P. v. Feliz

Filed 8/21/18 P. v. Feliz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ALFRED CARL FELIZ,
Defendant and Appellant.
F071704
(Super. Ct. No. BF148574B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Manuel J. Baglanis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A.
McKenna, Eric L. Christoffersen, and Christopher J. Rench, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-

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2.
Defendant Alfred Carl Feliz was charged with attempted murder (Pen. Code,1
§§ 187, subd. (a), 664 [count 1]); kidnapping (§ 207, subd. (a) [count 2]); assault with a
semiautomatic firearm (§ 245, subd. (b) [count 3]); gang participation (§ 186.22, subd. (a)
[count 5]); and possession of a firearm by a felon (§ 29800, subd. (a)(1) [count 8]).2 The
information further alleged the attempted murder was willful, deliberate, and
premeditated, perpetrated during the commission of a kidnapping, and/or perpetrated by
means of discharging a firearm from a motor vehicle at another person outside of the
vehicle (§ 189); in connection with counts 1 and 2, defendant discharged a firearm and
proximately caused great bodily injury (§ 12022.53, subd. (d)); in connection with
counts 3, 5, and 8, he used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily
injury (§ 12022.7); he committed the offenses underlying counts 1 through 3 and 8 for the
benefit of, at the direction of, or in association with a criminal street gang (§ 186.22,
subd. (b)(1)); and, as to all counts, he was previously convicted of a qualifying “strike”
offense (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), was previously convicted of a
serious felony (§ 667, subd. (a)), and previously served three separate prison terms
(§ 667.5, subd. (b)).
Following a trial, the jury found defendant guilty as charged on counts 1, 2, 5,
and 8 and convicted him of the lesser included offense of assault with a firearm (§ 245,
subd. (a)(2)) on count 3. It also found true the special allegations not related to his prior
1 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
2 Codefendant Anthony Victor Ochoa was charged with attempted murder (§§ 187,
subd. (a), 664 [count 1]); kidnapping (§ 207, subd. (a) [count 2]); assault with a
semiautomatic firearm (§ 245, subd. (b) [count 3]); assault with a firearm (id.,
subd. (a)(2) [count 4]); gang participation (§ 186.22, subd. (a) [count 5]); obstructing or
resisting executive officers in performance of their duties (§ 69 [count 6]); driving in
willful or wanton disregard for safety of persons or property while fleeing from pursuing
police officers (Veh. Code, § 2800.2 [count 7]); and possession of a firearm by a felon
(§ 29800, subd. (a)(1) [count 8]). Ochoa was not jointly tried with defendant and is not a
party to this appeal.

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3.
convictions. In a bifurcated proceeding, the trial court found true the special allegations
related to the prior convictions. Defendant was sentenced to 30 years to life, plus 25
years to life for firearm discharge proximately causing great bodily injury, five years for
the prior serious felony conviction, and two years for two prior prison terms,3 on count 1.
Execution of punishment on counts 2, 3, 5, and 8 was stayed pursuant to section 654.
On appeal, defendant presents numerous contentions, which we sort into two
categories. The first is comprised of the following non-gang-related arguments: (1) the
trial court erroneously refused to instruct the jury on attempted voluntary manslaughter;
(2) defense counsel rendered ineffective assistance by failing to request instructions
pertaining to voluntary intoxication; (3) the court erroneously overruled defense
counsel’s objection to a prosecution witness’s remark that a kidnapping occurred; (4) the
evidence did not establish defendant discharged a firearm from a motor vehicle at another
person outside of the vehicle; and (5) in view of a recent amendment to section 12022.53,
enacted by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) and effective January 1, 2018,
the matter should be remanded for reconsideration of sentencing.4
The second category is comprised of the following gang-related arguments: (1) in
the absence of Miranda5 warnings, defendant’s responses to booking questions about his
gang affiliation were inadmissible; (2) the gang expert improperly related case-specific
testimonial hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36
3 Because the prior serious felony allegation and the third prior prison term
allegation concerned the same offense, the court did not impose an enhancement for the
latter. (See People v. Perez (2011) 195 Cal.App.4th 801, 805.)
4 In his opening brief, defendant comments in passing that the evidence did not
establish the attempted murder was willful, deliberate, and premeditated. He fails to state
the point under a separate heading or subheading. (Cal. Rules of Court, rule
8.204(a)(1)(B); People v. Schnabel (2007) 150 Cal.App.4th 83, 84, fn. 1.) Consequently,
we need not address this claim. (People v. Schnabel, supra, 150 Cal.App.4th at p. 84,
fn. 1; People v. Wallace (2004) 123 Cal.App.4th 144, 151, fn. 7.)
5 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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4.
(Crawford) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (3) the evidence did
not establish defendant and the individuals who committed the predicate offenses (see at
p. 54, post) belonged to the same gang, as required pursuant to People v. Prunty (2015)
62 Cal.4th 59 (Prunty); (4) the evidence did not support the gang participation
conviction; and (5) the evidence did not support the gang enhancements. The Attorney
General contends defendant forfeited his Crawford/Sanchez claim.
With regard to defendant’s non-gang-related arguments, we conclude:
The trial court had no obligation to instruct the jury on attempted voluntary
manslaughter because there was no substantial evidence justifying such an instruction;
Defendant’s ineffective-assistance-of-counsel claim must be rejected because the
appellate record does not reveal why defense counsel did not request voluntary
intoxication instructions;
The trial court’s refusal to sustain the objection to a prosecution witness’s remark
that a kidnapping occurred did not constitute prejudicial error because the evidence
demonstrated a kidnapping did in fact occur;
Substantial evidence established defendant discharged a firearm from a motor
vehicle at another person outside of the vehicle; and
In light of the trial court’s comments during sentencing, which indicated it would
not have stricken the section 12022.53, subdivision (d), enhancement in any event, a
remand for reconsideration of this enhancement is unnecessary.
With regard to defendant’s gang-related arguments, we conclude:
Admission of defendant’s responses to booking questions about his gang
affiliation did not constitute prejudicial error because other evidence demonstrated his
gang affiliation;
Defendant preserved his Crawford/Sanchez claim for appeal by filing an
appropriate motion in limine;

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5.
Admission of the gang expert’s testimony concerning the commission of two or
more qualifying predicate offenses by gang members—which conveyed case-specific
testimonial hearsay in violation of Crawford and Sanchez—did not constitute prejudicial
error because certain offenses charged against defendant and Ochoa in the instant case
qualified as predicate offenses; and
Substantial evidence established Prunty’s “sameness” requirement, supported the
gang participation conviction, and supported the gang enhancements.
Accordingly, we affirm the judgment.
STATEMENT OF FACTS
I. Prosecution’s case-in-chief.
a. The victim.
Miguel A., also known as “Mikeio,” who was 50 years old at the time of trial,
joined the Lomita Bakers, a Sureño subset in East Bakersfield, when he was 13 years old.
In 1983, while in county jail, he befriended Gerald Feliz, also known as “Tinker,” a
future member of the Sureños. In the early 1990’s, Miguel became a validated member
of the Mexican Mafia, the prison gang that “issue[s] [violent] orders” to Sureños. In or
around 2003, however, he disassociated from both gangs.
Miguel subsequently became a confidential informant. In 2005, while in prison,
he helped the Ventura County District Attorney’s Office obtain incriminating statements
from the suspects in a triple homicide case, resulting in their convictions. In exchange,
his sentence was reduced. In 2010, Miguel met defendant, a Mexican Mafia associate
and Gerald’s6 nephew. That same year, Miguel provided information to the Kern County
Sheriff’s Office that led to defendant’s arrest. In exchange, Miguel received $200.
6 To avoid confusion, we identify individuals who share defendant’s surname by
their given name.

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6.
Following the events of May 20, 2013 (see at pp. 6-7, post), the Kern County
District Attorney’s Office relocated Miguel.
At trial, Miguel testified the Mexican Mafia and Sureños have a rule against
“snitching,” i.e., cooperating with law enforcement. The penalty for violating this rule is
death. Miguel identified other Sureño subsets in Kern County, including the Colonia
Bakers, Loma Bakers, Oakie Bakers, and Varrio Bakers. He also mentioned he had lived
in the same apartment complex as defendant’s cousin “Kuico.”
b. The shooting.
On the evening on May 20, 2013, Miguel and his daughters were at a friend’s
residence near the intersection of Mount Vernon Avenue and Pacific Street when
defendant pulled up in a green Chrysler Sebring. Defendant pointed a handgun at
Miguel, “waved [him] over,” and “told [him] to get in the car” to talk. Miguel, who did
not want a shooting to erupt in front of his daughters, entered the car and sat in the front
passenger seat. Before driving off, defendant handed the firearm to Ochoa (see ante,
fn. 2), also known as “Bouncer,” who was in the backseat.
During the ride, which lasted between 15 and 25 minutes, defendant accused
Miguel of helping the police arrest him in 2010 for “possession or something to that
effect,” for which he served “[a] couple years,” and “ratting on” “big homies” in the
Mexican Mafia in connection with “some homicides” in Ventura and Oxnard. He was
“upset that he was convicted” and “blamed [Miguel].” Miguel thought defendant was
“high” on crystal methamphetamine. Because defendant “was already in an agitated
state,” Miguel did not want to “precipitate any events . . . with him.” Miguel never
admitted he had cooperated with law enforcement. He believed defendant “might [have]
do[ne] something to [him] if [he] admitted to it.”
The Sebring stopped at the intersection of Mount Vernon Avenue/Alfred Harrell
Highway and Panorama Drive. Miguel, who recognized the area was “[d]eserted,”
decided to escape. He grabbed the door handle, but “[it] slipped out of [his] hand.”

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7.
Defendant yelled, “He is trying to bolt[!]” Miguel opened the door on his second
attempt. As he was exiting the car, he looked back and saw Ochoa handing defendant the
gun. When Miguel faced forward, he “got shot in the back.” He glanced behind once
more and saw defendant trying to fire again. However, “the gun locked up.” Defendant
“peel[ed] out” eastbound on Panorama Drive. Miguel testified he was outside the
Sebring when he was shot.
Miguel went to a nearby convenience store and asked the cashier to phone 911.
Officer Pair of the Bakersfield Police Department was dispatched to the store. Miguel
told Pair he had been shot by defendant. After Pair displayed defendant’s mug shot on a
laptop, Miguel confirmed defendant was the gunman. Miguel was transported to Kern
Medical Center, where he was treated for a right rib fracture and collapsed lung. Surgical
staff did not extract the bullet because it was not “in a space where it’s going to cause . . .
further harm” and “the additional trauma doing surgery to remove a projectile” was
unwarranted. At some point, Miguel was shown an array of six photographs. The array
included a photograph of Ochoa. Miguel identified Ochoa as the other passenger in the
Sebring.
At trial, Pair testified he observed “little black pinpricks around [Miguel’s] wound
channel that appeared . . . to be consistent with stippling.[7]” According to Pair, pertinent
literature specified “the optimal range for [stippling] to occur is . . . [six] to 30 inches.”
7 Pair defined “stippling”:
“Stippling would be when you fire a gun, there’s gunpowder. It
would be the unburnt gunpowder and other debris in the barrel. So if you
had dirt or sand or whatever in the barrel, it gets fired out of the barrel with
the bullet. So if you’re a close distance, that will create impacts on the
point of contact, and if that’s human skin, it almost has, like, a little
tattooing effect, and if it’s actual gunpowder, it will create black little
pinpricks all over.”

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8.
c. Arrests.
On May 20, 2013, between 7:15 p.m. and 7:45 p.m., Bakersfield police officers
searched for defendant at his address of record on Milvia Street. Bystanders in front of
the residence stated defendant “was not home currently.” As the officers were leaving,
they saw Ochoa driving toward them in the Sebring. When they attempted to pull him
over, he “sped away.” A high-speed pursuit ensued. After Ochoa passed the intersection
of Palm Drive and Oregon Street, he abandoned the car and fled on foot. He was
eventually captured and brought to Kern Medical Center, where he was identified by
Miguel.
On May 23, 2013, Kern County Sheriff’s deputies Magaña and Bravo were near
the intersection of West Drive and Pacific Street when they spotted defendant walking
eastbound on Pacific Street. When they approached him, defendant entered a nearby
trailer park. Within 10 minutes, sheriff deputies and police officers set up a perimeter
and evacuated the residents. Adolf Feliz, defendant’s father, was one of these residents.
Adolf told Magaña that defendant was in his trailer. After defendant refused to obey
commands to leave the trailer, the sheriff’s office SWAT team subdued him with tear gas.
Following defendant’s arrest, Adolf approached Bravo and stated he was “Adolf from
East Side Loma.”
d. The Sebring and its owner.
The sheriff’s office impounded the Sebring. Bravo searched the vehicle and found
a cell phone containing photos of defendant and Gerald. Latent fingerprints lifted from
the passenger-side front windshield’s exterior matched Miguel’s fingerprints. Latent
fingerprints lifted from the exterior of the passenger side windows matched Ochoa’s
fingerprints.
On May 23, 2013, Jessica B., the owner of the Sebring, appeared at the sheriff’s
headquarters to retrieve her vehicle. Her cell phone, which was confiscated as part of the
investigation, contained numerous text messages referring to someone named “Al” or

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9.
“Alf”;8 Ochoa’s contact information; and the contact information of various Colonia
Bakers and Loma Bakers.9
On the evening of August 7, 2013, Magaña conducted a probation search of
Jessica’s residence and found two letters in an envelope. The first letter was addressed to
“Acer” and instructed the individual to “send the [second letter] to A.”10 The second
letter was addressed to “A.” At trial, Magaña opined defendant was the intended
recipient of the second letter:
“This [letter] addressed to A. That’s significant because . . . [it’s]
[defendant’s] first initial of his first name. Information towards the middle
of this letter . . . says ‘I heard midget ass was supposed to get a lawyer for
you and let me just tell you, he’s lagging on that.’
“. . . I’m familiar with the full investigation and the phone calls and
everything that has gone on and in reading this letter, like I said, the A is
significant, the getting this person a lawyer is significant to me, and then
when you go down here to . . . ‘what happened with your homie,’ in
Spanish, ‘el pendejo me puso en sus pendejadas,[’] which means what
happened to your homie? The idiot put me in his mess, his shit . . . . You
have [Jessica] writing a letter to [defendant] regarding a lawyer and then
expressing how his homie, Ochoa, who during his interview gave out her
name regarding the car that he was in and how he dropped her off at
Probation and now here you have a letter where she is . . . exclaiming to
[defendant], ‘your homie, what’s up with your homie? He put me in the
mix, in his shit, in his issues, his situation.’ ”
8 These text messages include “where . . . r . . . u . . . Alf”; “that message was for
Al”; and “hey, if Al shows up, have him call me.” Bravo testified he was “aware . . .
[defendant] refers to himself and other people, associates, and family members . . . will
refer to him as Al or Alf.”
9 Bravo testified he “had contact with and kn[e]w . . . to be gang members of
different gangs . . . in Kern County” the “[individuals] [Jessica] . . . listed on basically all
her contacts” “through other investigations.”
10 Magaña testified a Colonia Baker member named Arthur Medina had the moniker
“Acer.”

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10.
At trial, Jessica testified she loaned the Sebring to a friend named Jose on May 20,
2013. She denied lending the Sebring to Ochoa, someone she “knew of” but “never
actually got introduced to.” Jessica testified she only “kn[e]w of” defendant, her former
girlfriend’s cousin. However, she conceded she wrote the letters Magaña found during
the August 7, 2013, probation search.
e. Jail calls.
On May 24, 2013, at 1:07 a.m., defendant phoned C.M., also known as “Moody.”
The following exchange transpired:
“[Defendant]: They just brought me from headquarters right now.
They took me headquarters. Hey, I think it’s all bad
with your boy, though. . . . [¶] . . . [¶]
“[C.M.]: Who?
“[Defendant]: My Crime[y]. Huh? They . . . put a keep away on him
. . . and everything already. [¶] . . . [¶]
“[C.M.]: . . . [W]hy did you leave? Why did you jump in the
car and meet with them?
“[Defendant]: ‘Cause went and got my thing. I told you what I was
doing. . . . [¶] . . . [¶] . . . I got a strap fool. [¶] . . . [¶]
. . . It’s gonna be for something business, fool, I told
you that.
“[C.M.]: That’s why . . . I been acting the way I have ‘cause you
keep lying to me.
“[Defendant]: . . . [Y]ou know I’m with (Gangster) and you . . .
[¶] . . . [¶] . . . think I’m with somebody else, I’m with
(Gangster). [¶] . . . [¶]
“[C.M.]: . . . I asked you, ‘Have you ever been with that girl?’
And you said, ‘No.’
“[Defendant]: With who?
“[C.M.]: That (unintelligible) like fuckin’, uh, the owner of the
car. [¶] . . . [¶]

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11.
“[Defendant]: (Moody), uh, that’s my home girl, fool.
“[C.M.]: No, you’ve been with her.
“[Defendant]: That’s my home girl, fool.
“[C.M.]: You ever been with her?
“[Defendant]: No, that’s my home girl.
“[C.M.]: Okay then. Whatever. [¶] . . . [¶]
“[Defendant]: . . . They took pictures of me right now and
everything. They usually don’t take pictures . . . . And
then he asked me if I had . . . ties to that (one word).
“[C.M.]: Huh?
“[Defendant]: He asked me if I had ties with that (one word),
remember?
“[C.M.]: Yeah.
“[Defendant]: Man, I don’t know what the heck you talkin’ about.
Man. [¶] . . . [¶]
“[C.M.]: I miss you.
“[Defendant]: I miss you, too, baby. [¶] . . . [¶]
“[C.M.]: I . . . wanna be in your arms.
“[Defendant]: I wanna be in yours, too, baby. . . . [¶] . . . [¶] . . . I
love you.
“[C.M.]: I love you, too.
“[Defendant]: You gonna be there for me?
“[C.M.]: Yeah.
“[Defendant]: Hm, fuckin’ love you though, (Moody).
“[C.M.]: I love you, too.
“[Defendant]: You know I fuckin’ love you, fool. [¶] . . . [¶]

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12.
“[C.M.]: They won’t . . . let nobody on the premises . . . .
[¶] . . . [¶] . . . For five days.
“[Defendant]: For five days?
“[C.M.]: Mm-hm.
“[Defendant]: Wonder why?
“[C.M.]: ‘Cause of the tear gas.
“[Defendant]: Is that right? Damn they evacuated the whole shit like
that. . . . I seen it – I can’t get the newspaper she
didn’t save it for me. I wanna see what it says. . . .
Hey?
“[C.M.]: Yeah?
“[Defendant]: Can you get it and cut it out and send it to me ‘cause I
wanna see what it says.
“[C.M.]: The what?
“[Defendant]: The newspaper.
“[C.M.]: Okay.
“[Defendant]: For my incident, can you get it, like, cut it out? I
wanna see what it says . . . . [¶] . . . [¶]
“[C.M.]: Yeah.
“[Defendant]: ‘Cause all that shit is valuable information you know
what it says. . . . [¶] . . . [¶] . . . I love you.
“[C.M.]: I love you.”
Bravo, who was familiar with defendant’s voice, listened to a recording of
defendant’s phone call to C.M. He testified:
“[Defendant] referred to . . . Ochoa as his crimey. He denied knowing who
. . . Ochoa was, and then the statements supported my opinion that he knew
who . . . Ochoa was. [¶] . . . [¶] . . . [Defendant] making reference to him
going and getting his thing, ‘my thing,’ then he clarifies it with the follow-
up statement, ‘I got my strap.’ ‘Strap’ means street slang for a firearm.
[¶] . . . [¶] . . . [H]e’s telling [C.M.] the reason he left and the reason he

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13.
was gone had to do something with business, business being gang activity.
[¶] . . . [¶]
“. . . There’s a word, I believe, in the transcript that says . . .
unintelligible, but it’s actually the Spanish word ‘hyna’ . . . . That word is
Spanish for girl or lady in the context of she’s my hyna. She’s my lady.
[C.M.] is questioning [defendant] about this hyna, the car, . . . based on
what I understood at the time of the case, she’s questioning [defendant]
about his relationship with Jessica . . . , whether it was a dating/romantic
relationship. And, in my opinion, she is upset and was questioning if he
had been with her in the context of a sexual relationship with Jessica . . . .
[¶] . . . [¶]
“. . . Southern Hispanic gang members are never to mention
Mexican Mafia or any words that are associated with the Mexican Mafia,
such as the Black Hand or the Eme. [¶] . . . I knew [defendant] was an
associate of the Mexican Mafia. This case involved and, in my opinion,
was for the Mexican Mafia, and the fact that he said the one word. Eme is
just one word. And he is making these references to [C.M.] so she
understands what they were questioning [him] about at the time of his arrest
or shortly after his arrest. [¶] . . . [¶]
“. . . Along with the newspaper clippings, the tone in this call and in
other calls that I listened to, in my opinion, [defendant] is bragging about
that it required a SWAT team and the shutting down of the neighborhood to
effect his arrest. [¶] But more specifically about the newspaper clippings, I
know gang members will often keep and maintain newspaper clippings of
the crimes they commit that appear in the media or publication to show
their exploits and brag about their exploits to other members – other gang
members. [¶] . . . [¶]
“. . . The other thing that was significant about this phone call and
the phone calls specifically regarding females . . . is this: Southern
Hispanic gang members could not function without the control, the
manipulation of females. Female associates are the lifeline of gang
members. Gang members will be isolated once they are in custody from
other gang members and the activities of the gang without having control,
having the ability to control women and have them perform functions for
them in a custody setting. . . . [¶] And listening to this phone call and other
phone calls involving [defendant] and his female associates, it showed what
he did to maintain control of these women.”

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14.
On May 24, 2013, at 1:57 a.m., defendant phoned his sister C.F. The following
exchange transpired:
“[Defendant]: . . . [I]f you see Tinker around there, tell that mother
fucker I said he’s going to make sure that mother
fucker don’t show.
“[C.F.]: Yeah.
“[Defendant]: Alright?
“[C.F.]: Yeah, yeah. [¶] . . . [¶]
“[Defendant]: Did they say my name on the news?
“[C.F.]: Yeah, fool. . . . [¶] . . . [¶]
“[Defendant]: That shit going to be in the front page, you know that
right? [¶] . . . [¶] . . . It’s going to be in the front page
right now when they pass out the paper. [¶] . . . [¶]
“[C.F.]: Yeah, that shit was on the news, I don’t see why not.
[¶] . . . [¶]
“[Defendant]: They . . . said they can’t go back to the (Unintelligible)
for like five days[.] [¶] . . . [¶] . . . Because of the tear
gas.
“[C.F.]: Oh yeah, yeah.”
Bravo listened to a recording of defendant’s phone call to C.F. and testified:
“[Defendant] wanted [C.F.] to relay a message for him to [Gerald] that,
quote, that mother fucker better not show up. [¶] . . . [¶] . . . In my opinion,
based on what I had learned at that point in the investigation, [Gerald],
along with [defendant], were attempting to locate Miguel . . . to dissuade or
prevent him from cooperating with this investigation and his prosecution.
[¶] . . . [¶]
“. . . [T]he tone of the . . . conversation where [defendant] is
speaking with his sister and he is, in my opinion, bragging or boasting
about his arrest, it is going to be appearing in the news, that it requires the
SWAT team. That amount of law enforcement that are required to effect
his capture and arrest, it is also in this conversation.”

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15.
On May 24, 2013, at 10:20 a.m., defendant spoke with Gerald. The following
exchange transpired:
“[Gerald]: Where’s the phone that uh, I lend you?
“[Defendant]: That . . . got confiscated.
“[Gerald]: Oh, alright then. Check it out, um,
“[Defendant]: That got confiscated, Jessica’s phone got confiscated
and a lot of other stuff.
“[Gerald]: Ok.
“[Defendant]: But, I think they’re going to drag her into this case,
Jessica.
“[Gerald]: Yeah.
“[Defendant]: Yeah, because they . . . mentioned her last night, like
oh yeah and Jessica, what do . . . you know[,] to look
good, I said I don’t know nobody, I don’t know who
the hell it is, you know.
“[Gerald]: Yeah. [¶] . . . [¶]
“[Defendant]: You . . . know straight off (Unintelligible) where
(Unintelligible) lives at right?
“[Gerald]: Huh?
“[Defendant]: That corner house?
“[Gerald]: K[uico].
“[Defendant]: No, you know where he lives at, right? On Pacific.
“[Gerald]: Who? . . .
“[Defendant]: . . . K[uico].
“[Gerald]: Yeah.
“[Defendant]: Ok, you know that, all the way around the corner, that
corner house.

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16.
“[Gerald]: Yeah. [¶] . . . [¶]
“[Defendant]: That’s where he was at.
“[Gerald]: Oh is that right?
“[Defendant]: Yeah, . . . that’s where old boy was at.
“[Gerald]: Alright then. That’s cool then, ‘cuz uh, that’ll work
then.”
Bravo listened to a recording of defendant’s conversation with Gerald and
testified:
“A number of things in that phone call that I determined to be significant in
this investigation beginning with a cellular phone that’s discussed between
[Gerald] and [defendant]. In the conversation [Gerald] asked [defendant]
what happened to the phone. [Defendant] tells [Gerald] that phone was
confiscated along with Jessica[’s] . . . cell phone, which was also seized.
At the time of the phone call, the vehicle, the Chrysler Sebring had already
been in our custody . . . . The cell phone in the vehicle had already been
seized by the sheriff’s office and based on that and [Gerald] asking him
what happened to the phone I lent you and what I had discovered about
[Gerald] having access to that phone in the Chrysler Sebring and using it, in
my opinion, that was what [Gerald] was referring to about the phone. And
in my opinion, . . . when [defendant] is telling him it’s confiscated, I
believe they are referring to the same phone, the phone that was found in
the Chrysler Sebring . . . . [¶] . . . [¶]
“. . . The other thing that was significant was a portion of the
conversation between [defendant] and [Gerald] where they are discussing
getting at Ol[d] Boy and where he picked him up from. . . . [Miguel]
testified that there was a relative named [Kuico] who lived at or near his
apartment complex. In the conversation, [defendant] is describing where
they picked him up from was at or near where [Kuico] lives. It was also
significant to me that he is describing to Gerald . . . where . . . [Miguel] was
living at the time on this phone call. In my opinion, he was requesting
Gerald . . . to make contact with Miguel . . . to dissuade him in some
fashion from participating in this criminal investigation and then ultimately
the prosecution of this case.”
On May 24, 2013, at 12:05 p.m., defendant phoned Jessica. The following
exchange transpired:

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17.
“[Defendant]: You were looking at my charges?
“JESSICA[:] Yeah.
“[Defendant]: On the computer?
“JESSICA[:] Yeah. [¶] . . . [¶] . . . And . . . your buddy, . . . I guess
he have court today right or no?
“[Defendant]: I don’t know. [¶] . . . [¶]
“JESSICA[:] . . . [R]ight now on the thing, the way it looks . . . on
the computer, everything’s gotten a lot better for him.
“[Defendant]: Mm-hm.
“JESSICA[:] You know what I mean?
“[Defendant]: Yeah.
“JESSICA[:] Like he doesn’t have really nothing . . . [,] they
dropped a lot of . . . the charges. . . . [¶] . . . [¶]
“[Defendant]: And that’s (Bouncer) right?
“JESSICA[:] Yep. It . . .
“[Defendant]: Well, how . . .
“JESSICA[:] (Unintelligible), okay let me make sure . . . (Ochoa[,]
Anthony Victor), right?
“[Defendant]: Yeah.”
Sheriff’s deputy Sanchez listened to a recording of defendant’s phone call to
Jessica. He was familiar with defendant’s and Jessica’s voices, having contacted the two
of them in person over the course of the criminal investigation. Sanchez testified:
“The most significant part about this call was that . . . [defendant]
identifies his partner in crime by his moniker, and then Jessica . . . identifies
him by his full name while she is accessing the public record regarding the
arrest and charges of . . . Ochoa.”
On May 31, 2013, at 6:00 p.m., defendant phoned Gilbert Velasquez, also known
as “Gangster.” The following exchange transpired:

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18.
“[Defendant]: Remember that day?
“[Velasquez]: Yeah.
“[Defendant]: They were following us for like 5 minutes they said.
“[Velasquez]: Did they really? [¶] . . . [¶]
“[Defendant]: . . . It’s what they told me fool, they were following us
for like 5 minutes.
“[Velasquez]: Serious? [¶] . . . [¶]
“[Defendant]: Hey, hey you know the vato [Vago]?
“[Velasquez]: Who?
“[Defendant]: (Vago) from the Loma?
“[Velasquez]: No.
“[Defendant]: Get, get at that fool and (ya sabe) he knows what’s up
fool.
“[Velasquez]: Vago, where’s he at?
“[Defendant]: Uh, . . . Moody knows how to get ahold of him.
“[Velasquez]: Ok.”
Sanchez listened to a recording of the May 31, 2013, phone call and testified:
“[Defendant] had a discussion with Gangster . . . . And I know that
is . . . Velasquez because . . . I recognize his voice and I’ve had contact with
him. They have a discussion regarding the day that [defendant] was
arrested. He tells him that he was with him, that he was with him in his
truck, that we were observing him for about five minutes when it all
happened.
“And there is mention of getting ahold of a subject by a . . . gang
moniker of Vago from the Loma, and he tells . . . Velasquez that Moody,
who is [C.M.], knows how to get ahold of him.”
On July 4, 2013, at 10:51 a.m., defendant spoke with Gerald. The following
exchange transpired:

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19.
“[Gerald]: What’s up? [¶] . . . [¶]
“[Defendant]: . . . [H]ave you guys talked to Sandra?
“[Gerald]: Sandra?
“[Defendant]: Yeah, ‘cuz I told Sandra to go whip that pussy on him.
“[Gerald]: (Unintelligible).
“[Defendant]: I told Sandra to go give him some pussy.”
Sanchez listened to a recording of the July 4, 2013, phone call and testified:
“[Defendant] . . . mentions a female by the name of Sandra, . . . who
apparently he has contacted and told her to locate a subject who I believe is
Miguel . . . and provide sexual services to him. [¶] . . . [¶]
“. . . I believe it’s a tactic to try to get [Miguel] to change his mind.
The other tactics didn’t appear to be working. So he is going to try a
different tactic to get him to not show up to court.”
f. Visitation call.
On May 25, 2013, at 12:46 p.m., C.M. visited defendant in jail. The following
exchange transpired:
“[Defendant]: . . . His family was there. They seen that. The people,
uh, that lives off Pacific and Mount Vernon, you
know, the corner house.
“[C.M.]: Yeah.
“[Defendant]: . . . [T]he girl you don’t like, the little short one that
say she’s puppet’s fucking girl. [¶] . . . [¶]
“[C.M.]: On Pacific and what?
“[Defendant]: That go to my dad’s house.
“[C.M.]: Oh yeah, yeah, yeah.
“[Defendant]: Yeah. Well she – that’s who she was talking to
Miguel. Huh?
“[C.M.]: Miguel?

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“[Defendant]: Yeah, tell the bitch shut up. Tell (unintelligible).
“[C.M.]: Go to court? Oh no.
“[Defendant]: He better not go. He better not go.
“[C.M.]: Oh you – I get it – okay. [¶] . . . [¶]
“[Defendant]: . . . ‘Cause they actually need a witness to testify and
(there’s not none). The only one is – the one they say
that they got now but I don’t know about that shit. . . .
[¶] . . . [¶] . . . You know where Pacific and Mount
Vernon is at? The corner house on the left – if I’m
going down Pacific going toward Mount Vernon, it’s
the one on the left hand side.
“[C.M.]: (White)?
“[Defendant]: White. With a garage right there. That’s where she
lives at. . . . [T]hat’s the lady that goes to my dad’s
house. [¶] . . . [¶] . . . She . . . tell me she knows
where to find him if she knows where he’s at. He’s at
her house. You know where his daughter lives at?
“[C.M.]: Last time . . . I seen him, he’s in the garage right
there . . . . [¶] . . . [¶] . . . [H]e right there[,] that little
garage, those apartment. That’s where he stays at.
[¶] . . . [¶]
“[Defendant]: Okay, cause Tinker, he’s looking for him.
“[C.M.]: Oh.
“[Defendant]: He’s looking for him. So, uh, I don’t know who [h]is
daughter is. You know who [h]is daughter is?
“[C.M.]: I can find out. Isn’t he from (unintelligible) find out.
“[Defendant]: ‘Cause his daughter stays right there too. But the
daughter stays in the Grandma’s house. You know
who knows his daughter. Uh, (the other lady that
goes) to my dad’s house.
“[C.M.]: Who?
“[Defendant]: . . . That dyke. The short hair.

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“[C.M.]: Uh-huh.
“[Defendant]: She knows his daughter. [¶] . . . [¶] . . . I know they
don’t have me. I feel it in my heart, fool. They ain’t
got nothing, fool. . . . [¶] . . . [¶] . . . I go to my court
(unintelligible) but as long as he don’t go to any of
them. Hey, as long as he don’t go to any of them –
because . . . as time goes on they’re gonna need him to
testify.
“[C.M.]: He’s not gonna testify.”
Sanchez listened to a recording of the visitation and testified:
“[Defendant] was familiar with where [the events of May 20, 2013,]
occurred. . . . [¶] . . . [¶] . . . He mentions that the family was there, the
people who live on the corner of Pacific and M[oun]t[] Vernon. [¶] . . . [¶]
. . . [H]e mentions the first name of the victim, Miguel. [¶] . . . [¶] . . .
[Gerald] . . . was mentioned. . . . [¶] . . . [¶]
“. . . [Defendant] has a conversation with [C.M.] about a girl at the
corner. I believe they are discussing the whereabouts of Miguel[’s] . . .
daughter. [¶] And then he also discusses . . . that witnesses are needed to
testify against him and that the only witness is Miguel . . . .
“He also mentions a girl that lives on the corner house. . . . He refers
to her as a d[y]ke and says that she knows who the female is, the female in
question, which is . . . [Miguel]’s daughter. [¶] . . . [¶]
“. . . [Defendant] acknowledges that [Gerald] is looking for him.
And . . . when they refer to ‘him,’ I believe it’s the victim, Miguel . . . .”
g. Correspondence.
On July 30, 2013, Sanchez conducted a probation search of Velasquez’s residence.
He found a letter dated July 18, 2013, sent by defendant. In the letter, defendant noted
“Mike[i]o” was in witness protection. He mentioned “Señor Chavo” “wants him to take
care of the facility” and “Bouncer of Colonia” “is assisting him in running one of the
pods[11] at Lerdo.” Defendant also referred to “Señor Pisque,” “Lil’ Man,” and “Chuco.”
He signed the letter “camarada.”
11 Sanchez testified a pod is “[a] section where inmates are housed.”

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Based on his “training and experience,” Sanchez knew a Mexican Mafia member
named Raymond Perez had the moniker “Mr. Chavo.” He further testified at trial:
“[In the letter,] [t]here’s references to members of the Mexican
Mafia. There’s also a comment about the victim, in this case, Miguel . . . ,
being on a Witness Protection Program . . . . [¶] . . . [¶] . . . [I]t is
significant to me [that] he mentions the moniker of the victim in this case,
who is known by the moniker of Mikeio. Again, that’s Miguel . . . .”
“During his letter, [defendant] . . . states that . . . Se[ñ]or Chavo
wants him to take care of the facility, which is the Lerdo facility that he was
in custody at the time. [¶] . . . [¶] . . . It’s significant because . . .
[defendant] is claiming that he is an associate of the Mexican Mafia and he
is under direct supervision of the Mexican Mafia. [¶] . . . [¶]
“. . . That Bouncer is assisting him in running one of the pods at
Lerdo – assisting [defendant] of running one of the pods at the Lerdo jail
facility. [¶] . . . [¶] . . . I know that . . . Ochoa, who is also known as
Bouncer, is also a member of a criminal street gang Colonia Bakers 13.[12]
[¶] . . . [¶]
“. . . [Defendant] signs it as Alfred Feliz and refers to him[self] as a
camarada. [¶] . . . [¶] . . . A camarada is a soldier, a soldier of the Mexican
Mafia. He is an associate.”
Sheriff’s sergeant Jennings of the Detentions Bureau, monitored incoming and
outgoing mail. In September 2013, he intercepted letters associated with defendant. In
one letter, which was signed “Alison” and to be sent to Perez, defendant wrote:
“As always, my love is sent to you also from the family. As soon as
I got in town, I seen some old ho Mike[i]o . . . . All I could think about old
times and gave her a ride to the cemetery. Crazy how many years go by.
It’s like old friends are always around. So I just had a good time, had a few
drinks, and just gave it to her.”
Sheriff’s deputy King, who was assigned to the Detentions Bureau, also monitored
incoming and outgoing mail. In October 2013, he intercepted letters associated with
12 Likewise, Bravo testified he “knew from during this investigation and from prior
investigations . . . [that] Ochoa’s moniker for his criminal street gang, the Colonia
Bakers, is Bouncer.”

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defendant. Two letters from Pelican Bay State Prison were signed “Chavo” and
addressed to “Alison.” At trial, King testified:
“[T]he stamp was an identifier that it was coming from a state institution.
Second was the signature. Chavo was significant knowing that he is a
documented Mexican Mafia member who was housed at Pelican Bay at the
time. And the address – the opening line where it was addressed to Alison
indicated that they were attempting to circumvent the mail when it came
in.”
King previously interacted with Perez and knew he had the moniker “Chavo.” He knew
Perez was a documented Mexican Mafia member, “the only living Mexican Mafia
member from Kern County,” and “the recognized leader of Kern County for all the
Sure[ñ]os.”
In another letter, which was signed “Alfred,” “Loma Bakers,” and “camarada” and
addressed to Eddie Castro, defendant wrote:
“As for myself, I am sitting here fighting vida . . . . Remember
[Miguel], Mike[i]o . . . . I ran into him on the calles, . . . and you know me.
Well, Mr. [Ed] . . . . Bizz is bizz. Your Brother is aware of it. He seen it in
the newspaper and now . . . has me working here . . . in my location for
him. As well as we all know it’s his [city]. So I am here with some hard-
headed kids who don’t believe and question one’s status. Mr. Chavo says
he should be back down here before summer’s end or by the end of the year
to reduce his sentencing since that new law passed of three strikes.”
King testified Castro was a documented Mexican Mafia member “out of the Los Angeles
area.”
h. Gang expert.
Police officer Malley was the prosecution’s gang expert.
i. Background on the Sureños and Mexican Mafia.
Malley testified the Sureños are a criminal street gang that claims “California
south of the Delano area” as its territory and whose primary activities include murder and
attempted murder; assault with a deadly weapon; robbery; kidnapping; extortion;
burglary; carjacking; unlawful firearm possession; witness intimidation; criminal threats;

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vehicle theft; possession of stolen property; and vandalism. Sureños, who are typically
Hispanic, identify with the words “South,” “South Side,” and “Sur.” They also identify
with the number 13 because the 13th letter of the alphabet (“M”) stands for the Mexican
Mafia, also known as “Eme.” Sureños are the “foot soldiers” of the Mexican Mafia, the
“parent prison gang” that “controls their activity.” They “commit acts on behalf of the
Mexican Mafia out on the streets.” Sureños respect both Mexican Mafia members and
Mexican Mafia associates who are “a notch [below] . . . Mexican Mafia member[s].”
“[One] must be a Sure[ñ]o to be a Mexican Mafia associate or member.”
“[A]t least a few thousand” Sureños reside in Bakersfield. In addition to the
words “South,” “South Side,” and “Sur” and the number 13, they identify with the words
“Bakers” and “Kern County” and the abbreviations “BKS” (for Bakers) and “KC” (for
Kern County). Local Sureño subsets include the Loma Bakers, Colonia Bakers, Varrio
Bakers, South Side Bakers, Oakie Bakers, East Side Bakers, West Side Bakers, Brown
Pride Locos, and Lamont 13. According to Malley, “out on the streets,” “[t]here are
certain [subsets] that feud with each other, . . . there are others that are allies, . . . there are
some that don’t really get along with much of anybody, and then there are an occasional
one or two that really don’t have any traditional enemies.” By contrast, in a custodial
setting, where Sureños are housed together, members of different subsets “are expected
and required to intermingle and associate with each other” and “get along together” by
edict of the Mexican Mafia. Consequently, members of different subsets often end up
committing crimes together. Malley explained:
“It’s . . . a continuing trend among neighborhood gang members or
street gang members who repeatedly go into prison and jail facilities and
associate themselves with people from other neighborhood gangs who
traditionally could be their rivals. It’s especially prevalent among older
members of street gangs who have been in prison or been incarcerated for a
good deal of their life. It’s normal for them at this point. . . . [A]lthough
there are rivalries and allies . . . out on the street, it is common for them to

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blend and intermingle and commit crimes together both in and out of
custody.”
Malley described the relationship between the Sureños’ criminal conduct and the
gang’s status and level of “respect”:
“[T]he way that gang members obtain respect is through fear. They instill
fear into the members of the community, and they instill fear into members
of other gangs, and that’s how they basically obtain that respect and that
status. The bigger amount of fear they are able to instill in the people in
general, the greater amount of status they will have out on the streets.
[¶] . . . [¶]
“. . . Respect is typically achieved through intimidation and through
either violence or threats of violence or violent criminal acts and through
the types of crimes that they commit. It can also be obtained through
intimidating members of the community by basically taking over a
neighborhood and establishing a stronghold for that gang to prosper,
conduct narcotic sales, as well as other criminal activities that benefit the
gang. [¶] . . . [¶]
“[Having a reputation to be feared] benefits the gang because it
deters people from going against that gang, whether that be rivals from
another neighborhood or community members or even members of law
enforcement. It basically ensures that people will stay out of their way
when they are conducting their crimes.”
“[T]he ones who commit the most violent acts are going to be revered as the ones with
the most respect or most juice.” Those “who have a great amount of influence and
control over other members in the gang,” also known as “shot callers,” “made it to [that]
point by . . . committing greater acts of violence and things that are seen as openly
promoting or bettering the gang as a whole.”
On the matter of snitching, Malley testified:
“[W]ith regards to Sure[ñ]os and the Mexican Mafia, snitching is a matter
of the utmost disrespect when somebody does that. And it is seen in a
variety of different ways. There are ways that snitching can be seen
through the eyes of Southern Hispanic or Sure[ñ]o gang members. . . .
[L]et’s say they get arrested and a few, maybe two or three, gang members
get arrested together. Maybe one [of] them gives a statement to police and
he talks and he says too much. And whether or not his intent was to

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incriminate other people or not, if he did it even in a very limited fashion,
even by accident, that could be seen as snitching, and that could be
punishable.
“And, again, the punishment for snitching depends entirely on the
severity of the offense that the snitching consisted of. For kind of a minor
offense like that, somebody could be given a brutal beating or be stabbed or
be checked. In other words, they will basically check them and let them
know it won’t ever happen again because next time they will be killed.
“For a more severe offense, say, like, testifying in a court of law,
somebody could be killed.”
Malley noted the Sureños would benefit from the death of a confidential informant:
“[If] somebody [were] to silence a source of police information or basically
take an informant out of the picture the police are using as a tool to help
them with investigations, it could benefit the entire gang as a whole
because you are basically taking a source of information out of a scenario
and making sure that it will never be used again against the gang.”
ii. Predicate offenses.
Malley identified six cases involving the commission of predicate offenses by
members of different Sureño subsets. He reviewed reports and/or spoke with the officers
involved in the criminal investigations.
On December 27, 2012, Robert Hurtado and Jose Lemos committed armed
robbery. Hurtado had “a large VB tattooed on his face” and “admitted he was an active
Varrio Baker.” Lemos had “a large G tattooed on his face” signifying “Gage Street,” a
subgroup of the Loma Bakers. In addition, Hurtado “stated he knew Lemos was a Loma
Baker and they had a relationship together which was . . . fostered during their time either
in prison or in county jail together.” Both pled nolo contendere to robbery.
On December 21, 2012, sheriff’s deputies conducted a search at the residence of
Javier Rodriguez, and found a loaded assault rifle. Rodriguez pled nolo contendere to
possession of a firearm by a felon. Ochoa, who was at the residence at the time of the
search and tried to prevent deputies from entering the home, pled nolo contendere to gang
participation. Rodriguez was a Brown Pride Loco and Ochoa was a Colonia Baker.

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On November 30, 2012, Jason Arnison, Salvador Escalera, and Gabriel Rivera
committed armed robbery. Arnison and Rivera “admitted to being Colonia Bakers” and
pled nolo contendere to robbery and gang participation. Escalera “had obvious Oakie
Baker tattoos on his face”—e.g., “a giant O and a giant B on his forehead,” “Oakie BKS
written on his upper lip,” and “a giant O on the right side of his face”—and pled nolo
contendere to grand theft.
On April 27, 2010, Adolf Casica and Pablo Salas killed a victim in her home and
took her possessions. Each was convicted of murder, robbery, and gang participation.
Casica was “a South Side Baker who goes by a moniker of Monster” and Salas was “a
Varrio Baker who goes by the moniker of Psycho.”
On December 31, 2009, Jose Cardenas and Zachary Epps carjacked and kidnapped
a victim, threatened his family, and used his debit card to withdraw money. Cardenas,
who “admitted he was a Colonia Baker,” pled nolo contendere to kidnapping. Epps, who
“admitted he was an East Side Baker,” was convicted of conspiracy, kidnapping to
commit robbery, assault with a deadly weapon, and witness intimidation. Both were
found to have committed a felony on behalf of a criminal street gang.
On August 6, 1997, defendant and his cousin Richard Feliz carjacked a victim.
Defendant pled guilty to carjacking. Richard pled nolo contendere to carjacking. Each
was found to have used a firearm during the commission of the felony. Defendant was a
Loma Baker and Richard was a Varrio Baker. Richard Feliz confirmed defendant’s gang
affiliation.
The court admitted into evidence certified copies of each case’s “FELONY
AMENDED COMPLAINT” or “FELONY AMENDED INFORMATION” and
“REGISTER OF ACTIONS/DOCKET.”
iii. Opinion on defendant’s gang affiliation.
Based on the totality of the circumstances, Malley opined defendant was a Sureño
on May 20, 2013. Photographs of defendant exhibited several gang-related tattoos,

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including the words “Loma” on his lower back and right shin and “Bakers” on his
stomach. Between June 27, 1997, and April 30, 2013, he was booked into jail at least six
times. Booking information from each occasion indicated defendant identified himself as
a “validated Eme associate,” a Loma Baker, and/or a member of a “South” or “Sur” gang
or subset in response to jail classification questions. In sheriff’s field interview cards
dated May 14, 1994; July 9, 1994; and June 22, 1996, and a 2009 police department
“street check,”13 he admitted his affiliation with the Sureños and/or the Loma Bakers. A
2010 sheriff’s office report detailed defendant attacked a detention deputy and uttered, “I
am Mexican Mafia.” In connection with the August 6, 1997, predicate offense, defendant
engaged in one of the Sureños’ primary activities (carjacking) with another Sureño
(Richard). In connection with the events of May 20, 2013, defendant engaged in many of
the Sureños’ primary activities (attempted murder, kidnapping, assault with a deadly
weapon, unlawful firearm possession) with another Sureño (Ochoa) “to settle a disrespect
issue with someone who had spoken to the police, which is traditionally how those
disputes are settled.”
In forming his opinion, Malley found the testimonies of other prosecution
witnesses helpful:
“The . . . thing that I was able to gather from the testimony is that
[defendant] is a Loma Baker and . . . Ochoa is a Colonia Baker. These
gangs are traditionally rivals on the streets. Youngsters from these gangs
will fight each other, assault, stab, shoot each other at will. But, as I have
13 Malley described a “street check”:
“It’s simply a piece of police documentation. It is not necessarily
our police report. It is not something that is intended to be used as
incriminating, but it is basically a document that we generate when we feel
anything needs to be put on record, anything that is worth noting. . . . [T]he
context in which I use street checks as a gang investigator is I use them to
document gang-related intelligence that I collect on the streets, which is
usually done by speaking with gang members and interacting with them in
the public.”

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testified before, once these people have spent a great deal of time in
custody and been around each other and been around various subsets or
factions of the Sure[ñ]os in an in-custody setting, they are very much more
likely to commit crimes together and they do often commit crimes together.
And this case is a shining example of that, in my opinion. [¶] . . . [¶]
“. . . The fact that [defendant] is an influential inmate when he goes
into a facility and he does run or is perceived to run, at least part – or was
requesting permission or said he had been granted permission to run a
facility or at least . . . part of that facility. [¶] It’s . . . of great significance
to me that he’s able to do that, and it goes to show you that he has a great
deal of respect of probably not only the people within his own street gang,
but he has a great deal of respect from other inmates when they are in
custody and he is able to command that type of respect and kind of have
that type of control over people. And that control would include . . . Ochoa,
who was with him at the time, although, through the testimony, he never
said any words to the victim, nor did he ever address the victim directly.
He did exchange the firearm with [defendant] and willingly participated in
that crime. That kind of shows you how he can have so much control over
another Sure[ñ]o.”
“I . . . found it extremely significant that there seemed to be a great
deal of correspondence between [defendant] and various ranking Sure[ñ]o
gang members either in custody or outside of custody or Sure[ñ]o
associates who he was relying on to do business for him as far as locating
the victim and continuing to make efforts to settle the disrespect issue that
he had been confronted with when Miguel . . . provided information to the
police that implicated him in a crime.”
iv. Opinion on Ochoa’s gang affiliation.
Based on the totality of the circumstances, Malley opined Ochoa was a Sureño on
May 20, 2013. Photographs of Ochoa exhibited several gang-related tattoos, including
the abbreviation “BP” (for Brown Pride) on one shoulder, the words “Sur” on his right
shoulder and “Bakers” on his upper back, and the name “Colonia Bakers” on the right
side of his torso. Since September 2006, he was booked into jail at least 10 times.
Booking information from each occasion indicated Ochoa identified himself as a member
of the “South” gang in response to jail classification questions. One police department
report showed a vehicle pulled over by law enforcement in April 2013 was occupied by

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Ochoa, Adam Ceniceros (a Loma Baker member), and Jesse Bueno (a Lamont 13
member) and contained “a sawed-off .410-gauge shotgun, some beanies with holes cut in
them, and a pair of handcuffs.” Another police department report showed Ochoa and an
unidentified accomplice carjacked and stole the personal belongings of a victim on
September 2, 2007. In a sheriff’s office field interview card dated January 28, 2006,
Ochoa admitted he affiliated with Sureños.
v. Hypothetical question.
The prosecutor asked Malley the following hypothetical question:
“I want you to assume that you have two active members of the
Sure[ñ]os criminal street gang. They ride together in a car to a location
where they see a former Sure[ñ]o gang member. One Sure[ñ]o is driving.
The other Sure[ñ]o is a front-seat passenger.
“The Sure[ñ]o driver points a gun at the former Sure[ñ]o and tells
him to get in the car. The former Sure[ñ]o reluctantly enters the car and sits
in the front-passenger seat. He entered the vehicle to avoid a shooting in
front of . . . children. The Sure[ñ]o passenger moves to the backseat
directly behind the former Sure[ñ]o, and he retrieves a firearm from the
Sure[ñ]o driver.
“The Sure[ñ]o driver drives the car around for about 15 minutes
while accusing the former Sure[ñ]o of snitching on him and snitching on
big homies in Ventura . . . . [¶] When the car is about to turn onto a
highway in the direction of a secluded area, the former Sure[ñ]o attempts to
flee from the vehicle and is shot by the driver Sure[ñ]o as soon as he exits
the car. The driver Sure[ñ]o attempts to continue firing the gun, which is
locked up. [¶] The former Sure[ñ]o flees, and the Sure[ñ]o driver and
passenger flee in the subject vehicle.
“The Sure[ñ]o passenger is spotted driving the suspect vehicle later
that evening and takes the BPD on a police pursuit. The incident takes
place in Sure[ñ]o territory. The Sure[ñ]o driver is an influential Eme
associate and communicates with other Eme associates and an Eme
member about his exploits involving the victim.
“Do you have an opinion as to whether the crimes in that
hypothetical were committed for the benefit of, at the direction of, or in
association with the Sure[ñ]os criminal street gang?”

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Malley replied the crimes “were committed for the benefit of the Sure[ñ]os, as well as in
association with the Sure[ñ]os.” He detailed:
“As far as the benefit theory is concerned, it is a crime of pure shock
value that somebody would come and forcibly remove another person from
a location where either friends and family or other subjects are present in
either conditions where they could be easily seen or in conditions where
they could be perceived to be easily seen and taken elsewhere.
“It’s also for the benefit of the Sure[ñ]os as a whole because the
perceived snitching or the perceived betrayal by a member or former
member of the Sure[ñ]os is something that must be met with a great amount
of punishment, and it has to be done in a manner that is an example to
others and is basically being done to silence that person and to be seen in
that fashion.
“It not only benefits the individuals as far as sheer revenge value
goes for people that this person may have given information about, which is
what he is being confronted about by one of the suspects, but it also goes to
benefit the entire gang as a whole because that type of brutal crime is seen
by members of the community, and it instills fear into community members
and to members of law enforcement who have to deal with these types of
people, and it also instills fear into other gang members who are potentially
going to either begin or are in various stages of the dropping out or the
debriefing process. It, more or less, serves as an example to all, and it
serves as an example of why people need to feel that intimidation and give
respect to an influential member of that gang. [¶] . . . [¶]
“. . . I base my opinion on the association theory, first on the fact that
you have two Sure[ñ]os who appear to be planning and committing a crime
together, which is a primary activity of that gang, and the fact that
throughout the process of them committing that crime or those crimes, they
are both openly knowledgeable what’s going on, and there is no deniability
between the two about what the other one is doing. [¶] . . . [¶] . . .
[D]uring the commission of a crime and the period of time afterwards
where the police are going to be looking for members of the gang who were
involved, there is a better chance of evidence being able to be either gotten
rid of, disposed of, handed off to other subjects, or otherwise concealed
from law enforcement.
“It also benefits the gang because if one of those members is caught,
the other one can continue to make arrangements for the member who is
caught and is now in a custody setting – can continue to make arrangements

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for that subject by means of contacting people on the outside, which is
common.”
Malley added the “mere possession of the gun . . . by a member of [the] gang” is “a
benefit to the gang.” He explained:
“It’s a direct benefit to the entire gang as a whole because that
firearm is a communal item. It’s a piece of communal property, which is a
tool that the entire gang is welcome to and will use to openly commit
crimes, which could vary from gang shootings against their rivals to a
various amount of violent felony crimes which are within the primary
activities of that gang. But the firearm can also directly benefit the gang
because it can be used to defend against the gang’s rivals.”
II. Defense’s case-in-chief.
Defendant testified he was a methamphetamine dealer. He obtained his supply
from “[d]ifferent connections,” paying between $150 and $350 per pound. In turn, he
earned “up to [$]2,500” per week “push[ing]” “[n]o more than a pound.” Sometime after
April 15, 2009, Gerald introduced defendant to Miguel, another drug dealer. Sometime
after November 2, 2012, defendant met Ochoa, who later became his subdealer. At trial,
defendant acknowledged he provided drugs to Jessica.
Two or three days before May 20, 2013, defendant gave Gerald’s “beat-up [cell]
phone” to Ochoa because it contained contact information for various buyers. This was
the same phone Bravo found in the Sebring after the car was impounded.
On May 20, 2013, at approximately 6:30 p.m., defendant met Ochoa outside
Adolf’s trailer. Ochoa was alone in Jessica’s Sebring. Defendant gave Ochoa two
ounces of methamphetamine and instructed him to sell some to Adolf’s girlfriend, who
lived near the Mount Vernon Avenue-Pacific Street intersection. After Ochoa left,
defendant returned to the trailer. He did not see Ochoa for the rest of the night. Later,
defendant went to Delia T.’s house and remained there until “about midnight.”14 At no
14 Delia, a defense witness, testified defendant contacted her at or around 6:00 p.m.
She picked him up and brought him to her house, where he stayed until “around midnight
maybe.”

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point did he contact Miguel or drive the Sebring. However, defendant admitted the
subject matter of a “jail call[]” “with Tinker” was “the location [of] or trying to find
Miguel . . . .”
Defendant “grew up in . . . Loma [territory].” He considered himself to be a Loma
Baker because he “[was] not going to forget where [he] came from.” Defendant received
his Loma Baker tattoos while he was in prison. Over the course of his 13-year
incarceration, he was housed with Sureño inmates “from LA, Orange County, San Diego,
[and] throughout California” and “became close” with many of them. Defendant “got
schooled by the older generation” of Sureño inmates. In Pelican Bay State Prison, he met
“quite a few” Mexican Mafia members. Defendant was deemed a “validated Eme
associate” because he possessed a cultural drawing and two confidential informants
alleged he participated in gang-related activity. He denied telling a detention deputy,
“You don’t put hands on me. I am Mexican Mafia.”
Defendant conceded he wrote the July 18, 2013, letter to Velasquez. (See ante, at
pp. 21-22.) He testified:
“At that time I am incarcerated. At that time [Velasquez]
supposedly be running the facility when he is not incarcerated. [¶] . . . [¶]
. . . . I was pretty much telling him to leave who he has in place because I
didn’t want a headache at that time. And when I say that, with my
knowledge of what I learned being incarcerated, you can’t run a facility
when you are on the street. You have to be present. You have to know
what’s going on. [¶] . . . [¶]
“. . . I am actually talking about taking charge of the whole facility.
I mean, when somebody says – like, for instance, I am going to use the
example myself. When I say I am running the facility, I am running the
whole facility. Max, Lerdo, the farm. I am responsible for everybody in
the institution. When somebody wants to get beat up, somebody has a bad
charge, they will notify me. Either I allow it or I won’t.”
Defendant acknowledged he “r[a]n” the “Southern Hispanics” section of the Lerdo jail
facility “at one time.”

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Defendant first met Perez “when [he] was a [teenager], back in the early ’90s.” At
one point, they were housed in the same “short corridor” in Pelican Bay State Prison.
Defendant conceded he wrote the letter to Perez that referred to “old ho Mike[i]o.” (See
ante, at p. 22.) He testified:
“What I am making reference to that, people who are involved in the
activity I am allegedly involved in actually code a lot of stuff. When they
make reference to them, they are pretty much letting the next person know
they have knowledge of what happened. [¶] . . . [¶]
“. . . Letting him know I gained knowledge of what occurred, why I
am here, who actually done it. Things of that nature is what I am referring
to. When I say cemetery, I am actually meaning somebody tried to kill
[Mikeio]. [¶] . . . [¶] . . . Because apparently he got shot.”
In 2010, defendant met Castro while the two were incarcerated in Wasco State
Prison. Defendant conceded he wrote the letter to Castro containing the line “Bizz is
bizz.” (See ante, at p. 23.) He testified:
“That’s referring to when an incident occurs. I mean, something
pretty much happened so I say ‘biz[z] is biz[z].’ I know what happened. I
found out what happened through the course of this. I mean, of course I am
gonna aware somebody else why somebody got hurt, out of . . . [Miguel]’s
status. I didn’t know he was a dropout.”
Defendant confirmed Perez is the “Brother” in the line “Your Brother is aware of it.”
Cecilia G. testified Miguel, her son, lived in a neighboring apartment in May
2013. On May 20, 2013, she attempted to visit him, but he was not home. Cecilia did
not see Miguel at all that day. She also testified Miguel’s daughters did not live at the
apartment and “never went” there. Cecilia last saw her son and her granddaughters
together “maybe three, four” years earlier.
Sheriff’s deputy Delagarza interviewed Miguel in the emergency room at Kern
Medical Center on May 20, 2013. He told her he was shot “as he was attempting to
leave” and “was partially in[,] trying to get out of the vehicle.”

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DISCUSSION
I. Defendant’s non-gang-related arguments.
a. Instructing the jury on attempted voluntary manslaughter.
i. Standard of review.
“A claim of instructional error is reviewed de novo.” (People v. Ghebretensae
(2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-
570.)
ii. Analysis.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.” [Citation.] That obligation has been
held to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged.
[Citations.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) “[T]he
existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the
jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not
the greater, was committed. [Citations.]” (Id. at p. 162.)
“ ‘Murder is the unlawful killing of a human being with malice aforethought.
[Citation.] A defendant who commits an intentional and unlawful killing but who lacks
malice is guilty of . . . voluntary manslaughter. [Citation.]’ [Citation.] Generally, the

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intent to unlawfully kill constitutes malice. [Citations.] ‘But a defendant who
intentionally and unlawfully kills lacks malice . . . when the defendant acts in a “sudden
quarrel or heat of passion” . . . .’ [Citation.] Because heat of passion . . . reduce[s] an
intentional, unlawful killing from murder to voluntary manslaughter by negating the
element of malice that otherwise inheres in such a homicide [citation], voluntary
manslaughter . . . is considered a lesser necessarily included offense of intentional murder
[citation].” (Breverman, supra, 19 Cal.4th at pp. 153-154, italics & fn. omitted.)
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’
[citation], and is thus voluntary manslaughter [citation], if the killer’s reason was actually
obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause
an ‘ “ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’
[Citations.]” (Breverman, supra, 19 Cal.4th at p. 163.) “The heat of passion requirement
for manslaughter has both an objective and a subjective component. [Citation.] The
defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the
circumstances giving rise to the heat of passion are also viewed objectively.” (People v.
Steele (2002) 27 Cal.4th 1230, 1252.) “ ‘ “[N]o specific type of provocation [is] required
. . . .” ’ [Citation.] Moreover, the passion aroused need not be anger or rage, but can be
any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citation] other than
revenge [citation]. ‘However, if sufficient time has elapsed between the provocation and
the fatal blow for passion to subside and reason to return, the killing is not voluntary
manslaughter . . . .’ [Citation.]” (Breverman, supra, at p. 163.)
According to defendant, he “shot [Miguel] in a fit of anger that was the product of
the sudden quarrel and heat of passion he had experienced during the events with
[Miguel].” The record, however, shows defendant, accompanied by Ochoa, drove up to
Miguel, pointed a handgun at him, and ordered him to get in the car. After Miguel
complied, defendant drove away from a residential zone toward a more remote location.

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During the ride, which lasted between 15 and 25 minutes, defendant angrily accused
Miguel of snitching. Yet, he did not inflict any bodily harm until Miguel attempted to
escape. These circumstances do not evince “[defendant]’s reason was so disturbed by
anger or outrage that he acted impulsively.” (People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1704.) Rather, they manifest a plot, albeit an unsuccessful one, to
retaliate against Miguel for his “ratting” in a secluded area. “[T]he desire for revenge
does not qualify as a passion that will reduce a killing to manslaughter.” (Ibid.; accord,
Breverman, supra, 19 Cal.4th at p. 163.) Furthermore, we are unwilling to find Miguel
“provoked” defendant by helping law enforcement apprehend those—including
defendant—who would ultimately be convicted in criminal court; by failing to admit his
status as a confidential informant and thereby “justify” defendant’s actions; and/or by
trying to flee and thwart his own death. (See People v. Steele, supra, 27 Cal.4th at pp.
1252-1253 [“ ‘[N]o defendant may set up his own standard of conduct and justify or
excuse himself because in fact his passions were aroused, unless . . . the jury believe[s]
that the facts and circumstances were sufficient to arouse the passions of the ordinarily
reasonable man.’ ”].) The trial court had no obligation to instruct the jury on attempted
voluntary manslaughter.
Even if we assumed, arguendo, substantial evidence justified an instruction on
attempted voluntary manslaughter, the jury found true the allegation the attempted
murder was willful, deliberate, and premeditated, “negat[ing] any possibility that
defendant was prejudiced from the failure to instruct” on the lesser included offense.
(People v. Cruz (2008) 44 Cal.4th 636, 665; cf. People v. Millbrook (2014) 222
Cal.App.4th 1122, 1126, 1138 [the jury was unable to return a verdict on such an
allegation].)

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b. Defendant’s claim of ineffective assistance of counsel.
Next, defendant contends defense counsel rendered ineffective assistance by
failing to request instructions pertaining to voluntary intoxication, namely CALCRIM
Nos. 404 (Intoxication), 625 (Voluntary Intoxication: Effects on Homicide Crimes), and
3426 (Voluntary Intoxication). We reject this claim.
To establish ineffective assistance of counsel, a defendant must show (1) defense
counsel did not provide reasonably effective assistance in view of prevailing professional
norms; and (2) defense counsel’s deficient performance was prejudicial. (See People v.
Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466
U.S. 668, 687-688.) “It is . . . particularly difficult to establish ineffective assistance of
counsel on direct appeal, where we are limited to evaluating the appellate record. If the
record does not shed light on why counsel acted or failed to act in the challenged manner,
we must reject the claim on appeal unless counsel was asked for and failed to provide a
satisfactory explanation, or there simply can be no satisfactory explanation.” (People v.
Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us “ ‘does not illuminate the basis for the attorney’s challenged
acts or omissions . . . .’ ” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Defense
counsel was never asked to explain why he did not request voluntary intoxication
instructions. Nor can we find “no satisfactory explanation” (People v. Scott, supra, 15
Cal.4th at p. 1212) for his forbearance. In the instant case, “[t]he primary defense theory
at trial was that defendant had not committed the crimes of which he was accused.”
(People v. Olivas (2016) 248 Cal.App.4th 758, 771.) Defendant testified he never saw
Miguel on May 20, 2013. In summation, defense counsel, who characterized Miguel’s
testimony as the pillar of the prosecution’s case, continually asserted Miguel was “not
being truthful.” “Requesting an instruction on voluntary intoxication would have implied
that defendant committed the [crimes]” (ibid.), which would have been “wholly
inconsistent with the primary defense theory that [Miguel] ‘told a lie’ and defendant did

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not actually engage in . . . misconduct” (ibid.). (See Yarborough v. Gentry (2003) 540
U.S. 1, 8 [“[J]udicious selection of arguments for summation is a core exercise of defense
counsel’s discretion. [¶] When counsel focuses on some issues to the exclusion of
others, there is a strong presumption that he did so for tactical reasons rather than through
sheer neglect.”].) Thus, defense counsel “reasonably could [have] decide[d] to forgo
[such an] instruction for tactical reasons.” (People v. Dennis (1998) 17 Cal.4th 468,
527.)
c. The trial court’s refusal to sustain defendant’s objection to Bravo’s
remark that Jessica’s Sebring was used to kidnap Miguel.
i. Background.
On recross-examination, defense counsel questioned Bravo about the phone call
between defendant and C.M. (See ante, at pp. 10-12.) In particular, defense counsel
inquired about the significance of C.M. asking defendant, “You’ve been with [Jessica]?”
Bravo testified “been with her” is a “term used in . . . conversations with . . . gang
members and their significant others when they’ve been accused of cheating . . . .”
Defense counsel then asked whether “non-gang members also use that phrase ‘been with
her.’ ” Bravo responded:
“Yes. Just like non-gang members will use common street slang
terms that gang members use, . . . such as certain gang phrases that are
popular in pop culture that has gone away from the gang culture and has
entered pop culture, yes. [¶] . . . [¶]
“. . . It goes across lines, but here you have two gang members
discussing a third gang member, and they describe [Jessica] as ‘the girl
with the car.’ Again, . . . [Jessica]’s car was the vehicle used to kidnap . . .
[Miguel] and where he was shot from and that . . . Ochoa led police in a
pursuit.”
Defense counsel objected to Bravo’s testimony “with regard to the use of the term
‘kidnapped’ ” as an improper legal conclusion. The court overruled the objection.

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ii. Analysis.
Assuming, arguendo, the court should have sustained defense counsel’s objection
to Bravo’s testimony, its decision not to do so did not constitute prejudicial error.
By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted,
in any cause, on the ground of . . . the improper admission or rejection of evidence, . . .
unless, after an examination of the entire cause, including the evidence, the court shall be
of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when the
court, ‘after an examination of the entire cause, including the evidence,’ is of the
‘opinion’ that it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson); accord, People v. Callahan (1999) 74 Cal.App.4th 356, 363.)
Even in the absence of the purported error, it is not reasonably probable defendant
would have obtained a more favorable verdict as to the kidnapping charge. “ ‘Generally,
to prove the crime of kidnapping, the prosecution must prove three elements: (1) a
person was unlawfully moved by the use of physical force or fear; (2) the movement was
without the person’s consent; and (3) the movement of the person was for a substantial
distance. [Citation.]’ [Citation.]” (People v. Dalerio (2006) 144 Cal.App.4th 775, 781,
fn. omitted.) The record shows defendant drove up to Miguel, pointed a handgun at him,
and ordered him to get in the Sebring. Miguel, who was with his daughters and did not
want a shooting to erupt in front of them, complied. (See People v. Arias (2011) 193
Cal.App.4th 1428, 1435-1436 [a rational trier of fact could conclude the victim was
involuntarily moved by the use of force or fear when the defendant pointed a gun at him
and followed him into his apartment].) Defendant drove away from the residential zone.
During the ride, which lasted between 15 and 25 minutes, he angrily accused Miguel of
snitching. Thereafter, the Sebring stopped at the Mount Vernon Avenue/Alfred Harrell
Highway-Panorama Drive intersection and would have headed to a secluded area had

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Miguel not attempted to escape at that moment. (See People v. Martinez (1999) 20
Cal.4th 225, 237 [“[I]n a case where the evidence permitted, the jury might properly
consider not only the actual distance the victim is moved, but also such factors as whether
that movement increased the risk of harm above that which existed prior to the
asportation, decreased the likelihood of detection, and increased both the danger inherent
in a victim’s foreseeable attempts to escape and the attacker’s enhanced opportunity to
commit additional crimes.”].) “There is no doubt that . . . defendant, in forcing [Miguel]
. . . into [his] automobile and then driving as he did under the circumstances, committed
an act of kidnapping.” (People v. Gunn (1959) 170 Cal.App.2d 234, 239.)
To the extent defendant suggests the more stringent “harmless beyond a
reasonable doubt” standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24
(Chapman), is the proper test of reversible error (see at pp. 57-58, post), we disagree.
The application of ordinary rules of evidence does not implicate the federal Constitution;
therefore, we review allegations of evidentiary error under Watson’s “reasonable
probability” standard. (People v. Harris (2005) 37 Cal.4th 310, 336; People v. Marks
(2003) 31 Cal.4th 197, 226-227.)
d. Substantial evidence defendant discharged a firearm from a motor
vehicle at another person outside of the vehicle.
i. Standard of review.
To determine the sufficiency of the evidence to support a conviction or an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence, i.e., evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60
(Albillar); People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances, plus

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all the logical inferences the trier of fact might have drawn from them, reasonably justify
a finding, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. (Albillar, supra, at p. 60;
People v. Tripp, supra, at p. 955.) “ ‘Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]”
(People v. Lee (2011) 51 Cal.4th 620, 632.)
ii. Analysis.
The record, viewed in the light most favorable to the judgment, shows Miguel
opened the front passenger side door of the Sebring. As he was exiting the car, he looked
back and saw Ochoa handing defendant the gun. When Miguel was outside the car, he
“got shot in the back.” (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [testimony
of a single witness may constitute substantial evidence].)
Defendant argues “it was inherently improbable and physically impossible for
[Miguel] to have been outside of the car when he was shot.” He points to Pair’s
testimony about stippling (see ante, at p. 7 & fn. 7), defendant’s “diminutive stature,”
Miguel’s “likely physical characteristics,” and “the dimensions of the [Sebring].”
“ ‘ “To warrant the rejection of the statements given by a witness who has been
believed by the [trier of fact], there must exist either a physical impossibility that they are
true, or their falsity must be apparent without resorting to inferences or deductions.” ’ ”
(People v. Barnes (1986) 42 Cal.3d 284, 306; accord, People v. Thompson (2010) 49
Cal.4th 79, 124.) Here, Miguel’s testimony “did not recount facts that were physically
impossible, nor did it exhibit falsity on its face. Rather, defendant’s contention that
[Miguel]’s testimony was inherently incredible depends on the asserted inconsistencies
that defendant argues exist between [Miguel]’s testimony and other evidence presented at

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trial.[15] We reject defendant’s attempt to reargue the evidence on appeal and reiterate
that ‘it is not a proper appellate function to reassess the credibility of the witnesses.’
[Citation.]” (People v. Thompson, supra, 49 Cal.4th at pp. 124-125.)
Alternatively, defendant argues the Legislature never intended for section 189 to
cover scenarios in which a firearm is discharged from a stationary vehicle. We disagree.
“The court’s role in construing a statute is to ‘ascertain the intent of the Legislature so as
to effectuate the purpose of the law.’ [Citations.] In determining the Legislature’s intent,
a court looks first to the words of the statute. [Citation.] ‘[I]t is the language of the
statute itself that has successfully braved the legislative gauntlet.’ [Citation.] [¶] When
looking to the words of the statute, a court gives the language its usual, ordinary meaning.
[Citations.] If there is no ambiguity in the language, we presume the Legislature meant
what it said and the plain meaning of the statute governs. [Citations.]” (People v. Snook
(1997) 16 Cal.4th 1210, 1215.) The pertinent language of section 189 refers to “any
murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death.”
Nothing in the statute explicitly requires said vehicle to be in motion.
Substantial evidence established defendant discharged a firearm from a motor
vehicle at another person outside of the vehicle.
15 We point out defendant cites sources that were not before the jury. “[A]n
appellate court generally is not the forum in which to develop an additional factual
record, particularly in criminal cases when a jury trial has not been waived.” (People v.
Peevy (1998) 17 Cal.4th 1184, 1207.) Thus, we decline to consider these sources. (See
People v. Davis (2013) 57 Cal.4th 353, 360 [“The critical inquiry is whether ‘the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ ”].)

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e. Although the recent amendment to section 12022.53 applies
retroactively to the instant case, a remand for reconsideration of the
enhancement is unnecessary.
i. Background.
On May 20, 2015, the court pronounced defendant’s sentence:
“In this case after considering the evidence that was presented and the
probation officer’s report, the Court will find . . . circumstances in
mitigation, there aren’t any factors applicable. In circumstances in
aggravation, . . . defendant’s prior convictions as an adult and sustained
petitions in juvenile delinquency proceedings are numerous. He was on
post release community supervision when this crime was committed. And
his prior performance on juvenile probation, state parole, and post release
community supervision were unsatisfied in that he failed to comply with
terms and continued to reoffend. Given . . . defendant’s criminal history,
the Court does find that the upper term is appropriate in sentencing . . .
defendant to a determinate term sentence. Likewise, the Court finds that
. . . defendant is statutorily ineligible for a grant of felony probation absent
unusual circumstances. The Court, at this time, finds that there are no
unusual circumstances that would allow probation in this case.
“It is therefore, with those thoughts in mind, that . . . defendant is
sentenced as follows: As to Count 1, a violation of . . . [s]ection[s] 664[
and ]187[, subdivision ]([a]) with . . . [s]ection 189[,] . . . [s]ection 186.22[,
subdivision ]([b])(1)[, and] . . . [s]ection 667[, subdivision ]([e]), probation
is denied and . . . defendant is sentenced to the Department of Corrections
for the term prescribed by law of 30 years to life. This sentence is
enhanced by 25 years to life pursuant to . . . [s]ection 12022.53[,
subdivision ]([d]) and it is further enhanced by five years pursuant to . . .
[s]ection 667[, subdivision ]([a]) and . . . two years pursuant to two
[applications] of . . . [s]ection 667.5[, subdivision ]([b]). [¶] . . . [¶]
“As to Count 2, a violation of . . . [s]ection 207[, subdivision ]([a])
with . . . [s]ection 667[, subdivision ]([e]), probation is denied. . . .
[D]efendant is sentenced to the Department of Corrections for the upper
term of 16 years. This sentence is enhanced by ten years pursuant to . . .
[s]ection 186.22[, subdivision ]([b])(1). This sentence is further enhanced
by 25 years to life pursuant to . . . [s]ection 12022.5[, subdivision

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45.
]([d])[,][16] . . . five years pursuant to . . . [s]ection 667[, subdivision ]([a])[,]
and . . . two years pursuant to . . . [s]ection 66[7].5[, subdivision ]([b]).
Those are two sections of . . . [s]ection 667.5[, subdivision ]([b]). [¶]
Punishment for this sentence and enhancement is ordered stayed pursuant
to . . . [s]ection 654. [¶] . . . [¶]
“As to Count 3, a violation of . . . [s]ection 245[, subdivision
]([a])(2) with . . . [s]ection 667[, subdivision ]([e]), probation is denied. . . .
[D]efendant is sentenced to the Department of Corrections for the upper
term of eight years. This sentence is enhanced by ten years pursuant to . . .
[s]ection 186.22[, subdivision ]([b])(1). The sentence is further enhanced
by ten years pursuant to . . . [s]ection 12022.5[, subdivision ]([a]) and . . .
three years pursuant to . . . [s]ection 12022.7. [¶] This punishment for this
sentence and enhancements is stayed pursuant to . . . [s]ection 654.
[¶] . . . [¶]
“As to Count 5, violation of . . . [s]ection 186.22[, subdivision ]([a])
with . . . [s]ection 667[, subdivision ]([e]), probation is denied. . . .
[D]efendant is sentenced to the Department of Corrections for the upper
term of six years. This sentence is enhanced by ten years pursuant to . . .
[s]ection 12022.5[, subdivision ]([a]) and . . . three years pursuant to . . .
[s]ection 12022.7. [¶] Punishment for this sentence and enhancements is
ordered stayed pursuant to . . . [s]ection 654. [¶] . . . [¶]
“As to count 8, violation of . . . [s]ection 29800[, subdivision
]([a])(1) with . . . [s]ection 667[, subdivision ]([e]), probation is denied. . . .
[D]efendant is sentenced to the Department of Corrections for the upper
term of six years. This sentence is enhanced by ten years pursuant to . . .
[s]ection 186.22[, subdivision ]([b])(1) and is further enhanced by ten years
pursuant to . . . [s]ection 12022.5[, subdivision ]([a]). This sentence is
further enhanced by three years pursuant to . . . [s]ection 12022.7. [¶]
Punishment for this sentence and enhancements is ordered stayed pursuant
to . . . [s]ection 654.”
ii. Analysis.
At the time defendant was charged, convicted, and sentenced, subdivision (h) of
section 12022.53 provided:
16 In view of the record, including the information, minute order, and abstract of
judgment, we believe this is a misprint and the court actually referred to section
12022.53, subdivision (d). The parties apparently agree.

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“Notwithstanding Section 1385 or any other provision[s] of law, the court
shall not strike an allegation under this section or a finding bringing a
person within the provisions of this section.”
After defendant was sentenced, but while his case was still pending on appeal, the
Legislature enacted Senate Bill No. 620. As of January 1, 2018, subdivision (h) of
section 12022.53 provides:
“The court may, in the interest of justice pursuant to Section 1385 and at
the time of sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section. The authority provided by this subdivision
applies to any resentencing that may occur pursuant to any other law.”
Citing People v. Francis (1969) 71 Cal.2d 66, inter alia, the Attorney General concedes
Senate Bill No. 620 applies retroactively to defendant’s case since the case was not yet
final when the amendment went into effect. We accept this concession without further
analysis.
The remaining issue is whether remanding the matter for reconsideration of
sentencing is appropriate. We find instructive People v. Gutierrez (1996) 48 Cal.App.4th
1894 (Gutierrez). In that case, the sole issue was whether “the trial court had discretion
to strike the [appellant’s] prior felony conviction in the furtherance of justice under the
three strikes law.” (Id. at p. 1895.) During the pendency of the appeal, the California
Supreme Court determined trial courts have such discretion. (Id. at p. 1896, citing People
v. Superior Court (Romero) (1996) 13 Cal.4th 497.) However, Division Two of the
Second Appellate District ruled a remand for reconsideration of sentencing was
unnecessary. It reasoned:
“[T]he trial court indicated that it would not, in any event, have exercised
its discretion to lessen the sentence. It stated that imposing the maximum
sentence was appropriate. It increased appellant’s sentence beyond what it
believed was required by the three strikes law, by imposing the high term
for count 1 and by imposing two additional discretionary one-year
enhancements.” (Gutierrez, supra, 48 Cal.App.4th at p. 1896; see ibid.
[“Following appellant’s conviction, the trial court imposed the high term
for count 1, robbery, stating that appellant was ‘clearly engaged in a pattern
of violent conduct, which indicates he is a serious danger to society.’ . . .

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The court noted that it had discretion whether to impose two additional one-
year enhancements for prior convictions of petty theft and taking a vehicle
without the owner’s consent pursuant to section 667.5, subdivision (b). It
stated that ‘this is a situation where I do agree with [the prosecutor], there
really isn’t any good cause to strike it. There are a lot of reasons not to, and
this is the kind of individual the law was intended to keep off the street as
long as possible.’ ”].)
“We see no reason why [Gutierrez] would not apply in assessing whether to remand a
case for resentencing in light of Senate Bill [No.] 620. That is, a remand is required
unless the record shows that the trial court clearly indicated when it originally sentenced
the defendant that it would not in any event have stricken a firearm enhancement.”
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).)
In the instant case, “a remand would be an idle act because the record contains a
clear indication that the court will not exercise its discretion in . . . defendant’s favor.”
(McDaniels, supra, 22 Cal.App.5th at p. 427.) The court found no circumstances in
mitigation; instead, it highlighted several circumstances in aggravation, including
defendant’s numerous sustained juvenile delinquency petitions and adult criminal
convictions; his poor performance on juvenile probation, state parole, and post-release
community supervision; and the fact he was on post-release community supervision at the
time of the May 20, 2013, kidnapping and shooting. (See ibid. [a defendant’s recidivism
“may be germane to assessing whether a trial court is likely to exercise its sentencing
discretion in the defendant’s favor”].) In light of this criminal history, the court—
pursuant to section 667, subdivision (e)—doubled the minimum term of imprisonment for
the indeterminate sentence on count 1. (Cf. McDaniels, supra, at p. 428 [trial court
struck the defendant’s four prior felony convictions “ ‘[i]n the interest of justice’ ”].) It
also prescribed—and likewise doubled—the upper term of imprisonment for the
determinate sentences on counts 2, 3, 5, and 8. (See Gutierrez, supra, 48 Cal.App.4th at
p. 1896 [trial court imposed upper term for robbery]; cf. McDaniels, supra, at p. 428 [trial
court imposed middle term for possession of a firearm by a felon].) “Under the

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48.
circumstances, no purpose would be served in remanding for reconsideration.”
(Gutierrez, supra, at p. 1896.)
II. Defendant’s gang-related arguments.
a. Defendant’s responses to booking questions about his gang affiliation.
Citing People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), defendant asserts his
responses to booking questions about his gang affiliation, in which he identified himself
as a “validated Eme associate,” a Loma Baker, and/or a member of a “South” or “Sur”
gang or subset (see ante, at pp. 27-28), were “un-Mirandized” and the prosecution’s
reliance on these responses violated his rights under the Fifth Amendment. The Attorney
General concedes “Miranda warnings were required before [defendant’s] statements
could be used in the prosecution’s case-in-chief” but maintains admission of these
statements “was harmless beyond a reasonable doubt because [defendant]’s Sure[ñ]o
affiliation was readily established by other, properly admitted evidence.”
“The erroneous admission of a defendant’s statements obtained in violation of the
Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard
of Chapman . . . .” (Elizalde, supra, 61 Cal.4th at p. 542.) “That test requires the People
here ‘to prove beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained.’ ” (Ibid., quoting Chapman, supra, 386 U.S. at p. 24.)
At trial, defendant admitted he was a member of the Loma Bakers subset and had
Loma Baker tattoos. In a letter addressed to Castro, defendant identified himself as a
Loma Baker.17 Bravo and Miguel, a former member of both the Lomita Bakers subset
and the Mexican Mafia, each testified defendant was also an associate of the Mexican
Mafia prison gang. Defendant testified he was deemed a “validated Eme associate.” In
letters addressed to Castro and Velasquez, defendant identified himself as a “camarada,”
17 In his reply brief, defendant concedes he was a validated Loma Bakers gang
member.

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49.
signifying he was “ a soldier of the Mexican Mafia.” Malley and Miguel testified the
Mexican Mafia commands the Sureños. Malley added “[one] must be a Sure[ñ]o to be a
Mexican Mafia associate or member.”
During his incarceration, defendant “got schooled by the older generation” of
Sureños and “became close” with many Sureños. In Pelican Bay State Prison, he met
“quite a few” Mexican Mafia members. Defendant and “Chavo” directly corresponded.
In other letters sent to Castro and Velasquez, defendant referred to “Chavo.” At one
point, as instructed by “Señor Chavo” and with the assistance of “Bouncer of Colonia,”
defendant ran the “Southern Hispanics” section of the Lerdo jail facility. King and
Sanchez testified the moniker “Chavo” belonged to Perez. Based on prior personal
interactions, King knew Perez was a Mexican Mafia member and “the recognized leader
of Kern County for all the Sure[ñ]os.” Bravo and Sanchez testified they knew Ochoa was
a Colonia Baker and had the moniker “Bouncer.”18 Malley opined defendant’s role
within the Lerdo jail facility demonstrated his influence and control over other Sureños;
in other words, he was a “shot caller.”
On May 20, 2013, defendant committed attempted murder, kidnapping, assault
with a firearm, and unlawful firearm possession, all of which are primary activities of the
Sureños, in the company of another Sureño (Ochoa). According to Malley, although
defendant and Ochoa belonged to rival Sureño subsets, because they were housed
together in a custodial setting, and therefore “expected and required to intermingle and
associate with each other” and “get along together” by edict of the Mexican Mafia, they
became “much more likely to commit crimes together.” Moreover, defendant accused
the victim (Miguel) of snitching on him and “big homies” in the Mexican Mafia. Finally,
18 In his reply brief, defendant concedes Ochoa was a validated Colonia Bakers gang
member.

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50.
on August 6, 1997, defendant committed carjacking, another primary activity of the
Sureños.
Because defendant’s gang affiliation was amply established by other evidence, the
erroneous admission of his responses to booking questions was harmless beyond a
reasonable doubt. (Elizalde, supra, 61 Cal.4th at p. 542.)
b. Preservation for appeal of the argument that Malley improperly related
case-specific testimonial hearsay in violation of Crawford and Sanchez.
The Attorney General claims defendant “did not object below on hearsay or
confrontation clause grounds to the testimony he now disputes on appeal” and “[h]is
failure to do so bars review of this claim.” Defendant counters he preserved his argument
for appeal by filing an appropriate motion in limine.
“[A] motion in limine to exclude evidence is a sufficient manifestation of
objection to protect the record on appeal when it satisfies the basic requirements of
Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced
and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable
body of evidence; and (3) the motion is made at a time before or during trial when the
trial judge can determine the evidentiary question in its appropriate context. When such a
motion is made and denied, the issue is preserved for appeal.” (People v. Morris (1991)
53 Cal.3d 152, 190, italics omitted, overruled in part by People v. Stansbury (1995) 9
Cal.4th 824, 830, fn. 1.)
On February 25, 2015, defendant filed “In Limine Motion No. Five to
Exclude/Limit Gang Evidence and Request for an Evidence Code Section 402 Hearing.”
(Boldface, underlining & some capitalization omitted.) It read:
“[D]efendant . . . will move for an order excluding and/or limiting the
testimony of any witnesses whom the prosecution intends to call at trial to
testify as experts regarding the behavior and membership in street gangs
and for an Evidence Code section 402 hearing so that the court might be in
better position to limit the scope of the gang evidence.

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51.
“This motion will be made on the ground that the value of such
evidence is outweighed by its prejudicial effect, would exceed the
permissible scope of expert testimony, and would deprive the defendant of
a fair trial, the right to confront witnesses and due process as guaranteed by
the Fifth, Sixth and Fourteenth Amendments of the United States
Constitution as well as the California Constitution, Article I, section(s)
seven and fifteen.”
In the accompanying “Memorandum of Points and Authorities” (boldface & some
capitalization omitted), defendant made several arguments, including the following under
the heading “Hearsay Basis Evidence and Evidence Code Section 352” (boldface & some
capitalization omitted):
“The admission of testimonial hearsay statements as basis evidence
presents a particular risk of undue prejudice to the adverse party under
Evidence Code section 352. By definition, testimonial statements are given
and taken ‘primarily for the purpose’ of establishing ‘some past fact for
possible use in a criminal trial’ and ‘under circumstances that imparted, to
some degree, the formality and solemnity characteristic of testimony.’
(People v. Cage (2007) 40 Cal.4th 965, 984, fn. omitted.) Testimonial
statements are thus factually assertive statements which are difficult if not
impossible to disregard for their truth. (See People v. Hill (2011) 191
Cal.App.4th 1104, 1129-1131.) Testimonial statements are also of suspect
reliability, particularly when the adverse party has not had an opportunity to
cross-examine the declarant concerning the statement. (See Crawford,
supra, 541 U.S. at pp. 61-62.)
“Neither People v. Gardeley (1996) 14 Cal.4th 605 nor People v.
Thomas (2005) 130 Cal.App.4th 1202 addressed whether the hearsay basis
evidence in the cases before them was testimonial or should have been
excluded or at least limited as basis evidence under Evidence Code section
352. And though Hill appropriately criticized the assumption underlying
Thomas and Gardeley—that juries will be able to consider hearsay
statements as basis evidence without regard for their truth or falsity—Hill
also did not address the role of Evidence Code section 352 in limiting or
excluding hearsay basis evidence.
“The admissibility of any hearsay evidence as basis evidence should,
when properly challenged, be analyzed under Evidence Code section 352
and limited or excluded to the extent necessary to prevent undue prejudice
to the adverse party. Trial courts have long had discretion to limit or
exclude any hearsay basis evidence, whether or not testimonial, under

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Evidence Code section 352 when necessary to prevent undue prejudice to
the adverse party, confusion of the issues, or misleading the jury.
“Courts of this state have consistently recognized that ‘prejudice
may arise if, “ ‘under the guise of reasons,’ ” the expert’s detailed
explanation “ ‘[brings] before the jury incompetent hearsay evidence.’ ” ’
(People v. Montiel (1993) 5 Cal.4th 877, 918; People v. Catlin (2001) 26
Cal.4th 81; People v. Campos (1995) 32 Cal.App.4th 304; People v. Dean
(2009) 174 Cal.App.4th 186, 193.)”19 (Italics omitted.)
The court granted defendant’s request for hearings pursuant to Evidence Code
section 402. At one such hearing, Malley testified he reviewed nine cases involving the
commission of predicate offenses by members of different Sureño subsets. With respect
to Malley’s testimony, the court, in exercise of its discretion under Evidence Code
section 352, allowed the prosecution to introduce six of the nine predicate offenses into
evidence. (See ante, at pp. 26-27.)
In light of the content of the above-mentioned motion, we conclude defendant
adequately preserved his argument that Malley improperly related case-specific
testimonial hearsay in violation of Crawford and Sanchez. (Cf. People v. Blessett (2018)
22 Cal.App.5th 903, 921-922 [trial counsel’s in limine motion to exclude prior crimes
evidence was “generic in nature,” was “not specific to the gang evidence,” and “did not
specifically reference the gang expert’s anticipated testimony” or Crawford]; People v.
Blessett, supra, at pp. 922-923 [trial counsel’s in limine motion to exclude a gang
expert’s opinions on grounds of hearsay and lack of foundation “contained little ‘hearsay’
or ‘foundation’ analysis” “concerning expected gang expert testimony,” “contained no
confrontation clause analysis,” and “did not specifically object to any aspect of the gang
expert’s anticipated testimony on Crawford grounds”].)
19 Where appropriate, we reformatted the citations in the quoted text to conform to
the general rules of citation outlined by the California Style Manual. (See generally Cal.
Style Manual (4th ed. 2000).)

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53.
c. Admission of Malley’s testimony concerning the commission of two or
more qualifying predicate offenses by gang members.
i. California Street Terrorism Enforcement and Prevention Act
(§ 186.20 et seq.).
The California Street Terrorism Enforcement and Prevention Act “created a
substantive offense, set forth in section 186.22, subdivision (a), and a sentencing
enhancement, set forth in subdivision (b) of the statute.” (People v. Rios (2013) 222
Cal.App.4th 542, 558 (Rios).)
Section 186.22, subdivision (a), punishes “[a]ny person who actively participates
in any criminal street gang with knowledge that its members engage in, or have engaged
in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
any felonious criminal conduct by members of that gang . . . .” “ ‘The elements of the
gang participation offense . . . are: First, active participation in a criminal street gang, in
the sense of participation that is more than nominal or passive; second, knowledge that
the gang’s members engage in or have engaged in a pattern of criminal gang activity; and
third, the willful promotion, furtherance, or assistance in any felonious criminal conduct
by members of that gang.’ [Citation.]” (People v. Johnson (2014) 229 Cal.App.4th 910,
920, fns. omitted.) Proof of the existence of a criminal street gang is a prerequisite. (See
Prunty, supra, 62 Cal.4th at p. 67 [“To prove that a criminal street gang exists in
accordance with [section 186.22], the prosecution must demonstrate that the gang
satisfies the separate elements of the [California Street Terrorism Enforcement and
Prevention] Act’s definition . . . .”]; People v. Lara (2017) 9 Cal.App.5th 296, 337 (Lara)
[“[W]ithout the improperly admitted testimonial hearsay regarding the missing predicate
offense, the prosecution would not have proved every element of either the gang crime or
the gang enhancement.”].)
Section 186.22, subdivision (b)(1), imposes an enhancement on “any person who
is convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any

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criminal conduct by gang members . . . .” “There are two prongs to the gang
enhancement under section 186.22, subdivision (b)(1) . . . . The first prong requires proof
that the underlying felony was ‘gang related,’ that is, the defendant committed the
charged offense ‘for the benefit of, at the direction of, or in association with any criminal
street gang.’ [Citations.] The second prong ‘requires that a defendant commit the gang-
related felony “with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” ’ [Citations.]” (People v. Franklin (2016) 248 Cal.App.4th
938, 948.) Again, proof of the existence of a criminal street gang is a prerequisite. (See
Prunty, supra, 62 Cal.4th at p. 67; Lara, supra, 9 Cal.App.5th at p. 337.)
“ ‘To establish that a group is a criminal street gang within the meaning of the
statute, the People must prove: (1) the group is an ongoing association of three or more
persons sharing a common name, identifying sign, or symbol; (2) one of the group’s
primary activities is the commission of one or more statutorily enumerated criminal
offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of
criminal gang activity. [Citations.]’ [Citation.] ‘A “pattern of criminal gang activity” is
defined as gang members’ individual or collective “commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more” enumerated “predicate offenses” during a statutorily defined
time period. [Citations.] The predicate offenses must have been committed on separate
occasions, or by two or more persons. [Citations.]’ [Citation.]” (Lara, supra, 9
Cal.App.5th at pp. 326-327; accord, § 186.22, subds. (e), (f).)
To prove the elements of the gang participation offense and the gang
enhancement, the prosecution may present expert testimony. (See, e.g., People v.
Franklin, supra, 248 Cal.App.4th at p. 948; People v. Williams (2009) 170 Cal.App.4th
587, 609; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.)

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55.
ii. Expert testimony, hearsay, and the confrontation clause.
“While lay witnesses are allowed to testify only about matters within their
personal knowledge [citation], expert witnesses are given greater latitude. ‘A person is
qualified to testify as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his testimony
relates.’ [Citation.] An expert may express an opinion on ‘a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact.’
[Citation.] In addition to matters within their own personal knowledge, experts may
relate information acquired through their training and experience, even though that
information may have been derived from conversations with others, lectures, study of
learned treatises, etc. This latitude is a matter of practicality. . . . An expert’s testimony
as to information generally accepted in the expert’s area, or supported by his own
experience, may usually be admitted to provide specialized context the jury will need to
resolve an issue. When giving such testimony, the expert often relates relevant principles
or generalized information rather than reciting specific statements made by others.”
(Sanchez, supra, 63 Cal.4th at p. 675.)
In general, hearsay evidence, i.e., evidence of a statement that was made other
than by a witness while testifying at the hearing and that is offered to prove the truth of
the matter stated, is inadmissible. (Evid. Code, § 1200.) However, “[t]he hearsay rule
has traditionally not barred an expert’s testimony regarding his general knowledge in his
field of expertise. ‘[T]he common law recognized that experts frequently acquired their
knowledge from hearsay, and that “to reject a professional physician or mathematician
because the fact or some facts to which he testifies are known to him only upon the
authority of others would be to ignore the accepted methods of professional work and to
insist on . . . impossible standards.” Thus, the common law accepted that an expert’s
general knowledge often came from inadmissible evidence.’ [Citations.] Knowledge in a
specialized area is what differentiates the expert from a lay witness, and makes his

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56.
testimony uniquely valuable to the jury in explaining matters ‘beyond the common
experience of an ordinary juror.’ [Citations.] As such, an expert’s testimony concerning
his general knowledge, even if technically hearsay, has not been subject to exclusion on
hearsay grounds.” (Sanchez, supra, 63 Cal.4th at p. 676; see id. at p. 685 [“Gang experts,
like all others, can rely on background information accepted in their field of expertise
under the traditional latitude given by the Evidence Code.”].)
“By contrast, an expert has traditionally been precluded from relating case-specific
facts about which the expert has no independent knowledge. Case-specific facts are those
relating to the particular events and participants alleged to have been involved in the case
being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) “When any expert relates to the jury
case-specific out-of-court statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are hearsay.” (Id. at p. 686.)
“The admission of expert testimony is governed not only by state evidence law,
but also by the Sixth Amendment’s confrontation clause, which provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .’ [Citation.]” (Sanchez, supra, 63 Cal.4th at p. 679.) “Under
previous United States Supreme Court precedent, the admission of hearsay did not violate
the right to confrontation if it bore ‘adequate “indicia of reliability.” Reliability can be
inferred without more in a case where the evidence falls within a firmly rooted hearsay
exception. In other cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness.’ [Citation.] Crawford overturned . . . [this]
rule. Crawford clarified that a mere showing of hearsay reliability was insufficient to
satisfy the confrontation clause. ‘To be sure, the Clause’s ultimate goal is to ensure
reliability of evidence, but it is a procedural rather than a substantive guarantee. . . . [¶]
The [adequate indicia of reliability] test allows a jury to hear evidence, untested by the
adversary process, based on a mere judicial determination of reliability. It thus replaces
the constitutionally prescribed method of assessing reliability with a wholly foreign one.’

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[Citation.] Under Crawford, if an exception was not recognized at the time of the Sixth
Amendment’s adoption [citation], admission of testimonial hearsay against a criminal
defendant violates the confrontation clause unless (1) the declarant is unavailable to
testify and (2) the defendant had a previous opportunity to cross-examine the witness or
forfeited the right by his own wrongdoing. [Citations.]” (Id. at p. 680.)
“In light of our hearsay rules and Crawford, a court addressing the admissibility of
out-of-court statements must engage in a two-step analysis. The first step is a traditional
hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of
the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is
being offered by the prosecution in a criminal case, and the Crawford limitations of
unavailability, as well as cross-examination or forfeiture, are not satisfied, a second
analytical step is required. Admission of such a statement violates the right to
confrontation if the statement is testimonial hearsay, as the high court defines that term.”
(Sanchez, supra, 63 Cal.4th at p. 680, italics omitted.) “Although the high court has not
agreed on a definition of ‘testimonial,’ testimonial out-of-court statements have two
critical components. First, to be testimonial the statement must be made with some
degree of formality or solemnity. Second, the statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55
Cal.4th 608, 619; see Sanchez, supra, at p. 689 [“Testimonial statements are those made
primarily to memorialize facts relating to past criminal activity, which could be used like
trial testimony.”].)
“Ordinarily, an improper admission of hearsay would constitute statutory error
under the Evidence Code.” (Sanchez, supra, 63 Cal.4th at p. 685.) We analyze prejudice
of such an error under Watson, supra, 46 Cal.2d at page 836, which provides for reversal
only when “it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” On the other hand,
“[c]onfrontation clause violations are subject to federal harmless-error analysis under

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58.
Chapman . . . .” (People v. Geier (2007) 41 Cal.4th 555, 608; accord, Sanchez, supra, at
p. 698.) “The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error?’ ” (People v. Geier,
supra, 41 Cal.4th at p. 608.)
iii. Analysis.
In his supplemental brief, defendant contends:
“A portion of Malley’s testimony regarding background information
about the Sure[ñ]o gang was admissible and is not at issue on appeal. . . .
[¶] Malley properly testified about the general characteristics of the
Sure[ñ]o gang, its primary activities, and its locations. The problem with
his testimony arose when he crossed the line into relating testimonial
hearsay to the jury. . . . [¶] . . . [¶] This crossing over into improper
testimony occurred when Malley testified about the predicate offenses that
were used to establish the requisite pattern of criminal activity for purposes
of Section 186.22. . . .”
At trial, Malley identified six cases involving the commission of qualifying
predicate offenses, including murder, assault with a deadly weapon, robbery, carjacking,
grand theft, kidnapping, witness intimidation, and unlawful firearm possession, between
August 6, 1997, and December 27, 2012. (See § 186.22, subd. (e).) He specified the
perpetrators in those cases—defendant, Arnison, Cardenas, Casica, Epps, Escalera,
Hurtado, Lemos, Ochoa, Richard, Rivera, Rodriguez, and Salas—were members of
various Sureño subsets. Because Malley derived the details of the six cases solely from
conversations with officers involved in the criminal investigations and/or their reports, he
related case-specific testimonial hearsay. (See Lara, supra, 9 Cal.App.5th at p. 337
[gang expert testified from police reports generated by other officers during official
investigations of predicate offenses].)20
20 The Attorney General contends Malley’s testimony establishing the commission
of two or more qualifying predicate offenses by gang members was not case specific. We
disagree. Testimony establishing a predicate offense, including a predicate offender’s
gang affiliation at the time of the offense, is case specific because the facts are beyond
the scope of a gang expert’s general knowledge. In Sanchez, the Supreme Court

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Nonetheless, we conclude admission of Malley’s testimony was harmless beyond
a reasonable doubt. “The [two or more] predicate offenses must have been committed on
separate occasions, or by two or more persons.” (People v. Duran (2002) 97 Cal.App.4th
1448, 1457 (Duran), citing § 186.22, subd. (e); see People v. Garcia (2014) 224
Cal.App.4th 519, 524 [“Because section 186.22, subdivision (e) contains both the options
of ‘commission’ or ‘conviction,’ the statute expressly does not require that the offense
necessarily result in a conviction.”].) Here, the evidence showed defendant was a
member of the Loma Bakers subset. (See ante, at p. 48 & fn. 17.) In connection with the
events of May 20, 2013, he was charged with attempted murder, kidnapping, assault with
a semiautomatic firearm, and possession of a firearm by a felon, inter alia. Any of these
offenses could serve as the first predicate offense. (See Duran, supra, at p. 1457 [“The
charged crime may serve as a predicate offense.”]; see also People v. Ochoa, supra, 7
described case-specific facts as “those relating to the particular events and participants
alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at
p. 676.) It provided the following example to distinguish case-specific facts from
background information:
“That an associate of the defendant had a diamond tattooed on his arm
would be a case-specific fact that could be established by a witness who
saw the tattoo, or by an authenticated photograph. That the diamond is a
symbol adopted by a given street gang would be background information
about which a gang expert could testify. The expert could also be allowed
to give an opinion that the presence of a diamond tattoo shows the person
belongs to the gang.” (Sanchez, supra, 63 Cal.4th at p. 677.)
As noted, a gang’s existence is a precondition of both the gang participation offense and
the gang enhancement and predicate offenses are necessary to prove this existence. (See
ante, at pp. 53-54.) Whether a specific crime actually occurred and was actually
committed by a member of a particular gang is analogous to the presence of the diamond
tattoo, not the explanation regarding its meaning, in Sanchez. (See People v. Ochoa
(2017) 7 Cal.App.5th 575, 588-589 [likening predicate offender’s gang-membership
admission to the diamond tattoo example in Sanchez].) These facts, though not specific
to defendant’s conduct, are case specific. To hold otherwise would allow the prosecution
to prove the existence of a gang through predicate offenses without any actual evidence
in the record that the crimes were committed by actual gang members.

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Cal.App.5th at p. 586 [“Because there was overwhelming evidence defendant was [a
South Side Locos] member . . . , his [charged] offenses could qualify as predicate
offenses for purposes of the enhancement.”].) The evidence also showed Ochoa was a
Colonia Baker. (See ante, at p. 49 & fn. 18.) In connection with the events of May 20,
2013, Ochoa was charged with attempted murder, kidnapping, assault with a
semiautomatic firearm, assault with a firearm, and possession of a firearm by a felon,
inter alia. (See ante, fn. 2.) Any of these offenses could serve as the second (and last)
predicate offense. (See Duran, supra, at p. 1457 [predicate offense may be established
by “ ‘proof of another offense committed on the same occasion by a fellow gang
member’ ”]; see also People v. Loeun (1997) 17 Cal.4th 1, 11 [“[T]he prosecution can
establish the requisite ‘pattern’ exclusively through evidence of crimes committed
contemporaneously with the charged incident.”].)21,22
21 We point out the carjacking committed by defendant on August 6, 1997, cannot
serve as a predicate offense because that occasion occurred more than three years before
the events of May 20, 2013. (See § 186.22, subd. (e).)
22 We also reviewed the certified copies the “FELONY AMENDED
COMPLAINT”/“FELONY AMENDED INFORMATION” and “REGISTER OF
ACTIONS/DOCKET” for each the six cases. (See ante, at p. 27.)
The amended complaints/informations contained no information regarding the
offenders’ affiliation with Sureño subsets.
In the case involving Arnison, the docket indicated “counsel stipulate[d] . . . the
Colonia Bakers is a criminal street gang in Bakersfield, Kern County, under . . . [section
]186.22.” (Some capitalization omitted.) Arnison pled nolo contendere to second-degree
robbery and gang participation.
In the case involving Salas, the docket indicated “Salas [filed a] motion in limine
. . . requir[ing] the prosecution to stipulate that the Varrio Bakers gang is a criminal street
gang within the meaning of . . . [section] 186.22” and “counsel enter[ed] into a stipulation
as stated on the record.” (Some capitalization omitted.) Salas was convicted of murder,
first-degree robbery, and gang participation. In addition, the jury found he committed the
murder and robbery for the benefit of, at the direction of, or in association with a criminal
street gang.
[fn. cont’d on next page]

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d. Evidence defendant and Ochoa belonged to the same gang.
i. Standard of review. (See ante, at pp. 41-42.)
ii. Analysis.
“[W]here the prosecution’s case positing the existence of a single ‘criminal street
gang’ for purposes of section 186.22[, subdivision ](f) turns on the existence and conduct
of one or more gang subsets, then the prosecution must show some associational or
organizational connection uniting those subsets. That connection may take the form of
evidence of collaboration or organization, or the sharing of material information among
the subsets of a larger group. Alternatively, it may be shown that the subsets are part of
the same loosely hierarchical organization, even if the subsets themselves do not
communicate or work together. And in other cases, the prosecution may show that
various subset members exhibit behavior showing their self-identification with a larger
group, thereby allowing those subsets to be treated as a single organization.” (Prunty,
supra, 62 Cal.4th at p. 71, fn. omitted; see id. at pp. 76, 80-81 [“sameness” requirement].)
The record, viewed in the light most favorable to the judgment, establishes this
associational or organizational connection. The prosecution theorized defendant actively
participated in and committed the charged crimes for the benefit of, at the direction of, or
in association with the Sureños criminal street gang. The qualifying predicate offenses
involved two Sureño subsets in Kern County: the Loma Bakers (defendant’s subset) and
the Colonia Bakers (Ochoa’s subset). (See ante, at pp. 59-60.) The evidence showed the
Sureños are controlled by the Mexican Mafia prison gang. Perez, a Mexican Mafia
member, is “the recognized leader of Kern County for all the Sure[ñ]os” and directly
corresponded with defendant. Both gangs adhere to a rule against snitching and impose
penalties such as beatings, stabbings, and even death. Sureños respect members and
associates of the Mexican Mafia. Hence, while some of the Sureño subsets “feud with
The dockets for the remaining cases contained no information regarding the
offenders’ affiliation with Sureño subsets.

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each other” “out on the streets,”23 including the Loma Bakers and the Colonia Bakers, at
the behest of the Mexican Mafia, Sureños housed together in a custodial setting,
regardless of subset, “are expected and required to intermingle and associate with each
other” and “get along together.” (See Prunty, supra, 62 Cal.4th at p. 77 [“[P]roof that
different [gang] subsets are governed by the same ‘bylaws’ may suggest that they
function—however informally—within a single hierarchical gang.”]; see also ibid.
[“[Gang] subsets may still be part of the same organization if they are controlled by the
same locus or hub.”].)
The evidence also showed defendant—per Perez’s instructions—ran the Lerdo jail
facility’s “Southern Hispanics” section with Ochoa’s assistance. This manifested not
only compliance with the Mexican Mafia’s “get along together” decree but also
collaboration between members of different subsets to accomplish a shared objective.
The partnership between defendant and Ochoa did not end after both were released from
custody: on May 20, 2013, they kidnapped and attempted to murder Miguel for violating
the rule against snitching. (See Prunty, supra, 62 Cal.4th at p. 78 [“[F]acts may suggest
the existence of behavior reflecting such a degree of collaboration, unity of purpose, and
shared activity to support a fact finder’s reasonable conclusion that a single organization,
association, or group is present. . . . For instance, the evidence may show that members
of different subsets have ‘work[ed] in concert to commit a crime.’ ”]; ibid. [“[P]roof that
members of two gang subsets ‘hang out together’ and ‘back up each other,’ can help
demonstrate that the subsets’ members have exchanged strategic information or otherwise
taken part in the kinds of common activities that imply the existence of a genuinely
shared venture.”].) We additionally highlight defendant’s status as both a Loma Bakers
member and a Mexican Mafia associate, the latter of which subsumes a Sureño
23 “[T]here is no requirement that the subset gangs have peaceably coexisted for
them to constitute a single organization.” (Prunty, supra, 62 Cal.4th at p. 80.)

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affiliation. (See ibid. [evidence a “ ‘liaison’ ” coordinated relations between the subsets
“sufficient to show that the two subsets collaborate or cooperate”].)
Substantial evidence established defendant and Ochoa belonged to the same gang.
e. Evidence of defendant’s gang participation.
i. Standard of review. (See ante, at pp. 41-42.)
ii. Analysis.
As noted, gang participation requires proof of a defendant’s active participation in
a criminal street gang; knowledge of members’ engagement in a pattern of criminal
activity; and willful promotion, furtherance, or assistance in any felonious criminal
conduct by members. (See ante, at pp. 53-54; see People v. Johnson, supra, 229
Cal.App.4th at p. 920 [“Section 186.22, subdivision (a), ‘requires that felonious criminal
conduct be committed by at least two gang members, one of whom can include the
defendant if he is a gang member.’ ”].) The record, viewed in the light most favorable to
the judgment, shows defendant is an active Sureño. During his previous incarceration, he
“got schooled by the older generation” of Sureños and “became close” with many
Sureños. Defendant directly corresponded with Perez, the leader of the Sureños in Kern
County. At one point, as instructed by Perez, defendant ran the “Southern Hispanics”
section of the Lerdo jail facility with the assistance of Ochoa, a fellow Sureño. On
May 20, 2013, defendant and Ochoa kidnapped and attempted to murder Miguel, a
former Mexican Mafia and Sureño member, for violating the gang’s rule against
snitching. After defendant was taken into custody, he communicated with Gerald, his
uncle and a Sureño, about Miguel’s whereabouts and how to prevent him from appearing
in court. In subsequent correspondences to Perez and Castro, a Mexican Mafia member,
defendant recounted the events of May 20, 2013, i.e., he encountered “old ho Mike[i]o”
“on the calles” and “gave her a ride to the cemetery.” Moreover, a reasonable fact finder
could infer from defendant’s conduct that defendant knew of members’ engagement in a
pattern of criminal activity and willfully promoted, furthered, or assisted in the felonious

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criminal conduct on May 20, 2013. (See Rios, supra, 222 Cal.App.4th at p. 568
[“ ‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
circumstantial evidence is as sufficient as direct evidence to support a conviction.’ ”].)
Substantial evidence supported defendant’s conviction for gang participation.
f. Evidence of the gang enhancement findings.
i. Standard of review. (See ante, at pp. 41-42.)
ii. Analysis.
As noted, the gang enhancement requires proof a defendant committed the
underlying felony for the benefit of, at the direction of, or in association with a criminal
street gang and did so with the specific intent to promote, further, or assist in any criminal
conduct by gang members. (See ante, at pp. 53-54.) The record, viewed in the light most
favorable to the judgment, shows defendant and Ochoa publicly kidnapped Miguel at
gunpoint. Defendant then drove away from the residential zone and accused Miguel of
snitching on “big homies” in the Mexican Mafia. At least 15 minutes later, when the car
stopped at the Mount Vernon Avenue/Alfred Harrell Highway-Panorama Drive
intersection, but before it could proceed to a more remote location, Miguel tried to escape
and defendant shot him in the back. Malley opined defendant’s and Ochoa’s conduct
benefitted the Sureños. First, abducting Miguel in such an ostentatious manner instilled
fear into the community at large, which discouraged cooperation with law enforcement
and enhanced the gang’s level of respect. Second, had Miguel been killed, defendant and
Ochoa would have “silence[d] a source of police information” and “take[n] an informant
out of the picture.” Furthermore, “if substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a gang, 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; see Rios,
supra, 222 Cal.App.4th at pp. 567-568 [“ ‘[I]ntent is rarely susceptible of direct proof and

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usually must be inferred from the facts and circumstances surrounding the offense.’ ”].)
Substantial evidence supported the jury’s gang enhancement findings.
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
HILL, P.J.
_____________________
FRANSON, J.

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