Filed 6/10/15 P. v. Lewis CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B255401

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. TA127199)
         v.

TERRELL LEWIS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Paul A. Bacigalupo, Judge. Affirmed as modified.
         Law Offices of James Koester and James Koester, under appointment by the
Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm
and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
      A jury convicted defendant Terrell Lewis of assaulting a police officer with
a deadly weapon and by means of force likely to produce great bodily injury
(§ 245, subd. (c)) and resisting a police officer (§ 69).1, 2 Defendant, a member of
the Bounty Hunter Bloods gang, committed the two crimes when he attempted to
prevent Detective Christian Mrakich from serving him with a subpoena to testify at
a fellow gang member’s trial.
      In a subsequent bench trial, the court found true the allegations that
defendant had suffered a prior conviction within the meaning of sections 1170.12,
subdivisions (a)-(d), 667, subdivisions (a)-(i) and section 667.5, subdivision (b).3
The trial court sentenced defendant to a 13-year term.
      In this appeal, defendant contends that there is insufficient evidence to
sustain his conviction for felonious assault; that the trial court committed
instructional error; and that the trial court erred when it permitted the People to
present limited evidence about his gang affiliation. We find no prejudicial error.
In addition, defendant asks us to review the sealed transcript of the in camera
hearing conducted on his Pitchess motion.4 Lastly, defendant raises two minor
claims of sentencing error, both of which the Attorney General concedes. Other
than directing preparation of a modified abstract of judgment to correct the
sentencing errors, we affirm the judgment.
1
      All undesignated statutory references are to the Penal Code.
2
       Defendant was also charged with battery on a peace officer with injury (§ 243,
subd. (c)(2)) but the prosecution dismissed that count during trial.
3
       The prior conviction was based on defendant’s plea of nolo contendere, entered in
2008, to the charge that he violated Health and Safety Code section 11351.5 (possession
of cocaine base for sale) and his admission that the crime was committed to benefit a
criminal street gang (§ 186.22, subd. (b)(1)(A).)
4
      Pitchess v. Superior Court (1974) 11 Cal.3d 531.


                                            2
                             STATEMENT OF FACTS
                            A. THE PROSECUTION’S CASE
   1. Events Prior to Defendant’s Commission of the Crimes on February 13,
      2013

      In May 2011, defendant was shot twice with “an AK-47 style, assault rifle.”
Detective Mrakich of the Los Angeles Police Department (LAPD) was assigned to
investigate the shooting. The detective visited defendant in the hospital while he
was recovering from his wounds and asked if defendant could identify the shooter.
Defendant, a member of the Bounty Hunter Bloods gang, declined to identify the
man, stating that he could not be known “as a snitch” “or someone who cooperates
with the police.” Defendant did, however, give Detective Mrakich a physical
description of the shooter. Detective Mrakich explained to defendant that if the
police identified the shooter, he would be required to testify at the shooter’s trial.
      Although Detective Mrakich and defendant had an “amiable” relationship at
first, defendant became uncooperative as the investigation of his shooting
proceeded.
      Several months later, the police identified Israel Jauregui, also a Bounty
Hunter Bloods member, as the shooter. Jauregui matched defendant’s physical
description of the shooter. Detective Mrakich determined that “the shooting was a
result of an internal feud between factions within the gang.” In August 2011, the
police arrested Jauregui.
      Detective Mrakich’s duties as a police officer include serving subpoenas on
witnesses. Consequently, in October 2011, he served defendant with a subpoena
requiring him to appear at Jauregui’s preliminary hearing. Defendant failed to
appear. Another preliminary hearing was scheduled. Detective Mrakich again
personally served defendant with a subpoena to appear at the preliminary hearing.

                                           3
Again, defendant failed to appear and the magistrate issued a body attachment.
The police were unable to locate defendant. Notwithstanding defendant’s failure
to appear, Jauregui was held to answer and a trial was set on the charge(s) against
him.
       By this time, defendant’s phone number had been disconnected and he had
moved out of his home. Detective Mrakich eventually learned that defendant was
living at his mother’s residence.


       2. The Events of February 13, 2013
       On February 13, 2013, Detective Mrakich intended to serve defendant with a
subpoena to appear at Jauregui’s upcoming trial. He and Detective Asia Hodge,
both in plain clothes, drove in Detective Mrakich’s personal and unmarked vehicle
to the home of defendant’s mother. (Defendant had previously seen Detective
Mrakich’s car two or three times.) Detective Mrakich intended to “knock on the
door and hand him [defendant] a subpoena.” Detective Mrakich asked Officers
Francis Coughlin and Sharon Kim, both in uniform, to accompany him in a
standard black and white police vehicle. Detective Mrakich testified that he made
this request so that “there’s no mistaking me for an enemy or rival[,]” “it’s just a
safe practice, especially being in plain clothes, to have a uniform presence with
you at all times” when serving a subpoena.
       Detectives Mrakich and Hodge arrived first and parked a few houses away
from the home of defendant’s mother. Within “a matter of a couple of minutes,”
defendant drove right past the driver’s side of Detective Mrakich’s parked vehicle.
Because defendant did not stop at his mother’s home, Detective Mrakich pulled
away from the curb and followed him. Defendant immediately sped up, ran a stop
sign, and made several turns. Detective Mrakich continued to follow him.



                                          4
      Detective Mrakich radioed Officers Coughlin and Kim to stop defendant
because he intended to serve him with the subpoena. Detective Mrakich believed
that he could lawfully order the brief detention of defendant’s vehicle to serve the
subpoena.
      Officer Coughlin drove his marked police vehicle ahead of Detective
Mrakich’s car, activated the lights and sirens on it, and pulled defendant over.
Officer Coughlin approached and ordered defendant out of his car. He refused.
The two argued. Defendant said: “Fuck you. Fuck you. I want my lawyer. I
want to call my lawyer.” Because defendant had not complied with his request to
exit his vehicle, Officer Coughlin opened the driver’s car door. Defendant asked
“What did I do?” and stated he intended to contact his attorney on his cell phone.
Officer Coughlin told defendant to put the cell phone down and step out of the car.
      Meanwhile, Detectives Mrakich and Hodge had arrived and heard the
exchange between defendant and Officer Coughlin. In an effort to defuse the
situation, they left their vehicle and approached. Detective Mrakich wanted “to
make sure [defendant] knew [he] was there.” Detective Mrakich walked up to
defendant’s car and excused Officer Coughlin, telling him “I’ll handle this” and
“Remember, we’re here for the subpoena service.” Defendant asked: “What did I
do?” Detective Mrakich replied “Nothing. Don’t worry.”
      Detective Mrakich, holding the subpoena in his left hand, told defendant:
“Terrell, it’s time. We’ve got to do this.” Defendant replied: “Fuck no. Fuck, I
ain’t going to court.” Detective Mrakich testified that the following then occurred.
Defendant “made a quick movement towards . . . his lower right side.” Detective
Mrakich reached in and grabbed defendant. Defendant’s car started to move and
the detective felt his feet “moving really fast.” He tried to pull his arm out of the
car but his “hand snagged either in the seat belt or [defendant’s] jacket. . . . [B]y
that time the car [was] moving really fast” and he was “still hanging on.”

                                           5
Defendant’s car “end[ed] up going faster than [he could move] and running over
[his] right foot[,]” injuring him.
       Defendant drove off but Officers Coughlin and Kim apprehended him
shortly thereafter.
       A dashboard camera on Officer Coughlin’s police vehicle recorded video
and audio of the incident that followed his stop of defendant. The recording was
played for the jury.5 The video shows the following 10-second sequence.
       Detective Mrakich walks up to the driver’s side of vehicle. The driver’s
door is open. The detective reaches inside with his left arm and hands the
subpoena to defendant. Defendant begins to drive away. Detective Mrakich’s
right arm reaches inside of the car. Defendant drives faster. Detective Mrakich
has both arms inside the car as he runs to keep up with it. Soon, he frees his arms
from the vehicle’s interior. The car door closes. Defendant continues to drive
away. Detective Mrakich holds onto the moving car. He runs alongside it and
attempts to reopen the driver’s door. Defendant increases the car’s speed,
throwing the detective from it. During these events, the subpoena is thrown from
the car and blown a short distance.


3. Gang Evidence
       Detective Erik Shear was called as a gang expert to establish defendant’s
motive for attempting to avoid service of the subpoena.6 He testified as follows.


5
      On our own motion, we have augmented the record to include the video. (Cal.
Rules of Court, rule 8.155(a)(1)(a).)
6
       One of defendant’s contentions is that the trial court committed prejudicial error in
allowing this testimony. We set forth the basis of the trial court’s ruling later when we
discuss the claim of error.


                                             6
      The Bounty Hunter Bloods gang is a “huge” gang, with 800 to 900
members, in “a small area,” primarily the Nickerson Gardens housing projects.
Because the gang is so large and concentrated in a small area, “it’s very common
for them to have internal conflicts and even murder each other.” The detective
routinely investigates crimes committed by the Bounty Hunter Bloods such as
assault, shootings, robbery, attempted murder and murder.
      Both defendant and Jauregui are members of the Bounty Hunter Bloods.
When one member of the Bounty Hunter Bloods shoots another member of the
gang, the victim would “almost never” cooperate with a police investigation. A
member who did cooperate would be considered a “snitch.” Detective Shear
explained: “It’s almost beneficial to their status if they were a victim of a crime
and they still refused to go to the police. Everybody knows they’re solid [because]
[t]hey’re not going to snitch.”


                              B. THE DEFENSE CASE
      Defendant did not testify on his own behalf.
      The defense offered two witnesses.
      The first witness was Thomas Maeweather, a retired captain from LAPD
who testified as an expert witness in police procedure. Maeweather testified that
while there is “no specific [LAPD] policy that says [the police] can stop a car to
serve a subpoena,” there is no specific policy “that says an officer cannot . . . pull a
person over to serve a subpoena.” Maeweather conceded that officers do stop cars
to serve the driver with a subpoena and that he had never disciplined an officer for
“pulling over a vehicle” to serve a subpoena.
      The second defense witness was Mary Thomas, defendant’s mother. She
testified about Detective Mrakich’s visit to defendant’s hospital room after he had



                                           7
been shot by Jauregui and the detective’s subsequent service of a subpoena to
appear at Jauregui’s preliminary hearing.


                                       DISCUSSION
              A. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN
                      THE FELONIOUS ASSAULT CONVICTION
       Defendant first contends that there is insufficient evidence to sustain his
conviction for felonious assault upon Detective Mrakich.7 We disagree.
       An assault is “an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.” (§ 240.) A defendant violates section
245, subdivision (c) when “(1) an assault with a deadly weapon or instrument or
[by] means likely to produce great bodily harm (2) is committed upon the person
of a peace officer (3) with knowledge or under such circumstances that a
reasonable person would know that the victim is a police officer engaged in the
performance of his duties (4) when such peace officer is in fact engaged in the
performance of his duties.” (People v. Gaines (1966) 247 Cal.App.2d 141, 145.)
The offense is a general intent crime. It “does not require a specific intent to cause
injury or a subjective awareness of the risk that an injury might occur. Rather,
assault only requires an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably and directly result in
the application of physical force against another.” (People v. Williams (2001) 26
Cal.4th 779, 790 (Williams).)




7
        Defendant does not attack the sufficiency of the evidence to sustain his conviction
for resisting an executive officer.


                                             8
      Viewing the evidence in the light most favorable to the judgment (People v.
Johnson (1980) 26 Cal.3d 557, 575-578), we conclude that substantial evidence
supports defendant’s conviction.
      To begin, defendant knew at the time of the assault that Detective Mrakich
was a peace officer performing his duties. Defendant had met Detective Mrakich
in his official capacity as a peace officer on three previous occasions. The first
occasion was when Detective Mrakich interviewed him in the hospital after he had
been shot by Jauregui. The second and third occasions were when Detective
Mrakich served him with subpoenas to appear at Jauregui’s preliminary hearings.
Further, defendant knew that Detective Mrakich was performing an official duty.
After he (defendant) had been stopped by a marked police vehicle and approached
by two uniformed police officers, Detective Mrakich came up to him. Holding the
subpoena in his hand, Detective Mrakich told defendant: “Terrell, it’s time.
We’ve got to do this.” Defendant’s response (“Fuck no. Fuck, I ain’t going to
court”) indicates that he understood that Detective Mrakich was serving him with a
subpoena.
      Further, defendant’s use of a moving vehicle to commit the crime
constituted the use of a deadly weapon or force likely to produce great bodily
injury. (See People v. Wright (2002) 100 Cal.App.4th 703, 706 [“A]ny operation
of a vehicle by a person knowing facts that would lead a reasonable person to
realize a battery will probably and directly result may be charged as an assault with
a deadly weapon.”].)
      According to defendant, the crux of the matter is whether the record contains
substantial evidence of the required intent. He relies upon the video taken from the
dashboard camera to suggest that, as a matter of law, the evidence did not establish
his intent. He argues that the video “clearly shows that [Detective Mrakich]
actually had freed himself from the car but then purposefully reengaged with the

                                          9
car when he tried to reopen the driver’s door. Only after he reengaged did he fall
and injure himself.” From that, defendant claims that Detective Mrakich’s injuries
were “not a reasonably expected consequence of [defendant’s] initial decision to
drive away from the location, but rather the direct result of Mrakich’s purposeful
attempt to reengage with [defendant’s] car.” We are not persuaded.
      For one thing, defendant’s argument overlooks the fact that the video shows
that he began to drive off as soon as Detective Mrakich had reached in with his left
arm to hand him the subpoena. After the vehicle began to move, the detective
placed his right arm in the car. Defendant continued to drive. The detective was
able to remove both arms from inside the vehicle but then hung onto the moving
car. Detective Mrakich attempted to reopen the door; defendant drove faster; and
the detective was injured.
      A defendant is guilty of assault “if a reasonable person, viewing the facts
known to defendant, would find that the act would directly, naturally and probably
result in a battery.” (Williams, supra, 26 Cal.4th at p. 788, fn. 3.) Here, a
reasonable person knowing what defendant knew—Detective Mrakich (who had
already twice served him with a subpoena) was attempting to serve a subpoena
with his arm inside of the car —would also know that if he started to drive away at
that moment (an intentional act), this act could directly, naturally and probably
result in an application of force against Detective Mrakich because the detective
would attempt to restrain defendant but be unable to keep up with the speed of the
car.8 In this context, the fact that Detective Mrakich attempted to reopen the car
door after he had freed his arms from the car’s interior is not significant. The



8
      Pursuant to defendant’s request, the trial court submitted CALCRIM No. 3404
(“Accident”) that explained that defendant was not guilty if he acted accidentally.


                                          10
dispositive point is that defendant started to drive off as soon as Detective Mrakich
reached inside to serve the subpoena.


            B. INSTRUCTION ON A MISTAKE OF FACT DEFENSE
      Defendant contends that the trial court committed prejudicial error when it
rejected defense counsel’s request to instruct on the defense of mistake of fact. We
find no error.


1. Factual Background
      Defense counsel asked the trial court to submit CALCRIM No. 3406
(“Mistake of Fact”) to the jury. He argued that the evidence raised a question
whether defendant recognized Detective Mrakich as a police officer when he
walked up to him and attempted to serve him. The trial court rejected the request,
finding that it was undisputed that defendant knew who Detective Mrakich was.


2. Discussion
      A defendant is entitled to a jury instruction on an affirmative defense if the
record contains substantial evidence — evidence sufficient for a reasonable jury to
find in favor of defendant — to support the defense. “In determining whether the
evidence is sufficient to warrant a jury instruction, the trial court [decides] only
whether ‘there was evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt . . . .’” (People v. Salas (2006) 37 Cal.4th 967, 982.) But if the
evidence of the purported defense is minimal or insubstantial, there is no duty to
instruct on it. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
      Here, nothing in the People’s case suggested that defendant did not know
Detective Mrakich. To the contrary, the evidence established clearly that
defendant did know the detective. Detective Mrakich testified that he had visited

                                           11
defendant in the hospital where they discussed the Jauregui shooting and that on
two separate occasions he later served defendant with a subpoena to testify at
Jauregui’s preliminary hearing. Further, Detective Mrakich testified that prior to
February 13, defendant had seen the car that he used that day. Defendant’s failure
to stop his vehicle at his mother’s house after he drove past Detective Mrakich’s
parked car is evidence that defendant had immediately recognized the detective, as
is the fact that once Detective Mrakich began to follow him, defendant sped up, ran
a stop sign, and made several turns, all in an apparent attempt to evade the
detective. In addition, defendant’s response when Detective Mrakich attempted to
serve him indicated that he recognized the detective and knew the reason for his
presence. Consequently, the mere fact that Detective Mrakich was in plain clothes
when he walked up to defendant—after defendant had first been stopped by a
marked police vehicle that had activated its lights and siren and then been
approached by two uniformed police officers—did not constitute substantial
evidence warranting submission of CALCRIM No. 3406.
      Further, the defense failed to present any evidence that defendant did not
recognize Detective Mrakich. Defendant did not testify and neither of the two
defense witnesses had observed the operative events. In sum, the record did not
contain substantial evidence that could persuade a reasonable jury to entertain a
reasonable doubt whether defendant recognized Detective Mrakich. (See, e.g.,
People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) The trial court therefore
did not err in declining to instruct on the defense.
      For the first time on appeal, defendant argues that the trial court “failed to
recognize that there was substantial evidence that [he] may have been reasonably
reacting to another mistake of fact, that this was a consensual encounter from
which he was free to leave, when there was no evidence that either [Officer]
Coughlin or [Detective] Mrakich explained the purpose of his detention and

                                          12
[Detective] Mrakich specifically told [him] that he hadn’t done anything wrong.”
We disagree. After violating several provisions of the Vehicle Code, defendant
stopped his car after Officer Coughlin had activated the lights and siren on his
marked police vehicle. When Officer Coughlin approached defendant, he told
defendant several times to step out of his car. This instruction is the antithesis of a
consensual encounter. Defendant failed to comply with the instruction but,
instead, argued with the officer. Detective Mrakich approached and essentially
told defendant that he had been stopped so he (the detective) could serve him with
a subpoena. Defendant’s response indicated that he understood the purpose of the
stop. Nothing in the defense case contradicted or rebutted this evidence. In sum,
nothing in the record raised a reasonable doubt that defendant believed the stop
was consensual.
                        C. FAILURE TO INSTRUCT ON
              A NECESSARILY LESSER INCLUDED OFFENSE
      Defendant contends that the trial court committed prejudicial error when it
rejected his request to instruct on resisting an officer (§ 148), which he claims is a
necessarily lesser included offense to resisting an executive officer (§ 69). We are
not persuaded.


1. Legal and Factual Background
      Section 69 can be violated in one of two ways. The first way is when the
defendant “attempts, by means of any threat or violence, to deter or prevent an
executive officer from performing any duty imposed upon such officer by law.”
(§ 69.) The second way is when the defendant “knowingly resists, by the use of
force or violence, such officer, in the performance of his duty.” (§ 69.) In this
case, the information, which was read to the jury at the beginning of trial, alleged
both ways in the conjunctive.

                                           13
      Section 148 is violated when the defendant “willfully resists, delays, or
obstructs any . . . peace officer . . . in the discharge or attempt to discharge any
duty of his . . . office or employment.” (§ 148, subd. (a)(1).) Unlike section 69,
section 148 does not include the element of the use of force or violence.
      Section 148 is not a necessarily lesser included offense of the first way to
violate section 69: attempting to deter, by threat or violence, an officer from
performing his executive duty. (People v. Smith (2013) 57 Cal.4th 232, 243
(Smith).) However, section 148 is a lesser included offense of the second way to
violate section 69: knowingly resisting, by force or violence, an officer who is
performing his duty. (Id. at p. 241.)
      When the parties discussed jury instructions, the prosecutor asked only for
the submission of CALCRIM No. 2651 which explains the elements of the first
way to violate section 69. He did not ask for submission of CALCRIM No. 2652
which explains the elements of the second way to violate section 69. Nonethless,
defense counsel requested submission of an instruction about section 148
(presumably CALCRIM No. 2656) even though one of the Bench Notes to
CALCRIM No. 2651 explains: “Resisting an officer, Penal Code section 148(a), is
not a lesser included offense of attempting to deter an officer. [Citation.]” The
trial court denied the defense request, stating section 148 was not a lesser included
offense.
      The court thereafter instructed the jury as follows:
             “The defendant is charged in Count three with trying to prevent
      or deter an executive officer from performing that officer’s duty.

            “To prove that the defendant is guilty of this crime, the People
      must prove that:




                                           14
             “1. The defendant willfully and unlawfully used violence to try
      to prevent or deter an executive officer from performing the officer’s
      lawful duty; AND

            “2. When the defendant acted, he intended to prevent or deter
      the executive officer from performing the officer’s lawful duty.

            “Someone commits an act willfully when he or she does it
      willingly or on purpose.

             “An executive officer is a government official who may use his
      or her own discretion in performing his or her job duties. A Los
      Angeles Police Officer is an executive officer.

             “The duties of a police officer include serving subpoenas.

             “A peace officer is not lawfully performing his or her duties if
      he or she is unlawfully arresting or detaining someone or unlawfully
      serving a subpoena in his or her duties.”

      In his closing argument, the prosecutor made only brief mention of section
69, characterizing it as defendant’s attempt through the use of force to deter
Detective Mrakich from lawfully performing his duty of serving the subpoena.


2. Discussion
      Defendant contends that the trial court was required to instruct about section
148 because Smith, supra, 57 Cal.4th 232 held such an instruction is required when
the accusatory pleading alleges both ways in which section 69 can be violated. (Id.
at pp. 242-243.) Here, as stated earlier, the information did allege both manners of
violating section 69. However, the prosecutor effectively abandoned that approach
when he requested submission of only CALCRIM No. 2651. That the information
was not formally amended at the end of trial to reflect that the prosecutor had




                                         15
elected to proceed only on one theory of violating section 69 could not have
prejudiced defendant or entitled him to an instruction on section 148.
      In any event, assuming arguendo that the language of the information
exclusively governs the trial court’s obligation to instruct, Smith, supra, still does
not support defendant. Smith qualified its holding by reiterating: “[A] trial court is
not required to instruct the jury on a necessarily included lesser offense ‘“when
there is no evidence that the offense was less than charged.”’ [Citation.]” (Smith,
supra, 57 Cal.4th at p. 245.) That is this case.
      Here, defendant physically resisted Detective Mrakich’s attempt to serve the
subpoena by driving away, resulting in his car running over the detective’s foot.
The defense theory, as set forth in closing argument, was that it was an accident.
Thus, defendant either willfully used violence intending to prevent Detective
Mrakich from performing his duty and was guilty of violating section 69 or he
lacked that intent and was not guilty of violating section 69. There was no
evidence that defendant committed only the lesser offense of resisting Detective
Mrakich without the use of force or violence in violation of section 148,
subdivision (a)(1). The trial court therefore had no duty to instruct on that latter
offense. (Smith, supra, 57 Cal.4th at p. 245.)


                    D. ADMISSION OF GANG EVIDENCE
      Defendant contends that his trial was “fundamentally unfair” because the
prosecution “introduce[d] unfairly provocative and cumulative evidence related to
the Bounty Hunter Bloods.” We disagree.


1. Factual Background
      The information alleged that defendant committed the charged offenses to
benefit a gang. (§ 186.22.) Prior to trial, the defense moved to bifurcate the trial

                                          16
on the charged crimes from the trial on the gang enhancement. The trial court
granted the motion. It found that allowing the People to introduce evidence that
the crimes were committed to benefit a gang within the meaning of section 186.22
and to establish the predicate offenses would unduly prejudice the defense on the
charged crimes.9 However, the trial court granted the prosecution’s request to
allow a gang expert to testify during the trial on the charged offenses to establish
defendant’s motive to avoid service.10 As set forth in our Statement of Facts,
Detective Shear testified about defendant and Jauregui’s membership in the
Bounty Hunter Bloods gang, the gang’s rule against cooperating with law
enforcement, and the consequences of testifying against a fellow gang member.


2. Discussion
       When, as here, the jury is not being called upon to determine the truth of a
gang enhancement, gang evidence may still be admitted “if it is relevant to a
material issue in the case other than character, is not more prejudicial than
probative, and is not cumulative.” (People v. Samaniego (2009) 172 Cal.App.4th
1148, 1167.) In particular, gang evidence can be offered to establish the
defendant’s motive to commit the charged crimes. (People v. Hernandez (2004)
33 Cal.4th 1040, 1049.) Because “‘“a motive is ordinarily the incentive for
criminal behavior, its probative value generally exceeds its prejudicial effect, and


9
      After the jury convicted defendant, a separate trial was had on the gang
enhancement. The jury found it “not true.”
10
       The trial court explained: “The police conduct a stop. The defendant refuses to,
from the People’s point of view, submit to a detention. He flees. A police officer
[Detective Mrakich] is assaulted, there’s a battery, and there’s resisting. There’s reasons
why the People believe he fled or resisted or left the scene, and I’m allowing you to,
essentially, bring in some of those factors.”


                                            17
wide latitude is permitted in admitting evidence of its existence.” [Citations.]’”
(People v. McKinnon (2011) 52 Cal.4th 610, 655.) We review the trial court’s
decision to permit gang evidence for a limited purpose for an abuse of discretion.
(People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
      In this case, the gang evidence was directly relevant to explaining why
defendant failed to appear at Jauregui’s preliminary hearings even though he had
had been served which, in turn, explained why he fled when Detective Mrakich
attempted to serve him on February 13. Further, the evidence was a relatively
minor component of the prosecution’s case. It did not suggest that defendant’s
gang membership predisposed him to commit violent crimes, but, instead, focused
narrowly on the People’s theory as to why he had a specific reason to avoid
Detective Mrakich.11
      The trial court recognized that evidence about gangs carried a risk of undue
prejudice and therefore confined the prosecution’s proof to reasonable limits. At
the close of trial, the court submitted the pattern limiting instruction (CALCRIM
No. 303) which the jury is presumed to have followed (People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17). We therefore find that its decision to allow the evidence
was not an abuse of discretion. (People v. Price (1991) 1 Cal.4th 324, 432.)
      Defendant attempts to avoid this conclusion by arguing that the People
overstepped the trial court’s ruling by introducing evidence that the Bounty Hunter
Bloods were a “‘hug[e] gang’ with eight to nine hundred members that regularly
committed the most egregious types of assaults, including murders and attempted
murders on an almost daily basis.”



11
      This was the only point the prosecutor made when he briefly mentioned the gang
evidence in his closing argument.


                                         18
      The argument is forfeited because trial counsel did not object to this very
brief portion of Detective Shear’s testimony. (Evid. Code, § 353, subd. (a); People
v. Morris (1991) 53 Cal.3d 152, 187-188.)
      In response, defendant contends that trial counsel’s failure to object
constitutes ineffective assistance. Not so. If a potential objection lacks merit,
counsel is not ineffective for failing to make it. (People v. Carter (2003) 30
Cal.4th 1166, 1210.) Here, the trial court would have overruled the objection for
several reasons. First, the size and violent nature of the Bounty Hunter Bloods
gang was relevant to establishing defendant’s motive to avoid service of a
subpoena that would require him to testify against a fellow gang member. That is,
the larger and more violent the gang, the more reason for defendant to avoid
service. Second, the jury had already learned about the gang’s violent nature
because Detective Mrakich testified that defendant had been shot by a fellow gang
member with an AK-47. And third, defendant’s argument (advanced for the first
time in his reply brief) that the point that gang members do not want to testify
against fellow gang members and therefore would evade service of a subpoena
“could easily have been made with generic gang expert testimony” is not
persuasive. Context is everything. Specific evidence about defendant’s gang—the
Bounty Hunter Bloods—was necessary for the jury to fully understand defendant’s
motive to avoid service of a subpoena compelling him to testify at a fellow gang
member’s trial.


                             E. PITCHESS MOTION
1. Factual Background
      Prior to trial, defendant filed a Pitchess motion seeking discovery of
complaints filed against Detectives Mrakich and Hodge and Officers Coughlin and
Kim. The trial court found that the defense had established “a plausible factual

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scenario” to discover complaints of excessive force filed against Detective
Mrakich because he had reached into defendant’s car and grabbed him and
complaints for dishonesty and Fourth Amendment violations filed against all four
officers.
       The trial court conducted an in camera hearing to review the complaints
presented by the custodian of records. Following the hearing, proceedings
resumed in court. The trial judge stated: “The court has ordered the disclosure of
certain items one week from today.”


2. Discussion
       In this appeal, defendant “requests this court to independently review the
sealed Reporter’s Transcript[] of the in camera Pitchess hearing to determine
whether the [trial] court properly disclosed all relevant discovery to [him].”
       We have reviewed the sealed transcript and conclude that the trial court’s
ruling was not an abuse of discretion. (See People v. Mooc (2001) 26 Cal.4th
1216, 1229-1232.)


                                 F. SENTENCING
1. Factual Background
       The trial court sentenced defendant to a 13-year term as follows. First, it
imposed the four-year midterm on the felonious assault conviction and then,
pursuant to the Three Strikes law, doubled it to an eight-year term. In addition, the
court imposed a five-year term pursuant to section 667, subdivision (a)(1) for the
prior conviction and a concurrent one-year enhancement for the prior prison
commitment pursuant to section 667.5, subdivision (b). In regard to the conviction
for resisting a police officer, the trial court imposed an eight-month sentence (one-
third of the midterm) but stayed its execution pursuant to section 654. The trial

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court awarded defendant 165 days of presentence custody credit and 33 days of
conduct credit.


2. Discussion
      First, defendant contends, and the Attorney General agrees, that the trial
court improperly computed his presentence conduct credit because it reduced that
credit by 80 percent because of his prior conviction. The version of section 4019
in effect in 2013 when defendant committed the two crimes provided for a
maximum of two days of conduct credit for every two days in actual confinement
(§ 4019, subds. (d) & (h); People v. Ellis (2012) 207 Cal.App.4th 1546, 1549) and
did not exclude defendants who had suffered convictions for serious or violent
felonies. (People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.) The parties agree that
defendant is entitled to 164 days of conduct credit.
      Next, defendant contends, and the Attorney General agrees, that the
concurrent one-year term imposed pursuant to section 667.5, subdivision (b) for
the prior prison commitment must be stricken because it was based on the same
conviction that was used to impose the five-year term pursuant to section 667,
subdivision (a)(1).12 (People v. Perez (2011) 195 Cal.App.4th 801, 805.)
      We therefore direct preparation of an amended abstract of judgment to
correct these two errors.


                              G. CUMULATIVE ERROR
      Lastly, defendant contends that “the cumulative unfair prejudice of the
aggregate of the errors deprived [him] of due process and a fundamentally fair




12
      See footnote 3, ante.

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trial.” We disagree. As explained, other than the two sentencing errors that we
correct, no prejudicial error occurred.


                                  DISPOSITION
             The portion of the judgment imposing a one-year enhancement for the
prior prison commitment pursuant to section 667.5, subdivision (b) is stricken.
The trial court is directed to prepare and forward to the Department of Corrections
and Rehabilitation a modified abstract of judgment: (1) to reflect that change in
the judgment and (2) to award 164 days of presentence conduct credit instead of 33
days. In all other respects, the judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P.J.




             We concur:




             MANELLA, J.




             COLLINS, J.




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