Filed 3/9/17

                        CERTIFIED FOR PARTIAL PUBLICATION*




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Yuba)
                                              ----


THE PEOPLE,                                                          C073188

                 Plaintiff and Respondent,                 (Super. Ct. No. CRF11382)

        v.

CESAR VILLA-GOMEZ,

                 Defendant and Appellant.




       APPEAL from a judgment of the Superior Court of Yuba County, Stephen W.
Berrier, Judge. Affirmed as modified.

      Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II., III., IV., V., and IV. of the Discussion.

                                               1
       Defendant Cesar Villa-Gomez appeals following a judgment of conviction after a
jury trial. He was charged with multiple assault and gang-related counts arising out of a
group attack on fellow prisoners in the Yuba County jail. The jury found defendant
guilty, and he was sentenced to six years in state prison.
       On appeal, defendant contends that the trial court erred in admitting his statements
made in response to jail classification questions about his gang membership. In the
published portion of this opinion, we conclude that the trial court did not err in allowing
defendant’s statements concerning his gang affiliation made at booking. Because the
crime for which defendant was prosecuted had not yet been committed at the time he
answered the classification deputy’s questions, those questions were not reasonably likely
to illicit an incriminating response. Thus, the questions did not amount to interrogation
as defined in Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-
308] (Innis) as applied by our high court in People v. Elizalde (2015) 61 Cal.4th 523
(Elizalde). Furthermore, any error in admitting these statements was harmless beyond a
reasonable doubt.
       Defendant also makes several other contentions which we address in the
unpublished portion of this opinion. Defendant contends: (1) there is not sufficient
evidence to support his conviction for simple assault; (2) there is not sufficient evidence
to support the findings on the participation in a criminal street gang count and gang
enhancements; (3) the trial court failed to properly instruct the jury that defendant’s
knowledge that other participants were gang members is an element of the offense of
active participation in a criminal street gang and the gang enhancement; and (4) the
prosecutor’s comments during closing argument about the credibility of a police witness
was prejudicial prosecutorial misconduct.




                                              2
       Our review has revealed an unauthorized sentence related to a count that was
subject to Penal Code section 654.1 On count 3, active participation in a criminal street
gang, we order imposition of a full-term sentence instead of one-third the midterm
imposed by the court and further order execution of that sentence stayed pursuant to
section 654. (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) We select the
midterm because the trial court imposed a midterm sentence as the principle term and
“undoubtedly” would impose and stay execution of that term on count 3 if we were to
remand. (People v. Alford (2010) 180 Cal.App.4th 1463, 1473.) We otherwise affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
                          Charged Offenses and Enhancements
       Defendant and a co-defendant Victor Hernandez were charged with assault by
means of force likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 & 2),
and active participation in a criminal street gang (§ 186.22, subd. (a); count 3).2 It was
further alleged as to both assault counts that defendant and Hernandez committed the
offenses for the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)).3
                                       Trial Evidence
       On January 8, 2011, a fight broke out among the prisoners in B pod of the Yuba
County jail after a number of new prisoners were moved into the pod. One of those new
prisoners was defendant. Prior to the fight, B pod was a “no-programming” pod, which



1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2Prior to trial, Hernandez pleaded guilty to participation in a criminal street gang and
was sentenced to a term of 16 months in state prison. He is not a party to this appeal.
3 At trial, the prosecution’s theory was that the assaults were committed for the benefit of
or in association with a criminal street gang.

                                               3
meant that the prisoners housed in that pod were free to associate with one another and
sleep anywhere they wanted without risking retaliation, regardless of ethnicity or gang
affiliation. There were no bunk assignments in B pod.
       Enrique Nunez was a prisoner in B pod on the day of the incident. He testified
that he had been in custody there for two to three months, during which time there had
been no problems. He was not a Norteño or otherwise gang affiliated, but the prisoners
in B pod who were Norteños were known to everyone in the pod. At first, the Norteños
in the pod did not program, but as new gang members arrived, the Norteños started
hanging out, exercising together, and taking over the pod. On January 8, the B pod
prisoners who were members of the Norteño gang decided that they “wanted to
program,” and they “wanted to be close to each other just in case something happened.”
The Norteños told non-Norteños to move to other bunks. Nunez testified that they told
his non-Norteño bunkmate “he had to move because they needed that bunk because they
wanted to be close to each other.”
       Nunez approached Norteño gang member Lema Castro and told him he was not
going to move because he was there first and if the Norteños wanted to program, they
should go to another pod. Castro told Nunez that they were going to program, asked
Nunez what he was going to do about it and thereafter began hitting Nunez. In an effort
to defend himself, Nunez grabbed Castro by the neck and pushed him against the wall.
As he did, three other Norteños, including Jesus Osuna, started hitting Nunez. Norteño
Victor Hernandez ran down the stairs and struck Nunez in the forehead causing a cut.
Vicente Serrano-Gomez, another prisoner who Nunez described as a Salvadorian, tried to
help him and break up the fight, but the Norteños started hitting Serrano-Gomez as well.
The fight eventually involved eight to ten prisoners.
       Nunez initially testified that he did not remember whether defendant was one of
the new Norteños that had come into the pod. However, when his recollection was
refreshed with a photograph depicting defendant’s appearance at the time of the attack,

                                             4
Nunez testified that he thought defendant was one of the men who attacked him.
Specifically, upon showing Nunez defendant’s photo, the prosecutor asked, “[W]as he in
B pod?” Nunez responded, “Yes. I think that is one of them. I don’t remember exactly,
but I think that is one of them.” The prosecutor then asked, “You think this is one of the
ones that attacked you?” to which Nunez, responded, “Yes.” Later, when shown the
photographic lineup in which he had previously indentified defendant, Nunez’s
recollection was refreshed that he had identified defendant in that line-up as the “new
guy” for whom the Norteños were making bunk space, and after the prosecutor refreshed
his memory with his initials on the photographic lineup, Nunez testified that defendant
was “the new guy that came in the cell the Norteños were making bunk space for.” When
the prosecutor asked Nunez whether defendant “was one of the guys that took part in the
assault on [him],” he responded, “Yeah, I think so. Yeah, because I didn’t have a lot of
time to meet them. It was almost the same day or second day that they got there.” On
cross-examination, Nunez definitively stated that defendant was one of the men
“involved in the fight.” He explained that he did not recognize defendant initially
because “[h]e is a little thinner, but it is him. I recognize him.” On redirect examination,
Nunez again confirmed that defendant was the man he identified in the photographic line-
up.
       Serrano-Gomez testified that the Norteños were moving people around because a
new Norteño came into the pod. When the group tried to remove another inmate from his
bunk, Nunez went over to the group and said that it was not fair that they told that inmate
to move. One member of the group then attacked Nunez from the front and another
member attacked him from the back. When Serrano-Gomez tried to stop the fight, three
people began beating him, including defendant and Hernandez. As a result, Serrano-
Gomez sustained a cut to his eyebrow that bled. Shortly after the incident, Serrano-
Gomez identified defendant in a photographic line-up as the new guy who had moved



                                             5
into B pod. At trial, Serrano-Gomez identified defendant as one of the people who
assaulted him. Serrano-Gomez did not see whether defendant hit Nunez.
       Defendant was not in the jail pending criminal charges. He had been booked into
the jail on an immigration hold. During the booking process, defendant was interviewed
by Deputy Brandon Charter for classification purposes. Deputy Charter testified that the
purpose of classification is “[t]o appropriately house inmates that come into the jail to
ensure their safety and officers’ safety.” Defendant told Deputy Charter he was a
“Northerner” or Norteño.
       Deputy Charter had training and experience with gangs in a custodial setting.
Based upon this experience, he indicated that when there is a spontaneous fight between a
Norteño and another prisoner, other Norteños are required to jump in and fight. If a
Norteño fails to join in the fight, the gang makes him leave the pod and possibly assaults
him.
       Deputy Charter testified that after the fight, the guards checked the prisoners’
knuckles for redness, swelling, and scrapes and those prisoners who had such injuries
were “pulled out.” Deputy Charter further testified that defendant “was one of the people
that was pulled out first” when the guards checked his knuckles, and the only reason he
would have been pulled out is if his knuckles showed signs of fighting. He did not
independently recall seeing defendant’s knuckles and conceded that his written report did
not include a description of defendant having scrapes or redness on his knuckles.
However, defendant did have red marks on his right eye and face.
       Deputy Sean Moore testified as a gang expert. Based on his experience and the
reports of the incident, Deputy Moore opined that the attack was gang related. He
testified that all of the prisoners who took part in the assault, except for the victims, were
validated as Norteños. Deputy Moore testified that Osuna admitted that he participated in
the assault because he knew he would be “rolled out” of the gang or assaulted by its
members if he did not. Osuna pleaded guilty to the misdemeanor charge of participating

                                              6
in a criminal street gang as a result. Castro was validated by Deputy Moore as a gang
member for his participation in the attack. Timothy Evans also pleaded guilty to his
participation in a criminal street gang and was validated as a gang member for his
participation in the attack. Hernandez, who testified at trial that he was a Norteño at the
time of the attack, was also validated as a gang member because of his participation in
the attack and his multiple prior contacts with law enforcement as a gang member.
       Deputy Moore opined that defendant was an active gang member at the time of the
attack as well. He testified that his opinion was based on defendant’s admission during
classification that he was a Norteño, Serrano-Gomez’s identification of defendant as one
of the Norteños who attacked him, defendant’s arrest with a gang for this gang-related
offense, and his affiliation with the gang “because he was identified as the new person in
the pod they were trying to make room for.” Additionally, Deputy Moore testified that
based on his training and experience, the Norteños would not make room in the pod for a
non-Norteño.
       Deputy Moore further opined that the attack was done for the benefit of and in
association with the Norteños, a criminal street gang. Nunez had disrespected the gang
by telling Castro that they could not program in the pod. Attacking him showed other
prisoners in the pod that the Norteños would not tolerate disrespect. Deputy Moore
testified that the classification record showed that defendant was placed in the pod around
1:00 p.m., and the attack occurred between 6:00 and 7:00 p.m., about five to six hours
after defendant entered the pod. Nunez told Deputy Moore that the Norteños said they
were moving people around for the new guy because he was “ ‘one of us.’ ”
                                 Verdicts and Sentencing
       The jury found defendant guilty as charged on count 2, assault with force likely to
produce great bodily injury (victim - Serrano-Gomez), and count 3, active participation in
a criminal street gang, and found both gang enhancements true. On count 1 (victim -
Nunez), the jury found defendant guilty of the lesser included offense of simple assault.

                                             7
        The trial court subsequently sentenced defendant to the mid-term of three years for
the aggravated assault conviction on count 2, plus a consecutive three-year term pursuant
to the gang enhancement under section 186.22, subdivision (b). The court also sentenced
defendant to a concurrent eight-month sentence for the simple assault conviction in
count 1,4 and stayed an eight-month sentence (one-third the midterm) for the active
participation in criminal street gang conviction in count 3 pursuant to section 654.
                                      DISCUSSION
      I. Defendant’s Jail Classification Statements Regarding Gang Membership
                A. Additional Background and the Parties’ Contentions
        Prior to trial, defendant moved in limine to exclude evidence of his admission that
he was a Norteño gang member made during the classification interview to Deputy
Charter. The trial court denied the motion, reasoning that this evidence was admissible as
an “admission made for purposes of classification before the offense that is alleged in the
Information,” falling within the routine booking question exception to Miranda.5
        Defendant contends the court violated his Fifth Amendment privilege against self-
incrimination under Miranda, by admitting into evidence his statements to the jail
classification officer that he was an active Norteño gang member. He contends that the
California Supreme Court’s opinion in Elizalde, supra, 61 Cal.4th 523 “squarely holds
that the Miranda exception for routine booking questions does not apply to questions
about gang affiliation; that is, that defendants’ responses to such questions may not be
introduced into evidence in the prosecution’s case-in-chief if the defendant was not



4  At the prosecutor’s request, the trial court treated the alternate sentencing provision in
section 186.22, subdivision (d), and the 186.22, subdivision (b)(1), enhancement “the
same in terms of what they say” and imposed the eight-month sentence on simple assault,
a lesser offense to count 1, under subdivision (d) based on the jury’s enhancement finding
under subdivision (b).
5   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

                                             8
admonished, as described in Miranda, before the question was asked.”6 He further
argues that Elizalde stands for the proposition that all un-Mirandized responses to
booking questions about gang affiliation are inadmissible in the prosecution’s case-in-
chief, regardless of what offense is charged.
        The People contend that the instant case is distinguishable from Elizalde because,
unlike the defendant in that case, at the time of the classification questioning here,
defendant was not charged with an offense frequently committed for the benefit of
criminal street gangs but rather, he was in custody on an immigration hold. The People
further contend that “the critical question [under Elizalde] is whether Deputy Charter
should have known that his booking question about gang affiliation would have elicited
an incriminating response from [defendant] under the circumstances of this case.” The
People reason that because gang membership is not in and of itself a crime and because
defendant was not charged with any crime at the time of the booking question, “it cannot
be said that Deputy Charter should have known that it was reasonably likely his inquiry
would have elicited an incriminating response from [defendant]. To hold otherwise
would be unsound, for it would require law enforcement to anticipate any and all future
criminal conduct that may or may not be committed by people they question about gang
affiliation during the booking process.” Finally, the People contend that even if we
conclude that the trial court erred in admitting this evidence, any error is harmless
because there was ample other evidence in the record of defendant’s gang affiliation.
                                        B. Analysis
        1. Innis Interrogation
        Under Miranda, “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it




6   We granted the parties’ request for supplemental briefing after Elizalde was published.

                                                9
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.” (Miranda, supra, 384 U.S. at p. 444.) An individual is subjected to
“custodial interrogation” whenever law enforcement officers initiate questioning after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. (Ibid.) The term “interrogation” under Miranda refers not only to
express questioning, but also to the “ ‘functional equivalent’ ” of express questioning.
(Innis, supra, 446 U.S. at pp. 300-301.) The court in Innis defined the functional
equivalent of express questioning as “any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” (Ibid.)
       Under the booking exception, no Miranda warnings need to be given prior to
police communications that are “normally attendant to arrest and custody.”
(Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601 [110 L.Ed.2d 528, 551] (plur. opn.
of Brennan, J.) (Muniz); Innis, supra, 446 U.S. at p. 301; People v. Andreasen (2013) 214
Cal.App.4th 70, 87.) These are communications associated with police administrative
duties that are distinct from investigatory duties (Andreasen, at p. 87) and include such
inquiries as questions concerning biographical information. (People v. Williams (2013)
56 Cal.4th 165, 187, citing Muniz, at p. 601 (plur. opn. of Brennan, J.).)
       In Elizalde, our high court addressed the question of “whether routine questions
about gang affiliation, posed to [a] defendant while processing him into jail on murder
charges, come within Miranda’s well-recognized booking exception.” (Elizalde, supra,
61 Cal.4th at p. 527.) Our Supreme Court held, “Gang affiliation questions do not
conform to the narrow exception contemplated in Innis and Muniz for basic identifying
biographical data necessary for booking or pretrial services. Instead, they must be
measured under the general Innis test, which defines as ‘interrogation’ questions the
police should know are ‘reasonably likely to elicit an incriminating response.’ ”
(Elizalde, at p. 538.) The court further held that under the circumstances in Elizalde, the

                                             10
gang affiliation questions were reasonably likely to elicit an incriminating response given
California’s criminal gang statutes and the defendant’s pending charges. (Id. at pp. 538-
540.) The Elizalde court observed that the defendant was “asked to disclose whether he
was a member or associate of an established criminal street gang whose members have a
history of committing violence against rival gangs” and he was charged with murder, “a
crime frequently committed for the benefit of criminal street gangs.” (Id. at p. 540.) The
court concluded, “Under these circumstances, questions about [the defendant’s] gang
affiliation were reasonably likely to elicit an incriminating response potentially exposing
[the defendant] to prosecution for the crime of gang participation [citations] and to
enhanced punishment [citations]. This likelihood was apparent even if the deputies’
subjective intention was benign.” (Ibid., italics added.)
       Elizalde does not, as defendant suggests, hold that all un-Mirandized responses to
booking questions about gang affiliation are categorically inadmissible. Rather, the
Elizalde court simply held that these questions do not fall within the narrow booking
exception and must be analyzed under the Innis test for the functional equivalent of
express questioning. (Elizalde, supra, 61 Cal.4th at p. 538.) Accordingly, we must
determine whether under the circumstances of this case, the classification deputy should
have known defendant’s responses to the gang affiliation questions were reasonably
likely to elicit an incriminating response. We conclude that they were not.
       As we have noted, the Elizalde court held the booking officer should have known
it was reasonably likely the gang affiliation questions would have yielded an
incriminating response because the defendant’s gang had previously committed violent
crimes against rivals and defendant was charged with murder, a crime frequently
committed for the benefit of criminal street gangs. (Elizalde, supra, 61 Cal.4th at p. 540.)
Thus, under Elizalde, “[w]hether or not a gang-related inquiry by jail personnel requires a
Miranda admonition will depend on the nature of the charges the inmate is facing.”
(People v. Leon (2016) 243 Cal.App.4th 1003, 1015.) Here, defendant was not yet

                                             11
charged or suspected of any crime—commonly committed for the benefit of gangs or
otherwise—as the charged crimes had not yet occurred. Rather, he was in custody on an
immigration hold while United States Immigration and Customs Enforcement determined
his immigration status. Nothing the Elizalde court wrote suggests its holding should
apply to crimes that have not yet been committed at the time of the inquiry, and we
decline to extend Miranda and Innis that far.
       United States v. Solano-Godines (9th Cir. 1997) 120 F.3d 957 (Solano-Godines)
provides guidance concerning the applicability of Miranda and Innis to future crimes. In
that case, the issue was whether the defendant’s responses to an immigration judge’s
questions during a civil deportation proceeding were admissible in a subsequent criminal
case involving a crime that occurred after the questioning.7 (Solano-Godines, at pp. 959-
962.) The Ninth Circuit, applying the Innis test, held that the immigration judge’s
questions were not reasonably likely to elicit an incriminating response. (Solano-
Godines, at p. 961.) The court reasoned that “[t]he immigration judge could not be
expected to anticipate that two years later [the defendant] would illegally reenter the
United States and that his responses to questions at his civil deportation hearing might
incriminate him in a prosecution for this future crime.” (Id. at p. 962; see also Fults v.
United States (10th Cir. 1968) 395 F.2d 852, 854 [holding that Miranda was not
applicable where “the crime was committed some time after [the defendant]’s statement
was made”]; State v. Allen (Or.Ct.App. 1984) 680 P.2d 997, 999 [reasoning that
statements made by an inmate during psychiatric examinations were not inadmissible


7 The responses the defendant gave were to the immigration judge’s questions as to his
place of birth, his citizenship, and his prior convictions and deportations. (Solano-
Godines, supra, 120 F.3d at p. 960.) After the civil deportation proceedings, the
defendant was deported, but later tried to reenter the country using a false name and was
charged with illegal reentry following a felony conviction and false representation of
United States citizenship. It was in this prosecution that his earlier statements to the
immigration judge were admitted in evidence against him. (Ibid.)

                                             12
under Miranda because “[p]otential use of the examinations in a later prosecution for
crimes not yet (and, one would hope, not ever) committed was wholly unforeseen”].)
The result in Solano-Godines flows naturally from the reasoning in Innis: “[S]ince the
police surely cannot be held accountable for the unforeseeable results of their words or
actions, the definition of interrogation can extend only to words or actions on the part of
police officers that they should have known were reasonably likely to elicit an
incriminating response. [Fn. omitted.]” (Innis, supra, 446 U.S. at pp. 301-302, first
italics added.) Thus, it is only when the incriminating results of police words or conduct
are reasonably foreseeable that those words or conduct can be considered interrogation
for Miranda purposes.
       Consequently, under the circumstances of this case, where defendant was
questioned about his gang affiliation before the offense even occurred, we cannot
conclude that the classification deputy objectively should have known that his questions
were reasonably likely to elicit an incriminating response under the Innis test. To hold
that it was reasonably likely the gang affiliation questions here would elicit an
incriminating response would be the same as holding it was: (1) reasonably likely that
defendant would commit a crime in the future; (2) it was also reasonably likely his
responses could be used against him in the prosecution of that future crime; and (3) a
reasonable booking officer should have foreseen these inevitable occurrences. In our
view, Innis does not apply to such unforeseen occurrences and consequently, Miranda
cannot be extended to require warnings related to crimes that have not yet been
committed. Accordingly, we conclude that the trial court properly admitted defendant’s
statement that he was a Norteño gang member.
       2. Prejudice
       Even if the trial court erred in admitting defendant’s gang affiliation statements
during booking, the error was not prejudicial. The admission of a defendant’s statements
in violation of the Fifth Amendment is reviewed under the beyond a reasonable doubt

                                             13
standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman).
(Elizalde, supra, 61 Cal.4th at p. 542.) To establish that any error in admitting
defendant’s statement about his gang affiliation is harmless under Chapman, the People
must establish beyond a reasonable doubt that the error did not contribute to the jury’s
verdict. (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).) “ ‘To say that an error did not
contribute to the ensuing verdict is . . . to find that error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record.’ ”
(Ibid.) This requires that we make a judgment about the significance of the statements to
reasonable jurors, when measured against the other evidence considered by the jurors
independently of those statements. (Yates v. Evatt (1991) 500 U.S. 391, 403-404 [114
L.Ed.2d 432, 449] [determining whether an instruction providing for an unconstitutional
presumption did not contribute to the verdict calls for “a judgment about the significance
of the presumption to reasonable jurors, when measured against the other evidence
considered by those jurors independently of the presumption”].)
       In Elizalde, our high court held that the erroneous admission of responses to the
jail booking questions in that case was harmless beyond a reasonable doubt where the
defendant’s gang membership was “amply established by independent and
uncontradicted evidence.” (Elizalde, supra, 61 Cal.4th at p. 542.) The evidence in
Elizalde consisted of three witnesses who testified that they knew the defendant to be a
gang member and the gang expert opined that defendant was a gang member. (Ibid.)
       Before discussing the evidence in the instant case that demonstrates the purported
error concerning defendant’s admission about his gang membership was harmless, it is
first important to point out that gang membership is not an element of the gang
enhancement under section 186.22, subdivision (b). There is no requirement that the
defendant be an active or current member of the gang to establish the enhancement under
section 186.22, subdivision (b)(1). (People v. Sanchez (2016) 63 Cal.4th 665, 698;
People v. Bragg (2008) 161 Cal.App.4th 1385, 1402, citing In re Ramon T. (1997) 57

                                               14
Cal.App.4th 201, 207.) Section 186.22, subdivision (b)(1), applies to “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with” the gang and who acted with the requisite specific intent. (Italics added.) The
required intent is “the specific intent to benefit, further, or promote the gang.” (People v.
Rodriguez (2012) 55 Cal.4th 1125, 1138 (Rodriguez).) Gang membership is simply
circumstantial evidence establishing that the crime was gang related and a motive for
why a defendant may have harbored the “specific intent to promote, further, or assist in
any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); Sanchez, at pp. 698-
699.) Here, the evidence establishes beyond a reasonable doubt that the assaults were
gang related and that defendant acted with the requisite intent.
       Similar to Elizalde, the record contains convincing independent and
uncontradicted evidence of defendant’s gang membership beyond his admission during
booking. While the evidence is different from Elizalde, it is nevertheless uncontradicted
and no less convincing. Nunez had identified defendant in a photographic line-up after
the incident as “ ‘the new guy’ ” for whom the Norteños were making bunk space, and
the Norteños identified defendant to Nunez, as “ ‘one of us.’ ” At the trial, Nunez
identified defendant during the trial as, at the very least, one of the Norteños who was
“involved in the fight.” Serrano-Gomez also identified defendant in a photographic line-
up as the new guy who had moved into B pod the day of the fight and further identified
defendant at trial as one of the people who assaulted him. The other men involved in the
attack were all identified by Nunez and Serrano-Gomez as Norteños, and Hernandez and
Evans both testified that they were Norteños at the time of the attack.
       In addition to the witness testimony and admissions of accomplices Hernandez
and Evans, Deputy Moore opined as an expert witness that the other attackers were all
validated as active Norteños. Deputy Charter testified that when there is a fight between
a Norteño and another prisoner, other Norteños are required to jump in and fight. And as
we have noted, defendant was identified as being involved in the fight. Furthermore,

                                             15
without contradiction, Deputy Moore opined that the Norteños would not make room in
the pod for a non-Norteño. Additionally, Deputy Moore testified that he based his
opinion that defendant was a Norteño not only on defendant’s admission during booking,
but also on other factors listed in the Department of Justice’s validation criteria8 as well
as facts related to the case, including: Serrano-Gomez’s identification of defendant as one
of the people who attacked him; defendant’s arrest9 with a gang for this gang-related
offense; and defendant’s affiliation with the gang based on his having been “identified as
the new person in the pod they were trying to make room for.”
        Thus, even without defendant’s admission of gang membership, the remaining
evidence established beyond a reasonable doubt the elements of the gang enhancement:
that defendant was a person convicted of a felony in this case; that the felony was
committed for the benefit of or in association with the Norteño gang; and that that
defendant had the requisite “specific intent to promote, further, or assist in any criminal
conduct by gang members.” (§ 186.22, subd. (b)(1).)
        Like the gang enhancement, a defendant need not be a member of the gang to be
convicted of active participation in a criminal street gang under section 186.22,
subdivision (a). “ ‘A person who is not a member of a gang, but who actively
participates in the gang, can be guilty of violating section 186.22(a).’ ” (People v.


8   Deputy Moore explained that they validate based on at least two of the ten criteria.
9 While Deputy Moore relied on defendant’s arrest with the gang and his arrest for this
gang-related offense as two of the factors supporting his opinion, the fact that he was
arrested with other gang members does not seem as compelling in a custodial setting as it
might in a noncustodial setting. However, we note that Deputy Moore would have been
justified in using the defendant’s commission of the charged crime with gang members as
one of the factors upon which he based his opinion about defendant’s gang membership.
(See People v. Castenada (2001) 23 Cal.4th 743, 752-753 (Castenada) [evidence of
defendant’s participation in the charged crimes with other gang members was evidence
the court considered in determining the “active participation” element of the gang crime
under § 186.22, subd. (a)].)

                                              16
Johnson (2013) 57 Cal.4th 250, 259; Rodriguez, supra, 55 Cal.4th at p. 1130.) To prove
active participation, it is not necessary to show that the defendant devoted all or a
substantial amount of his time to the gang. (Castenada, supra, 23 Cal.4th at pp. 747-
752.) Rather, the prosecution need only prove that defendant’s involvement with the
gang was “more than nominal or passive.” (Rodriguez, at p. 1130; Castenada, at p. 747.)
The evidence showing defendant’s personal involvement in the fight over cell
arrangements for him and the other Norteños showed beyond a reasonable doubt that
defendant was involved more than nominally or passively without his admission of gang
membership to the classification deputy.
       Thus, the admission of the defendant’s statement to the classification deputy about
his gang membership was unimportant in relation to everything else the jury considered
on the elements of both the gang enhancement and the gang crime. (Neal, supra, 31
Cal.4th at p. 86.) In light of the independent and uncontradicted evidence we have
discussed and the inferences drawn there from, we conclude that any error in admitting
defendant’s statements to the booking officer that he was an active Norteño gang member
was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; Elizalde,
supra, 61 Cal.4th at p. 542.)
      II. Sufficiency of the Evidence Supporting Conviction for Simple Assault
                                A. The Parties’ Contentions
       Defendant contends there is insufficient evidence to support his conviction for
simple assault on Nunez, and as a result, his due process rights have been violated. In
particular, he argues that “the record is devoid of evidence that [defendant] ‘made the
attempt to strike’ Nunez.” The People respond that Nunez identified defendant on cross-
examination as one of the men who attacked him, and this evidence is sufficient to
support the verdict. We conclude there was substantial evidence supporting the assault
conviction.



                                             17
                                        B. Analysis
       When we review a claim that the evidence was insufficient to support a
conviction, “the relevant question is whether . . . any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” (Jackson v.
Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573].) “ ‘In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we
“examine the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—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.” [Citations.] We presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] . . . “[I]f
the circumstances reasonably justify the jury’s findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled with a
contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility.’ ” (People v. Nelson (2011) 51 Cal.4th 198, 210.) “Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends.” (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).)
       While defendant was charged with assault upon Nunez by means of force likely to
produce great bodily injury pursuant to section 245, subdivision (a)(1), the jury found
him guilty of the lesser included offense of simple assault under section 240. Section 240
defines a simple assault as “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” An assault does not “require a
touching of the victim.” (People v. Bell (2009) 179 Cal.App.4th 428, 438.)
       Here, the evidence that defendant was a direct perpetrator in an assault on Nunez
is largely based on Nunez’s testimony. However, as our high court has held, “The

                                              18
uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless
the testimony is physically impossible or inherently improbable.” (People v. Scott (1978)
21 Cal.3d 284, 296.) While at first, Nunez said he did not remember whether defendant
was the new Norteño who had come into the pod, after the prosecutor refreshed his
memory first with a photograph and thereafter with Nunez’s initials on the photographic
line-up identification, he confirmed that defendant was “the new guy that came in the cell
the Norteños were making bunk space for.” The prosecutor twice asked Nunez whether
defendant was one of the people who assaulted him. First, after showing Nunez a
photograph of defendant, the prosecutor asked, “You think this is one of the ones that
attacked you?” Nunez replied, “Yes.” Then later, when asked about the photographic
lineup identification, the prosecutor asked Nunez whether defendant “was one of the guys
that took part in the assault on [him],” he testified: “Yeah, I think so. Yeah, because I
didn’t have a lot of time to meet them. It was like almost the same day or second day that
they got there. So I don’t really remember him because I didn’t really usually talk to him
or I didn’t really live with him a lot.” On cross-examination, when defense counsel
followed up on this testimony, he asked, “But you didn’t remember -- you didn’t
remember -- you didn’t know if he was involved in the fight; right?” Nunez responded,
“He was involved in the fight.” (Italics added.) When defense counsel asked, “So earlier
when you said you didn’t recognize him --,” Nunez explained that he did not recognize
defendant initially because “[h]e is a little thinner, but it is him. I recognize him.”
       Defendant argues that this latter exchange on cross-examination did not “establish
that [defendant] assaulted Nunez; it establishes only that Nunez recognized [defendant]
as having been ‘involved in the fight,’ ” and this could have been a reference to the
subsequent larger fight with Serrano-Gomez. We note that the jury was instructed on
aiding and abetting liability. Thus, even if defendant did not strike or attempt to strike
Nunez, evidence of defendant’s involvement in the fight to take over a bunk in Nunez’s



                                              19
cell supported in his conviction for the assault on Nunez under an aiding and abetting
theory.
       Moreover, as for the evidence establishing that defendant was a direct perpetrator
of the assault on Nunez, the only times Nunez testified about not recognizing defendant
on direct examination were in response to questions about whether defendant was the
new Norteño in the pod and in response to the question about whether defendant “took
part in the assault” on him. Based on our reading of the direct and cross-examination
questions and answers, it seems clear that when defense counsel asked about defendant
being “involved in the fight,” counsel was referring to Nunez’s “earlier” testimony on
direct examination that he did not recognize defendant as the new guy and Nunez’s
equivocal testimony on direct examination about whether he recognized defendant as
“one of the guys that took part in the assault on [him].” It was in this context that the
question was asked on cross-examination about defendant being involved in the fight.
Nunez was definitive in his identification of defendant in response to that question.
       In any event, it was within the “exclusive province” of the jury to determine
whether these conflicts in Nunez’s testimony affected his credibility. (Maury, supra, 30
Cal.4th at p. 403 [“[c]onflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment”].) Viewing the record in the light most
favorable to the judgment, as we must do, we conclude that the jury’s verdict on count 1
was supported by substantial evidence.
   III. Sufficiency of the Evidence Supporting Gang Offense and Enhancements
                               A. The Parties’ Contentions
       Defendant contends that the record lacks “evidence sufficient to support a
conclusion that [defendant] was aware that the fight was gang-related, or that he knew the
other participants in it were gang members.” Defendant argues knowledge that the
people he is associating with are gang members is an element of both the substantive



                                             20
offense of active participation in a gang (§ 186.22, subd. (a))10 and the gang enhancement
(§ 186.22, subd. (b)(1)),11 and therefore both convictions must be reversed. He further
contends that his conviction for the gang enhancement under section 186.22,
subdivision (b), violates his right to due process because it is unconstitutionally vague
and lacks a specific intent requirement. The People respond that neither the section
186.22 substantive offense nor the enhancement require that a defendant know that the
people he or she is associating with are gang members. Additionally, the People contend
that to the extent such knowledge was required, there was substantial evidence from
which the jury could infer that defendant knew the other participants in the assault were
Norteños.
       We conclude that the gang enhancement does not require the knowledge element
defendant asserts and there is substantial evidence supporting the knowledge element
required for the substantive gang offense, active participation in a criminal street gang.
                                        B. Analysis
       We must first address defendant’s argument that both the substantive offense and
the enhancement under section 186.22 require that defendant knew that the people with
whom he associated were gang members. The Court of Appeal, Fourth Appellate
District, Division One, recently addressed these issues: “Contrary to defendants’



10 Section 186.22, subdivision (a), provides in pertinent part: “Any person who actively
participates in any criminal street gang with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang, shall be punished.”
11  Section 186.22, subdivision (b)(1), provides in pertinent part: “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which he
or she has been convicted, be punished.”

                                             21
argument on appeal, the enhancements alleged under section 186.22, subdivision (b) do
not require a showing that defendants also knew they were assisting gang members.
Rather, by its terms, the only mens rea required to establish the gang enhancement is
proof of an intent to promote, further or assist a crime or crimes committed by gang
members. [¶] In this sense, the enhancement set forth in section 186.22, subdivision (b),
which requires proof that an underlying crime was related to gang activity and proof of
an intent to assist in committing the crime, is to be distinguished from the substantive
crime of active gang participation, proscribed by section 186.22, subdivision (a), which
by its terms requires knowledge by a defendant that he or she has been assisting the
criminal conduct of a gang with a pattern of street crime. (See People v. Rodriguez
(2012) 55 Cal.4th 1125, 1138 (Rodriguez).) [¶] We recognize that in People v. Albillar
(2010) 51 Cal.4th 47, 54-59 [] (Albillar), the court held that under section 186.22,
subdivision (a) knowledge that participants in a crime are members of a criminal street
gang must be established, but no proof that a particular crime was gang related is
required. However, nothing in Albillar imports into the separate enhancement set forth in
section 186.22, subdivision (b) a scienter or knowledge requirement.” (People v. Garcia
(2016) 244 Cal.App.4th 1349, 1362, review den. June 8, 2016, S233223 (Garcia).)
       We agree with the Garcia court. Whereas the substantive crime under gang
186.22, subdivision (a), by its terms, requires that a defendant know members in the gang
engage in a pattern of criminal gang activity and willfully promote, further, or assist the
criminal conduct of members of that gang, the enhancement under subdivision (b) does
not require such knowledge. Rather, the gang enhancement requires “the specific intent
to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).) Indeed, as we have noted, there is no requirement that the defendant be an
active or current member of the gang to establish the enhancement under section 186.22,
subdivision (b)(1) (People v. Sanchez, supra, 63 Cal.4th at p. 698; People v. Bragg,
supra, 161 Cal.App.4th at p. 1402, citing In re Ramon T., supra, 57 Cal.App.4th at

                                             22
p. 207), or for that matter, that every one of the others with whom he participates in the
crime also be active members of the gang (Rodriguez, supra, 55 Cal.4th at p. 1132
[reasoning that the statute requires only that the “criminal conduct be committed by at
least two gang members, one of whom can include the defendant if he is a gang
member”]). As our high court has clarified, “Section 186.22(a) and section 186.22(b)(1)
strike at different things. The enhancement under section 186.22(b)(1) punishes gang-
related conduct, i.e., felonies committed with the specific intent to benefit, further, or
promote the gang. [Citation.] However, ‘[n]ot every crime committed by gang members
is related to a gang.’ [Citation.] As such, with section 186.22(a), the Legislature sought
to punish gang members who acted in concert with other gang members in committing a
felony regardless of whether such felony was gang related.”12 (Rodriguez, at p. 1138.)
       Even if we disagreed with the Garcia court’s distinction between the gang
enhancement and the gang crime, we would conclude there is sufficient evidence in the
record to support the convictions with respect to defendant’s knowledge that he was
assisting gang members. Indeed, because we agree with defendant and the Garcia court
that the gang crime, by its own terms, requires such knowledge, we must address
defendant’s assertion that “the record contains no evidence which would support a
conclusion” that defendant knew the other people he assisted in the assault were
Norteños.



12 For this reason, we also reject defendant’s meritless argument that section 186.22,
subdivision (b), violates defendant’s right to due process. As our high court clarified,
“the STEP Act satisfies the requirements of due process by ‘impos[ing] increased
criminal penalties only when the criminal conduct is felonious and committed not only
“for the benefit of, at the direction of, or in association with” a group that meets the
specific statutory conditions of a “criminal street gang,” but also with the “specific intent
to promote, further, or assist in any criminal conduct by gang members.” ([Former]
§ 186.22, subd. (b)(1).)’ [Citation.] We do not understand the due process clause to
impose requirements of knowledge or specific intent beyond these, and defendant cites
nothing to convince us otherwise.” (People v. Loeun (1997) 17 Cal.4th 1, 11.)

                                              23
       The record demonstrates that prior to the incident, the Norteños were known to
everyone else in B pod, they had begun programming as new Norteños arrived to the pod,
and started taking over the pod. Nunez testified that on the day of the assault, the
Norteños told his non-affiliated bunkmate “he had to move because they needed that
bunk because they wanted to be close to each other” in case something happened. As we
have discussed, Nunez had identified defendant in a photographic line-up after the
incident as the new guy for whom the Norteños were making bunk space, and after the
prosecutor refreshed his memory with his initials on the photographic line-up, Nunez
testified that defendant was “the new guy that came in the cell the Norteños were making
bunk space for.” Serrano-Gomez also identified defendant in a photographic line-up and
in court as the new guy who the Norteños made room for in the pod on the day of the
fight. The attack occurred shortly after defendant entered the pod, about five to six hours
after his booking. There was also testimony from Nunez and Serrano-Gomez that
defendant joined in the assaults. Deputy Charter testified that defendant had injuries to
his face after the assault and believed that because they pulled out prisoners who had
injuries to their hands and defendant was one of those who were pulled out first, that he
too had injuries to his hands. Deputy Charter testified that when there is a spontaneous
fight between a Norteño and another prisoner, other Norteños are required to jump in and
fight or risk being attacked by the Norteños. And defendant had earlier admitted to
Deputy Charter that he was a Norteño. Together, this testimony supports the reasonable
inferences that defendant was a Norteño, the other participants in the assault knew he was
a Norteño and made room for him in the pod (the catalyst for the assault), and defendant
knew that they were Norteños as well, which motivated him to join in the assault.
       Additionally, Deputy Moore’s testimony as an expert further supports these
inferences. He opined that the attack was committed for the benefit of and in association
with the gang, testified that all of the prisoners who took part in the assault, except for the
victims, were validated as Norteños, and further opined that defendant was an active gang

                                              24
member at the time of the assault. Additionally, Deputy Moore testified that based on his
training and experience, the Norteños would not make room in the pod for a non-
Norteño. This testimony also tends to support a reasonable inference under section
186.22, subdivision (a), that defendant knew the other participants in the assault were
Norteños. Accordingly, we conclude there was substantial evidence from which the jury
could infer that defendant knew the other attackers were Norteños.
           IV. Jury Instructions on Gang Offense and Gang Enhancement
               A. Additional Background and the Parties’ Contentions
       The trial court instructed the jury on the substantive gang offense (§ 186.22,
subd. (a)) with CALCRIM No. 1400 (active participation in a criminal street gang) in
pertinent part as follows:
       “Defendant is charged in Count III with participating in a criminal street gang in
violation of Penal Code section 186.22(a). To prove that the [d]efendant is guilty of this
crime, the People must prove that the [d]efendant actively participated in a criminal street
gang; when the [d]efendant participated in the gang, he knew that members of the gang
engaged in or have engaged in a pattern of criminal gang activity; and the [d]efendant
willfully assisted, furthered or promoted felonious criminal conduct by members of the
gang either by directly and actively committing a felony offense, or aiding and abetting a
felony offense. ‘Active participation’ means involvement with a criminal street gang in a
way that is more than passive or in name only.”
       The trial court further instructed the jury on the gang enhancement with
CALCRIM No. 1401 (felony committed for the benefit of criminal street gang) in
pertinent part follows: “If you find the [d]efendant guilty of the crimes charged in
Counts I and II, you must then decide whether, for each crime, the People have proved
the additional allegation that the [d]efendant committed the crime for the benefit of or in
association with the criminal street gang. You must decide whether the People have
proved this allegation for each crime and return a separate finding for each crime. To

                                             25
prove this allegation, the People must prove that the [d]efendant committed the crime for
the benefit of, or in association with, a criminal street gang; and the [d]efendant intended
to assist, further or promote criminal conduct by gang[] members.”
       In addition to CALCRIM Nos. 1400 and 1401, the trial court instructed the jury
with a special instruction, “Special 3.” Special 3 instructed as follows: “Commission of
a gang crime in concert with known gang members is substantial evidence to support the
inference that the [d]efendant acted with a specific intent to promote, further or assist
gang members in the commission of the crime.”
       Defendant contends that the two CALCRIM instructions were deficient because
they did not clearly instruct the jury on the knowledge element of the substantive gang
participation offense and the purported knowledge element of the gang enhancement.
Additionally, defendant contends that the special instruction, designated as “ ‘Special
3,’ ” regarding the gang enhancement, was also improper. Defendant contends Special 3
is “at best a tautology” because the instruction essentially said that “commission of a
gang crime is substantial evidence that the defendant committed a gang crime.”
                                        B. Analysis
       “The trial court is charged with instructing upon every theory of the case
supported by substantial evidence, . . . that are not inconsistent with the defendant’s
theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “The trial court
must instruct even without request on the general principles of law relevant to and
governing the case. [Citation.] That obligation includes instructions on all of the
elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We
review de novo whether jury instructions correctly state the law. (People v. Posey (2004)
32 Cal.4th 193, 218.)
       As an initial matter, the People contend defendant’s appellate claim is forfeited
because it was not raised below. We reject this argument. Because defendant challenges
the instruction on the ground that it misstated an essential element of the offense, we

                                             26
review his claim on the merits. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012
[no forfeiture when the trial court gives an instruction that is an incorrect statement of the
law related to the elements of a charged offense]; see also People v. Mason (2013) 218
Cal.App.4th 818, 823 [“[i]nstructional error as to the elements of an offense is not waived
by trial counsel’s failure to object”].)
       As we discussed ante, defendant’s knowledge that the other participants in the
crime were gang members is not required under the section 186.22, subdivision (b),
enhancement. (Garcia, supra, 244 Cal.App.4th at p. 1362.) Because we reject
defendant’s reading of the statute, we also reject his argument that CALCRIM No. 1401
should have required a showing of such knowledge. Accordingly, the court did not err in
instructing the jury with CALCRIM No. 1401.
       However, as we concluded ante, such knowledge is required under the section
186.22, subdivision (a), substantive offense. Defendant contends that the instruction for
the substantive offense, CALCRIM No. 1400, was insufficient because it did not clearly
express that the defendant “must know that those people are members of the gang.”
Defendant misreads and unduly complicates the instruction. The instruction, closely
tracking the statutory language, provided that the People were required to show: “the
[d]efendant actively participated in a criminal street gang; when the [d]efendant
participated in the gang, he knew that members of the gang engaged in or have engaged
in a pattern of criminal gang activity; and the [d]efendant willfully assisted, furthered or
promoted felonious criminal conduct by members of the gang either by directly and
actively committing a felony offense, or aiding and abetting a felony offense.” (Italics
added.)13



13 This language also closely tracks our Supreme Court’s articulation of the elements of
section 186.22, subdivision (a), active participation of a criminal street gang. Our high
court has written, “the elements of the gang offense are (1) active participation in a

                                             27
         It is axiomatic that for a defendant to willfully assist members of the gang in which
he actively participates and knows the members have engaged in a pattern of criminal
activity, he must also know that the “members of the gang” are indeed gang members. In
other words, “section 186.22, subdivision (a), [] by its terms requires knowledge by a
defendant that he or she has been assisting the criminal conduct of a gang with a pattern
of street crime.” (Garcia, supra, 244 Cal.App.4th at p. 1362.) Accordingly, the court did
not err in instructing the jury with CALCRIM No. 1400, which closely tracks the
language of the statute and the elements listed out by our high court. (See fns. 10 & 13,
ante.)
         However, we agree with defendant that court erred in instructing the jury with the
Special 3 instruction. The instruction added nothing to CALCRIM No. 1400, and as
written, the instruction was ambiguous. We conclude, however, that any error was
harmless under People v. Watson (1956) 46 Cal.2d 818, 836. “ ‘[M]isdirection of the
jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do
not amount to federal constitutional error are reviewed under the harmless error standard
articulated’ in Watson.” (People v. Larsen (2012) 205 Cal.App.4th 810, 830.) “[U]nder
Watson, a defendant must show it is reasonably probable a more favorable result would
have been obtained absent the error.” (People v. Mena (2012) 54 Cal.4th 146, 162.)
Defendant has not met this burden with respect to the Special 3 instruction. As defendant
points out in his opening brief, the instruction’s tautological wording was both redundant
to CALCRIM No. 1400 and likely confusing. However, that does not make the
instruction prejudicial under Watson.



criminal street gang, in the sense of participation that is more than nominal or passive; (2)
knowledge that the gang’s members engage in or have engaged in a pattern of criminal
gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious
criminal conduct by members of that gang.” (Albillar, supra, 51 Cal.4th at p. 56, citing
People v. Lamas (2007) 42 Cal.4th 516, 523.)

                                              28
       Defendant further argues that the phrase, “gang crime in concert with known gang
members,” is ambiguous and misleading because it does not specify whether the
“ ‘known gang members’ ” must be known as gang members to the defendant or merely
to law enforcement. We also note that the instruction uses a term of art, “substantial
evidence.” As used in People v. Villalobos (2006) 145 Cal.App.4th 310, the case from
which the language for this instruction came, the term “substantial evidence” described a
standard of appellate review for claims of insufficiency of the evidence, not a metric of
persuasiveness concerning evidence to be considered by a jury. (Id. at pp. 321-322.)14
       We agree with defendant that this language could be misleading. However, this
instruction did not conflict with the more specific CALCRIM Nos. 1400 and 1401, which
as we have discussed ante, clarified the mens rea required under each respective
subsection of section 186.22. We determine the correctness of jury instructions
“ ‘ “ ‘from the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ ” ’ ” (People v. Smithey (1999) 20 Cal.4th
936, 963-964.)
       Viewing the instructions as a whole and considering the evidence we have
outlined that convincingly established that the charged assaults were gang related and
supported the required mens rea elements, we conclude any error in instructing the jury
with Special 3 was harmless.




14 The use of the special instruction here serves as an example of the care that must be
taken when creating special instructions from the language of appellate opinions. As the
drafters of CALCRIM have noted, the reason the CALJIC instructions were “so often
impenetrable is that they [were] based on the language of case law and statutes written by
and for a specialized legal audience and expressed in terms of art.” (Judicial Council of
Cal., Crim. Jury Instns. (2016) Preface, p. xi, italics added.)

                                             29
                               V. Prosecutorial Misconduct
                A. Additional Background and the Parties’ Contentions
       During closing argument, defense counsel attacked Deputy Charter’s credibility,
arguing the following: “In his report with respect to his statement that -- on the stand that
[defendant] did have marks on his knuckles at the time [--] when he wrote his report, he
didn’t. He knows how to document marks on people. He documented that [defendant]
had one or two marks on his head -- red marks, he said. We don’t know what those are
from, but he documented them. He didn’t document that he had had marks on his hands.
He testified now a year and a half, almost two years later than he did. . . . Do you believe
what he documented at the time, or do you believe, two years later almost, what he said?”
       The prosecutor responded to defense counsel’s argument in rebuttal: “Charter also
told you, hey, this is what we do every time there is a fight. We pull out the people we
think [are] involved. . . . That’s what Charter did. I always find it a little bit entertaining
when the Defense argues that, you know, the cop is lying to you. He is not telling you
the whole truth. Why? What does he get out of this? I mean, think about it for a minute.
The cop is going to come in here and lie to you and risk his career and risk his pension
for what? Doesn’t that kind of beg the question, what kind of public enemy are we
dealing with here? This is a jail fight. This isn’t an act of trying to put a bomb in New
York City. What would be the purpose of coming in here and risking your whole career,
your whole livelihood? There is no reason. That is unreasonable. Remember, this isn’t a
television show. This is real life; okay?” (Italics added.) Defense counsel did not object.
       Defendant contends that the prosecutor engaged in misconduct by relying on facts
outside of the record. Specifically, he contends, “Since the record is devoid of evidence
that a Yuba County deputy sheriff risks his job by giving false testimony in court, these
comments constituted improper vouching for Charter’s veracity.” He contends that his
trial counsel’s failure to object below constitutes ineffective assistance of counsel.



                                              30
                                        B. Forfeiture
       “ ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution
when it comprises a pattern of conduct ‘so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.’ ” ’ [Citation.] ‘ “Conduct
by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ” ’ ” (People v. Prieto
(2003) 30 Cal.4th 226, 260 (Prieto).)
       There was no objection at trial to the conduct defendant now complains about on
appeal. “As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also Prieto, supra, 30
Cal.4th at p. 260.) Defendant has therefore forfeited his claim of error. We grant relief
from forfeiture only where objections or admonitions would have been futile or the
misconduct’s nature was incurable. (People v. Cole (2004) 33 Cal.4th 1158, 1201.) “A
defendant claiming that one of these exceptions applies must find support for his or her
claim in the record,” rather than reciting a “ritual incantation that an exception applies.”
(People v. Panah (2005) 35 Cal.4th 395, 462.) Here, defendant makes no effort to
establish that one of the exceptions to forfeiture is applicable but instead styles his
prosecutorial misconduct argument as an ineffective assistance of counsel claim.
Accordingly, we decline to grant relief from forfeiture.
                           C. Ineffective Assistance of Counsel
       To establish ineffective assistance of counsel, a defendant must show (1) counsel’s
performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced defendant. (Strickland
v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 695-696] (Strickland);

                                              31
People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) “ ‘Surmounting
Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86,
105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356,
371 [176 L.Ed.2d 284, 297].) The reason why Strickland’s bar is high is because “[a]n
ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture
and raise issues not presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very
adversary process the right to counsel is meant to serve. [Citation.] . . . It is ‘all too
tempting’ to ‘second-guess counsel’s assistance after conviction or adverse sentence.’
[Citations.] The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.” (Richter, at p. 105.) Regarding defense counsel’s
performance, our high court has “repeatedly stressed ‘that “[if] the record on appeal sheds
no light on why counsel acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       “ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People
v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) “When the claim focuses on the prosecutor’s
comments to the jury, we determine whether there was a reasonable likelihood that the



                                              32
jury construed or applied any of the remarks in an objectionable fashion.” (People v.
Booker (2011) 51 Cal.4th 141, 184-185 (Booker).)
       Here, we cannot conclude that defense counsel’s performance was deficient in
failing to object to the prosecutor’s comments. The prosecutor responded to defense
counsel’s attack on Deputy Charter’s credibility by discussing two risks to a peace officer
associated with committing perjury, at least one of which is common knowledge.
       “A prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record. [Citations.] . . . [Citation.] However, so long as a prosecutor’s assurances
regarding the apparent honesty or reliability of prosecution witnesses are based on the
‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief,’ her comments cannot be characterized as
improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971.) “ ‘It is also clear that
counsel during summation may state matters not in evidence, but which are common
knowledge or are illustrations drawn from common experience, history or literature.’ ”
(People v. Wharton (1991) 53 Cal.3d 522, 567, italics added.) While defendant contends
the record contains no evidence that Deputy Charter could have lost his job if he perjured
himself and the prosecutor thus asserted a fact outside the record, in our view, the
prosecutor’s comments mostly drew on common experience in arguing the deputy had no
vested interest or motive to lie when he testified. (See Evid. Code, § 780, subd. (f) [in
determining witness credibility, a jury may consider “[t]he existence or nonexistence of a
bias, interest, or other motive”].)
       We first note, that the prosecutor did not argue that the deputy would have lost his
job or been fired as a result of committing perjury. The prosecutor argued that by
committing perjury, the deputy risked his career and risked his pension. The jury was
certainly aware that perjury is a crime, and if convicted of such a crime, it is within
common knowledge and experience that a possible consequence is losing one’s job. In

                                             33
rebuttal to defense counsel’s argument that Deputy Charter lied in court about
defendant’s knuckles showing signs of fighting because he did not document it at the
time, the prosecutor asked the jury to weigh Deputy Charter’s credibility in light of what
he could potentially lose if he perjured himself and whether this particular case was worth
such a risk given the nature of this case. Essentially, the prosecutor mostly drew on
common knowledge and experience about the seriousness of perjury in making this
argument. However, we are of the view that it is not necessarily common knowledge the
deputy risked losing his pension by committing perjury. Nevertheless, the prosecutor’s
argument was neither deceptive; nor was it reprehensible. (Hill, supra, 17 Cal.4th at
p. 819.) Trial counsel is not required to advance meritless objections (People v. Thomas
(1992) 2 Cal.4th 489, 531; People v. Jones (1979) 96 Cal.App.3d 820, 827) and as a
consequence, defense counsel need not have objected to the part of the prosecutor’s
argument about the risk to the deputy’s career.
       However, because the comment relating to the risk to the deputy’s pension is
likely not common knowledge, that comment was objectionable. But defense counsel
could have made the tactical decision not to object to avoid calling attention to the rest of
the comment, since if the court sustained the objection, the prosecutor could have simply
resumed argument by reasserting the risk to the deputy’s career and/or asserting the
evidence showed no motive for the deputy to lie. (Evid. Code, § 780, subd. (f);
CALCRIM No. 226.) Accordingly, defense counsel’s performance did not fall below an
objective standard of reasonableness under the Strickland test.
       Furthermore, even if counsel’s performance was deficient, defendant has not
established prejudice. To establish prejudice, “[i]t is not enough ‘to show that the errors
had some conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562
U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he
would have received a more favorable result had counsel’s performance not been
deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at

                                             34
pp. 217-218.) “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.) “The
likelihood of a different result must be substantial, not just conceivable.” (Richter, at
p. 112.)
       In our view, there is not a reasonable likelihood the jury construed or applied the
prosecutor’s remarks in an objectionable fashion. (Booker, supra, 51 Cal.4th at pp. 184-
185.) Moreover, the evidence we have discussed establishing defendant’s complicity in
these gang-related assaults is compelling. Defendant has not shown a reasonable
probability that he would have received a more favorable result had counsel objected to
the prosecutor’s comments and the court sustained that objection.
       We conclude that defendant has failed to establish he received constitutionally
ineffective assistance of counsel.
                                      VI. Section 654
       Our review of the record reveals a sentencing error related to count 3, active
participation in a criminal street gang. In imposing sentencing on that count, the trial
court stated, “And as to Count III, I’m going to impose the eight months there, which is
the mid-term, but stay that as stipulated.”15 The abstract shows the stay, but no sentence
is indicated.
       Section 654, subdivision (a), provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the




15 In the prosecution’s original sentencing memorandum, the prosecution recommended
that the trial court impose one-third the midterm and stay that sentence pursuant to
section 654 on count 3. The prosecution cited no authority for imposing one-third the
midterm. In a supplemental sentencing memorandum, written after the trial court
requested briefing on two sentencing issues, including the application of section 654 to
the sentence on count 3, the prosecutor stipulated that section 654 applied to count 3.

                                             35
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
       It is well settled that when a court determines that a conviction is subject to section
654, it must impose a sentence and then stay the execution of the duplicative sentence, the
stay to become permanent upon defendant’s service of the portion of the sentence not
stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Alford, supra, 180
Cal.App.4th at p. 1469 (Alford); People v. Salazar (1987) 194 Cal.App.3d 634, 640
(Salazar); People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) “This procedure
ensures that the defendant will not receive ‘a windfall of freedom from penal sanction’ if
the conviction on which the sentence has not been stayed is overturned.” (Salazar, at
p. 640.)
       The stayed sentence must be a full-term sentence, not one-third the midterm. This
principle was discussed in People v. Cantrell (2009) 175 Cal.App.4th 1161. “The one-
third-the-midterm rule of section 1170.1, subdivision (a),[16] only applies to a consecutive
sentence, not a sentence stayed under section 654.” (Cantrell, at p. 1164.) Because the
sentence is not imposed consecutively, there is no subordinate term and thus the sentence
imposed on the count subject to section 654 should not be one-third the midterm.



16  Section 1170.1, subdivision (a), provides in pertinent part: “Except as otherwise
provided by law, and subject to Section 654, when any person is convicted of two or
more felonies, whether in the same proceeding or court or in different proceedings or
courts, and whether by judgment rendered by the same or by a different court, and a
consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate
term of imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1. The principal term shall consist of
the greatest term of imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The subordinate term for each
consecutive offense shall consist of one-third of the middle term of imprisonment
prescribed for each other felony conviction for which a consecutive term of imprisonment
is imposed.” (Italics added.)

                                             36
Further, as we have noted, the reason for staying execution of the sentence is to “ensure[]
that the defendant will not receive ‘a windfall of freedom from penal sanction’ if the
conviction on which the sentence has not been stayed is overturned.” (Salazar, supra,
194 Cal.App.3d at p. 640; accord, Cantrell, at p. 1164 [the stayed sentence would only
operate if the principle count were eliminated].) If the rule were that one-third the
midterm should be stayed and the principle term is somehow later reversed, the only
remaining sentence would be the one-third the midterm sentence.17
       The trial court imposed an unauthorized sentence by failing to impose a full term
sentence on count 3 and stay execution of that sentence. Because the sentence is
unauthorized, it may be corrected at any time. (People v. Sanders (2012) 55 Cal.4th 731,
743, fn. 13 [it is well established that the appellate court can correct a legal error resulting
in an unauthorized sentence, including a misapplication of section 654, at any time].)
       In Alford, this court concluded that the “futility and expense” of remand militated
against sending the case back to the trial court for resentencing where this court could
determine the sentence that the trial court, in the exercise of its discretion, “undoubtedly”
would have imposed. (Alford, supra, 180 Cal.App.4th at p. 1473.) Here, we conclude
the trial court would have undoubtedly imposed the midterm. In imposing the midterm
on count 2, the court found that the “aggravating and mitigating factors are in balance.”



17  We are aware that in the disposition part of People v. Mesa (2012) 54 Cal.4th 191,
201, our high court ordered stays for eight month, one-third the midterm sentences on
two section 186.22, subdivision (a), convictions originally imposed consecutively by the
trial court. However, the entire focus in Mesa was whether sentences on the active
participation counts were subject to section 654. The opinion contains no discussion
about the propriety of staying execution of the one-third the midterm sentences imposed
by the trial court instead of ordering stays on full-term sentences. The Mesa court did not
discuss the well-settled law we have discussed above. Because cases are not authority for
propositions not considered (People v. Brown (2012) 54 Cal.4th 314, 330; People v.
Watkins (2009) 170 Cal.App.4th 1403, 1409), we adhere to the precedent we discuss
above.

                                              37
Consequently, we modify defendant’s sentence on count 3 to impose the midterm of two
years and order that execution of that sentence be stayed pursuant to section 654.
                                     DISPOSITION
       We modify the sentence on count 3, active participation in a criminal street gang,
to impose the midterm sentence of two years, and order execution of that sentence stayed
pursuant to section 654. The trial court shall amend the abstract of judgment to reflect
this modification and send a certified copy of the amended abstract to the California
Department of Corrections and Rehabilitation.
       The judgment is otherwise affirmed.



                                                       MURRAY                , J.



I concur:



      NICHOLSON             , Acting P. J.




                                             38
DUARTE, J.
       I concur in the judgment. I concur in the opinion, except Part I.B.2., the analysis
of prejudice and its conclusion. Because I agree with the conclusion reached in
Part I.B.1. of the Discussion--that the trial did not err in admitting defendant’s gang
affiliation statements during booking--I see no need to continue with a separate analysis
of prejudice based on hypothetical error, and will refrain from doing so here.



                                                            DUARTE             , J.




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