Filed 10/5/26 P. v. Quintanilla CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B339897
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA090928)
v.
OMAR QUINTANILLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Defendant and Respondent.
________________________
INTRODUCTION
A jury convicted Omar Quintanilla of the first degree
murder of Alcides Quiroz-Portillo, possession of a firearm by a
felon, and shooting from a motor vehicle, with a true finding that
Quintanilla personally used a firearm in the commission of the
offenses. Quintanilla appeals, arguing (1) the trial court erred by
admitting irrelevant, cumulative, and unduly prejudicial gang
evidence, and (2) the prosecutor committed misconduct in closing
arguments by mischaracterizing the evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
By a first amended information in September 2023,
Quintanilla was charged with murder (Pen. Code, § 187,
subd. (a)1; count 1), possession of a firearm as a convicted felon
(§ 29800, subd. (a)(1); count 2), and shooting from a motor vehicle
(§ 26100, subd. (c); count 3). The information alleged as to counts
1 and 3 that Quintanilla personally used a firearm in the
commission of the offenses.
The information also alleged aggravating factors as to all
counts: the offenses involved great violence or bodily harm, threat
of great bodily harm, or a high degree of cruelty, viciousness and
callousness (Cal. Rules of Court, rule 4.421(a)(1)2); Quintanilla
1 Unless otherwise specified, undesignated statutory
references are to the Penal Code.
2 Undesignated rule references are to the California Rules of
Court.
2
was armed with and used a weapon at the time of the offenses
(rule 4.421(a)(2)); Quintanilla had been convicted of and
concurrently sentenced for crimes for which consecutive
sentences could be imposed (rule 4.421(a)(7)); the manner of the
offenses indicated planning, sophistication, and professionalism
(rule 4.421(a)(8)); the offenses involved violent conduct indicating
a serious danger to society (rule 4.421(b)(1)); and Quintanilla had
served a prior prison or jail term under section 1170,
subdivision (h) (rule 4.421(b)(3)).
B. Conviction and Sentence
Quintanilla was tried by a jury. The People introduced
evidence that on July 20, 2019, Quintanilla was driving his
silver-gray sedan in an alley when he encountered Quiroz-Portillo
and his friend Susana Martinez walking. Quintanilla told
Quiroz-Portillo “ ‘we’re looking for chavalas’ ” and asked Quiroz-
Portillo “where he was from,” essentially asking what gang he
belonged to. Quiroz-Portillo responded “Mara,” a gang also
known as Mara Salvatrucha, M.S., or M.S. 13. Quintanilla shot
Quiroz-Portillo once in the head and drove away. Quiroz-Portillo
died that day from his injuries.
The People’s theory at trial was that Quintanilla was an
active member of the North Hollywood Boyz (NHBZ) gang, that
NHBZ and M.S. 13 were rivals, and that the shooting was gang-
motivated. Martinez positively identified Quintanilla as the
driver of the car at a police photo lineup 10 days after the
shooting occurred and at trial. The People introduced
surveillance video of the shooting, showing Quintanilla’s vehicle
and Quiroz-Portillo falling to the ground, as well as cell phone
records reflecting Quintanilla’s cell phone was located “in the
3
area of the crime scene” at the time of the shooting.
Quintanilla did not testify at trial. Quintanilla’s trial
theory was that someone else killed Quiroz-Portillo from above
the alleyway because he was there to sell drugs. Quintanilla
introduced gang expert evidence that the shooting was not
NHBZ-affiliated, and he argued that he could not have fired the
fatal shot from inside his car, given the downward angle of the
bullet’s trajectory through Quiroz-Portillo’s temple and out his
neck. We describe the relevant trial evidence in greater detail in
the Discussion.
The jury convicted Quintanilla on all counts, finding the
murder to be of the first degree and the firearm allegations to be
true.
Quintanilla admitted the aggravating factors as alleged in
the information. The trial court sentenced Quintanilla to a total
prison term of 35 years to life: 25 years to life on count 1, plus
10 years on the section 12022.5, subdivision (a), firearm
enhancement, with a concurrent upper term sentence of three
years on count 2. The court imposed and stayed a 17 year
sentence on count 3 and the related firearm enhancement. (See
§ 654.)
Quintanilla timely appealed.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err by Admitting the
Challenged Gang Evidence
Quintanilla first argues the court violated due process and
abused its discretion by admitting gang evidence that was more
prejudicial than probative under Evidence Code section 352
4
(section 352).
1. Relevant Trial Evidence and Procedural History
Before trial, the prosecution moved to admit evidence of
Quintanilla’s gang membership to show Quintanilla’s motive and
intent behind the shooting. Quintanilla moved to exclude the
gang evidence, arguing it was not relevant or probative because
the only issue was the identity of the shooter.
At a hearing on these motions, the court ruled “the
defendant’s gang membership . . . is highly relevant given that
the People are indicating that the evidence will show that
arguably or allegedly the defendant pulls up to the victim in a
car, says he’s looking for and says a word that’s slang for a Mara
Salvatrucha member . . . and then asks where the victim is from,
which is a common gang question in the gang culture, and then
shoots the victim even [though] he’s walking away.” The court
determined “the fact that the defendant is a member of the North
Hollywood Boyz Gang, the fact that the victim is a member of
M.S., the fact that they may have a rivalry, that’s all in the
court’s view highly relevant. It explains the defendant’s action,
the defendant’s intent, whether his actions [were] willful,
deliberate, and premeditated. It’s highly relevant and not unduly
prejudicial, and in the court’s view it survives a [section] 352
analysis. The defendant’s actions would lack context and would
lack explanation if not for that evidence.”
The prosecution then indicated it would introduce gang
expert testimony from Officer Alexander Gonzalez of the Los
Angeles Police Department (LAPD), as well as photographs of
Quintanilla’s tattoos, the tattoos of documented NHBZ members,
5
and NHBZ graffiti. Defense counsel did not object to this
evidence.
The prosecution also sought to introduce body-camera video
from a traffic stop of Quintanilla’s silver sedan in June 2019
(about a month before the shooting) which involved Quintanilla
and known NHBZ members. Defense counsel objected to the
video as “[v]ery prejudicial,” noting it depicted Quintanilla in
handcuffs. Defense counsel proposed “we can sanitize [the video]
to show the car and then maybe a still can be taken that doesn’t
show him in handcuffs.” The court believed the video was “highly
relevant and admissible” given “the fact that the defendant is
driving the car and it is the car allegedly involved in the
incident[,] the individuals in the car are also members of the
same gang,” and the video portrayed Quintanilla’s appearance
near the time of the shooting.
At trial, Quiroz-Portillo’s friend Martinez testified that
Quintanilla asked Quiroz-Portillo “where he was from,” which
she understood as asking what gang Quiroz-Portillo belong to.
Martinez confirmed that she gave two statements to law
enforcement shortly after the shooting, but also testified she
could not remember many of the details she had provided in
these interviews, including that Quiroz-Portillo responded
“Mara” or that she saw the driver “extend[] his arm out of the
car, aim[], and fire[].” Martinez also testified at trial that she
was “concerned about coming to court and answering questions
about gangs” and she did not “want to talk about gangs,” but she
confirmed that she was telling the truth in her previous police
interviews.
Officer Gonzalez testified that, based on his experience
monitoring the NHBZ gang on the North Hollywood Gang
6
Enforcement Detail, NHBZ was involved in “[e]verything from
shootings to narcotics for sales, possession[] of firearms, things as
petty as theft from typical convenience stores to vandalism, [and]
child abuse cases.” Officer Gonzalez testified that, in gang
culture generally, members “commit crimes or do things within
the community to gain status within the gang” and “to be feared.”
Officer Gonzalez also testified that, in the gang context,
asking “ ‘where [are] you from’ ” serves “to verify whether or not
the person you’re asking is from a rival gang neighborhood.” He
testified that “ ‘chavalas’ ” is a “derogatory term used to
disrespect someone” used by both gang members and non-
members. If a gang member is disrespected, Officer Gonzalez
stated, the typical retaliation is “immediate action whether that
be a shooting . . . or fight[].” Officer Gonzalez testified that
NHBZ was affiliated with the “Clanton” or “Clanton 14” gang,
and NHBZ’s rival gangs included Mara Salvatrucha. To Officer
Gonzalez’s knowledge, there had been no instance of “M.S. 13
attacking a member of North Hollywood Boyz” since Quiroz-
Portillo’s death in 2019.
Officer Gonzalez was familiar with the signs and symbols of
NHBZ. Through Officer Gonzalez’s testimony, and without
Quintanilla’s objection, the prosecution introduced photographs
of NHBZ graffiti, photographs of the tattoos and attire of several
known NHBZ members, and photographs of Quintanilla’s tattoos.
Officer Gonzalez testified Quintanilla’s tattoos indicated NHBZ
membership—including “ ‘NHWD BOYZ,’ ” “ ‘NH,’ ” “ ‘BZ,’ ” “ ‘I
love NOHO,’ ” “ ‘29,’ ” and a bumblebee—which resembled the
tattoos of the documented NHBZ members. Officer Gonzalez
testified that only gang members have gang-affiliated tattoos.
7
Officer Gonzalez also testified that on June 19, 2019, he
conducted the traffic stop of Quintanilla’s vehicle on Lankershim
Boulevard, in NHBZ territory. Quintanilla was the driver, and
the two passengers were David Sanchez and Roberto Fletes, both
documented NHBZ gang members. Consistent with the court’s
pretrial ruling, the prosecution introduced still photos from
Officer Gonzalez’s body-worn camera footage of the traffic stop.
Defense counsel objected to these photos. At sidebar, the
prosecution argued the photos were intended to show
Quintanilla’s “appearance . . . a month before the shooting,”
specifically his face and hair. Defense counsel asserted that
although “the screen captures . . . [are] certainly [] better than
the video,” “these pictures as captured, especially the one with
the police vehicle in the back, [are] highly prejudicial.” The
prosecution further argued that “there[] is a police vehicle
because . . . [Officer Gonzalez] was traveling that day in a police
vehicle when he stopped this car,” and Quintanilla’s “hands are
not being shown in any of the photos . . . and I don’t think anyone
would know that he is in handcuffs.” The prosecution stated it
could ask Officer Gonzalez to clarify that Quintanilla was not
arrested during the traffic stop, but defense counsel stated, “I
don’t think it matters either way, frankly, at this point. The
damage is significant. I don’t think it can be fixed.” The court
overruled Quintanilla’s objection and allowed the prosecution to
elicit testimony that Quintanilla was not arrested at that time.
The prosecutor then asked Officer Gonzalez about a
pretrial hearing in Quintanilla’s case. Officer Gonzalez testified
he came to the courtroom on September 13, 2023, to photograph
Quintanilla’s tattoos about a week before the jury trial. The
8
prosecution asked whether there was “anyone in the audience
that [Officer Gonzalez] recognized,” and defense counsel objected.
At sidebar, the People sought to introduce that, on
September 13 and throughout Quintanilla’s trial, Officer
Gonzalez recognized Jorge Santillano, “a documented gang
member from the [NHBZ] gang,” and Wilfredo Jimenez, “a
documented member of Clanton 14,” as spectators in the
courtroom. The People argued, “one of the bases for [Officer
Gonzalez’s] opinion [that] the defendant is a gang member is . . .
his associations. . . . Jorge Santillano is currently in the
courtroom and has been in the courtroom throughout the trial,
and I think that is relevant [to] establishing that this defendant
is a member of the gang because who he associates with goes
directly to his membership.” The prosecution also sought to
include photos of Jimenez and Santillano and their gang tattoos.
The prosecutor argued this evidence was “highly relevant . . . to
show [Quintanilla] is not an individual who no longer gang
bangs.” Defense counsel argued he had no notice of this evidence,
and he believed the two men were Quintanilla’s “family or people
married [into] his family.”
The court ruled Officer Gonzalez could testify as to Jimenez
and Santillano’s presence at the September 13 pretrial hearing,
but not to their presence during the trial itself. The court stated,
“In my view it has high relevance showing [Quintanilla’s] gang
affiliation. But when you get to talking about who has been
present during this trial, then it creates undue prejudice in my
view to the defendant.” Later in the trial, the prosecution once
more sought to introduce evidence that Santillano was present in
court, but the court rejected this request, reasoning it was “not
sure the marginal probative value outweighs the risk of undue
9
prejudice . . . [I]f we have jurors hearing that a gang member is in
the audience, I think it may create some undue prejudice.”
Officer Gonzalez testified he observed Jimenez and
Santillano in the courtroom during the pretrial hearing on
September 13, and that he recognized them as gang members he
“commonly monitor[ed].” Over Quintanilla’s objection, the court
allowed the prosecutor to introduce photographs of Jimenez and
Santillano, including their gang tattoos. Officer Gonzalez opined
that Quintanilla was “an active member of the North Hollywood
Boyz criminal street gang,” based on his tattoos, Gonzalez’s
“recent contact” with Quintanilla in NHBZ territory, and
Quintanilla’s “recent association with gang members from
[NHBZ] and Clanton.”
In his defense, Quintanilla called Martin Flores, a non-law
enforcement gang expert. Flores testified he was an expert on
M.S. 13 and he believed M.S. 13 would “absolutely” retaliate
against NHBZ if an NHBZ member had killed an M.S. 13
member. Because no retaliation had occurred between M.S. 13
and NHBZ since Quiroz-Portillo’s shooting, Flores opined that
“either the perpetrators [of the alleged shooting] were not North
Hollywood Boyz or the victim was not M.S.”
During trial, the court instructed the jury:
[Y]ou may consider evidence of gang activity
only for the limited purpose of deciding whether the
defendant acted with the intent that is required to
prove any of the crimes charged or the defendant had
a motive to commit the crimes charged.
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You may not consider this evidence for any
other purpose, and you may not conclude from this
evidence that the defendant is a person of bad
character or that he has a disposition to commit
crime.
The court delivered this instruction again before jury
deliberations.
2. Governing Law and Standard of Review
Section 352 provides, “The court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) “ ‘ “Evidence is
substantially more prejudicial than probative” ’ under Evidence
Code section 352 ‘ “if, broadly stated, it poses an intolerable ‘risk
to the fairness of the proceedings or the reliability of the
outcome.’ ” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 237.)
“[D]amaging evidence is not necessarily prejudicial. [Citation.]
‘ “The ‘prejudice’ which [] section 352 seeks to avoid is that which
‘ “ ‘uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the
issues.’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 54.)
The admission of evidence violates federal due process if
“ ‘ “the evidence is so prejudicial as to render the defendant’s trial
fundamentally unfair.” ’ ” (People v. Steskal (2021) 11 Cal.5th
332, 357-358; accord, People v. Partida (2005) 37 Cal.4th 428, 439
(Partida).) “ ‘Only if there are no permissible inferences the jury
11
may draw from the evidence can its admission violate due
process. Even then, the evidence must “be of such quality as
necessarily prevents a fair trial.” [Citations.] Only under such
circumstances can it be inferred that the jury must have used the
evidence for an improper purpose.’ ” (People v. Albarran (2007)
149 Cal.App.4th 214, 229 (Albarran).)
“California courts have long recognized the potentially
prejudicial effect of gang membership. . . . ‘Gang evidence should
not be admitted at trial where its sole relevance is to show a
defendant’s criminal disposition or bad character as a means of
creating an inference the defendant committed the charged
offense.’ ” (Albarran, supra, 149 Cal.App.4th at p. 223; accord,
People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167
(Samaniego).) “[A]s [a] general rule, evidence of gang
membership and activity is admissible if it is logically relevant to
some material issue in the case, other than character evidence, is
not more prejudicial than probative and is not cumulative.
[Citation.] Consequently, gang evidence may be relevant to
establish the defendant’s motive, intent or some fact concerning
the charged offenses other than criminal propensity as long as
the probative value of the evidence outweighs its prejudicial
effect. [Citation.] ‘Evidence of the defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and
the like—can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.’ ” (Albarran, at pp. 223-
224; accord, People v. Williams (1997) 16 Cal.4th 153, 193
(Williams); People v. Garcia (2024) 107 Cal.App.5th 1040, 1049-
1050.)
12
“On appeal, we review the trial court’s rulings concerning
the admissibility of the evidence for abuse of discretion.” (People
v. Riggs (2008) 44 Cal.4th 248, 290.) “The trial court enjoys
broad discretion in determining the relevance of evidence and in
assessing whether concerns of undue prejudice, confusion, or
consumption of time substantially outweigh the probative value
of particular evidence. [Citation.] ‘The exercise of discretion is
not grounds for reversal unless “ ‘the court exercised its
discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v.
Clark (2016) 63 Cal.4th 522, 572.) We review de novo whether
admission of evidence violated due process. (People v. Mayo
(2006) 140 Cal.App.4th 535, 553; accord, People ex rel. Reisig v.
Acuna (2017) 9 Cal.App.5th 1, 23.)
3. The Trial Court Did Not Err by Determining the
Gang Evidence Was Probative
Quintanilla broadly argues the gang evidence admitted at
trial had “no probative value” as to the charged offenses. The
trial court did not abuse its discretion by concluding the gang
evidence had probative value because the evidence indicated the
shooting of Quiroz-Portillo was motivated by gang rivalry.
“Gang evidence is relevant and admissible when the very
reason for the underlying crime, that is the motive, is gang
related.” (Samaniego, supra, 172 Cal.App.4th at p. 1167; accord,
People v. McKinnon (2011) 52 Cal.4th 610, 655 (McKinnon) [“In
general, ‘[t]he People are entitled to “introduce evidence of gang
affiliation and activity where such evidence is relevant to an
issue of motive or intent.” ’ ”]; People v. Ruiz (1998)
62 Cal.App.4th 234, 239-240.) Here, Martinez testified she heard
13
Quintanilla ask Quiroz-Portillo “where are you from” before the
shooting, and the prosecution’s gang expert testified that, in gang
culture, this question inquires into one’s gang membership.
Martinez told police and confirmed in her trial testimony that
Quiroz-Portillo answered “Mara,” meaning M.S. 13, and the gang
expert testified that the M.S. 13 and NHBZ gangs were rivals.
After Quiroz-Portillo gave this answer, Quintanilla shot and
killed him.
The evidence that Quintanilla was a member of a gang
with rivalry against M.S. 13 was therefore highly relevant as the
only apparent motive for the shooting. (See McKinnon, supra,
52 Cal.4th at p. 655 [gang evidence was “properly admitted” to
“give context” for “defendant’s motive and intent” where evidence
suggested defendant acted in retaliation for an earlier murder by
rival gang]; Williams, supra, 16 Cal.4th at p. 194 [gang evidence
was “of more than minimal probative value” where it “tended to
establish . . . that the victim appeared to be a member of a gang
which was a deadly rival of defendant’s gang”].) The evidence
was also probative to identify Quintanilla as the shooter and to
establish his intent behind the crime. (See Samaniego, supra,
172 Cal.App.4th at p. 1168 [“Gang evidence was essential to
establishing the motive for these senseless murders and tying
[defendants], gang members, to them.”]; People v. Funes (1994)
23 Cal.App.4th 1506, 1518 [“evidence of gang membership and
activity was clearly relevant to defendant’s motive for attacking
[victim] and his intent in doing so”].)
Quintanilla argues that the only contested issue at trial
was “whether Quiroz[-Portillo] was shot by someone in the car or
by someone else.” However, Quintanilla’s NHBZ membership
was relevant to the motive for the shooting and his identity as
14
the shooter, given the evidence that the shooter asked about
Quiroz-Portillo’s gang membership. (See People v. Valdez (2012)
55 Cal.4th 82, 130-131 (Valdez) [evidence of defendant’s
membership in gang, including tattoos, and gang activities was
relevant to motive and identity for killings, where the
prosecution’s theory was the killing was gang-ordered]; Williams,
supra, 16 Cal.4th at pp. 193-194 [same, where gang evidence had
a tendency to prove “that defendant had a motive for killing, and
may indeed have shot,” the victim for wearing gang colors in a
gang-contested area].)
Citing the testimony of Flores, the defense gang expert,
Quintanilla further argues that the gang evidence was irrelevant
to motive because “at the time of the incident, there was no
rivalry between NHBZ and MS.” Although Quintanilla
introduced expert testimony that there was no rivalry between
these gangs, the People’s gang expert testified there was a
rivalry, and the jury appears to have credited the People’s expert
over Quintanilla’s expert. “As a reviewing court, we can neither
reweigh evidence nor reevaluate a witness’s credibility.” (People
v. Davis (2023) 87 Cal.App.5th 771, 779; accord, People v.
Covarrubias (2016) 1 Cal.5th 838, 890.) In light of all the trial
evidence, there was sufficient evidence of gang motivation behind
the shooting, and the trial court did not abuse its discretion by
concluding the gang-related evidence was probative of motive.
4. The Trial Court Did Not Abuse Its Discretion by
Concluding the Gang Evidence Was More Probative
Than Prejudicial
Quintanilla contends the gang evidence was more
prejudicial than probative, specifically evidence about NHBZ’s
15
gang activities, the screenshots of the traffic stop video, and
testimony about gang members’ presence at the preliminary
hearing.
The court did not abuse its discretion by determining the
probative value of this evidence outweighed its prejudicial effect.
As discussed, the gang evidence went toward Quintanilla’s
motive for the shooting. “ ‘ “[B]ecause a motive is ordinarily the
incentive for criminal behavior, [the] probative value [of motive-
related evidence] generally exceeds its prejudicial effect, and wide
latitude is permitted in admitting evidence of its existence.” ’ ”
(Samaniego, supra, 172 Cal.App.4th at p. 1168 [determining gang
evidence was admissible]; accord, People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1550.) And as stated, the trial court also
delivered a limiting instruction that informed the jury it could
not consider the gang evidence for any purpose other than motive
and intent, and especially not for the improper purpose that “the
defendant is a person of bad character or that he has a
disposition to commit crime.” (See People v. Hendrix (2013)
214 Cal.App.4th 216, 247 [“A limiting instruction can ameliorate
section 352 prejudice by eliminating the danger the jury could
consider the evidence for an improper purpose”].)
Quintanilla argues the evidence about NHBZ’s gang
activities created “prejudice because it evoke[d] an emotional bias
and had no evidentiary value in proving the substantive crimes.”
At trial, Officer Gonzalez testified NHBZ committed crimes,
including shootings and possession of firearms, to “gain status
within the gang” and to “be feared.” While this evidence was
potentially prejudicial, it was highly probative to explaining why
Quintanilla’s gang membership could lead him to shoot a rival
16
gang member and why Martinez was reluctant to testify in court
as to the gang-related details of the shooting.
The trial court therefore did not abuse its discretion under
section 352 by admitting evidence of NHBZ’s gang activities.
(See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th
719, 772 (Holmes) [no abuse of discretion to admit gang evidence,
because “[a]lthough evidence of gang membership carries the
potential for prejudice,” it was “highly relevant to prove
[defendants’] involvement, motive, and intent to kill” in a gang-
retaliation shooting]; People v. Arauz (2012) 210 Cal.App.4th
1394, 1403 [evidence of “primary activities of [a] gang” was
properly admitted under section 352 to show “why and how
[defendants] committed a retaliatory shooting”]; People v.
Martinez (2003) 113 Cal.App.4th 400, 413-414, abrogated on
other grounds by Crawford v. Washington (2004) 541 U.S. 36
[evidence of gang culture was not more prejudicial than probative
where it was “relevant to the issues of motive and intent for the
charged offenses” and “relevant to help the jury understand
discrepancies between some of the witnesses’ statements to the
police and their testimony at trial”]; cf. People v. Roberts (1992)
2 Cal.4th 271, 299 [trial court “did not abuse its discretion in
permitting the prosecution to explore the nature of prison-gang
life in order to elucidate its theory of the case, at least insofar as
such testimony was necessary to furnish the jury a context for
understanding that theory”].)
Quintanilla also argues the traffic stop photos were unduly
prejudicial because they showed him “having contact with law
enforcement in the company of other gang members” and “with
law enforcement vehicles in the background.” This evidence,
however, was no more prejudicial than the evidence that
17
Quintanilla shot and killed Quiroz-Portillo over his gang
affiliation. (Cf. Holmes, supra, 12 Cal.5th at p. 771 [admission of
evidence that defendant was previously arrested for weapon
possession was harmless because the “arrest was far less
inflammatory than the murders” charged at trial].) Additionally,
the court limited the prejudice by excluding depictions of
Quintanilla in handcuffs and allowing the defense to elicit
testimony that Quintanilla was not arrested.
Finally, Quintanilla argues the testimony about the gang
members’ presence in the courtroom had “no legitimate bearing
on the offenses charged and it tended to evoke an emotional bias
against [him], and perhaps even fear.” Recognizing the risk of
“undue prejudice” if “jurors hear[] that a gang member is in the
audience,” the trial court limited the potential prejudicial impact
of this evidence by excluding testimony that the NHBZ and
Clanton 14 members were present during the jury trial, and
instead limiting Officer Gonzalez to testifying that the gang
members were present for a pretrial hearing. (Cf. People v.
Carter (2003) 30 Cal.4th 1166, 1201-1202 [sheriff’s deputy’s
testimony that he saw gang members in the courtroom was
relevant to deputy’s “familiarity with the gang,” was not
“inherently prejudicial” at penalty phase of capital trial, and did
not violate due process].)
Even if this testimony posed a risk of undue prejudice,
however, we would conclude any abuse of discretion in admitting
the testimony was harmless. “[W]e review state law errors for
prejudice under People v. Watson (1956) 46 Cal.2d 818 . . . . This
requires us to examine whether it was ‘reasonably probable that
a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (People v. Johnson (2022)
18
12 Cal.5th 544, 611 (Johnson).) On the record before us, it is not
more likely that Quintanilla would have obtained a more
favorable result at trial had the court excluded Officer Gonzalez’s
testimony about the gang members’ presence at his preliminary
hearing. The testimony was brief, and the parties did not
emphasize the evidence in closing. Moreover, the evidence of
Quintanilla’s guilt was overwhelming. Surveillance video
indicated Quintanilla’s vehicle was used to commit the shooting,
Martinez provided an eyewitness identification of Quintanilla as
the driver of the car, and Quintanilla’s cell phone records placed
his phone at the scene of the crime. (See People v. Williams
(2009) 170 Cal.App.4th 587, 613 [error admitting gang evidence
was harmless where “[t]he admissible evidence overwhelmingly
established defendant’s guilt of the substantive offenses”]; accord,
People v. Coneal (2019) 41 Cal.App.5th 951, 972 (Coneal) [same,
where “[t]he evidence incriminating appellant was strong”].)
Nor did the admission of Officer Gonzalez’s testimony
regarding the gang-affiliated spectators violate due process.
Quintanilla does not demonstrate that this testimony, which was
brief, so infected the trial as to render it fundamentally unfair
and arbitrary. (See Albarran, supra, 149 Cal.App.4th at p. 229.)
Additionally, there were permissible inferences to draw from
Officer Gonzalez’s testimony, namely that Quintanilla was an
active member of NHBZ and thus had motive to kill Quiroz-
Portillo. (See Coneal, supra, 41 Cal.App.5th at p. 972 [no due
process error admitting gang-related evidence where “[t]here
were multiple permissible inferences to be drawn from the
evidence, most obviously, that appellant and others were Taliban
[gang] members”].)
19
We also reject Quintanilla’s constitutional due process
arguments regarding the remaining gang evidence (the gang
expert testimony and the gang-related photographs and
screenshots) for the same reasons we reject his section 352 claim.
(See Valdez, supra, 55 Cal.4th at p. 134 [rejecting constitutional
due process claim regarding the admission of gang-related
evidence because there was “no statutory error” under
section 352]; accord, People v. Ramirez (2022) 13 Cal.5th 997,
1097 [same, because “ ‘[a]pplication of the ordinary rules of
evidence generally does not impermissibly infringe on a []
defendant’s constitutional rights’ ”].)
5. The Trial Court Did Not Err by Admitting
Cumulative Evidence
Quintanilla further argues the gang evidence was
cumulative, relying on Albarran, supra, 149 Cal.App.4th 214.
Specifically, he challenges the photographs of NHBZ gang
members, testimony about their tattoos and gang monikers,
testimony that known NHBZ gang members were seen in the
courtroom, and the screenshots from the video of the traffic stop.
In Albarran, the defendant was charged with attempted
murder and shooting at an inhabited dwelling, as well as gang
enhancements under section 186.22. (Albarran, supra,
149 Cal.App.4th at p. 217.) The appellate court concluded there
was insufficient evidence to support that the crimes were gang-
motivated because “[t]here [was] nothing inherent in the facts of
the shooting to suggest any specific gang motive,” other than the
defendant’s gang affiliation. (Id. at p. 227.) Even assuming “that
evidence of Albarran’s gang membership and some evidence
concerning gang behavior were relevant to the issue of motive
20
and intent,” Albarran further held that trial court admitted
cumulative, “extremely inflammatory gang evidence . . . which
had no connection to the[] crimes.” (Ibid.) The jury heard
cumulative evidence about “the identities of other [gang]
members, the wide variety of crimes they had committed and the
numerous contacts between the various gang members (other
than Albarran) and the police.” (Id. at pp. 227-228.) Other
cumulative gang evidence included a “specific threat [the gang]
had made in their graffiti to kill police officers,” as well as
“references to the Mexican Mafia.” (Id. at p. 228.) Albarran held
this evidence “was so extraordinarily prejudicial and of such little
relevance that it raised the distinct potential to sway the jury to
convict regardless of Albarran’s actual guilt.” (Ibid.)
Unlike Albarran, the trial court here did not admit gang
evidence that was cumulative of other evidence. As stated, the
People sought to prove Quintanilla’s NHBZ membership, which
was relevant to his motive and intent to shoot an apparent rival
gang member. Quintanilla does not identify any other evidence,
apart from the gang-related evidence, which supported the
motive and intent behind the shooting, and he does not argue
that his gang membership was an undisputed issue at trial. (See
Williams, supra, 16 Cal.4th at p. 194 [admission of evidence did
not violate section 352 where defendant did not “argue the gang
membership evidence was cumulative to other evidence of motive
presented to the jury”]; cf. People v. Cardenas (1982) 31 Cal.3d
897, 904 [gang evidence introduced to show certain “witnesses
were biased because of their close association with [the
defendant]” was cumulative where the witnesses already
“testified that they were friends of [defendant] and lived in the
same neighborhood as he”].)
21
To establish Quintanilla’s NHBZ membership, Officer
Gonzalez testified Quintanilla’s tattoos resembled the tattoos of
known NHBZ members, using photographs of Quintanilla’s
tattoos and known members’ tattoos. Quintanilla did not object
to the admission of this evidence at trial. (See Partida, supra,
37 Cal.4th at pp. 434-435 [timely and specific objection is
required to preserve claim of evidentiary error].) Officer
Gonzalez also testified regarding the events of the traffic stop to
demonstrate Quintanilla’s recent affiliation with known NHBZ
members one month before the shooting, and he testified to
seeing known NHBZ members at a pretrial hearing to
demonstrate Quintanilla’s ongoing affiliation. The court
admitted photographs of the stop to portray Quintanilla’s car and
his physical appearance around the time of the shooting.
Although other gang evidence was also admitted at trial,
the photographic evidence of Quintanilla’s tattoos, similar tattoos
of NHBZ members, Quintanilla’s car, and his appearance during
the traffic stop was not cumulative. “Relevant photographs ‘are
admissible even if repetitive of other evidence, provided their
probative value is not substantially outweighed by their
prejudicial effect.’ ” (Valdez, supra, 55 Cal.4th at pp. 128, 133-
134 [gang evidence, including photographs of defendant’s gang
tattoos, graffiti, and other gang members, was properly admitted
even though defendant offered to stipulate to gang membership
and argued the prosecution could have “establish[ed] the
disputed matters with other evidence”].)
22
B. The People’s Closing Argument Did Not Constitute
Prosecutorial Misconduct
Quintanilla argues the prosecutor committed misconduct in
violation of due process by purportedly arguing facts not in
evidence, specifically regarding Martinez’s trial testimony and
the forensic evidence of Quiroz-Portillo’s bullet wound. As
explained below, the argument lacks merit.
1. Relevant Trial Evidence and Procedural History
At trial, Martinez testified she heard the driver of the gray
car ask Quiroz-Portillo where he was from and she saw the driver
holding what looked like a silver gun. Martinez testified that as
Quiroz-Portillo responded to the question, she ran away from the
car. As Martinez ran, she heard one gunshot ring out from
“behind” her “in the direction of the car.” Martinez turned
around and saw the car “backing up really fast” and Quiroz-
Portillo “falling to the ground.” Martinez testified she did not see
anyone else with a gun during the incident. Martinez testified
she “didn’t see who shot him because I was already running” and
she was “not sure who did it.”
LAPD homicide detective Gabriel Bucknell testified that
Martinez told him two or three hours after the shooting that the
driver of the car pointed a gray semiautomatic handgun at
Quiroz-Portillo, that she saw the driver shoot Quiroz-Portillo, and
then she ran away.
At trial, Martinez denied telling Detective Bucknell that
she saw the driver point a gun at Quiroz-Portillo, that she saw
the driver shoot Quiroz-Portillo, or that she saw Quiroz-Portillo
fall to the ground.
23
The People’s forensic pathologist, Dr. Raffi Djabourian,
testified the bullet traveled through Quiroz-Portillo’s body from
“right to left, downwards, and slightly front to back.” If Quiroz-
Portillo was “standing upright at the time that he was shot,”
Dr. Djabourian testified he would “expect the muzzle to be at a
higher level because of the downward trajectory that [the bullet]’s
taking through the body.” Reviewing the surveillance video of
the shooting, Dr. Djabourian testified he could not “determine the
exact position that [the victim’s] body was in before it was struck
by the bullet,” because there was an object in view of the camera
“block[ing] [the] view of the victim and the person next to the
victim.” Dr. Djabourian opined that if Quiroz-Portillo was “bent
forward and to the right” at the time he was shot, he could have
been shot by someone inside the car. Dr. Djabourian stated the
forensic evidence could be consistent with “the victim [] standing
slightly toward the front of the car . . . and he sees a gun, starts
to turn, bends over maybe to duck, and is shot . . . [by] the
shooter sitting in the car.”
Quintanilla’s forensic expert William Moore reviewed the
surveillance video and testified, “[a]s far as [he] could tell,
[Quiroz-Portillo] was standing upright” at the time he was shot.
Moore testified it was “very unlikely” that the bullet that killed
Quiroz-Portillo was fired from Quintanilla’s car.
During closing argument, the prosecutor stated, “Ms.
Martinez also said that the only person in the alley with a gun
that day was the defendant. She saw the gun, and within
seconds she heard a gunshot. She said that [the] gunshot came
from the car.”
In closing, the defense argued Quintanilla did not fire the
fatal shot because the surveillance video showed “no muzzle flash
24
from inside the car or outside the car” and “[t]he undisputed fact
in this case is that th[e] bullet traveled downward, downward
through the temple and out the neck and into the shoulder.
100 percent scientific proof that that man was not shot [by] a
person seated inside that car. It’s impossible.” The defense also
emphasized that Martinez refused to testify that she saw the
driver shoot Quiroz-Portillo.
In rebuttal, the prosecutor argued the defense could not
definitively say from the video of the shooting that Quintanilla
could not have fired the fatal gunshot from the driver’s seat of his
car because the video had no audio to reflect the timing of the
gunshot. The prosecutor argued:
If you don’t know when the victim is shot, then you don’t
know the position that his body was in when he was shot.
If you don’t know the position his body was in, then you
don’t know where the gun was based solely on the video.
That’s where Ms. Martinez’s testimony is relevant. Her
testimony fills in the blanks. It tells us the gunshot came
from the car. The defendant had a gun. The defendant is
pointing the gun at the victim. . . . So we know his body
was bent forward in a position so the defendant was able to
shoot him. That’s what we know.
Quintanilla’s counsel did not contemporaneously object to
these portions of the prosecution’s closing argument. After the
jury’s guilty verdict, Quintanilla filed a motion for a new trial,
arguing these arguments were prosecutorial misconduct. The
trial court denied the motion, reasoning that the prosecutor’s
argument was “appropriate based on the evidence” and the
25
“jurors were told more than once that [if] any statements by
counsel in argument [] conflict with the facts, it’s the facts that
control, not counsel’s statements.”
2. Governing Law and Standard of Review
It is misconduct for a prosecutor to misstate the evidence or
argue facts not in evidence. (Johnson, supra, 12 Cal.5th at
p. 612; People v. Davis (2005) 36 Cal.4th 510, 550.) Even so,
“[a]dvocates are given significant leeway in discussing the legal
and factual merits of a case during argument.” (People v. Centeno
(2014) 60 Cal.4th 659, 666 (Centeno).) “ ‘ “[A] prosecutor is given
wide latitude to vigorously argue his or her case and to make fair
comment upon the evidence, including reasonable inferences or
deductions that may be drawn from the evidence.” ’ ” (People v.
Peoples (2016) 62 Cal.4th 718, 796.) “ ‘ “ ‘A prosecutor’s
misconduct violates the Fourteenth Amendment to the United
States Constitution when it “infects the trial with such
unfairness as to make the conviction a denial of due process.”
[Citations.] In other words, the misconduct must be “of sufficient
significance to result in the denial of the defendant’s right to a
fair trial.” ’ ” ’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 943 (Hoyt).)
“ ‘To prevail on a claim of prosecutorial misconduct based
on remarks to the jury, the defendant must show a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (People v. Lima
(2022) 80 Cal.App.5th 468, 477-478; accord, Centeno, supra,
26
60 Cal.4th at p. 667; People v. Zarazua (2022) 85 Cal.App.5th
639, 644.)
In addition, “to preserve a claim of prosecutorial
misconduct for appeal, ‘ “ ‘a criminal defendant must make a
timely and specific objection and ask the trial court to admonish
the jury to disregard the impropriety.’ ” [Citation.] The lack of a
timely objection and request for admonition will be excused only
if either would have been futile or if an admonition would not
have cured the harm.’ ” (Hoyt, supra, 8 Cal.5th at pp. 942-943.)
We review a trial court’s ruling on prosecutorial misconduct
for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155,
213.) We review a constitutional due process claim de novo. (See
People v. Lewis (2025) 111 Cal.App.5th 1078, 1093; People v.
Aguilera (2020) 50 Cal.App.5th 894, 910; see In re Taylor (2015)
60 Cal.4th 1019, 1035 [“ ‘[w]hen the application of law to fact is
predominantly legal, such as when it implicates constitutional
rights . . . [our] review is de novo’ ”].)
3. The Prosecutor’s Argument Did Not Mischaracterize
the Trial Evidence
Quintanilla argues the prosecutor “misled the jury by
stating that Martinez testified she saw the driver point a gun at
Quiroz[-Portillo] and shoot him. In so doing, the prosecutor
removed the possibility that Martinez heard the gunshot, but
that it did not come from the car.” Quintanilla also argues the
prosecutor misstated the evidence by arguing that “ ‘we know’ ”
Quiroz-Portillo was “bent forward” when he was shot.
Quintanilla argues there was “no testimony or physical evidence”
that Quiroz-Portillo was bent forward and that Martinez’s
27
testimony did not establish that the gunshot came from the
vehicle.
Quintanilla did not object on prosecutorial misconduct
grounds during closing arguments, and he did not raise the issue
until he filed a new trial motion after the guilty verdict.
Quintanilla thus forfeited his claim of prosecutorial misconduct.
(See People v. Brown (2003) 31 Cal.4th 518, 553 [“Failure to make
a specific and timely objection and request that the jury be
admonished forfeits the issue [of prosecutorial misconduct] for
appeal unless such an objection would have been futile.”]; People
v. Bemore (2000) 22 Cal.4th 809, 845-846 [prosecutorial
misconduct claim was not preserved where defense counsel did
not object until the following day, because “the trial court had no
opportunity to consider the objection and give appropriate
admonitions when the alleged misconduct first occurred”].)
Even considering the prosecutorial misconduct claim on its
merits, the challenged arguments were not misconduct. First,
the prosecutor did not mislead the jury as to the content of
Martinez’s testimony. As stated, Martinez testified that she saw
the driver of the car holding a gun, and as she ran away she
heard a gunshot “in the direction of” the gray sedan. This
testimony tracked the prosecutor’s argument that Martinez “saw
the gun, and within seconds she heard a gunshot. She said that
the gunshot came from the car.” Additionally, after the
prosecutor made this argument, Quintanilla’s counsel
emphasized in his closing argument that Martinez testified she “
‘d[id]n’t know who shot’ ” the gun. And even if the prosecutor had
overstated Martinez’s testimony, other trial evidence (i.e.,
Detective Bucknell’s testimony) reflected that Martinez told
28
police on the day of the shooting that she saw the driver of the
car shoot Quiroz-Portillo.
Nor did the prosecutor mislead the jury as to the evidence
of Quiroz-Portillo’s position when he was shot. At trial, the
People introduced the surveillance video of the shooting and
argued the video showed that Quiroz-Portillo was not shot in an
upright standing position. Rather, the People asserted that an
enhanced version of the video showed the victim “start[] to move
forward and then something causes his head to go up a little and
then he goes down.” The People’s forensic expert Dr. Djabourian
testified he could not tell from the video what position Quiroz-
Portillo was in when he was shot, but the angle of Quiroz-
Portillo’s bullet wound could be explained by the victim
“start[ing] to turn, bend[ing] over maybe to duck, and [being]
shot.” In this context, the prosecutor’s argument made
reasonable inferences from the trial evidence.3 (See People v.
Collins (2010) 49 Cal.4th 175, 230 [prosecutor commented on
“reasonable inferences from the record” and did not commit
prosecutorial misconduct by arguing that the defendant shot the
victim while he was “ ‘on his knees pleading for mercy,’ ” where
3 Because we reject Quintanilla’s claims on the merits, we do
not address his arguments that ineffective assistance of counsel
caused him to forfeit his claims. And, concluding there was no
prejudicial error, we reject Quintanilla’s claim of cumulative
error. (See People v. Doolin (2009) 45 Cal.4th 390, 440 [rejecting
claims of evidentiary error and prosecutorial misconduct led court
to deny claim of cumulative error because “there was no error to
accumulate”]; People v. Thomas (1992) 2 Cal.4th 489, 544
[cumulative error claim “must fail” when based on one
“nonprejudicial” error].)
29
the forensic evidence supported that “the victim [was] kneeling
and the shooter standing,” among other possibilities].)
Finally, we note that the court instructed the jury during
the trial and after closing arguments that statements made by
the attorneys during trial “are not evidence.” We must presume
the jury followed this instruction. (See People v. Mickey (1991)
54 Cal.3d 612, 689, fn. 17 [“We presume that jurors comprehend
and accept the court’s directions.”].)
DISPOSITION
The judgment is affirmed.
MARTINEZ, P. J.
We concur:
SEGAL, J.
STONE, J.
30