Filed 5/15/15 P. v. Rogel CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049102

         v.                                                            (Super. Ct. No. 11NF3214)

IVAN ROGEL,                                                            OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Carla
Singer, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
                   Anthony J. Dain, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., Parag Agrawal and Ryan Harrison Peeck, Deputy Attorneys
General, for Plaintiff and Respondent.
              A jury convicted Ivan Rogel of attempted murder (count 1), aggravated
assault with a knife (counts 2, 3), misdemeanor assault on a peace officer (count 4), and
misdemeanor simple assault (count 6). The jury also found true sentence enhancement
allegations that counts 1 through 3 were committed at the direction of, in association
with, or for the benefit of a criminal street gang (Underhill), and that Rogel personally
inflicted great bodily injury on the victims. The court sentenced Rogel to a total prison
term of 22 years, including 10 years for the gang enhancement on count 1.
              Rogel challenges the sufficiency of the evidence to support the gang
enhancement findings, and we agree. No substantial evidence proves Rogel committed
attempted murder and aggravated assault to benefit or promote Underhill, or that he acted
with the specific intent to benefit Underhill. Consequently, we reverse the gang
enhancement attached to counts 1 through 3 for insufficiency of the evidence.
              Rogel also claims the court misdirected the jury on the primary activities
element of the gang enhancement jury instruction and failed to instruct on voluntary
intoxication as it relates to the specific intent element of the gang enhancement. But, in
light of our conclusion insufficient evidence supports the gang enhancement findings,
there will be no retrial and we need not reach these issues.
              Rogel’s remaining claims are: the court denied him a fair trial by admitting
evidence of his prior gang-related contacts with law enforcement and by improperly
denying his mistrial motion based on jury misconduct; the prosecutor committed
misconduct by not controlling the gang expert’s testimony and by displaying an irrelevant
picture of gang members during closing argument; and cumulative error as the result of
multiple acts of prosecutorial misconduct. We find these claims meritless.
              For these reasons, which we will explain more fully below, we affirm the
convictions and the great bodily injury enhancement findings, but reverse the gang
enhancement findings. As modified, the judgment is affirmed and the matter is remanded
for resentencing.

                                             2
                                           FACTS
               On October 29, 2011, Nicholas Soto, his pregnant wife, Rebecca Vega,
Rebecca’s father, Frank Vega, and her mother, Nicole Martinez, attended a Halloween
party at a house on North Carol Street in Anahiem.1 This is an area in Anaheim not
known to be in any criminal street gang’s claimed territory. The party was large and
loud, and Soto’s family spent most of their time standing together near a small backyard
patio that people were using as a dance floor. Frank, who was wearing a full-body gorilla
costume with headdress, said the party had music, a disc jockey, and beer.
               About an hour after Soto and his family arrived, a group of young men
walked into the backyard. Someone at the party told Soto they thought the young men
were uninvited Underhill gang members.
               Sometime later, Rebecca and Soto saw two young men groping Martinez
while she tried to dance. Soto intervened and the two young men engaged him in a
cursing match. One of the young men yelled to Soto, “You don’t know who you’re
messing with.” The verbal exchange turned physical, and a group of partygoers gathered
around the combatants. When the dust settled, Soto discovered he had been stabbed in
the elbow and right rib cage.
               Soto pointed to a male Hispanic about 18 years old, five feet, eight inches
tall with medium build, wearing a blue and white checked shirt and a dark hat, and he
told Rebecca that person had stabbed him. Rebecca saw this man run and join a “group
of . . . guys” standing together in a different part of the backyard.
               Frank, still in his gorilla costume minus the headdress, did not see the
scuffle on the dance floor, but “a bunch of screaming” drew his attention there. Frank
started to separate the combatants as he searched for Rebecca. When he found her,

       1   To avoid confusion, we refer to Frank Vega and Rebecca Vega by their first
names.

                                               3
Rebecca said, “Nick was stabbed.” Frank lifted Soto’s shirt and exclaimed, “What the
hell?” He turned around and saw a bunch of guys. Rebecca pointed at someone in a
checked shirt and black hat and said, “Dad, it’s him.”
              Frank tried to grab the man in the checked shirt as the man attempted to
leave the party, which started another fight. Frank eventually fell to the ground where, it
seemed to him, several people repeatedly punched and kicked him. Later, Frank
discovered he had also been stabbed. After the fight, friends took Frank to the hospital
where he spent the next two weeks recovering from seven stab wounds.
              Meanwhile, Rebecca took Soto inside to check his wounds before he was
transported to the hospital by ambulance. While Rebecca and Soto were inside they
heard a car crash in front of the house. When they ran outside, Rebecca and Soto saw a
car bumper lying in the street and several police officers around the house.
              Unbeknownst to the partygoers, Anaheim Police Officers Matt Ellis and
Brandon Young, Anaheim Police Sergeant Steve Pena, and Anaheim cadet Marcus
Zappia had gone to North Carol Street on reports of a loud party and a fight. Ellis and
Young arrived before the fight, and they called for backup when the fight broke out.
Pena and Zappia responded, but the fight was over by the time they arrived.
              The four officers were in different places around the house when they all
heard what sounded like a car crash. Making their way to the street, the officers saw a
silver Honda Civic reversing away from a damaged parked car at about 20 miles per
hour. The Civic collided with another car before it backed to the end of the cul-de-sac.
              Pena and Zappia approached the Civic on foot. Just as Zappia shined a
light on the Civic, the car lurched forward and headed out of the cul-de-sac at a high rate
of speed, nearly hitting Pena and Zappia in the process. Pena and Zappia got a good look
at the driver of the Civic. They both identified Rogel as the driver, and they said Rogel
was wearing a checked shirt.



                                             4
              Ellis used a patrol car to intercept the Civic. As the Civic approached, it
swerved and crashed into Ellis’s patrol car. Rogel was able to drive away, but the
officers pursued him. Ellis chased Rogel through various neighborhoods at speeds up to
40 miles per hour before the Civic collided with another parked car. Rogel jumped out of
the now disabled Civic and ran through several backyards before officers caught him.
              At the time of his arrest, Rogel was wearing a checked shirt and black
pants. He had visible cuts on his hands, and blood on his knuckles and clothing. Rogel
was five feet, nine inches tall and weighed 150 pounds. Ellis and Young noticed that
Rogel smelled of alcohol, and that he had bloodshot eyes and a wobbly gait.
              Soto later picked Rogel’s picture in a photographic lineup. Rebecca was
also shown the photographic lineup. She pointed to Rogel’s picture, but said she was not
sure if that person was the stabber, or merely someone she remembered seeing at the
party. Rebecca also told officers she had recognized a friend of hers at the party, Oscar
Ivan Baiza, and she told them Baiza was an Underhill gang member when she knew him
in high school. Rebecca did not see Baiza and defendant together at the party. In fact,
she testified Baiza left the party before the fighting started.
Gang Expert Testimony
              Anaheim Police Detective Mike Brown testified as the prosecution’s gang
expert. A 10-year police veteran, Brown has participated in over 200 gang-related crime
investigations over his four years with the gang division, and he has qualified in court as
a gang expert on numerous occasions. In addition to extensive training and experience
with gangs, Brown has daily contact with members of the over 30 active criminal street
gangs in Anaheim. During these contacts, Brown and other officers generate field
identification cards for the suspected gang members they contact. The field identification
cards contain the suspected gang member’s vital statistics, a description of his or her
clothing, tattoos, and any other distinguishing marks. It may also include statements the
individual makes regarding his or her gang affiliation.

                                               5
               According to Brown, police officers also distribute Street Terrorism
Enforcement and Prevention Act (STEP) notices to suspected gang members. Giving
someone a STEP notice lets the person know that law enforcement considers him or her
to be a member of a criminal street gang. The notice advises the recipient of the
enhanced penalties available when convicted of gang-related crimes.
               Brown stated individuals gain membership in a gang by being beaten by a
group of gang members (jumped-in), by having family members already in the gang
(walked-in), or by committing a crime for the gang (crimed-in). With respect to Hispanic
criminal street gangs, Brown said these gangs tend to be territorial and claim
neighborhoods in the city as their “turf,” although he admitted the instant crimes occurred
in a neighborhood as yet unclaimed by any known criminal street gang. He also said the
number 13 is very important in Hispanic gang culture because it can represent the 13th
letter of the alphabet, M, and the letter M is associated with the Mexican Mafia. Brown
testified most of the Hispanic gangs in Anahiem “fall under” the Mexican Mafia.
               Brown also testified gang members consider tattoos to be a badge of honor
and a way to advertise loyalty to their gang. In fact, Brown testified, “[i]t’s a huge
disrespect for anybody to get a tattoo representing a gang that they’re not from.” Graffiti,
too, represents the gang, and it is used to mark turf. It is a sign of disrespect to write
graffiti in a rival gang’s territory. Brown also described what occurs during a gang “hit-
up.” Brown claimed a gang hit-up can be a verbal or nonverbal challenge, including
throwing gang hand signs or asking someone, “Where you from?” Hit-ups usually result
in violence.
               Brown stated respect is the most important thing to gang members. An act
of disrespect triggers a violent response. In fact, gang members may suffer consequences
for not responding to another person’s disrespect. Furthermore, it is the violent gangs
and gang members who garner the most respect.



                                               6
                As Brown explained it, acts of violence are one way to gain respect and
demonstrate the will “do what the gang wants them to do.” Violent acts are also a way
for young gang members to “put-in” work for their gang and enhance their reputation.
The same is true of “backing-up,” or assisting, another gang member in the commission
of an assault or other crime.
                Brown also said gang members often brag about violent crimes and acts of
violence they commit, all in an effort to establish a fearsome reputation. Brown
explained victims of gang-related crimes are often reluctant to cooperate with police
because they fear retaliation from the gang. As he described, “It’s harder for us to go in
and investigate a crime in a gang neighborhood if the neighborhood won’t even talk to us.
And that happens on a regular basis because the gang itself has [instilled] so much fear
within the neighborhood. If they cooperate with the police, if they’re seen talking to the
police, if they’re a witness or a victim in a crime that was committed within their
neighborhood they could be assaulted in the future.” Accordingly, the commission of
particularly violent crimes benefits the individual gang member and his gang by instilling
fear in the community and rival gang members. By the same token, gang members rarely
cooperate with police because they do not want to be labeled “a rat.”
                During his career, Brown has investigated more than 50 crimes committed
by members of the Underhill criminal street gang, and he has spoken to over 100
Underhill members. According to Brown, Underhill’s known rivals include the gangs La
Jolla, East Side Anaheim, and Barrios Small Town. Brown said Underhill started as a
party crew in 1985 in the area of State College Boulevard and Underhill Street in
Anaheim. Over time, the gang’s territory shifted, and the gang now uses several names,
including Underhill, Underhill Street, Hillside, and Los Cyclones. Brown testified
common symbols representing Underhill are “AUST,” for Anaheim Underhill Street,
“UST” for Underhill Street, and the letter “U.” The gang also has recognized hand signs
and graffiti.

                                              7
              Brown opined that Underhill had approximately 15 to 25 members and
around 50 active participants and associates in October 2011. According to Brown, once
an associate commits “to participating in a criminal activity with the individual, they [sic]
become more of an active participant of that gang.”
              Brown testified the primary activity of Underhill was the commission of
felony vandalism and felony weapons possession or gun possession. He also testified
about two felonies committed by documented Underhill members for the benefit of
Underhill. The first was a 2008 aggravated assault committed by Underhill member
Rafael Reyes. The second was a 2007 carjacking, robbery, and gun possession
committed by gang member Brendon Ruelas.
              Brown testified he knew Rogel from several in-field contacts. Brown said
gang members are often known by a gang moniker, or nickname, which may be a
childhood name or a physical characteristic or trait. Brown knew Rogel’s gang moniker,
Chucky, although he did not know the story behind the nickname. Brown said he also
knew Baiza from several previous contacts in Underhill territory, and he believed Baiza
was an Underhill associate.
              Brown testified to numerous police contacts with Rogel in 2009 and 2010.
In November 2009, undercover police officers twice found Rogel in Underhill’s claimed
territory with other documented Underhill members. In December, Rogel and three
documented Underhill members were stopped as they drove through Underhill’s claimed
territory. The arresting officers saw blood on the face of one of the occupants of the car
and stopped the car for traffic violations. Officers searched the passenger compartment
and found a sawed off shotgun and a sock full of shotgun shells. When contacted at the
scene, Rogel said he knew there was a shotgun in the car.
              In May 2010, Rogel told Brown he associated with Underhill, and other
officers saw Rogel in Underhill’s claimed territory. In June, Brown conducted a search
of Rogel’s home. He found a book containing graffiti of the letters “UST,” and the

                                              8
words, “Chucky,” and “Hillside.” In July, defendant was discovered in Underhill’s
claimed territory with a butterfly knife. Rogel told officers he kept the knife for
protection. In September, police officers detained Rogel in connection with fresh graffiti
in Underhill’s claimed territory. According to Brown, Rogel’s frequent trips to
Underhill’s claimed territory suggested Rogel “associate[d] with individuals that live in
that neighborhood and belong in that.”
              Brown also pointed to Rogel’s tattoos (“Hillside” is tattooed on his right
hand, “Cyclones” on his right fingers, and the letter “A” on his right leg), and he testified
the tattoos were further evidence of Rogel’s gang affiliation. Brown testified “Hillside”
refers to the Underhill gang, and “Cyclones” is a subset of the Underhill gang. The letter
“A” is a common tattoo for all Anaheim gang members. Brown said Rogel added all but
one of his tattoos after his arrest in this case. In Brown’s opinion, Rogel was an active
participant in Underhill when he committed the charged offenses. The fact Rogel added
new gang tattoos after committing these crimes merely confirmed Brown’s belief.
              The prosecutor asked Brown to assume the following facts: “A known and
documented Orange County gang member is at a house party in the City of Anaheim.
While at the party and in front of numerous people, the gang member is confronted and
accused of inappropriate behavior towards a middle-aged female . . . . [¶] . . . [¶] by a
young male adult. After being confronted, the gang member stabs the individual who had
confronted him in the chest with a knife. [¶] Shortly after the first stabbing, the gang
member is then involved in a second altercation with a male in his mid-30’s, who is
associated with . . . the first stabbing victim. During this incident, the gang member stabs
the man seven times in the chest and in the back with a knife, causing grave injuries. [¶]
After this incident, the gang member flees from the area and, to avoid capture, drives his
car at a high rate of speed at a police sergeant and a police cadet nearly hitting them. The
gang member then rams a police car. That police car was attempting to block the gang
member’s exit at the time it was struck. The gang member continues to flee at a high rate

                                              9
of speed while being pursued by multiple police officers in pursuit. [¶] After crashing his
car, the gang member runs from the car while being chased by multiple police officers
through several yards. The gang member is taken into custody after an extensive search.
[¶] Some additional facts: That also at that same party was another known associate of
the same gang.”
              The prosecutor then asked a hypothetical using these assumed facts, and
Brown opined the attempted murder and aggravated assaults were committed at the
direction of, for the benefit of, or in association with the Underhill gang. Brown based
his opinion on “the totality of the circumstances, knowing that there was other associates
of Underhill . . . present at the time the crime was committed or prior to the crime being
committed, individuals at that party knew other individuals that possibly may be involved
with Underhill were there, and the violent act of the crime itself.”
              Again using these assumed facts, the prosecutor asked if “a crime such as
the one described in the hypothetical promote, further or assist the gang?” Brown said it
would and for the same reasons.
              Brown acknowledged the crimes were not committed in Underhill territory.
Still, Brown said, Underhill benefitted from the commission of these crimes because the
crimes instilled fear in the community where the crimes occurred and in Underhill’s
rivals. He also observed that the hypothetical gang member’s actions showed other gangs
and gang members that Underhill has no regard for law enforcement.
Defense
              Defendant called Dr. Robert Shomer to testify as an expert in eyewitness
identification. According to Shomer, eyewitness identification is the least reliable means
of identification available, and an eyewitness’s confidence in his or her identification has
little correlation with the accuracy of the identification. High-stress situations tend to
impair the accuracy of eyewitnesses. He also explained “source confusion” as something
that happens when a witness misidentifies a bystander to a crime for the perpetrator.

                                              10
              According to Shomer, Rebecca and Soto’s identifications of defendant were
vulnerable due to the high-stress situation of the fight and the chaos of multiple
bystanders. Moreover, Shomer testified, Soto’s identification of Rogel from the
photographic lineup could have been tainted by suggestive police lineup procedures.
                                       DISCUSSION
1. Sufficiency of the Evidence - Gang Enhancements
              Rogel challenges the sufficiency of the evidence to support the jury’s
findings that the attempted murder of Frank (count 1), and the aggravated assaults upon
Frank and Soto (counts 2 and 3) were gang related. (Pen. Code, § 186.22 subd. (b)(1).)
              a. Elements, Proof and Standard of Review
              To prove a gang enhancement under Penal Code section 186.22,
subdivision (b)(1), the People must show the defendant committed a crime “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 . . . .” “The gang enhancement under [Penal Code] section 186.22[,
subdivision] (b)(1) requires both that the felony be gang related and that the defendant act
with a specific intent to promote, further, or assist the gang . . . .” (People v. Rodriguez
(2012) 55 Cal.4th 1125, 1138-1139.) The enhancement applies only to “gang-related”
crimes. (People v. Castenada (2000) 23 Cal.4th 743, 745.) “Not every crime committed
by gang members is related to a gang.” (People v. Albillar (2010) 51 Cal.4th 47, 60.)
               “[E]xpert testimony about gang culture and habits [may be used] to reach a
finding on a gang allegation. [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192,
1196 (Frank S.).) An expert’s opinion that “particular criminal conduct benefited a gang
by enhancing its reputation for viciousness can be sufficient to raise the inference that the
conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the
meaning of [Penal Code] section 186.22[, subdivision] (b)(1).” (People v. Albillar,
supra, 51 Cal.4th at p. 63; see People v. Vang (2011) 52 Cal.4th 1038, 1048.)

                                              11
              Our task in reviewing the sufficiency of the evidence is to examine the
whole record in the light most favorable to the judgment to determine whether it discloses
reasonable, credible, and solid evidence from which a reasonable juror could find the
defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557,
576-577.) “‘“‘“If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”
[Citation.]’ [Citations.]” (People v. Cravens (2012) 53 Cal.4th 500, 507-508.) In other
words, a conviction stands “‘unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’” [Citation.]” (Id. at p. 508.)
              b. Insufficient Evidence
              Rogel asserts the prosecution failed to prove the fight on the dance floor
was anything more than a solo dispute over Rogel’s inappropriate advances towards
Martinez. Moreover, Rogel argues, the absence of evidence the fight involved other gang
members, gang-related challenges or threats, displays of gang-related tattoos, hand signs,
or clothing, and the fact the crimes occurred in neutral territory, fatally undermines gang
expert Brown’s opinion that the crimes were gang related. We agree.
              The cases of Frank S, supra, 141 Cal.App.4th at p. 1192, and People v.
Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) are instructive. In Frank S. a police officer
stopped a minor for running a red light on his bicycle, and found a concealed knife, a
bindle of methamphetamine, and a red bandana in the minor’s possession. (Frank S.,
supra, 141 Cal.App.4th at p. 1195.) The minor told police he had been attacked two days
earlier and “needed the knife for protection against ‘the Southerners’ because they feel he
supports northern street gangs.” (Ibid.) The minor identified himself as a Norteno gang
affiliate. (Ibid.) According to the trial testimony of a gang expert, the minor was an
active Norteno and his possession of the knife benefitted his gang because “it helps
provide them protection should they be assaulted.” (Id. at pp. 1195-1196.)

                                             12
               The appellate court reversed the gang enhancement finding stating: “In the
present case, the expert simply informed the judge of her belief of the minor’s intent with
possession of the knife, an issue reserved to the trier of fact. She stated the knife benefits
the Nortenos since ‘it helps provide them protection should they be assaulted by rival
gang members.’ However, unlike in other cases, the prosecution presented no evidence
other than the expert’s opinion regarding gangs in general and the expert’s improper
opinion on the ultimate issue to establish that possession of the weapon was ‘committed
for the benefit of, at the direction of, or in association with any criminal street gang . . . .’
[Citation.] The prosecution did not present any evidence that the minor was in gang
territory, had gang members with him, or had any reason to expect to use the knife in a
gang-related offense. In fact, the only other evidence was the minor’s statement to the
arresting officer that he had been jumped two days prior and needed the knife for
protection. To allow the expert to state the minor’s specific intent for the knife without
any other substantial evidence opens the door for prosecutors to enhance many felonies
as gang-related and extends the purpose of the statute beyond what the Legislature
intended.” (Frank S., supra, 141 Cal.App.4th at p. 1199.) In sum, the “evidence
established the minor has an affiliation with the Nortenos,” but “membership alone does
not prove a specific intent to use the knife to promote, further, or assist in criminal
conduct by gang members.” (Ibid.)
               Similarly, in Ochoa the defendant acted alone in committing a carjacking
with a shotgun. (Ochoa, supra, 179 Cal.App.4th at pp. 653, 662.) There was no
evidence the defendant called out a gang name, displayed gang hand signs, wore gang
clothing, or that the victim saw the defendant’s gang-related tattoos. (Ochoa, supra, 179
Cal.App.4th at pp. 662-623.) Furthermore, the crime had not occurred in the defendant’s
gang’s claimed territory, nor had it occurred in any rival gang’s territory. (Ibid.)
Therefore, the court found, the evidence was insufficient to sustain the gang-related
prong of the gang enhancements.

                                               13
              The Ochoa court explained, “There was no evidence that gang members
committed carjackings or that a gang member could not commit a carjacking for personal
benefit, rather than for the benefit of the gang. . . . . While the sergeant effectively
testified that carjacking by a gang member would always be for the benefit of the gang,
this ‘“did nothing more than [improperly] inform the jury how [the expert] believed the
case should be decided,”’ without any underlying factual basis to support it.” (Ochoa,
supra, 179 Cal.App.4th at p. 662.)
              Attempting to distinguish Ochoa and Frank S., the People assert the “gang
expert testimony and the presence of at least one Underhill gang member at the party”
support a finding the crimes benefitted Underhill. They claim Brown did not merely
speculate Rogel’s crimes benefitted Underhill. Instead, “[t]he expert’s testimony was
supported by words that were spoken at the scene, [Rogel’s] actions subsequent to the
stabbings, including acquiring gang tattoos after the stabbings, [Rogel’s] earlier self-
admission that he was a[n] Underhill gang member, repeatedly being in the company of
other gang members, his possession of gang-related graffiti, and the documented criminal
history of other Underhill gang members.” The facts are rather slimmer than that.
              The undisputed evidence is Rogel acted with an unidentified compatriot,
not Baiza, in the groping of Martinez. Based upon the record before us, it appears Soto
was stabbed for interfering with Rogel’s aggressive attempt to dance with Martinez, and
Frank was hurt simply because he tried to prevent Rogel from leaving.
              There is no evidence any other gang members were involved in the fight, or
that any other gang member was at the party when it started. Rebecca had seen Baiza
earlier, and knew he had been an Underhill member in high school, but the parties agree
Baiza left before the fight started. None of the witnesses tied Baiza or any other
suspected Underhill gang members to Rogel. Frank heard rumors other Underhill gang
members were present, but rumors are not evidence. Further, nothing in the record
suggests either the victims or the witnesses even knew Rogel was a gang member.

                                              14
              True, one of the two young men who accosted Martinez said something
threatening before the fight started, but there was no gang reference of any kind. Neither
Rogel nor his unidentified companion ever issued any gang challenges or threats, flashed
any gang signs, or shouted any gang slogans. In addition, it is also undisputed the crimes
did not occur in Underhill’s claimed territory or in any rival gang’s territory.
              In short, Rogel did not associate with any other gang members at the party,
and he did nothing at the party to identify himself as an Underhill gang member, before,
during or after committing the attempted murder and the aggravated assaults. Rogel’s
words and actions that night simply do not support Brown’s gang-related opinions.
              The fact Rogel got new gang tattoos after he was arrested in this case is not
substantial evidence of his intent in committing the charged offenses. It is relevant to
show his Underhill membership, which was never seriously contested, but gang
membership alone does warrant the enhanced penalties provided by Penal Code section
186.22. (Frank S., supra, 141 Cal.App.4th at p. 1199.) Plus gang membership, by
definition, involves frequent association with other gang members, possession of gang
graffiti, and a host of other peculiarities endemic to gang culture as testified to by Brown.
              So here, as is in Frank S. and Ochoa, the prosecution presented no evidence
to establish the gang enhancements, other than Brown’s opinions on the ultimate issues.
And Brown opinions did nothing more than improperly inform the jury how he believed
the gang enhancements should be decided, without any underlying factual support.
              On these points In re Daniel C. (2011) 195 Cal.App.4th 1350 (Daniel C.) is
also instructive. There, a minor entered a supermarket with two other young men. After
his companions left the store, the minor took a bottle of whiskey and walked out without
paying for it. A store employee confronted him, and the minor broke the bottle, hit the
employee with the broken bottle, and ran. (Id. at p. 1353.) He was seen fleeing in a truck
with three other young men. The police later located the truck, the minor, and his
companions, all of whom were wearing clothing with some red in it. (Id. at p. 1354.)

                                             15
              The minor admitted going to the store to get alcohol, but he said his friends
did not know he intended to steal it. (Daniel C., supra, 195 Cal.App.4th at p. 1354. )
The minor was a Norteno gang affiliate, one of his friends was a gang member, and
another was a gang associate. (Id. at pp. 1357-1358.) The juvenile court found true
allegations the minor committed a robbery. The court also made true findings on three
separate enhancement allegations, including a gang enhancement. (Id. at p. 1357.)
              On appeal, the appellate court concluded there was insufficient evidence to
support the specific intent prong of the enhancement. (Daniel C., supra, 195 Cal.App.4th
at pp. 1357-1365.) There was no substantial evidence which tied the minor’s acts to his
gang when he stole the whiskey and assaulted the store employee. Of particular note, the
minor’s companions had already left the store before he took the alcohol, and they did not
assist the minor in the theft or assault. (Id. at p. 1361.)
              The Daniel C. court also found insufficient evidence to support the gang
expert’s opinion the minor and his companions “planned or executed a violent crime in
concert . . . to enhance their respect in the community or, to instill fear,” primarily
because no evidence suggested they entered the store with the intent to commit a violent
crime. (Daniel C., supra, 195 Cal.App.4th at pp. 1363-1364.) The juvenile court
specifically found that “the breaking of the bottle was ‘happenstance,’” and the attack on
the employee was a “spur-of-the-moment” reaction. (Id. at p. 1363.)
              Here, too, after Baiza left the party, Rogel engaged in a spur-of-the-moment
altercation in reaction to Soto’s interference on the patio dance floor. It was
happenstance that Rogel upped the ante by wielding his knife and two people were
seriously injured as a result, but the prosecution failed to present substantial evidence the
stabbings were for the benefit of Underhill, or that Rogel committed these crimes with
the specific intent to promote Underhill. Hence, the gang enhancement findings must be
reversed and the matter must be remanded for resentencing. In light of this disposition,
we need not address Rogel’s challenges to the gang enhancement jury instructions.

                                               16
2. Gang Evidence - Constitutional Right to Fair Trial
              Rogel also complains his constitutional right to a fair trial was
compromised due to the prosecution’s insistence on pursuing irrelevant gang allegations.
He specifically lists two points during the trial at which his constitutional rights were
purportedly violated. We discuss and reject each in turn.
              a. Mistrial Motion
              The first of these asserted errors occurred during voir dire and involves the
trial court’s denial of Rogel’s mistrial motion. Rogel obliquely argues the court abused
its discretion by denying his mistrial motion, but he does not provide either reasoned
argument or citation to authority. While we are not required to consider this claim on the
merits (People v. Islas (2012) 210 Cal.App.4th 116, 128), we review the record and
conclude the court did not err.
              At the beginning of voir dire, the court read the charges, including the gang
enhancements alleged against Rogel. Many potential jurors’ voiced concern about sitting
on a case involving criminal street gang allegations and several were excused and
replaced on this basis. Part way through the process, the court asked a group of
replacement jurors if there was anything they wanted to say. When it came to the juror
sitting in seat No. 15, the court asked, “Anything I need to know about you?” The juror
responded, “Yes. I had a 19-year-old nephew in 2002 and he was – the person that killed
him was a member of Anahiem Underhill street gang.” The court asked the juror if he
would be a “good juror in this case,” and the juror responded that he could “see both
sides.” Although the juror admitted feeling resentment at the loss of his nephew, he told
the court he could be a fair and impartial juror in this case.
              A short time later, after an unreported sidebar discussion, the court excused
three jurors, including the juror seated in position No. 15, and continued with voir dire.
The following day, defense counsel moved for a mistrial. After a brief discussion the
court denied the motion, subject to case law either party might present in the future.

                                              17
              The following morning, defense counsel raised the issue again. On this
occasion, counsel conceded he should have asked the court to strike the entire venire and
repeat voir dire. In the alternative, counsel asked the court to admonish the jurors that
statements given by prospective jurors during voir dire are not evidence. The court
denied Rogel’s mistrial motion, but gave the admonishment requested by the defense.
              The denial of a motion for mistrial is reviewed under the abuse of
discretion standard, and should be granted only when a party’s chances of receiving a fair
trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) The
denial of a motion to dismiss an entire jury panel is also reviewed under the abuse of
discretion standard. (People v. Martinez (1991) 228 Cal.App.3d. 1456, 1466-1467.)
              The court here found Rogel was not unduly prejudiced by the juror’s
revelation, and Rogel has failed to show his chance of receiving a fair trial was
irreparably damaged. As noted, a number of jurors voiced concern about sitting on a case
involving gangs. The one juror with personal experience with gangs was excused, and
the jury court admonished, “Statements given by prospective jurors during jury selection
also is not evidence.” In our view, the court correctly denied defendant’s mistrial motion
and properly limited the definition of evidence to facts adduced during trial.
              b. Butterfly Knife and Shotgun Evidence
              Prior to trial, Rogel moved under Evidence Code section 352 to exclude
evidence he possessed a butterfly knife in July 2010 and jointly possessed a shotgun in
December 2009. The court denied Rogel’s motion, concluding evidence of his prior
contacts with law enforcement tended to prove his “gang affiliation, which goes directly
to the allegation that the defendant committed the present crimes for the benefit of, in
association with, or at the direction of [Underhill].” The court also found evidence of
these two weapons possession incidents would not be unduly prejudicial.
              Rogel claims the court abused its discretion by admitting evidence of these
two weapons possession incidents. We disagree.

                                             18
               “The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) This “permits the trial judge to
strike a careful balance between the probative value of the evidence and the danger of
prejudice, confusion and undue time consumption,” and “requires that the danger of these
evils substantially outweighs the probative value of the evidence.” (People v. Lavergne
(1971) 4 Cal.3d 735, 744; see also People v. Tran (2011) 51 Cal.4th 1040, 1047.) “A
trial court’s exercise of discretion in admitting or excluding . . . will not be disturbed
except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner . . . .” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
              The court here carefully weighed the evidentiary value of Rogel’s history
with weapons and his association with Underhilll against its potential for undue
prejudice. Evidence Rogel twice possessed weapons in Underhill’s claimed territory,
once while he was in the company of other Underhilll gang members, was relevant to the
gang enhancement allegations and not any more prejudicial than the facts of the
underlying crimes. So the court made a reasoned decision to admit this evidence, and
Rogel fails to establish that decision was arbitrary, capricious, or patently absurd.
              Additionally, the court gave CALCRIM No. 1403, which explained the jury
could only consider the gang evidence for the limited purpose of determining whether the
defendant acted with the intent required to prove the enhancement and his motive, or the
credibility of a witness. We presume the jurors followed this limiting instruction and
considered evidence of Rogel’s prior police contacts and weapons possessions solely to
prove his intent and motive with respect to the gang allegations. (See People v. Yoder
(1979) 100 Cal.App.3d 333, 338.) In light of this admonishment and on this record, any
claimed error could not have been prejudicial. (Evid. Code, § 353 [miscarriage of justice
required to set aside a verdict or finding based on improperly admitted evidence].)

                                              19
3. Prosecutorial Misconduct
              “When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent conviction a
denial of due process, the federal Constitution is violated. Prosecutorial misconduct that
falls short of rendering the trial fundamentally unfair may still constitute misconduct
under state law if it involves the use of deceptive or reprehensible methods to persuade
the trial court or the jury. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 462.)
              “‘In order to preserve a claim of misconduct, a defendant must make a
timely objection and request an admonition; only if an admonition would not have cured
the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of
misconduct is based on the prosecutor’s comments before the jury, “‘the question is
whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.’” [Citations.]” (People v. Friend
(2009) 47 Cal.4th 1, 29, 97.)
              a. Probation Status
              Rogel claims prosecutorial misconduct concerning evidence of his
probation status. During a discussion between court and counsel concerning Rogel’s
prior police contacts, the court learned Brown discovered the butterfly knife during a
probation search. Later, when the court ruled admissible the prior-contacts evidence, the
court also observed, “the fact [Rogel] was on probation at that time is unnecessary to the
officer’s opinion and could in itself be more prejudicial than probative.”
              Still later, during the direct examination of Brown, the prosecutor made a
reference to the July 2010 butterfly knife incident and engaged Brown in the following
colloquy: “[Prosecutor] You spoke of the fact that there was an occasion at which you
were at Mr. Rogel’s residence? [¶] . . . [¶] [Brown] He was on probation. We were there
conducting a probation check and his sister allowed us in the house.” There was no
objection and Brown testified about the probation search.

                                             20
              A few questions later, the prosecutor asked, “Was there also a time in
which Mr. Rogel was contacted on July 15, 2010?” Brown said yes. The prosecutor
asked, “During that occasion was Mr. Rogel contacted by law enforcement?” Brown
answered, “I believe he was contacted by probation officers who were walking in the
neighborhood.” Defense counsel objected on Evidence Code section 352 grounds.
              The court declared a recess, and conducted a hearing outside the presence
of the jury. At the conclusion of this hearing, the court told the prosecutor, “I would
caution you not to ask any question or elicit any answer that indentifies [Rogel] as a
probationer because it is irrelevant and it is highly prejudicial to the defendant . . . .”
There were no further references to Rogel’s probationary status.
              Because defense counsel never objected on prosecutorial misconduct
grounds, Rogel has forfeited the issue on appeal. Notwithstanding that forfeiture, we find
no misconduct. Nothing suggests the prosecutor framed his questions to impermissibly
elicit information about Rogel’s probationary status. In fact, Brown’s answers were
nonresponsive to the prosecutor’s questions. Further, the prosecutor heeded the court’s
admonition and there were no further references to Rogel’s probationary status during the
remainder of the trial. Thus, we see no prosecutorial misconduct on this point.
              b. Chucky Moniker
              Rogel also claims prosecutorial misconduct in connection with Brown’s
remarks about his gang moniker - Chucky. After eliciting Brown’s testimony about the
derivation of gang monikers, the prosecutor asked, “Do you know anything regarding Mr.
Rogel’s association with the word Chucky?” Brown answered, “I’ve seen it at his house
graffiti’d. I’ve seen it on walls. But other than that, I’m not sure why.” The prosecutor
then asked, “Do you know what Chucky stems from?” Brown responded, “I know
there’s a little doll, several horror films called Chucky.” Defense counsel objected on
relevance and speculation grounds. The court sustained the relevance objection and
promptly admonished the jury to disregard that part of Brown’s testimony.

                                               21
              Nevertheless, Rogel complains, “The gang expert’s suggestion at the behest
of the prosecutor that appellant was named after a knife-wielding serial killer was highly
prejudicial.” In essence, Rogel disregards the presumption the jury followed the court’s
admonition. (People v. Homick (2012) 55 Cal.4th 816, 866-867.) We see nothing in the
record that supports Rogel’s belief the jury disregarded the court’s direction and drew
wildly negative inferences from Brown’s brief and speculative horror film reference.
Again, we perceive no prosecutorial misconduct on this issue.
              c. Mexican Mafia
              Rogel next claims prosecutorial misconduct in Brown’s Mexican Mafia
testimony. Recall, Brown said 13 represents the 13th letter of the alphabet, M, and the
letter M is associated with “the Mexican Mafia, which most criminal street gangs, the
Hispanic ones, fall under.” The prosecutor asked, “Is the number 13 often associated
with Southern California Hispanic street gangs?” Brown answered, “That’s correct.”
When the prosecutor asked if the number 13 also showed allegiance to something, Brown
responded, “Yes. It shows an allegiance to the Mexican Mafia or Sureños.” Defense
counsel objected on relevance and non-responsive grounds. The court sustained the
relevance objection, struck Brown’s answer, and instructed the jury to disregard it.
              Rogel summarily asserts the trial court’s order sustaining defense counsel’s
objection and striking Brown’s second reference to the Mexican Mafia did not cure the
prejudice caused by mentioning it. Because this assertion is not supported by authority,
reasoned argument, or citations to the record, we need not consider it. (People v. Islas,
supra, 210 Cal.App.4th at p. 128.) Even so, it appears the prosecutor’s questions sought
to elicit Brown’s expert testimony linking the number 13 to southern California street
gangs like Underhill. Nothing suggests the prosecutor intentionally elicited Brown’s two
concededly irrelevant and prejudicial references to the Mexican Mafia. Under these
circumstances, we conclude there was no prosecutorial misconduct in connection with
Brown’s brief references to the Mexican Mafia,

                                            22
              d. Closing Argument
              Finally, Rogel claims prosecutorial misconduct occurred during closing
argument, when the prosecutor projected a slide which depicted a chart entitled,
“Definitions: ‘Criminal Street Gang’ – PC 186.22(f).” On one side, the chart listed four
elements in the definition of a criminal street gang under Penal Code section 186.22,
subdivision (e). On the other side of the chart, there was a highly inflammatory and
irrelevant photograph of five shirtless, Hispanic young men with shaved heads. The
group of five was kneeling behind some graffiti and displaying gang hand signs.
Underneath this picture were two cartoon drawings, one of a gun shooting a bullet and
the other of a hand holding pills, a small baggie of methamphetamine, and a marijuana
cigarette. Beneath the cartoon drawings was the word “18th St.” and beneath that there
were two black boxes with the words, “Member” over the word “CONVICTED.”
              As he projected the slide, the prosecutor told the jury the chart was not
related to this case, but simply demonstrative of the facts the People had to prove in order
to establish Underhill was a criminal street gang under Penal Code section 186.22,
subdivision (e). Defense counsel objected on Evidence Code section 352 grounds “to the
slide and the photographs in it.” The court immediately directed the prosecutor to take
down the slide and called for a chambers conference.
              In chambers, the court advised the prosecutor that displaying the chart
could constitute prosecutorial misconduct because it might inflame the passions of the
jury. The court marked the slide as an exhibit for appellate review, and precluded the
prosecutor from projecting the slide during the remainder of closing argument. Back in
the courtroom, the court admonished the jury, “the display [the prosecutor] had up for a
matter of seconds, as far as I could tell, was inappropriate to demonstrate a point that he
was making in his argument. I am directing you to disregard the photograph and the two
drawings. They do not appear to be any evidence in this particular case. And I don’t
believe that you should be making any inference from those items.”

                                             23
              Again, Rogel did not object on grounds of prosecutorial misconduct, and so
has forfeited this claim. Still, nothing in the record demonstrates the brief projection of
the slide rendered Rogel’s trial “fundamentally unfair,” particularly in light of the court’s
prompt corrective actions, nor is it reasonably probable he would have obtained a more
favorable result without the slide. (People v. Panah, supra, 35 Cal.4th at p. 462.)
4. Cumulative Prejudice
              Rogel claims the cumulative effect of these alleged instances of
prosecutorial misconduct deprived him of his state and federal Constitutional right to a
fair trial. We have already concluded Rogel’s claimed instances of prosecutorial
misconduct were either not misconduct or not prejudicial. In any event, Rogel fails to
demonstrate any of the purported errors, whether considered individually or collectively,
deprived him of a fair trial, and the evidence of his guilt is overwhelming. Thus, we
reject his cumulative error claim. (See People v. Harris (2013) 57 Cal.4th 804, 859.)
                                      DISPOSITION
              The gang enhancement findings on counts 1, 2, and 3 are reversed. The
judgment is affirmed in all other respects, and the matter is remanded for resentencing.




                                                  THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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