, 1037-1040.) A party is denied due process if the trial court's denial of a continuance

is arbitrary under the circumstances of the case. (People v. Frye, supra, 18 Cal.4th at

pp. 1012-1013; Smithey, at p. 1011-1012.)

                                              C

       Based on our review of the record, we conclude the trial court did not abuse its

discretion by denying Mendivil's motion for continuance. The court reasonably

concluded Mendivil did not show good cause for a continuance because the information

his counsel sought to ascertain with further investigation related to the subjective thought

processes of jurors.

       "Evidence of jurors' internal thought processes is inadmissible to impeach a

verdict." (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th

1108, 1124.) Evidence Code section 1150, subdivision (a), provides:

          "Upon an inquiry as to the validity of a verdict, any otherwise
          admissible evidence may be received as to statements made, or
          conduct, conditions, or events occurring, either within or without the
          jury room, of such a character as is likely to have influenced the
          verdict improperly. No evidence is admissible to show the effect of
          such statement, conduct, condition, or event upon a juror either in
          influencing him to assent to or dissent from the verdict or
          concerning the mental processes by which it was determined."
          (Italics added.)

                                              34
"Juror declarations are admissible to the extent that they describe overt acts constituting

jury misconduct, but they are inadmissible to the extent that they describe the effect of

any event on a juror's subjective reasoning process. [Citation.] Accordingly, juror

declarations are inadmissible to the extent that they purport to describe the jurors'

understanding of the instructions or how they arrived at their verdict. " (Bell, at

pp. 1124-1125, italics added; see People v. Allen and Johnson (2011) 53 Cal.4th 60, 75

["a court cannot consider evidence of a juror's subjective reasoning process in deciding

whether to grant a new trial based on purported juror misconduct"]; People v. Steele

(2002) 27 Cal.4th 1230, 1261 [evidence of how a juror understood the trial court's

instructions is not competent].) In short, "the jurors' subjective thought processes [are]

immaterial and of no jural consequence." (People v. Hill (1992) 3 Cal.App.4th 16, 30.)

Therefore, evidence showing the jurors misunderstood the trial court's instructions "is

simply of no legal significance." (Ibid.) Alternatively stated, "evidence about a jury's

'subjective collective mental process purporting to show how the verdict was reached' is

inadmissible to impeach a jury verdict. [Citation.] Thus, juror declarations are

inadmissible where, as here, they 'at most suggest "deliberative error" in the jury's

collective mental process—confusion, misunderstanding, and misinterpretation of the

law.' " (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.)

       In moving for a continuance of the sentencing hearing, Mendivil argued his

counsel needed additional time to investigate possible misunderstanding of the trial

court's instructions by jurors in deliberating and reaching a verdict. However, the object


                                             35
of Mendivil's investigation (i.e., purported juror misconduct based on misunderstanding

of the instructions) could not have resulted in any admissible evidence under Evidence

Code section 1150, subdivision (a), and relevant case law, and it could not have

supported a motion for new trial based on purported juror misconduct. Any evidence of

jurors' misunderstanding of instructions is both inadmissible and immaterial on the

question of juror misconduct. The declaration of Juror No. 3 that Mendivil lodged with

the trial court in support of his request for a continuance dealt with the purported

misunderstanding of the court's instructions by that juror and other jurors. That

declaration was inadmissible evidence not only to show juror misconduct, but also as

support for Mendivil's motion for continuance. Furthermore, Mendivil's argument that he

might be able to obtain similar declarations from other jurors if he had additional time to

investigate could not support a continuance because those possible additional declarations

would likewise be inadmissible under Evidence Code section 1150, subdivision (a).

Absent any evidence showing Mendivil had, or could obtain, admissible evidence of juror

misconduct, the trial court reasonably concluded he did not show good cause for a

continuance and properly denied his motion.

                                             V

                             Ineffective Assistance of Counsel

       Mendivil alternatively contends that if his counsel did not sufficiently object, or

sufficiently move, to preserve the issues of improper juror dismissal, erroneous admission

of evidence, or improper denial of his motion for continuance, he was denied effective



                                             36
assistance of counsel.5 However, because we dispose of those issues on grounds other

than waiver, forfeiture, or procedural inadequacies, we need not, and do not, address his

ineffective assistance of counsel claim.6

                                      DISPOSITION

       The judgment is affirmed.




                                                                           McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


McINTYRE, J.




5      To the extent Mendivil also suggests his counsel may have performed deficiently
by not requesting additional jury instructions or clarification of instructions on the GBI
allegation, he has forfeited or waived that contention by not presenting any substantive
legal analysis showing the instructions given in this case were inadequate or confusing
and therefore we do not address the merits of that contention. (Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852; Landry v. Berryessa Union School Dist.
(1995) 39 Cal.App.4th 691, 699-700; Jones v. Superior Court (1994) 26 Cal.App.4th 92,
99.)

6       As discussed above, we have, however, discussed that issue to the extent it relates
to the admission of evidence of Quezada's prior conviction.

                                            37
