People v. Gutierrez CA5 ( 2020 )

Filed 10/19/20 P. v. Gutierrez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078464
Plaintiff and Respondent,
(Super. Ct. No. BF171041A)
v.
MIGUEL GUTIERREZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally
Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
Defendant Miguel Gutierrez stands convicted of false imprisonment and
possession of a firearm by a felon. On appeal, he contends (1) the evidence was
insufficient for the jury to find that he possessed a firearm for the benefit of a gang, and
(2) defense counsel was ineffective for conceding that he possessed a firearm for the
benefit of a gang. We affirm.
PROCEDURAL SUMMARY
On April 12, 2018,1 the Kern County District Attorney charged defendant with
attempted robbery (Pen. Code, §§ 664, 212.5, subd. (c);2 count 1), kidnapping (§ 207,
subd. (a); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3),
and active participation in a criminal street gang (§ 186.22, subd. (a); count 4). As to
counts 1, 2, and 3, the information alleged that defendant committed the offenses for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to counts 1 and 2, the
information alleged that defendant was a principal in the offenses and that at least one
principal personally used a firearm (§ 12022.53, subds. (b), (e)(1)). As to counts 3 and 4,
the information alleged that defendant personally used a firearm during the commission
of the offenses (§ 12022.5, subd. (a)).
On September 14, the jury found defendant not guilty on counts 1 and 4. On
count 2, the jury found defendant not guilty of kidnapping but guilty of the lesser
included offense of false imprisonment (§§ 236, 237, subd. (a)). As to count 2, the jury
found true that defendant personally used a firearm in the commission of the offense but
found not true that he committed the crime for the benefit of a criminal street gang. The
jury found defendant guilty on count 3 and found true that he committed the offense for
the benefit of a criminal street gang and personally used a firearm in the commission of
the offense.
1 All further dates refer to the year 2018 unless otherwise stated.
2 All further statutory references are to the Penal Code.
2.
On November 7, the court sentenced defendant to a total term of 13 years in prison
as follows: on count 2, three years, plus a consecutive 10-year firearm enhancement; and
on count 3, three years, plus a consecutive four-year gang enhancement, both stayed
pursuant to section 654. The trial court struck the firearm enhancement on count 3.
Defendant filed a notice of appeal on November 19.
FACTUAL SUMMARY
I. Prosecutor’s Case
Lopez’s and the Officers’ Accounts
José Lopez met Stephanie Quiroz through social media on January 22. That day,
they met to smoke at “the Bluffs” in Bakersfield. The following day, on January 23,
while Lopez was at home in Wasco, he and Quiroz messaged about “hang[ing] out” and
smoking again. Quiroz asked Lopez to pick her up and Lopez agreed. Between roughly
9:00 p.m. and 11:00 p.m., Lopez drank 10 to twelve 12-ounce beers and smoked a gram
of marijuana. During that time, Lopez drove from his home in Wasco to a fast food
restaurant on the east side of Bakersfield to use free wireless internet because his cell
phone did not have service. At about 10:00 p.m. or 11:00 p.m., Lopez messaged Quiroz
again from his vehicle outside the fast food restaurant to confirm the location that he
would pick her up.
When he arrived to pick Quiroz up at around 11:00 p.m. or midnight, he honked
his horn and waited for her to come to the vehicle. However, when she came to the
vehicle, she was not alone as he had expected. After she opened the passenger door of
the two-door vehicle, defendant and Selvestre Ortega—neither of whom Lopez knew—
“rushed into the backseat.” Lopez asked Quiroz who those two men were. She told him
they were her friends and they were all going to smoke together, and she got into the
vehicle. Lopez said he was not comfortable with the men being in his vehicle. In
response, defendant, who sat in the rear passenger seat, put a gun to Lopez’s head and
told him “[t]o drive off on East Side Bakers.” Defendant then gave Lopez directions and
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Lopez drove. Lopez testified that he “felt like … [he] had to do it” because defendant
had a gun to his head. Lopez did not know what defendant meant when he said “drive off
on East Side Bakers,” but he believed that East Side Bakers was a gang. Lopez testified
that he was not affiliated with a gang.
As Lopez drove, Quiroz asked him what kind of shoes he was wearing. Based on
that question, Lopez believed that Quiroz, defendant, and Ortega were going to rob him.
Meanwhile, at roughly 1:00 a.m., Kern County Sheriff’s Sergeant Adrian Olmos
conducted a traffic stop near Heritage Bible Church. California Highway Patrol Officer
José Bravo and another highway patrol officer assisted with the stop.
Back in the vehicle, defendant continued to hold the gun to Lopez’s head and
direct him as he drove south, in the direction of Heritage Bible Church. As Lopez drove,
he saw the law enforcement vehicles by the church. With his right hand, Lopez grabbed
the barrel of defendant’s gun to move it away from his head. With his left hand on the
steering wheel, Lopez made a U-turn and attempted to drive toward the officers for help.
When Lopez slowed down to make the U-turn, Quiroz jumped out of the vehicle.
As Olmos stood by his patrol vehicle writing a statement of his observations, he
“heard a loud vehicle like it was revving its engine” coming from the west. A short while
later, he heard the loud engine again and saw Lopez’s vehicle about 20 to 40 feet away
and coming directly toward him very quickly. As Lopez drove toward the officers, he
lost control of the vehicle. Olmos pressed himself against his patrol vehicle and the
vehicle drove past him, missing him by only several feet. The vehicle then made a turn,
continued toward the Heritage Bible Church, and collided into the church’s northwestern
building.
Defendant and Ortega immediately exited the vehicle through the passenger door
and fled. Defendant ran westbound, across the street, toward Heritage Park. Olmos
followed in his vehicle. As Olmos closed the distance, defendant “laid down in a prone
position … [with] his arms out as if he was giving up.” Olmos then arrested him. As
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Bravo approached the vehicle, Ortega ran north and jumped over a fence that was topped
with barbed wire. As Bravo continued toward the vehicle, Lopez exited through the
driver side door and “yell[ed] ‘[t]hey have a gun.’ ” Bravo commanded Lopez to get on
the ground and Lopez complied. He did not try to run.
After detaining Lopez, Bravo searched the vehicle and found a .30-.30 rifle (the
rifle) in the front passenger area. When Olmos searched defendant, he found a cloth
pouch in his right front pocket containing 12 live rounds of .30-.30 ammunition.
Lopez explained to the officers that Quiroz “ ‘set [him] up’ ” and he was not trying
to hurt Olmos. He offered to show officers his text message conversation with Quiroz.
Defendant’s Account
Kern County Sheriff’s Deputy Luis Almanza interviewed defendant in the parking
lot of Heritage Bible Church while defendant was detained in the back seat of a patrol
vehicle and again at Kern Medical Center. The interview conducted at Kern Medical
Center was recorded and was played for the jury.
Defendant told Almanza that he was homeless and stayed at his friend’s house the
evening of January 22. The following day, defendant stayed at his friend’s house all day
until Lopez picked him up at about 1:30 a.m. on January 24. Before Lopez picked him
up, they had met once before at a party. When defendant got into the vehicle with Lopez,
he told Lopez he was “ ‘just tryin’ to get home’ ” to his sister’s house. While defendant
was in Lopez’s back seat, Lopez began “disrespecting” him and the two argued. As the
vehicle approached Olmos and the California Highway Patrol officers, Lopez made a U-
turn, drove toward the officers, and said, “ ‘We’re gonna die together. F*** it.’ ” Ortega
“jumped in the front and … tried to turn [the steering wheel]” away from the officers.
Once the vehicle crashed, defendant exited the vehicle through the passenger door and
ran.
Defendant told Almanza that the rifle was a sawed-off .30-30 that was lent to him
by a “homie [who] don’t bang ….” He had seen the rifle before and so he asked his
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“homie” if he could borrow the rifle for “protection” because his “whole neighborhood
[had] turned on [him].” Along with the gun, defendant also received a black pouch of
ammunition but he did not know how many rounds it contained.
Ortega’s Account
Ortega testified upon grant of immunity. He testified that he knew defendant
because defendant dated his sister. He knew Quiroz because she dated his “homie,” and
she had also dated defendant. Ortega had seen Lopez approximately five times at parties
before but did not know him.
Ortega was in Lopez’s vehicle with Quiroz and defendant when Lopez crashed.
Quiroz, defendant, and Ortega had text messaged each other earlier in the day. Ortega
told Quiroz that he wanted “ ‘a ride to the smoke shop’ ” and Quiroz responded that she
was with someone who would drive them to the smoke shop. Roughly 20 or 30 minutes
later, at about 11:00 p.m. or midnight, Ortega and defendant walked out of a house to the
vehicle, Quiroz exited the vehicle, Ortega and defendant got into the back seat, and
Quiroz got back into the front seat. Ortega then asked Lopez to take them to the smoke
shop. Lopez initially refused because he already had marijuana. Ortega told Lopez that
he wanted marijuana for later and Lopez agreed to drive them to the smoke shop. No one
in the vehicle gave Lopez directions because he already knew how to get to the smoke
shop. After Lopez had driven for several minutes, defendant removed the rifle that he
had “stuffed … down his left pant leg.” Lopez saw the rifle, but defendant did not point
it at him.
No one in the vehicle planned to rob Lopez and at no point did Ortega, defendant,
or Quiroz attempt to rob him. However, during the drive, Quiroz asked Lopez, “
‘[W]here my shoes at?’ ” An argument broke out between Quiroz and Lopez over the
shoes. Quiroz told Lopez the shoes were expensive, and Lopez said he did not know
where they were. Based on the conversation, Ortega understood that the shoes belonged
to Quiroz. Defendant told Lopez, “ ‘Don’t talk to her like that. She’s a girl with you,
6.
boo.’ ” Although defendant appeared angry because of how Lopez spoke to Quiroz, he
did not point the rifle at Lopez. The argument concluded before Ortega saw the law
enforcement vehicles.
When Lopez began driving toward the officers, defendant did not have the rifle
pointed toward him and Lopez had not grabbed the barrel of the rifle. Neither Ortega nor
defendant attempted to grab the steering wheel. Once Lopez crashed, defendant moved
the rifle so he could exit the back seat. Defendant exited through the passenger door and
then Ortega exited through the same door. When Ortega exited, the rifle was in the back
seat.
Gang Evidence
Kern County Sheriff’s Deputy Adam Tinoco was a member of the Gang Unit. He
testified that the East Side Bakers gang was a primarily Hispanic southerner gang in
Bakersfield, affiliated with the Mexican Mafia prison gang. The territory claimed by the
East Side Bakers included the area where Lopez picked up Quiroz, Ortega, and
defendant, and the Heritage Bible Church where the crash took place. Illegal possession
of a firearm and assault with a deadly weapon were among the primary activities of the
East Side Bakers gang.
Tinoco testified that possession of firearms is important to gang members
generally because they “can be used [for] offensive and defensive purposes such as …
use [of] a firearm to … commit a robbery, … a carjacking, [or] … a[n] assault with a
deadly weapon.” Gang members also use weapons to protect themselves—“[i]f [gang
members] are out on the streets and a rival gang member comes and tries to assault
[them], [they] can use that firearm [for] a defensive purpose.”
During defendant’s interview with Almanza, defendant acknowledged that the
East Side Bakers gang was a Sureño gang. He told Almanza that he was an “unactive”
East Side Bakers gang member but not a gang “drop out.” When defendant was an active
gang member, he went by the nickname “Temper.” Defendant further told Almanza that
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in jail he would be housed with the general population and not in protective custody.
Almanza and Tinoco both testified that gang dropouts are typically booked into
protective custody so they are protected from attacks by active gang members. But active
gang members typically request booking in general population if they are on good terms
with the gang.
Defendant had the words “Evil Side” tattooed above his eyebrows and three dots
tattooed to the left of his left eye. On his right wrist, defendant had tattoos of the letters
“ESP” and the name “Renato.” On his left wrist, defendant had tattoos of the letters
“KC” and “MOB” and three dots. On his right arm, defendant had a tattoo of praying
hands and a rosary with a cross. The letters “ES” were tattooed on the cross. On his left
arm, defendant had a tattoo that spelled out “Gutierrez” and a street sign that said “East
Side.” Tinoco testified that the three-dot tattoo displayed both on defendant’s left wrist
and near his left eye was a traditional southern Hispanic gang tattoo. Similarly, the “Evil
Side” tattoo above defendant’s eyebrows and the “ESB” tattoo on his right wrist were
related to the East Side Bakers gang. The “KC” tattoo near defendant’s left wrist
indicated that he “represent[ed] for Kern County.”
Kern County Sheriff’s Homicide Detective Daniel Perez searched the Facebook
profiles belonging to defendant, Ortega, and Lopez. On defendant’s Facebook page,
Perez found multiple photographs of defendant “throwing up … a gang sign.” In at least
two of those photographs, defendant was holding a firearm that appeared similar to the
rifle. One of those two photographs bore the caption “East Pride.” In another of the
photographs, defendant had a firearm tucked into the waistband of his pants. On Ortega’s
Facebook page, Perez found photographs of defendant and Ortega displaying gang signs
and a photograph of defendant or a man who looked like defendant displaying a gang
sign and standing with Quiroz. Tinoco testified that the hand gestures that defendant
displayed in the photographs were gang signs associated with the East Side Bakers gang.
8.
In light of the evidence admitted, Tinoco opined that defendant was an active East Side
Bakers gang member on January 24.
When Ortega was asked about defendant’s gang membership, he initially testified
that defendant was not a gang member and had never told Ortega that he was a gang
member, but Ortega eventually acknowledged that defendant was “a member of East
Side.” Ortega denied being a gang member himself but acknowledged that he “h[u]ng
out” with East Side Bakers gang members. Ortega acknowledged that he held a gun and
made hand signs for East Side Bakers in photographs on his Facebook page. But he
denied knowing the meaning of the hand gestures that defendant made in the photographs
they posed for together.
Perez testified that defendant made calls from jail. In one call, defendant twice
told an unidentified man to “ease up.” Tinoco testified that the phonetic transcription of
“ease up” was an error: “So the term ease up is not e-a-s-e. Ease up is for the letter E.”
Tinoco testified, “When an East Side Baker gang member says ease up, especially if he is
in custody at that time, … he is showing that even though he is considered down and out,
… he still represents as being his E still being up, that he still represents for the gang.”
In response to a hypothetical question reflecting the facts of this case, Tinoco
opined that the crimes were committed in association with and for the benefit of the East
Side Bakers gang because two gang members came together to commit a robbery, while
one possessed a firearm and promoted the gang by saying “East Side Bakers.” Tinoco
opined that possession of a firearm was a primary activity of the East Side Bakers.
DNA Evidence
DNA samples were taken from the grip, trigger, housing group, bolt, front grip
stock, and barrel of the rifle. “When compared to [defendant’s] DNA, a match between
the DNA from the grip of the rifle was 44 trillion times more likely to belong to
[defendant] than a random person of Hispanic descent.” “When compared to
[defendant’s] DNA, a match between the DNA from the bolt handle of the rifle was
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2.4 quadrillion times more likely to belong to [defendant] than a random person of
Hispanic descent.” “When compared to [defendant’s] DNA, a match between the DNA
from the trigger of the rifle was 110 septillion times more likely to belong to [defendant]
than a random person of Hispanic descent.” “When compared to [defendant’s] DNA, a
match between the DNA located on the [front grip] stock was 610 quadrillion times more
likely to belong to [defendant] than a random person of Hispanic descent.” “When
compared to … Lopez’s DNA, a match between the DNA located on the [front grip]
stock was 110,000 times more likely to belong to … Lopez than a random person of
Hispanic descent.”
DISCUSSION
I. Sufficiency of the Evidence
Defendant first contends that the evidence presented in support of the gang
allegation on count 3, possession of a firearm by a felon, was constitutionally insufficient
to sustain the true finding. Specifically, defendant argues that the evidence was
insufficient to show either that he possessed the rifle (1) in association with or to benefit
the East Side Bakers gang or (2) with the intent to promote, further, or assist criminal
conduct by East Side Bakers gang members. The People disagree. We conclude the true
finding on the gang allegation on count 3 was supported by sufficient evidence.
A. Standard of Review
“In reviewing a challenge to the sufficiency of the evidence under the due process
clause of the Fourteenth Amendment to the United States Constitution and/or the due
process clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could have found the [enhancement true] beyond a
reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158, 1212; accord People v.
Albillar (2010) 51 Cal.4th 47, 59–60 (Albillar) [the same standard applies when a
10.
defendant challenges the sufficiency of the evidence to support an enhancement].) “We
presume every fact in support of the judgment the trier of fact could have reasonably
deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier
of fact’s findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.” (Albillar, at
p. 60.) It is well settled that “ ‘[a] reversal for insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’ ” the jury’s verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126,
142.)
B. Relevant Law
The gang enhancement under section 186.22, subdivision (b)(2) punishes gang-
related crimes that are committed with the specific intent to aid crimes by gang members.
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.) Among other things, a prosecutor
must prove these two prongs beyond a reasonable doubt: (1) that the underlying crime
was “gang-related” because the defendant committed it “for the benefit of, at the
direction of, or in association with any criminal street gang,” and (2) that he committed
the crime “with the specific intent to promote, further, or assist in any criminal conduct
by gang members.” (§ 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at p. 59.)
Expert opinion that particular criminal conduct benefits a gang can be sufficient to
support both prongs of a gang enhancement. (People v. Vang (2011) 52 Cal.4th 1038,
1048; see Albillar, supra, 51 Cal.4th at p. 63 [“[e]xpert opinion that particular criminal
conduct benefited a gang … can be sufficient to raise the inference that the conduct was
‘committed for the benefit of … a[] criminal street gang’ within the meaning of
section 186.22[, subdivision] (b)(1)”].) But, such expert testimony must be rooted in fact
and reasonable inferences drawn therefrom; “ ‘purely conclusory and factually
unsupported opinions’ … [are] insufficient to support a gang enhancement.” (People v.
Perez (2017) 18 Cal.App.5th 598, 608, 610 (Perez); accord People v. Gardeley (1996) 14
11.
Cal.4th 605, 618, disapproved on other ground in People v. Sanchez (2016) 63 Cal.4th
665, 683.)
Because “[n]ot every crime committed by gang members is related to a gang”
(Albillar, supra, 51 Cal.4th at pp. 59–60), an expert’s opinion that a crime was committed
to benefit a gang must rest upon more than the assumed occurrence of the charged
offense, evidence that a defendant is a gang member, and generalizations about gang
culture or habits (Perez, supra, 18 Cal.App.5th at pp. 612–613; People v. Rios (2013) 222
Cal.App.4th 542, 573–574 (Rios); People v. Ochoa (2009) 179 Cal.App.4th 650, 657
(Ochoa)). The specific circumstances of the offense must support the expert’s inferences
that the conduct was committed to benefit the gang.3 (See, e.g., Perez, at pp. 612–613
[gang expert testimony was insufficient to support a gang enhancement absent evidence
that gang signs were used or gang affiliations declared, that the offense occurred in gang
territory, or that the victims were rival gang members or saw gang tattoos or clothing];
Rios, at p. 574 [same]; Ochoa, at pp. 662–663 [same].) For instance, an expert opinion is
sufficient to support a gang enhancement where there is evidence that the defendant
committed a charged crime with known gang members while displaying gang
paraphernalia and tattoos. (Albillar, at pp. 62, 68.) On the other hand, an expert opinion
that a charged crime by a gang member acting alone was for the benefit of the gang
because the defendant is a gang member and any violent crime enhances the gang’s
reputation is insufficient to support a gang enhancement. (Perez, at p. 610.)
3 To be clear, a gang expert cannot opine directly on a particular defendant’s intent
or whether he committed a crime for a gang purpose. (People v. Vang, supra, 52 Cal.4th
at p. 1049.) Rather, the expert is permitted only to give an opinion on a hypothetical
subject’s intent and whether a hypothetical crime was committed for a gang purpose.
(Ibid.)
12.
C. Analysis
As a threshold matter, defendant contends that “in finding [defendant] not guilty
of count 4, active participation in a criminal street gang, and making a not true finding on
the gang enhancement appended to the false imprisonment charge in count 2, the jury
rejected the sufficiency of the gang evidence presented.” Defendant continues, “count 3
could not have been committed with the intent required for the gang enhancement if
count 2, which occurred at the same time, place, and under the same circumstances, with
the same firearm, was not committed with the intent required for the gang enhancement,
and active participation in a criminal street gang (count 4) did not exist.” Based on the
jury’s verdict on count 4 and finding on the gang allegation on count 2, defendant
contends that the jury must have made factual findings that preclude a true finding on the
gang allegation on count 3.
Even assuming defendant is correct that a not guilty verdict on count 4 and a not
true finding on the gang allegation on count 2 are necessarily inconsistent with a true
finding on the gang allegation on count 3, such inconsistency would not invalidate the
verdict because “inherently inconsistent verdicts are allowed to stand.” (People v. Avila
(2006) 38 Cal.4th 491, 600 (Avila); People v. Lewis (2001) 25 Cal.4th 610, 656.)
Whether the evidence is sufficient to support a specific count is evaluated
“independent[ly] of the jury’s determination that evidence on another count was
insufficient.” (United States v. Powell (1984) 469 U.S. 57, 67 (Powell); see People v.
Covarrubias (2016) 1 Cal.5th 838, 890–891.) For that reason, we reject defendant’s
argument that the evidence was necessarily insufficient to support the gang enhancement
on count 3 because the gang allegation on count 2 was found not true and he was found
not guilty on count 4.
1. Prong One: Gang-Related Crime
Next, defendant contends that the evidence did not support a finding that he
possessed the rifle for the benefit of or in association with a gang because Tinoco’s
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opinion that the crime was committed for the benefit of the gang was based on
unreasonable inferences and conjecture. We disagree.
Defendant argues that Tinoco unreasonably drew the inference that the phrase
“ ‘drive off on East Side Bakers’ ” was “a gang proclamation for purposes of his ‘for-the-
benefit’ analysis.” Defendant suggests that Lopez did not know the meaning of the phase
and it therefore could have been a reference to “a street[ ] or the name and/or location of
the smoke shop.”
To begin, although Lopez testified he did not know what “ ‘drive off on East Side
Bakers’ ” meant, he also testified he thought East Side Bakers was a gang. Furthermore,
defendant pointed a gun at his head, and he understood defendant to be commanding him
to drive. However, what Lopez knew or understood was separate from Tinoco’s opinion.
Tinoco, who was an expert on gang culture, opined that the statement “promot[ed] the
gang” and “help[ed] with [his] opinion … that [the underlying crime was committed for]
the benefit of and in association with the gang.” Tinoco’s opinion that mentioning the
gang’s name while committing a crime suggested that the crime was to benefit a gang
was not an unreasonable inference from the evidence because calling out a gang’s name
during an offense tends to suggest that the offense was gang-related. (Perez, supra, 18
Cal.App.5th at pp. 612–613 [considering whether the defendant “ ‘called out a gang
name’ ” in determining whether substantial evidence supported the gang expert’s opinion
that a crime was committed to benefit a gang]; Rios, supra, 222 Cal.App.4th at p. 574
[same]; Ochoa, supra, 179 Cal.App.4th at p. 662 [same].)
Second, defendant relies on In re Frank S. (2006) 141 Cal.App.4th 1192(Frank S.) for the proposition that the evidence was sufficient only to show that he
possessed the rifle for self-defense, not that he possessed the rifle for the benefit of the
gang. (Id. at p. 1195.) Defendant’s reliance on Frank S. is misplaced.
In Frank S., the minor was arrested with a knife concealed on his person and told
law enforcement that he had the weapon for self-defense from Southerners who had
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jumped him two days earlier. (Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199.) The
minor denied being a Norteño gang member but acknowledged he had Norteño friends.
(Id. at p. 1195.) The gang expert opined that the minor possessed the knife to protect
himself but also opined that his possession of the knife benefitted the Norteños because it
provided them with protection should they be assaulted. (Ibid.) Based on that opinion,
the trial court found the gang allegation true. (Ibid.) The court of appeal reversed for
lack of substantial evidence supporting both the gang-related and specific intent prongs of
the gang allegation. (Id. at pp. 1198–1199.) It explained, as to the first prong, “nothing
besides weak inferences and hypotheticals show[ed] the minor had a gang-related
purpose for the knife.” (Ibid.) As to the second prong, the court continued, 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.” (Id. at p. 1199.) Evidence that the minor carried the knife to defend himself
from Southerners did not prove that he had the specific intent to promote, further, or
assist in criminal conduct by gang members. (Ibid.)
Here, in contrast, evidence was presented that defendant was an East Side Bakers
gang member, in East Side Bakers gang territory, and with another East Side Baker gang
member who knew that defendant possessed the rifle. Evidence was also presented that
defendant drew the rifle, pointed it at Lopez, and mentioned the gang’s name. In
response to a hypothetical question mirroring the evidence,4 Tinoco opined that
4 The prosecutor posed the following hypothetical question:
“You have an active member of the East Side Bakers who tells a female associate
of the East Side Bakers that he wants to rob someone over social media. Later that same
day or earlier the next morning of the next day that female associate invites over an
acquaintance of hers who happens to be a young man from Wasco to a residential
neighborhood in East Side Baker territory, not the traditional but in the current East Side
Baker territory. When that young man from Wasco pulls up, the female associate opens
the vehicle door and let[ ]s two active members of the East Side Bakers into the vehicle.
One of them, a previously convicted felon, is armed with a firearm and pulls it out, puts it
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possession of a firearm by a person in defendant’s position would be “for the benefit of
and in association with the criminal street gang.” Tinoco testified that the East Side
Bakers gang would benefit if “two active gang members and an associate assist[ed] each
other to lure a … young man from Wasco to a location where they then get into the
vehicle and attempt to rob [him] and during the commission of the crime one of the gang
members who is in possession of a firearm, which is one of the primary activities, also
promotes the gang by saying East Side Bakers.” In response to a more limited
hypothetical, Tinoco testified that even if the East Side Bakers gang had not been
mentioned, the fact that two gang members committed one or more of the primary
activities of the gang together showed that the gang members acted in association.
The evidentiary gap present in Frank S. was simply not present in this case. Here,
the opinion that defendant possessed the rifle to benefit the gang was supported by
substantial evidence. (See People v. Miranda (2011) 192 Cal.App.4th 398, 412–413
[sufficient evidence supported the gang enhancement where the defendant was
“accompanied by fellow gang members, the crime was committed in the gang’s territory,
and the gang’s name was called out”].)
2. Prong 2: Specific Intent
Defendant also contends the evidence was insufficient to support the specific
intent prong for two reasons. First, defendant acknowledges that the specific intent prong
of a gang allegation may be satisfied with proof “that the defendant intended to and did
to the driver’s head, and tells the driver to drive on East Side Bakers. The driver does as
he is told and drives off against his will. During the drive there’s a conversation about
shoes where the female associate demands to know where her shoes are. The driver
ultimately drives towards some law enforcement parked vehicles and ends the incident.
“Do you have an opinion as to whether—let’s call it the crimes described in that
hypothetical, an attempted robbery, kidnapping, felon in possession of a firearm, are for
the benefit of or in association with the East Side Bakers, and, if you do have such an
opinion, what do you base it on?”
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commit the charged felony with known members of a gang,” because from such proof
“the jury may fairly infer that the defendant had the specific intent to promote, further, or
assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.)
But he contends that this is not such a case because the jury’s not true finding on the gang
allegation for the false imprisonment conviction necessarily implies that defendant could
not have possessed the firearm with gang-related intent at the same time that he falsely
imprisoned Lopez without gang-related intent. We disagree.
As we have explained, our determination of whether the evidence was sufficient to
support one enhancement is separate from the jury’s determination of whether the
evidence was sufficient to support another enhancement. (See Powell, supra, 469 U.S. at
p. 67; Avila, supra, 38 Cal.4th at p. 600.) Even if those verdicts were inconsistent, the
challenged verdict would stand if supported by substantial evidence. (See Powell, at
p. 67; Avila, at p. 600.) Here, as discussed, evidence was presented that defendant
possessed the rifle while he was in East Side Bakers territory with another East Side
Bakers gang member who knew that he possessed the rifle, he pointed the rifle at Lopez’s
head, and he mentioned the East Side Bakers gang. Because defendant actually used the
rifle in committing criminal activity—falsely imprisoning Lopez in an effort to force him
to take defendant, Ortega, and Quiroz to the marijuana dispensary—to benefit known
East Side Bakers gang members—defendant and Ortega—Tinoco’s opinion that
defendant possessed the rifle with the specific intent to benefit gang members was not
based on unreasonable inference or conjecture. (Albillar, supra, 51 Cal.4th at p. 68 [the
specific intent prong of a gang allegation may be satisfied with proof “that the defendant
intended to and did commit the charged felony with known members of a gang,” from
which “the jury may fairly infer that the defendant had the specific intent to promote,
further, or assist criminal conduct by those gang members”]; People v. Villalobos (2006)
145 Cal.App.4th 310, 322 [“[c]ommission of a crime in concert with known gang
members … supports the inference that the defendant acted with the specific intent to
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promote, further or assist gang members in the commission of the crime”].) Substantial
evidence supported a finding that defendant had the specific intent to benefit gang
members by possessing the rifle.
Second, defendant argues the series of photographs depicting him displaying gang
signs and firearms—including a firearm that looked similar to the rifle in this case—was
insufficient to support a finding that he possessed the rifle with the requisite intent.
Defendant characterizes the issue as the prosecutor having invited the jury to “engage in
speculation, conjecture, or surmise, and then apply circular reasoning” when he directed
the jury to photographs of defendant displaying gang signs and a firearm that looked
similar to the rifle in this case. Specifically, he contends that the prosecutor was not
permitted to invite the jury to conclude that defendant possessed the rifle for gang
purposes on the date of the offenses merely because the photographs suggested defendant
“want[ed] everyone to know that his possession of [the firearm in the photographs on a
different date was] gang-related.” Again, we disagree.
As an initial matter, the set of photographs depicting defendant holding a firearm
and flashing gang signs was not the only evidence of defendant’s specific intent to
possess the rifle to promote, further, or assist in criminal activity by gang members. Even
without those photographs, substantial evidence was presented that defendant committed
a felony with another gang member in gang territory while mentioning the gang name
and using the rifle.
Regardless, the jury could also have made multiple reasonable inferences
regarding defendant’s intent in possession of the rifle from the evidence that he had
previously possessed firearms—and specifically a rifle that looked similar to the rifle in
this case—with other gang members and while displaying gang signs. For instance, the
jury could reasonably have concluded that defendant did not obtain the rifle for self-
defense from a “homie [who] don’t bang” (i.e., a friend who was not a gang member) as
he had told officers. (See also People v. Carpenter (1999) 21 Cal.4th 1016, 1052
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[evidence the defendant possessed a gun that “might have been” the weapon used in the
crime but was not “necessarily” the weapon was relevant circumstantial evidence].)
More generally, the jury could reasonably have inferred from defendant’s posting of the
photographs that defendant and Ortega were gang members and defendant wanted people
to know that he possessed the rifle to benefit the gang. Those inferences could have
supported the jury’s conclusion that defendant possessed the rifle to promote or assist in
the commission of crimes by gang members. (See Albillar, supra, 51 Cal.4th at pp. 62–
63 [photographs depicting gang members wearing gang colors and flashing gang signs
support the inference that a crime is gang-related]; People v. Hernandez (2004) 33
Cal.4th 1040, 1049 [evidence of a defendant’s gang affiliation, such as signs and
symbols, can help prove intent in committing a crime]; People v. Prunty (2015) 62
Cal.4th 59, 83–84 (Prunty) [same].)
In short, viewed in the light most favorable to the judgment, sufficient evidence
was presented to permit the jury to have found the gang allegation true beyond a
reasonable doubt.
II. Ineffective Assistance of Counsel
In the alternative to his first claim of error, defendant contends that defense
counsel was ineffective for conceding the truth of the gang allegation on count 3. The
People argue that defense counsel’s concession was (1) not deficient performance
because it was a tactical decision to maintain credibility with the jury, and (2) not
prejudicial because he was acquitted on other counts and found guilty of a lesser offense
on count 2. We conclude defense counsel’s performance was not deficient and therefore
do not reach the question of whether prejudice resulted.
A. Additional Background
The prosecutor introduced two photographs depicting defendant displaying gang
signs and holding a firearm that appeared similar to the rifle. One of those
two photographs bore the caption “East Pride.” The prosecutor asked the jury in his
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closing argument to “note that the gun used in this case … does appear to be the same
weapon that is in a photograph that was taken from his Facebook profile where he is
holding it, where he is throwing up an E, and the words East Pride are written below it.
He apparently wants everyone to know that his possession of this weapon is gang-
related.”
Defense counsel then argued that defendant was not guilty on counts 1, 2, and 4,
but counsel conceded defendant’s guilt on count 3 and the truth of the gang allegation on
count 3. Specifically, defense counsel argued:
“So I am asking for a not guilty verdict on Count 1, on Count 2,
guilty verdict on Count 3, and the enhancement is probably there. I mean,
look at him. He’s got the—he’s holding the gun up [in the photographs].
So it’s clearly for the benefit of a criminal street gang. And a not guilty
verdict o[n] Count 4.”
B. Relevant Law
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) To
establish ineffective assistance of counsel, defendant must show (1) counsel’s
representation was deficient because it fell below an objective standard of reasonableness
under prevailing professional norms, and (2) counsel’s deficient performance was
prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687–688; Ledesma, at
pp. 216–217.) If a defendant fails to show either deficient performance or prejudice, the
ineffective assistance of counsel claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1126.)
“In determining whether counsel’s performance was deficient, a court must in
general exercise deferential scrutiny.” (Ledesma, supra, 43 Cal.3d at p. 216.) Unless a
defendant establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
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inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003)
30 Cal.4th 1166, 1211.)
“[A] defense attorney’s concession of his client’s guilt, lacking any reasonable
tactical reason to do so, can constitute ineffectiveness of counsel.” (People v. Gurule
(2002) 28 Cal.4th 557, 612; accord People v. Zimmerman (1980) 102 Cal. App.3d 647,
657.) But, where evidence against a defendant is highly incriminating, defense counsel’s
concession of the truth of an allegation to preserve credibility with the jury on other
issues is not deficient performance. (See People v. Wade (1998) 44 Cal.3d 975, 988;
People v. Mayfield (1993) 5 Cal.4th 142, 177.) Indeed, “ ‘good trial tactics often demand
complete candor with the jury, and … in light of the weight of the evidence incriminating
a defendant, an attorney may be more realistic and effective by avoiding sweeping
declarations of his or her client’s innocence.’ ” (People v. Freeman (1994) 8 Cal.4th 450,
498.)
C. Analysis
Defendant argues that defense counsel did not make a reasonable tactical choice in
conceding the truth of the gang allegation because he misunderstood its prongs and
invited the jury to do “exactly what the case law forbids: [make the] inference that a
gang member has a gun only for a gang purpose.” In furtherance of his argument,
defendant correctly notes that gang membership, criminal history, and commission of a
primary offense of the gang are each independently insufficient to sustain a gang
enhancement. (See Prunty, supra, 62 Cal.4th at p. 84; Frank S., supra, 141 Cal.App.4th
at p. 1199; Albillar, supra, 51 Cal.4th at p. 60.) However, in this case, evidence was
presented of defendant’s gang membership, criminal history, commission of a primary
offense of the gang, and additional evidence in support of the gang allegation.
For defendant to prevail, we would have to conclude that defense counsel’s
concession that the gang allegation was proved on count 3 could not have been a
reasonable tactical decision despite admission of (1) photographs of defendant holding a
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firearm that looked similar to the rifle and flashing East Side gang signs with the caption
“East Pride”; (2) Ortega’s testimony that defendant was an East Side Bakers gang
member; (3) evidence that defendant, while with another East Side Bakers gang member
who knew he had a gun, in East Side Bakers territory, pointed a gun at Lopez’s head and
said “drive off on East Side Bakers”; (4) defendant’s statement to law enforcement that
Lopez “disrespect[ed]” him in combination with Tinoco’s testimony regarding the
importance of respect in gang culture; (5) Tinoco’s testimony that possession of a firearm
was a primary activity of the East Side Bakers gang; and (6) Tinoco’s opinion that a
hypothetical person in defendant’s position would have benefitted the gang and its
members through possession of a firearm and mentioning the gang’s name while using
the firearm. We cannot do so. As we described above, that evidence led to a reasonable
inference that defendant possessed the rifle to benefit the East Side Bakers gang and with
the specific intent to promote or assist in criminal conduct by East Side Bakers gang
members. And, in fact, the evidence was very incriminating. (See Prunty, supra, 62
Cal.4th at p. 84 [evidence of a defendant’s gang membership bears on a defendant’s
intent in committing a crime]; People v. Miranda, supra, 192 Cal.App.4th at p. 413
[committing a crime with gang members, in gang territory, and while calling out the
gang’s name is evidence supporting a gang enhancement]; Ochoa, supra, 179
Cal.App.4th at pp. 662, 663, fn. 9 [calling out a gang’s name suggests a gang member is
acting for the benefit of a gang by attempting to intimidate on the gang’s behalf].) In
light of that evidence, we conclude concession of the truth of the gang allegation on
count 3 fell within the wide range of professional competence and acceptable strategic
decisions. (People v. Carter, supra, 30 Cal.4th at p. 1211.)
DISPOSITION
The judgment is affirmed.
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