Filed 6/17/26 P. v. Quintero CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088421
Plaintiff and Respondent,
(Super. Ct. No. BF187841B)
v.
MAXIMILLION DAMIEN QUINTERO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Charlotte Woodfork, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After a jury convicted defendant Maximillion Damien Quintero of discharging a
firearm at a motor vehicle for the benefit of a criminal street gang and other charges, the
trial court sentenced him to concurrent terms of 25 years to life. He challenges the
sufficiency of the evidence that the shooting was committed for the benefit of a criminal
street gang, argues that he cannot be convicted of both discharging a firearm at a motor
vehicle and grossly negligent discharge of a firearm at a motor vehicle, and requests that
the abstract of judgment be corrected to list the enhancements found true.
The People concede the latter two arguments. We shall accept the concession,
reverse the conviction for grossly negligent discharge of a firearm at a motor vehicle, and
order the clerk of the trial court to amend the abstract of judgment to include the omitted
enhancements. However, we will otherwise affirm the judgment.
PROCEDURAL HISTORY
The District Attorney of Kern County filed an amended information on
January 11, 2024, charging defendant with attempted murder (Pen. Code,1 §§ 664, 187,
subd. (a); count 1), with the additional allegation that he acted intentionally, deliberately
and with premeditation; assault with a semiautomatic firearm on a peace officer (§ 245,
subd. (d)(2); count 2); assault with a firearm on a peace officer (§ 245, subd. (d)(1);
count 3); assault with a semiautomatic firearm (§ 245, subd. (b); counts 4, 5), assault with
a firearm (§ 245, subd. (a)(2); counts 6, 7); discharging a firearm from a motor vehicle
(§ 26100, subd. (d); counts 8, 9); discharging a firearm at a motor vehicle (§ 246;
counts 10, 11); grossly negligent discharge of a firearm which could result in injury or
death (§ 246.3, subd. (a); count 12); active participation in a criminal street gang
(§ 182.5; count 13);2 and active participation in a criminal street gang (§ 186.22,
1 Undesignated statutory references are to the Penal Code.
2 The offense described in section 182.5 has also been described as a gang conspiracy
charge. (See People v. Ware (2022) 14 Cal.5th 151, 166.)
2.
subd. (a); count 14). The amended information also alleged that the charged offenses
were committed for the benefit of, at the direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)) as to counts 1–12; defendant personally discharged a
firearm (§ 12022.53, subd. (c)) as to counts 1, 2, 3, 10, and 11;3 defendant was a principle
in an offense in which any other principal used, discharged, or discharged a firearm
resulting in great bodily injury (§ 12022.53, subd. (e)(1)) as to counts 1, 2, and 3;
defendant personally used a firearm (§ 12022.5, subd. (a)) as to counts 4 through 11 and
13; and aggravating sentencing factors pursuant to California Rules of Court,
rule 4.421(a)(1), (2) and (b)(1) as to all counts.
The trial court granted the prosecutor’s motions to dismiss counts 2, 4, 5, 9, and 13
and the firearm enhancements as to counts 8, 10, 11, and 12 during trial.
The jury convicted defendant of counts 6 through 8 and 10 through 12, found true
the allegation that defendant personally used a firearm during the commission of the
offenses as to counts 6 and 7, acquitted defendant of count 3, and failed to reach a verdict
on count 1 (which was later dismissed in response to the prosecutor’s motion) on
February 22, 2024, during the first portion of the bifurcated trial. The jury convicted
defendant of count 14 and found true the section 186.22, subdivision (b)(1) gang
allegations as to counts 6 through 8 and 10 through 12 and the section 12022.53,
subdivision (c) firearm allegations as to counts 10 and 11 on February 26, 2024, during
the second portion of the bifurcated trial.
The parties waived a jury trial as to the aggravating sentencing circumstances, and
the trial court found true only the circumstances alleged pursuant to California Rules of
Court, rule 4.421(a)(2) and (b)(1).
The trial court sentenced defendant as follows: concurrent terms of 25 years to
life for counts 10 and 11 (§§ 246, 12022.53, subd. (c), 186.22, subd. (b)(1)); stayed
3 The trial court granted the prosecutor’s motion to add the firearm enhancement during
trial.
3.
(§ 654) terms of three years, plus 10 years (§ 186.22, subd. (b)(1)), for counts 6 and 7
(§245, subd. (a)(2));4 stayed (§ 654) terms of five years, plus five years (§ 186.22,
subd. (b)(1)), for count 8 (§ 26100, subd. (c)); stayed (§ 654) terms of two years, plus
three years (§ 186.22, subd. (b)(1)) for count 12 (§ 246.3, subd. (a)); and a stayed (§ 654)
term of two years for count 14 (§ 186.22, subd. (a)). The trial court ordered defendant to
pay victim restitution (§ 1202.4, subd. (f)) and $300 restitution and suspended parole
revocation restitution fines (§§1202.4, subd. (b), 1202.45). The remaining fines, fees,
and assessments were converted to custody credits.
Defendant filed a timely notice of appeal on August 1, 2024.
FACTS
D.H. grew up around and was familiar with Delano street gangs. She overheard
gang discussions while dating Michael Medrano, a Varrio Delano Locos (Norteño) gang
member, for six to eight months in 2011 or 2012. In 2016, she testified against Medrano
at the trial where he was convicted of murder.5 D.H. experienced retaliation and feared
the gang. She discovered her dog had been killed when she returned home from court
after testifying against Medrano. Someone also shot at her home less than a week later.
These incidents are typical acts of retaliation for testifying against a gang member, and
D.H. learned that the gang was responsible. According to a gang expert’s testimony, a
high-ranking Norteño would have put out a green light on her such that any Norteño
would be authorized and expected to commit acts of violence against her.
D.H. is married to J.S. J.S. testified that he had been a Norteño gang member in
the Way of Life subset as a teenager until he dropped out when he was 25 years old.
When a gang member drops out of the gang, it is considered betrayal, and gang members
will try to harm the dropout. Even though J.S. had dropped out approximately 13 years
4 The court also imposed four-year terms pursuant to section 12022.5, subdivision (a) as to
counts 6 and 7, which it then ordered stricken.
5 Another gang member, Aaron Rodriguez, was also convicted of the murder.
4.
before, he still requires protection from the general inmate population when incarcerated
due to his dropout status. J.S. has a target on his back because he dropped out of the gang
and is considered “no good,” disloyal, and to have betrayed the gang. J.S. also testified
that gangs do not tolerate any cooperation with law enforcement and gang members will
attempt to hurt or kill those cooperating with law enforcement.
On the evening of April 19, 2021, D.H. traveled with J.S. in their van to a small
store in Delano. They parked near the side door of the store. J.S. remained with the van
while D.S. entered the store and made her purchases. As she returned to the van, D.S.
saw a truck driving slowing behind it and three occupants “throwing gang signs”
(displaying four fingers to represent the number four) and whispering to each other. J.S.
had the van door open and was throwing up.6 D.H. and J.S. were the only individuals
outside the store, so D.H. believed the gang signs were directed at them. D.H. saw a
driver, back passenger, and front passenger. She later identified the front passenger as
defendant and testified that he made the gang signs. Defendant was wearing a red hoodie
and had covered his face with a mask. D.H. clarified that defendant adjusted his hoodie
by tying its string to cover his face.
D.H. entered the van and directed J.S. to wait until the truck passed before leaving
because she believed the occupants were “tripping.” As the truck drove behind the store,
J.S. lured the truck to drive in one direction while he drove the van the other way. While
driving away, D.H. saw the truck, now with its headlights off, turn off a cross street to
follow them. The truck increased in speed, and J.S. drove past their apartment to the
sheriff’s substation. J.S. had observed a sheriff’s vehicle pass the store just prior to
leaving and drove to the substation hoping that the deputy would be present to assist
them. J.S. turned the van onto the street adjacent to the substation and stopped near the
sheriff’s vehicle. As the deputy sheriff opened the door of his vehicle to speak with them,
6 J.S. believed that he exited the car to throw up when D.H. entered the store.
5.
the truck stopped in the intersection and blocked the roadway as defendant hung from the
passenger window and fired at them over the hood of the truck. The deputy then chased
the truck in his vehicle while D.H. called 911.
During the 911 call, D.H. described that one of the suspects had “put his hoodie on
all the way tight” and started shooting. After the deputy drove away, J.S. drove them
home and D.H. made a second call to 911. D.H. told the operator that two suspects were
in a truck outside the store and pointed gun fingers at her as she exited the store. She said
that the individuals covered their faces with their hoodies and threw gang signs.
Deputy Ronald Keas was in his vehicle at the sheriff’s substation when contacted
by D.H. and J.S. They pointed to a truck with no headlights that had pulled into the
nearby intersection, and Keas saw someone in the truck reach an arm out from the
passenger window and fire a single round at them over the truck. The individual wore a
red sweatshirt. Keas tried to follow the truck as he called dispatch. Keas chased the
truck at a high speed as it ran a stop sign and entered the freeway. Traveling in excess of
100 miles per hour, the deputy pursued the truck until it crashed after exiting the freeway.
The driver of the truck fled the vehicle but was apprehended shortly thereafter and
identified as Aaron Lemus. Defendant was arrested as he exited the front passenger seat
of the truck, wearing a red hoodie sweatshirt. He admitted that he was a Norteño. The
rear passenger wore a short-sleeved red shirt and was identified as Jayden Gonzalez.
Delano Police Detective Rafael Chavez testified as a gang expert. The Norteño
criminal street gang falls under the authority of Nuestra Familia, an organization within
the California penitentiary system. Nuestra Familia is considered a “paramilitary
organization” because it is well organized and structured compared to other gangs. All
Norteño subsets, including the Norteños in Delano, must operate with the permission of
Nuestra Familia. The “keyholder” (the person providing the permission) obtains gang-
related information from the “channel” (the person “in charge of that specific gang
subset”).
6.
Delano has eight Norteño subsets, including Way of Life and West Side Delano
Norte, but the subsets are required to work together, commit crimes together, and back
each other. Red is the primary color used to identify Norteño affiliation. Norteño
affiliation is also signified by the five-point northern star, four dots above two lines
(representing the number 14), the letter “N” (because N is the 14th letter in the alphabet),
and the Huelga bird. An individual earns the right to wear a tattoo of one dot on one hand
and four dots on the other hand (signifying 14) by committing theft or other petty crimes
for the gang. Other tattoos, such as the northern star and Huelga bird, are earned by
committing acts of violence.
Norteños view members who drop out as rivals because of their insider knowledge
of the gang’s members and operations. As a dropout, J.S. was a “huge threat to the
Norteño street gangs in Delano because of his knowledge.” If a gang dropout is placed in
custody, they are placed in protective custody because other gang members are required
to commit acts of violence against them. Witnesses who cooperate with law enforcement
against the gang are known as “snitches.” Norteños would have considered D.H. a snitch
due to her testimony against Medrano, a Norteño. J.S.’s dropout status and D.H.’s snitch
status combined put “an even bigger target on their back.”
A green light is a blessing by a high-ranking Noreño to take violent action against
someone, meaning that gang members do not require additional permission to target that
individual for violence. Green lights are placed on witnesses and dropouts, and their
identities are shared amongst the gang members. Even if an individual drops out while in
good standing, they would still be “green lit” for retaliation. If a Norteño learns that
someone is testifying or cooperating with law enforcement against a Norteño, that
information is shared within the gang’s communication network, which includes utilizing
court documents, phone calls, and jail calls. Such information is channeled “up the chain
of command.”
7.
A gang member is expected to commit violence against a witness or dropout. Any
Norteño that happens to see them is authorized and required to commit some act of
violence at any time, and, if a gang member fails to act in such circumstances, the gang
will hold them accountable and impose discipline for the failure.
Detective Chavez testified that defendant was an active Delano Norteño at the
time of the offenses. When arrested, defendant was wearing a red hoodie, a color
signifying Norteño affiliation, and he admitted to being a Norteño. Defendant also had a
tattoo of the letter “D,” which signified he was a Norteño from Delano.
Between the time of the shooting on April 19, 2021, and the trial, defendant
obtained a tattoo of a large Huelga bird on his back. Defendant acquired a northern star
tattoo on his neck with the word “certified” that evidenced he was an active Norteño.
Defendant could not have the Huelga bird or northern star tattoo unless he had earned the
right to do so through criminal acts of violence, and a validation process must have taken
place to permit him to acquire them. In order to gain status in the gang, defendant would
have had to “put[] in work,” which means he committed crimes of violence for the
benefit of the gang. Detective Chavez reviewed paperwork obtained from a jail in 2023,
which listed defendant on a roster of Norteños currently in custody at the jail.
Defendant and another gang member assaulted an individual at school in 2015
when defendant was in eighth grade. Defendant told an officer that he had seen the
individual at a park and his friend told him to “take flight,” a term meaning to assault or
fight. Detective Chavez testified that defendant’s friend was a known gang member, and
the term “take flight” is used by gang members to refer to gang members acting in
concert or taking action to assault someone together. Defendant was involved in another
altercation at high school in 2017. Defendant told the officer that a student’s father had
called him “a Chap,” a derogatory and disrespectful term used by Sureños gang members
or associates, rivals of the Norteños. Both of these incidents involved defendant
8.
assaulting someone based upon either a perceived gang slur or acting in concert with a
known gang member who had been assaulted by the victim.
Detective Chavez testified that Lemus was an active participant in the Way of Life
Norteño subset. At the time of his arrest, Lemus was wearing a red bracelet, signifying
membership in the Norteño street gang. He also had several tattoos, including the word
“hooligan” on his chest (meaning he was troublemaker for the Norteños), the letters
“WOL” (meaning Way of Life), numbers adding up to 14, and a single dot and four dots
on his hands (signifying the number 14). Lemus was also photographed with several
other Way of Life gang members. By the time of trial, Lemus had obtained a new tattoo
of the word “farmero” on the back of his head, a word associated with the Huelga bird
and United Farm Workers, which Nuestra Familia had adopted. Tattoos associated with
the Huelga bird are only allowed for those individuals who have put in violent work for
the gang, such as assaulting rivals and dropouts.
Detective Chavez testified that Jayden Gonzalez was an active Delano Norteño at
the time of the offenses. When arrested, Gonzalez was wearing a red shirt and red
bracelet, the color showing affiliation with Norteños. His cell phone displayed gang
mottos, symbols, and referenced West Side Delano and his willingness to shed blood for
West Side Delano Norte.
Detective Chavez also testified that the crimes of shooting from and at motor
vehicles and assault with firearms are primary activities of Norteño gang members.
Additionally, the store and substation where the offenses took place are within the gang’s
territory.
The prosecutor posed a hypothetical to Detective Chavez: He was to assume that
three Norteño gang members were in a truck in gang territory, including the driver who
wore black and had gang tattoos, the front passenger who was wearing a red hooded
sweatshirt, and the back passenger who was also wearing red. Seeing a witness who
previously testified against the gang in the company of a gang dropout, the front
9.
passenger made a gang sign and pointed his fingers like they were a gun. The gang
members followed the individuals’ vehicle without using headlights and fired a round at
them before fleeing from law enforcement at speeds in excess of 100 miles per hour.
Upon arrest, the shooter admitted he was a Norteño gang member and subsequently
obtained Huelga bird and northern star tattoos, along with the word “certified.” The
driver was arrested and thereafter had the word “farmero” tattooed on the back of his
head.
Detective Chavez testified that the crimes in the hypothetical were committed for
the benefit of, at the direction of, and in association with the Norteño criminal street
gang. The gang benefitted in two ways. Because one of the victims had already testified
against the gang, all gang members would know that she did so. The shooting was
retaliation and vengeance for the perceived harm inflicted on the gang by her testimony
and also served to eliminate her as a threat to the gang from future testimony. Similarly, a
gang dropout threatens the integrity of the gang because they have insider knowledge
regarding the identity of other gang members and the locations where the gang hides their
wealth or items used in crimes and has demonstrated they are no longer loyal or under
any obligation to follow gang rules regarding disclosure of this information. A dropout or
witness against the gang is considered a rival, and shooting that individual is considered
eliminating the threat.
Detective Chavez explained that these crimes are committed at the direction of the
gang because it has sanctioned the use of violence against witnesses and dropouts, shares
knowledge of those individuals with gang members, expects other gang members to
commit acts of violence against those individuals (“to take flight” against them), and will
discipline members if they fail to do so.
Detective Chavez also explained that the crime was committed in association with
other gang members as demonstrated by the different roles of the three gang members:
the driver acted as both the getaway driver and facilitated the pursuit of the victims and
10.
the flight from the police; the front passenger discharged the firearm with the intent of
harming the victims; and the rear passenger acted as a witness to the crime and could
attest to and communicate what happened to the rest of the gang members. Gang
members can be more successful in committing crimes and getting away with them by
working in association with each other.
DISCUSSION
I. Sufficient evidence supports the jury’s true finding that the offenses commonly
benefitted defendant’s gang.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether it discloses substantial credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks
(2017) 3 Cal.5th 1, 57.) “The focus of the substantial evidence test is on the whole record
of evidence presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’ ”
(People v. Cuevas (1995) 12 Cal.4th 252, 261.) Resolving conflicts and inconsistencies
in the testimony is the jury’s “exclusive province.” (People v. Young (2005) 34 Cal.4th
1149, 1181.) We do not redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar); Young, at p. 1181.)
“Moreover, unless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.” (Young, at p. 1181.)
We must accept logical inferences that the trier of fact might have drawn from the
evidence even if we would have concluded otherwise. (People v. Streeter (2012)
54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013)
57 Cal.4th 804, 834.) “If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (Albillar, supra, 51 Cal.4th at p. 60.)
11.
The reviewing court need not address “assertions of conflicts in the evidence” or
“alternative theories regarding the inferences that should have been drawn from the
evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Manibusan (2013) 58 Cal.4th 40,
87.) This is true for both direct and circumstantial evidence. (People v. Thompson
(2010) 49 Cal.4th 79, 113.)
A gang enhancement applies to persons convicted of specified felonies that are:
(1) “committed for the benefit of, at the direction of, or in association with a criminal
street gang”; and (2) “with the specific intent to promote, further, or assist in criminal
conduct by gang members.” (§ 186.22, subd. (b)(1); see People v. Rodriguez (2012)
55 Cal.4th 1125, 1138–1139.) As amended effective January 1, 2022, the statute now
defines the words “benefit,” “promote,” “further,” or “assist” “to provide a common
benefit to members of a gang where the common benefit is more than reputational.”
(§ 186.22, subd. (g), as amended by Stats. 2021, ch. 699, § 4.)7 Reading section 186.22
7 The Legislature first enacted section 186.22 in 1988 as part of the California Street
Terrorism Enforcement and Prevention Act (§ 186.20 et seq.), also known as the STEP Act. (See
Stats. 1988, ch. 1242, § 1, pp. 4127–4130.) Subdivision (g) was added to section 186.22 as part
of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333). (Stats. 2021, ch. 699,
§ 4.) The new legislation made several changes to the statutory definitions relating to gang
enhancements. As our Supreme Court has explained, “the Legislature was concerned with ‘lax’
interpretations of the prior law that allowed for overly expansive application of gang
enhancements (Stats. 2021, ch. 699, § 2) and therefore sought to amend the law by ‘making the
standards for applying a gang enhancement more rigorous.’ ” (People v. Cooper (2023)
14 Cal.5th 735, 744–745.) “Although the STEP Act ‘was originally enacted to target crimes
committed by violent, organized criminal street gangs,’ and was only meant to apply ‘ “in the
most egregious cases where a pattern of criminal gang activity was clearly shown,” ’ the STEP
Act ‘has been continuously expanded through legislative amendments and court rulings.’
(Assem. Bill 333, § 2, subd. (g).) The result, the Legislature found, was that ‘[c]urrent gang
enhancement statutes criminalize entire neighborhoods historically impacted by poverty, racial
inequality, and mass incarceration as they punish people based on their cultural identity, who
they know, and where they live.’ (Id., § 2, subd. (a).)” (People v. Clark (2024) 15 Cal.5th 743,
760.) Among other things, “ ‘Assembly Bill 333 narrowed what it means for an offense to have
12.
subdivisions (b) and (g) together, the specific intent now required is an intent to promote,
further, or assist criminal conduct by gang members that commonly benefits members of
a gang in a manner that is more than reputational. “Examples of a common benefit that
are more than reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (§ 186.22, subd. (g).)
B. Analysis
Defendant argues that the evidence was not sufficient to prove that the benefit to
the gang members conferred by the offenses was more than reputational as is required by
section 186.22, subdivisions (b)(1), (f) and (g). The People argue that the evidence was
sufficient to establish that defendant committed the offenses to confer a benefit on the
gang that included retaliation, targeting a perceived rival, or intimidating or silencing a
previous witness, which are more than reputational benefits. We agree with the People.
Defendant does not dispute that he was a member of the Norteño criminal street
gang, nor that the gang is a criminal street gang within the meaning of the statute. But
the section 186.22, subdivision (b)(1) enhancement applies “only if the crime is ‘gang
related’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 622, disapproved on another ground
in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13), and “[n]ot every crime
committed by gang members is related to a gang” (Albillar, supra, 51 Cal.4th at p. 60).
Defendant contends the evidence was insufficient to show that the crimes on April 19,
2021, were “committed for the benefit of, at the direction of, or in association with” the
Norteño criminal street gang and “with the specific intent to promote, further, or assist in
criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
A reasonable jury could have found that the actions of defendant, Lemus, and
Gonzalez were gang related, a term which now also requires that the relatedness to the
commonly benefitted a street gang, requiring that any “common benefit” be “more than
reputational.” ’ ” (Id. at p. 752, quoting § 186.22, subd. (g).)
13.
gang includes a benefit beyond that to its reputation. The evidence shows that all three
persons in the truck were members of the Norteño criminal street gang when defendant
shot at J.S. and D.H. It further shows that D.H. had testified against the gang (leading to
the conviction of two gang members for murder) and that J.S. had dropped out of the
Way of Life subset of the Norteño criminal street gang. Lemus was a member of the Way
of Life subset. The evidence establishes that the rules of this paramilitary street gang
require treating dropouts and witnesses against the gang as rivals, and other gang
members are required to commit acts of violence against them or risk such discipline
themselves. Given the nature of these rules, Detective Chavez’s testimony that the
identities of dropouts and witnesses are made known to the gang’s members supports an
inference that at least one of the gang members in the truck would have been aware of the
identities of the gang’s rivals, especially Lemus who was a member of J.S.’s subset.
Moreover, the evidence also supports the conclusion that defendant specifically
intended to promote, further, or assist in that crime. “[I]f 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.) Defendant’s tattoos and prior gang-related history demonstrate that his gang
membership was a major part of his life. (See id. at p. 62 [evidence of gang tattoos
supports finding that crime committed with fellow gang members was gang related].)
Defendant committed the crimes with two other fellow gang members in an area
considered by the gang to be its territory. Evidence of his intent “to promote, further, or
assist in criminal conduct by gang members” (§ 186.22, subd. (b)(1)) can be shown, in
part, with evidence that the defendant “intended to help [a fellow gang member] commit
a crime” (People v. Romero (2006) 140 Cal.App.4th 15, 20). We agree with defendant
that such evidence is insufficient, without more, to prove that the intended benefit was
more than reputational, but it is still relevant to the issue.
14.
We next examine whether the evidence is sufficient to support the jury’s inference
that defendant intended to commit a crime that would benefit the gang more than
reputationally, that is, that defendant intended the crime as “retaliation, targeting a
perceived or actual gang rival, or intimidation or silencing of a potential current or
previous witness or informant” (§ 186.22, subd. (g)). We conclude there is additional
evidence in this record that supports an inference of common benefit to the gang under
section 186.22, subdivision (g).
D.H. testified that the gang members in the truck whispered to each other as they
started throwing gang signs. A jury could infer that the gang members were discussing
the identity and status of D.H. and J.S. before deciding to “take flight” on them as
required by gang rules. This inference is further strengthened by defendant’s use of gang
signs representing his Norteño gang membership and signifying that the actions that
followed were on behalf of the gang. Using his hand to mimic firing a gun supports an
inference that defendant attempted to threaten D.H. and intended to shoot her and J.S.
The jury could also infer that the gang members’ actions were not just random, given that
the truck was persistent in finding J.S. and D.H.’s vehicle and went so far as to pursue
them to a sheriff’s substation, which exposed them to detection and arrest. The jury
could infer that the strength of defendant’s commitment to completing the crimes
demonstrated that D.H. and J.S. were targeted for violence for reasons more important
than random violence to simply enhance the gang’s reputation and that the gang members
recognized an importance to D.H. and J.S. as more than random individuals who
happened to be in the gang’s territory. Nor was there evidence of any competing
motivation or reason that precipitated the decision to inflict violence on D.H. or J.S.
Additionally, defendant and Lemus obtained tattoos reserved for those who have
committed violent crimes against rivals on behalf of the gang. Detective Chavez
explained that if defendant and Lemus had not earned the right to acquire the tattoos that
they had acquired, they would have been assaulted or killed by other Norteño gang
15.
members. This evidence was sufficient for the jury to infer that defendant was permitted
to obtain his tattoos as an achievement for committing crimes against the gang’s enemies.
Defendant concedes that the result of the shooting could confer a benefit to the
gang that is more than reputational but argues there was no evidence to permit the
inference that defendant committed the offenses for that purpose without proof that
defendant actually knew that J.S. was a dropout or that D.H. had testified against another
gang member, or even that they had been “green lit” for violence by the gang. “There is
rarely direct evidence that a crime was committed for the benefit of a gang. For this
reason, ‘we routinely draw inferences about intent from the predictable results of
action…. We can discover mental state only from how people act and what they say.’ ”
(People v. Miranda (2011) 192 Cal.App.4th 398, 411–412.) “When a specific intent is an
element of the offense it presents a question of fact which must be proved like any other
fact in the case. It is none the less a question of fact though it cannot be proved by direct
and positive evidence. All the circumstances surrounding the act furnish the evidence
from which the presence or absence of the specific intent may be inferred by the jury ….”
(People v. Maciel (1925) 71 Cal.App. 213, 218–219.)
The amendments to section 186.22 did not alter or otherwise amend the ordinary
rules of evidence, including the principle that reasonable inferences may be drawn from
the evidence, and we see nothing in the statute that disallows reasonable inferences based
on the facts of a particular case—including inferences from the evidence about a gang’s
rules and regulations—that might inform whether gang members would recognize
individuals who are enemies of the gang. When the Legislature intended to change such
rules of evidence, it did so explicitly as when it enacted section 1109 (to control the
admission of gang evidence) and Evidence Code section 352.2 (directed towards the
admission of rap lyrics).8
8 In addition to changing the definition for a pattern of criminal gang activity within
section 186.22, Assembly Bill 333 enacted section 1109, which created new trial bifurcation
16.
The evidence in this case establishes that J.S. was a dropout of the Way of Life
subset and that D.H. testified against two gang members who were, thereafter, convicted
of murder. (See, e.g., People v. Lamb (2024) 16 Cal.5th 400, 454 [information
concerning the victim would demonstrate the crimes were committed for “ ‘retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant (§ 186.22, subd. (g))’ ” and preclude a rational
juror from inferring that the common benefit to the gang was merely reputational].)
Detective Chavez’s testimony as to the workings of the gang includes testimony that the
identities of witnesses, informants, and dropouts are communicated to gang members to
enable gang retaliation and vengeance. In addition, because the gang requires its
members to “take flight” against such rivals or face internal discipline for failing to do so,
a jury could additionally infer that the gang ensured that members were aware of the
identities of these individuals. This testimony is sufficient to support the jury’s inference
that Lemus, Gonzalez, and defendant were aware of their victims’ status and relationship
to the gang.
Acknowledging that in Albillar, our Supreme Court specifically held that “[e]xpert
opinion that particular criminal conduct benefited a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct was ‘committed for
the benefit of … a[] criminal street gang’ within the meaning of [former]
procedures. These bifurcation provisions “allow a defendant to defer the trial of a gang
enhancement (§ 186.22, subds. (b), (d)) until after the defendant’s guilt for the underlying
offense has been determined (§ 1109, subd. (a)), and to have a count alleging active participation
in a criminal street gang (§ 186.22, subd. (a)) ‘tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime’ (§ 1109, subd. (b)).” (People v.
Aguirre (2025) 18 Cal.5th 629, 688.) The Legislature described its intent in enacting Evidence
Code section 352.2 as “ ‘to provide a framework by which courts can ensure that the use of an
accused person’s creative expression will not be used to introduce stereotypes or activate bias
against the defendant, nor as character or propensity evidence; and to recognize that the use of
rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a
sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates
a substantial risk of unfair prejudice.’ ” (Aguirre, at pp. 690–691.)
17.
section 186.22(b)(1), (Albillar, supra, 51 Cal.4th at p. 63), defendant argues that expert
testimony should not be sufficient in and of itself to raise an inference as to “more than
reputational” benefit required under current law. Although Albillar may have addressed
the use of expert testimony as evidence of a reputational gang benefit, our Supreme Court
has also approved the use of expert testimony to demonstrate a benefit that is more than
reputational, that is, that an assault on a gang associate benefited the gang based on
evidence that the associate had disassociated himself from the gang and heard something
he was not supposed to hear. (People v. Vang (2011) 52 Cal.4th 1038, 1042.)
Furthermore, section 186.22 did not address the admission or effect of expert testimony
to prove the gang offenses or enhancements, and we do not find that decisions such as
Vang or Albillar have been affected as to their principle regarding the use and limits of
gang experts in proving section 186.22 offenses or enhancements.9
The jury could reasonably infer that defendant, Lemus, and Gonzalez shot at D.H.
and J.S. because they viewed them as deserving of retaliation for perceived offenses
against the gang or rivals of the gang, and, therefore, for the benefit of, and in association
with, defendant’s own gang. A drive-by shooting by a gang member of a dropout or
witness against the gang is a prototypical example of a gang-related crime, even under
amended section 186.22, subdivision (g), which specifically includes “retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant.”
9 Defendant also challenges Detective Chavez’s testimony as having “simply informed the
jury of his belief of the suspects’ knowledge and intent on the night in question, issues properly
reserved to the trier of fact,” citing People v. Killebrew (2002) 103 Cal.App.4th 644, 658–659,
disapproved by People v. Vang, supra, 52 Cal.4th at page 1049, for the proposition that an expert
may not testify as to the subjective knowledge and intent of the defendant even in the guise of
expert testimony. However, our Supreme Court held that Killebrew should not be read to bar
questioning of expert witnesses through the use of hypothetical questions regarding hypothetical
persons. (Vang, at pp. 1046–1047.) In accordance with Vang, Detective Chavez responded only
to hypothetical questions regarding hypothetical persons and did not specifically testify to
defendant’s intent.
18.
Because defendant’s assertions to the contrary rest upon inferences from the
evidence that are contrary to the jury’s findings, we summarily reject his argument.
(See People v. Hicks (1959) 175 Cal.App.2d 556, 557 [“The well-established rule
requires an appellate court to resolve all conflicts in the evidence, and to draw all
reasonable inferences, in favor of the judgment. It is only when the evidence, so viewed,
is insufficient to sustain the finding of the trier of the facts that reversal upon this ground
is warranted.”].)
The evidence need not be overwhelming for us to conclude it at least supports a
reasonable inference that the gang actually received a common benefit that was more
than just reputational. (See People v. Wharton (1991) 53 Cal.3d 522, 546, 548 [the
inferences need not be the only ones the evidence supports, and the evidence of the
ultimate fact in question need not be strong]; People v. Johnson (1980) 26 Cal.3d 557,
576.) The issue is whether the record, when viewed in this manner, discloses evidence
that is reasonable, credible, and of solid value such that a rational trier of fact could find
the elements of the crime beyond a reasonable doubt. It does. As a reviewing court, we
cannot second-guess the inference drawn by the trier of fact on this question.
Accordingly, there is sufficient evidence in the record to support the jury’s true
finding on the gang enhancement.
II. Defendant cannot be convicted of both discharging a firearm at an occupied
vehicle and grossly negligent discharge of a firearm, which is a lesser included
offense.
The jury found defendant guilty of counts 10 and 11, discharging a firearm at a
motor vehicle (§ 246), and count 12, grossly negligent discharge of a firearm which could
result in injury or death (§ 246.3, subd. (a)). Defendant argues that the latter offense is a
lesser included offense of discharging a firearm at a motor vehicle. The People agree.
We accept the People’s concession.
19.
Although section 954 provides that a single act or course of conduct can lead to
convictions of any number of the offenses charged, the courts have created an exception
to this rule where multiple convictions are based on necessarily included offenses.
(People v. Ramirez (2009) 45 Cal.4th 980, 984–985.) Section 246 criminalizes the
malicious and willful discharge of a firearm at an occupied vehicle. Section 246.3,
subdivision (a) is a related statute that makes it a public offense to “willfully discharge[] a
firearm in a grossly negligent manner which could result in injury or death to a person.”
In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded
that “[t]he only … difference between the two [crimes], and the basis for the more serious
treatment of a section 246 offense, is that the greater offense requires that an inhabited
dwelling or other specified object be within the defendant’s firing range. All the elements
of section 246.3[, subdivision ](a) are necessarily included in the more stringent
requirements of section 246.” (Ramirez, at p. 990.)
Therefore, we shall reverse defendant’s conviction on count 12, grossly negligent
discharge of a firearm (§ 246.3, subd. (a)).
III. Defendant’s abstract of judgment must be amended to reflect the sentence
enhancement imposed on counts 6 and 7.
Defendant argues that the abstract of judgment fails to accurately reflect the
sentence orally pronounced by the trial court. The People agree. We accept the People’s
concession.
During its oral pronouncement of judgment, the trial court sentenced defendant, in
pertinent part, as follows: “In regard to Count 6, Penal Code Section 245[,
subdivision ](a)(2), probation is denied. You are sentenced to the Department of
Corrections for the mid term of 3 years enhanced by 10 years pursuant to
Section 186.22[, subdivision ](b)(1) …,” and “[i]n regard to Count 7, Penal Code Section
245[, subdivision ](a)(2), probation is denied. Your are sentenced to the Department of
Corrections for the middle term of 3 years enhanced by 10 years pursuant to
20.
Section 186.22[, subdivision ](b)(1) ….” The abstract of judgment fails to reference the
section 186.22, subdivision (b)(1) enhancements as to counts 6 and 7.
“Courts may correct clerical errors at any time, and appellate courts (including this
one) that have properly assumed jurisdiction of cases have ordered correction of abstracts
of judgment that did not accurately reflect the oral judgments of sentencing courts.”
(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Because the abstract of judgment fails to
include the section 186.22, subdivision (b)(1) enhancements as to counts 6 and 7, we
shall direct the clerk of the superior court to correct it.
DISPOSITION
Defendant’s conviction on count 12 for grossly negligent discharge of a firearm
which could result in injury or death (§ 246.3, subd. (a)) is reversed. The clerk of the
superior court is directed to amend the July 17, 2024 determinate abstract of judgment
accordingly, include the section 186.22, subdivision (b)(1) enhancements as to counts 6
and 7, and forward the amended abstract of judgment to the Department of Corrections
and Rehabilitation.
In all other respects, the judgment is affirmed.
HILL, P. J.
WE CONCUR:
PEÑA, J.
HARRELL, J.
21.