P. v. Mendez

Filed 3/30/21 P. v. Mendez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MARTIN ESAI MENDEZ,
Defendant and Appellant.
B305404
(Los Angeles County
Super. Ct. No. TA146527)
APPEAL from a judgment of the Superior Court of Los
Angeles County. H. Clay Jacke, II, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Martin Esai Mendez appeals from
his conviction for first degree murder arising from the shooting
death of Daniel Infante. Firearm and gang allegations were also
found true. Defendant contends the court made prejudicial
evidentiary rulings admitting propensity evidence that violated
his due process rights. He further contends his first degree
murder conviction is not supported by substantial evidence of
premeditation and the true finding on the gang allegation also
lacks evidentiary support.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with murder (Pen.
Code, § 187, subd. (a); count 1), possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 2), and possession of an assault
weapon (§ 30605, subd. (a); count 3). Firearm use allegations
were alleged as to count 1 pursuant to section 12022.53,
subdivisions (b) through (e)(1). Gang allegations were pled as to
all three counts (§ 186.22, subd. (b)). In addition to two prison
prior allegations (§ 667.5, subd. (b)), it was also alleged defendant
had suffered a prior conviction that qualified as a serious or
violent felony within the meaning of section 667,
subdivision (a)(1) and as a strike prior (§§ 667, subds. (b)–(j),
1170.12). (Lillian Romero was alleged as a codefendant on the
assault weapon charge and as an accessory after the fact. She is
not a party to this appeal.)
Anthony S. testified he was hanging out at Cesar Chavez
Park on the morning of July 10, 2018, when his friend Daniel
Infante arrived. Mr. Infante was homeless and often stayed in
the park. Marisol Salazar, another friend of Anthony’s, was also
at the park that morning as was another mutual friend, Joel S.

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When Mr. Infante arrived, Ms. Salazar, who was living in her car
at the time, was sorting recyclable materials. Mr. Infante
remained nearby but was mainly keeping to himself.
At some point, Jocelyn M. arrived and began speaking to
Ms. Salazar. Anthony knew she was close with Ms. Salazar and
he often saw them at the park together. Jocelyn was dating
Ms. Salazar’s son. Ms. Salazar considered Jocelyn to be her
daughter-in-law. Ms. Salazar’s son was a member of defendant’s
gang, Barrio Los Padrinos. (Ms. Salazar had sustained a
criminal conviction related to her role in hiding a firearm used by
her son in a previous shooting.)
Anthony saw defendant arrive at the park in a red Camaro.
Defendant got out and approached Ms. Salazar who,
unbeknownst to Anthony, was defendant’s cousin. Ms. Salazar
chatted briefly with defendant and then she turned and pointed
at Mr. Infante.
Defendant approached Mr. Infante and asked him where he
was from. Mr. Infante said he was from nowhere, that he was a
“paisa,” meaning someone who is not a gang member.
Mr. Infante asked Ms. Salazar how she knew defendant, and
Ms. Salazar said he was her cousin. Defendant then patted down
the outside of Mr. Infante’s pants pockets, looking for weapons
and finding none. Mr. Infante sarcastically gestured toward his
groin and told defendant to grab him there.
Defendant asked Mr. Infante if he had any drugs.
Mr. Infante gave defendant some methamphetamine, and
defendant inhaled it. (The record also indicates they may have
been smoking marijuana. Anthony recalled they were drinking
beer.)

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Ms. Salazar stepped away to focus on her recyclables, and
Jocelyn joined her. As Ms. Salazar and Jocelyn were talking,
Jocelyn said Mr. Infante was still bothering her as he had been
for months and asking her out on dates. Ms. Salazar called
Mr. Infante over to her and told him to leave Jocelyn alone.
Defendant, who was within earshot, then intervened, telling
Mr. Infante to stop bothering Jocelyn. Defendant told him not to
“mess with [his] family” or they were “going to have problems.”
Anthony testified defendant seemed upset. Anthony was aware
that Mr. Infante had previously had some interactions in the
park with Jocelyn. Mr. Infante seemed unafraid and remained
disrespectful toward defendant, saying only something to the
effect that if Jocelyn did not want to talk to him that was okay.
Defendant told Mr. Infante to “get the fuck out” of the park,
“it’s our park.” Mr. Infante did not leave. Defendant pulled a
handgun from his pocket, pointed it at Mr. Infante, and then
dropped his arm back down at his side. Mr. Infante said, “If
you’re going to shoot, shoot. If you have the balls, shoot.”
Defendant again pointed his gun at Mr. Infante and shot him in
the chest.
Defendant fled the park in his car. Mr. Infante started to
walk away and then collapsed by the fence. Ms. Salazar cried out
to Joel to call 911.
Anthony testified that prior to the shooting, he felt there
were “bad vibes” so he walked away and did not see the actual
shooting. Not long after, Anthony heard the gunshot.
Jocelyn testified she did not remember the events of that
morning except that she heard an argument and then a gunshot.
She testified she had been acquainted with Mr. Infante for about
a year, during which he had made repeated sexual advances

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toward her. Before the day of the shooting, Jocelyn had told
Ms. Salazar about Mr. Infante’s advances, and Ms. Salazar had
told her to stay away from him. Jocelyn also knew Ms. Salazar
had told Mr. Infante to leave her alone. It was common
knowledge among Jocelyn’s friends and family that Mr. Infante
was “fixated on [her]” or “in love with her.”
Deputy Sheriff Carlos Feria reported to the park with his
partner in response to the 911 call. They were nearby in their
patrol car so it took them only a few minutes to arrive at the
park. They found Mr. Infante laying on the ground with a
gunshot wound to his chest. He was having difficulty breathing
and talking. Mr. Infante told Deputy Feria he had been shot by a
bald, male Hispanic who was shirtless and driving a red Camaro
with large rims. Mr. Infante said “he had ongoing issues” with
the shooter who was a member of the Barrios Los Padrinos gang.
Joel reported that, before the shooting, he had seen
Mr. Infante in an apparent argument with a bald Hispanic man
who was shirtless.
Deputy Feria’s partner broadcast the description of the
shooting suspect and the car. Within a few minutes of hearing
the broadcast, Deputy Daniel Ruiz and his partner saw defendant
driving a red Camaro not far from the park. They pulled him
over and detained him. Defendant was shirtless, wearing only
black shorts, and “sweating a lot.” The license plates for the car
were covered with paper “plates” bearing a dealership logo.
Joel was taken to the location where defendant was being
detained for a field identification. Joel identified defendant as
the man who had been arguing with Mr. Infante. At trial, Joel
testified he did not see the shooter’s face and could not identify
him.

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Paramedics arrived and took Mr. Infante to the hospital
where he died a short time later. An autopsy confirmed he died
from a gunshot wound to the chest. There was “stippling” around
the entrance wound which indicated the barrel of the gun was
within two feet of his chest when it was fired. A nine-millimeter
bullet was recovered from his body.
Several recorded jail phone calls between defendant and his
girlfriend (codefendant Romero) were admitted into evidence.
During the calls, defendant told Romero numerous times to get
rid of or sell the “big one” and the “little one” or similar phrases
believed by the investigating detectives to be references to
firearms. Defendant also repeatedly told Romero to get Kevin
Osuna or “Easy” to help her. In one call, defendant said “Easy
has the other two . . . . [¶] . . . [¶] . . . You know which two,
right? [¶] . . . [¶] . . . . The one I always keep on me; sell that
one.” Another time defendant told Romero that someone named
Flat Head “wants the one Easy has, not the one I always carry,
the other one.” They also discussed “the one” that was at
Romero’s house.
The murder weapon was never found.
Defendant’s cell phone was recovered from his car.
Photographs downloaded from that phone depicted defendant
with Kevin Osuna (Easy) in Osuna’s garage. Defendant was
holding a handgun in one of the photographs. A sign in the
garage referenced Barrio Los Padrinos.
Security video obtained from businesses located near the
park showed portions of the incident, including a red Camaro
entering and leaving the parking lot, a man wearing black shorts
talking to Mr. Infante near a picnic table, and Mr. Infante
grabbing his stomach and trying to run away.

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A search was conducted at defendant’s home and a nine-
millimeter live round was found under the cushions of the couch
where defendant’s brother said defendant usually slept.
Amanda Davis, a senior criminalist and expert in firearms
identification for the sheriff’s department, testified the bullet
recovered from Mr. Infante’s body was from a nine-millimeter
handgun. She also reviewed the photograph of defendant holding
a gun downloaded from his phone and opined it was consistent in
appearance with a nine-millimeter handgun. She conceded she
could not be certain from just viewing the photograph that it was
a nine-millimeter handgun.
Evidence was presented that in January 2012, defendant
admitted being a member of the Barrio Los Padrinos gang during
a traffic stop. The deputy who completed the field identification
card also noted defendant’s gang moniker was “Little Loc” and
noted his gang tattoos. Defendant again self-admitted his gang
membership during a consensual pedestrian stop in 2014 with a
different officer.
Detective Michael Haggerty testified as the prosecution’s
gang expert. He discussed the history and primary activities of
the Barrio Los Padrinos gang and its claimed territory. The park
where the shooting occurred was adjacent to their territory.
Detective Haggerty described defendant’s gang-related tattoos,
including one on his arm resembling the Major League Baseball
logo but with the player holding a rifle instead of a baseball bat
indicating defendant held himself out as a “major league gunner.”
Detective Haggerty authenticated the two predicate criminal acts
committed by two Barrio Los Padrinos members and discussed
gang lifestyle generally. Detective Haggerty explained that
respect and fear are important in gang culture. Gangs engage in

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violent acts to maintain their reputation and territory and to
instill fear in the community and discourage individuals from
reporting their activities or cooperating with law enforcement.
Significantly, with respect to the shooting in this case,
Detective Haggerty testified he had reviewed a report that prior
to the shooting, defendant had received a phone call from
someone in custody telling defendant that a fellow gang
member’s girlfriend was being harassed.
When asked a hypothetical based on the facts of the
shooting, Detective Haggerty stated his opinion that the murder
of an individual who had been harassing a fellow gang member’s
girlfriend would have been committed for the benefit of the gang.
He said it was not unusual that before the shooting, defendant
used drugs with the victim, as that was a “common tactic” of
getting a person to lower their guard.
During her trial testimony, Ms. Salazar admitted she did
not want to testify and confirmed that after she received the
subpoena to appear at trial, members of the Barrio Los Padrinos
gang confronted her and told her not to go to court. Joel also
admitted during his testimony that he did not want to be labeled
a snitch and that having to testify in court made him worried for
his family.
Defendant did not present any witnesses.
The jury found defendant guilty as charged. At the start of
the sentencing hearing, after reviewing the Penal Code
section 969b packet, the court found true the prior conviction
allegations.
The court sentenced defendant to 25 years to life on
count 1, doubled due to the strike prior, for a total sentence of
50 years to life. The court exercised its discretion to strike the

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firearm enhancement and the five-year prior. As to counts 2 and
3, the court struck the strike prior and imposed concurrent
middle terms of five years on both counts. The court awarded
defendant 566 days of presentence custody credits and imposed
fines and fees, staying both the restitution fine and the parole
revocation fine.
This appeal followed.
DISCUSSION
1. The Evidentiary Rulings
Defendant contends the trial court committed prejudicial
evidentiary errors that violated his rights to due process and a
fair trial. He says the court should have precluded the recorded
jail phone call in which he admitted a prior murder and the
photograph of him holding a handgun because both were
improper propensity evidence.
We review the admission of evidence under Evidence Code
section 1101 and section 352 under the deferential abuse of
discretion standard. (People v. Foster (2010) 50 Cal.4th 1301,
1328 (Foster).) Moreover, our Supreme Court has rejected efforts
to inflate “garden-variety evidentiary questions into
constitutional ones.” (People v. Boyette (2002) 29 Cal.4th 381,
427; see id. at pp. 427–428 [only when evidentiary error results in
the complete preclusion of a defense does possible due process
violation occur]; accord, People v. Bacon (2010) 50 Cal.4th 1082,
1104, fn. 4.) We find no evidentiary errors, nor any constitutional
violations in the court’s rulings on this evidence.
a. Admission of the jail phone call
The prosecution sought to introduce a recording of a jail
phone call between defendant, codefendant Romero and Kevin
Osuna (Easy), during which defendant said, “I’ll kill another

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motherfucker. Nah. It ain’t the first and it won’t be the last.”
(The actual statements by defendant during the phone call were a
mix of both Spanish and English and this was the agreed-upon
translation presented to the jury.)
During a hearing pursuant to Evidence Code section 402,
defendant objected, arguing the statement could be viewed by the
jury as an admission by defendant that he had previously killed
someone (“It ain’t the first”). The prosecutor argued it was
relevant to show defendant intended to kill Mr. Infante.
Defendant’s statement showed a cavalier attitude about killing in
contrast to defendant’s defense that the shooting was unintended
and rash. It was the prosecution’s burden to prove the shooting
was premeditated and not the result of an accidental shooting or
a shooting in the heat of passion aroused by Mr. Infante’s
disrespect after defendant told him to stop harassing the
girlfriend of a fellow gang member and to leave the park. The
prosecutor also argued the statement was relevant to the gang
allegation because defendant was telling Easy he was willing to
put in work to gain respect.
The court overruled defendant’s objection. Defendant
argued that if the statement was to be admitted, then the entire
conversation should be admitted for context, to show defendant
was just “using bravado” when speaking with Easy. The court
allowed the entire conversation to be admitted with some
redactions.
We find no abuse of discretion by the trial court in
admitting the statement. As relevant here, Evidence Code
section 1101, subdivision (b) provides that “[n]othing in this
section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to

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prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident.” “ ‘The
least degree of similarity (between the uncharged act and the
charged offense) is required in order to prove intent. [Citation.]
. . . . In order to be admissible to prove intent, the uncharged
conduct must be sufficiently similar to support the inference that
the defendant “ ‘probably harbor[ed] the same intent in each
instance.’ [Citations.]” [Citation.]’ ” (Foster, supra, 50 Cal.4th at
p. 1328.)
The statement was more probative than prejudicial. There
were no details presented about the prior killing that would have
inflamed the passions of the jury against defendant, confused the
jury or resulted in an undue consumption of time. The statement
was brief and highly probative of defendant’s intent at the time of
the charged offense.
b. Admission of the photograph
Defendant also argues the court erred in admitting the
photograph of him holding a handgun. The photograph was
downloaded from defendant’s cell phone and showed him at
Easy’s home holding a handgun. Ms. Davis, the firearms expert,
testified that while she could not be certain just from the
photograph, it was her opinion the gun looked like a nine-
millimeter handgun. Defendant says there was no evidence it
was the murder weapon and it was therefore irrelevant and
prejudicial. Over defendant’s objection, the court ruled the
photograph was admissible, as was the opinion of Ms. Davis
about what type of handgun defendant was holding in the
photograph. We find no error.
There was substantial evidence that defendant kept and
used guns apart from the photograph. The victim was fatally

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shot with a nine-millimeter handgun, a nine-millimeter live
round was found under the cushions of the couch on which
defendant slept, and in recorded jail phone calls defendant told
his girlfriend to ask Easy to help her get rid of guns kept at her
home and at Easy’s home and to sell “the one I always carry.”
The prosecutor did not introduce the photograph to portray
defendant as a bad character who possessed guns, but to prove he
was in possession of and had access to a gun of the same type as
the murder weapon.
The trial court did not abuse its discretion in admitting the
photograph or Ms. Davis’s testimony. Defendant was free to
argue Ms. Davis’s lack of certainty as to whether the handgun
was in fact a nine-millimeter and the reasonableness of the
prosecution’s assertion that it was the murder weapon. It was for
the jury to decide the weight to give this circumstantial evidence
and it was not error to allow the jury to consider it. (People v.
Sanchez (2019) 7 Cal.5th 14, 56 [“Evidence that shortly before the
murders defendant possessed a firearm that could have been the
murder weapon was similarly relevant and admissible as
circumstantial evidence that he committed the murders . . . .
[W]e see no abuse of discretion in not excluding the evidence as
unduly prejudicial under Evidence Code section 352.”]; accord,
People v. Carpenter (1999) 21 Cal.4th 1016, 1052.)
Because neither the jail phone call nor the photograph was
admitted in error, there is no merit to defendant’s cumulative
prejudice argument.
2. The Substantial Evidence Claims
In resolving a question of substantial evidence in a criminal
case, our role “is a limited one.” (People v. Ochoa (1993) 6 Cal.4th
1199, 1206.) “The proper test for determining a claim of

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insufficiency of evidence in a criminal case is whether, on the
entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Jones (1990)
51 Cal.3d 294, 314.) “[W]e must view the evidence in the light
most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (Ibid.) We do not resolve credibility
issues or conflicts in the evidence. “[I]f the verdict is supported
by substantial evidence, we must accord due deference to the
trier of fact.” (Ibid.)
We find both of defendant’s substantial evidence claims to
be without merit.
a. Premeditation
Defendant argues the evidence at best shows an impulsive
shooting in the heat of the moment, but no premeditation. He
says there is no evidence he knew the victim or knew he would be
in the park that morning. He contends the evidence shows only
that he overheard a conversation his cousin Ms. Salazar was
having about Mr. Infante harassing Jocelyn, that he argued with
Mr. Infante about the harassment, and then shot him in response
to a taunt from Mr. Infante. Defendant argues the fact the
shooting occurred in broad daylight in front of people who could
readily identify him also demonstrates the rash nature of the
shooting.
In assessing the evidence in support of a premeditation
finding, we are guided by People v. Anderson (1968) 70 Cal.2d 15
and its progeny. Anderson identified three categories of evidence
that may be helpful in reviewing the sufficiency of evidence
supporting a first degree murder verdict: “planning activity,
preexisting motive, and manner of killing.” (People v. Mendoza

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(2011) 52 Cal.4th 1056, 1069 (Mendoza), citing Anderson, at
pp. 26–27.) Since Anderson, the Supreme Court has repeatedly
made clear that “[t]hese three categories are merely a framework
for appellate review; they need not be present in some special
combination or afforded special weight, nor are they exhaustive.”
(People v. Booker (2011) 51 Cal.4th 141, 173; accord, Mendoza, at
p. 1069 & People v. Manriquez (2005) 37 Cal.4th 547, 577
(Manriquez).)
Here, there was evidence of premeditation and planning
activity. (See, e.g., People v. Marks (2003) 31 Cal.4th 197, 230
[sufficient evidence of premeditation where the defendant
ordered another individual out of the car before confronting and
shooting the victim at close range with no evidence of provocation
or struggle].) Defendant arrived at the park carrying a handgun
concealed in his clothing. Anthony saw defendant speak with
Ms. Salazar who then pointed at Mr. Infante, raising an inference
defendant came to the park specifically to find and confront
Mr. Infante. Defendant spoke to Mr. Infante and patted him
down to verify he was not armed. Defendant then told
Mr. Infante to stop messing with his family and to stop harassing
Jocelyn. Defendant yelled and cursed at Mr. Infante to get out of
the park. When Mr. Infante did not leave, defendant pointed his
gun directly at him. When Mr. Infante told him to go ahead and
shoot, defendant shot him at close range in the chest.
The relatively short timeframe in which the crucial events
occurred is not dispositive. The Supreme Court has repeatedly
emphasized that “ ‘[t]he process of premeditation and
deliberation does not require any extended period of time.’ ”
(Manriquez, supra, 37 Cal.4th at p. 577.) “ ‘ “ ‘Premeditation and
deliberation can occur in a brief interval. “The test is not time,

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but reflection. ‘Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly.’ ” ’ [Citation.]” [Citations.]’ [Citation.]” (Mendoza,
supra, 52 Cal.4th at p. 1069; accord, People v. Brito (1991)
232 Cal.App.3d 316, 323–324 [fact that the defendant made
decision, within a matter of a few seconds, to shoot fleeing victim
in back did not defeat finding of deliberation].)
In addition to premeditation and planning, there was
evidence of a preexisting motive, that Mr. Infante had been
harassing the girlfriend of a member of defendant’s gang.
The shooting at close range in a vital area of Mr. Infante’s
body—in the chest—is further evidence of premeditation. The
fatal shooting left stippling around the entrance wound
indicating the barrel of defendant’s gun was no further than
two feet from Mr. Infante. (People v. Caro (1988) 46 Cal.3d 1035,
1050 [“a close-range gunshot to the face is arguably sufficiently
‘particular and exacting’ to permit an inference that defendant
was acting according to a preconceived design”]; Manriquez,
supra, 37 Cal.4th at pp. 578–579 [evidence the defendant armed
himself with a concealed weapon, confronted the victim, and fired
several shots into his chest was sufficient to support first degree
murder].)
We find substantial evidence supports the jury’s
premeditation finding. Defendant’s argument ignores most of
this evidence and invites us to reweigh the evidence and the
credibility determinations made by the jury. We decline to do so.
b. The gang allegation
In challenging the evidence supporting the true finding on
the gang allegation pursuant to Penal Code section 186.22,
subdivision (b)(1), defendant contends only that there is no

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evidence the murder was committed for the benefit of, at the
direction of, or in association with a criminal street gang.
Defendant says the evidence shows he acted alone with a
personal motive to protect a female friend of a family member
from harassment and not for any reason associated with his
membership in the Barrio Los Padrinos gang. He says the gang
motive presented by the prosecution was based on speculative
testimony by Detective Haggerty not tethered to any facts in the
record. We disagree.
Our Supreme Court has explained that not every crime
committed by a gang member is “gang related” within the
meaning of the statute. (People v. Albillar (2010) 51 Cal.4th 47,
60 (Albillar).) A defendant’s gang membership, standing alone, is
insufficient to support an allegation under Penal Code
section 186.22. (People v. Perez (2017) 18 Cal.App.5th 598, 607.)
But a gang member acting alone may be found guilty of
committing a crime for the benefit of the gang within the
meaning of subdivision (b) of Penal Code section 186.22 if there is
substantial evidence the defendant intended to promote the
criminal purposes of the gang. (See, e.g., People v. Rios (2013)
222 Cal.App.4th 542, 546.) Here, although no other gang
member accompanied defendant to help murder Mr. Infante,
there was substantial evidence defendant did not act on his own
impulses but at the request and with the encouragement of fellow
Barrios Los Padrinos gang members and associates.
Mr. Infante had been sexually harassing Jocelyn for a year.
Jocelyn was the girlfriend of a fellow Barrio Los Padrinos gang
member, who was Ms. Salazar’s son. Defendant and Ms. Salazar
were cousins. Jocelyn’s friends and family all knew Mr. Infante
was obsessed with her. Detective Haggerty, the prosecution’s

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gang expert, testified that before he committed this murder,
defendant received a phone call from an incarcerated fellow gang
member who reported the harassment to him.
The park where defendant confronted and killed
Mr. Infante was adjacent to Barrio Los Padrinos territory. Upon
arriving at the park with a loaded gun in his pocket, defendant
spoke to Ms. Salazar who then pointed out Mr. Infante, raising
an inference defendant came to the park specifically to confront
Mr. Infante. Defendant confronted Mr. Infante and asked where
he was from, a common question posed by gang members to
establish gang affiliation. Instead of showing fear and respect,
Mr. Infante copped an insulting attitude toward defendant,
saying defendant could search his crotch and shrugging off
defendant’s warnings to leave Jocelyn alone. Defendant reacted
by telling Mr. Infante to stop “messing with” his family and
bothering Jocelyn. He yelled at Mr. Infante to get out of “our
park,” pulled the gun from his pocket and pointed it at
Mr. Infante. When Mr. Infante did not leave the park but
taunted defendant to go ahead and shoot, defendant shot him in
the chest at close range.
Most who witnessed the murder knew defendant was a
member of Barrio Los Padrinos, even Mr. Infante, who told police
officers as he lay on the ground fatally wounded that “he had
ongoing issues” with the shooter who was a member of the
Barrios Los Padrinos gang. Ms. Salazar told police during their
investigation she was afraid of Barrio Los Padrinos gang
members finding out she was cooperating with the police. After
she was subpoenaed to testify at trial, members of the gang
threatened her and told her not to testify. This witness
dissuasion is further circumstantial evidence the murder of

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Mr. Infante was for the benefit of, at the direction of, or in
association with a criminal street gang.
Further, unlike the cases cited by defendant, Detective
Haggerty’s opinion the murder was committed to benefit the gang
was based on the factual record. He testified that gang members
often engage in violent, criminal behavior to coerce respect from
others and to avoid a reputation as “weak.” He also stated his
opinion, based on a hypothetical drawn from the facts of this
case, that the shooting of a man harassing one of the gang
member’s girlfriends would benefit the gang and maintain its
reputation. (Albillar, supra, 51 Cal.4th at p. 63 [“Expert 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 [Pen. Code,]
section 186.22(b)(1).”])
There is substantial evidence that defendant murdered
Mr. Infante for the benefit of his gang.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.

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