People v. Avendano CA5 (2022) · DecisionDepot

People v. Avendano CA5

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal May 18, 2022 No. F079411Unpublished

Filed 5/18/22 P. v. Avendano CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F079411 Plaintiff and Respondent, (Super. Ct. Nos. BF167017A, v. BF167017B, BF167017C)

ANGEL ANTONIO AVENDANO et al., OPINION Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Angel Antonio Avendano. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Lizeth Yesenia Aldaco. Jyoti Meera Malik, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Aldaco. Xavier Becerra and Rob Bonta, Attorneys General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P.

Farrell, Assistant Attorney General, Darren K. Indermill, Carlos A. Martinez, and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION Defendants Angel Antonio Avendano, Lizeth Yesenia Aldaco (Lizeth), and Miguel Aldaco (Miguel) (collectively, defendants) were each charged with unlawful transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) [count 1]), open carry of a loaded firearm by a nonregistered owner (Pen. Code,1 § 25850, subds. (a), (c)(6) [count 4]), and unlawful possession of a controlled substance for sale (Health & Saf. Code, § 11378 [count 5]). Lizeth was separately charged with unlawful possession of a firearm under the age of 30 by an individual previously adjudged a ward of the juvenile court (§ 29820 [count 2]). Miguel was separately charged with unlawful possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) [count 3]). The information further alleged that defendants committed the offenses underlying counts 1 and 5 for the benefit of or in association with a criminal street gang, i.e., the Loma Bakers (§ 186.22, former subd. (b)(1)), and while personally armed with a firearm (§ 12022, subd. (c)). The prosecution theorized that defendants conspired to commit the charged offenses for the benefit of the Loma Bakers. Following trial, the jury found defendants guilty as charged and found true all special allegations. Avendano received an aggregate sentence of nine years (a three-year middle term on count 1 plus three years for the gang enhancement and three years for the firearm enhancement). Miguel received an aggregate sentence of 10 years (a three-year middle term on count 1 plus three years for the gang enhancement and four years for the firearm enhancement). With regard to Lizeth, the trial court imposed an aggregate

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“And sometimes we can use probable cause to stop somebody. Or sometimes we can just go and consensually talk to somebody like a normal conversation.” On August 19, 2015, Barajas conducted a non-investigatory “street check” of a group of people at a park. The group included Miguel and Salvador Soliz. Ten days earlier, Barajas contacted Soliz, who was wearing “a black flat bill hat” with the words “Gage Street” written in “royal blue lettering” “on the underside of the bill” and had “Gage Street” tattooed on his stomach. Based on his training and experience, Barajas concluded that Soliz was a member of the Gage Street subset of the Loma Bakers. On May 1, 2016, at approximately 10:00 p.m., Officer Romero of the Bakersfield Police Department’s gang unit was on patrol when he saw Avendano walking in the middle of the street and noticed a tattoo of the letter “P” on his right cheek. After ordering Avendano to get off the road, Romero asked him if he “was . . . affiliated with any gangs in Bakersfield.” Avendano admitted that “he was a member of the Loma Bakers” ever since he “got jumped in when he was approximately 12 years old.” He “had been ‘putting in work’ ” such as “tagging and spray painting on the wall” and “stealing vehicles” to “climb up the ladder in the gang world.” Avendano then mentioned that he knew Romero was “a gang cop” and Romero “should have known of him.” On June 9, 2016, at approximately 3:00 p.m., Officer Martinez of the Bakersfield Police Department pulled over a vehicle driven by Miguel. Martinez noticed that one of the passengers, Avendano, sported several tattoos: the letter “H” on the right side of the neck, the letters “LB” and the word “Hillside” on his chest, and the letter “L” on his lower left calf. On December 10, 2016, at approximately 7:40 p.m., Officer James of the Bakersfield Police Department pulled over a vehicle driven by Avendano. James noticed

Bakers and the Uptown Bakers” with “a sales quantity of methamphetamine,” “a loaded handgun,” and “other gang members,” which was consistent Loma Baker behavior. Avendano bears numerous gang-related tattoos, including the letter “L” for “Loma”; the letter “B” for “Bakers”; the initials “LB” for “Loma Bakers”; the letter “B” “written in a format that can be viewed as a 13” as well as the number “100,” both of which demonstrated “allegiance to the Sureño gang” and “by extension La Eme”; the letter “H” for “Hillside”; the initials “HS,” which also stood for “Hillside”; the word “Hillside” and an adjacent letter “P” for “Hillside Primos”; and the initials “HSL” for “Hillside Locos.” Based on a comparison between the photographs taken by Barrier (see ante, at p. 8) and those taken by Jones in March 2019, many of the tattoos were “filled in,” “worked on,” or added after the January 25, 2017 incident, which was “indicative of continuing membership . . . within the gang.” During the jail call with Lizeth, Avendano said “[o]n the hood,” “a common expression used by many gang members, including Loma Bakers,” to mean “I promise on the gang,” i.e., “what I’m saying is true.” Finally, in prior encounters with police, Avendano admitted that he “is part of the gang,” “display[ed] [the] tattoos,” “explain[ed] . . . what those tattoos mean,” and/or was in the company of other gang members. Based on the totality of the circumstances, Jones opined that Miguel was an active member of the Loma Bakers at the time of the January 25, 2017 incident. He had been with Avendano “on a dangerous mission . . . selling drugs . . . on the edge of disputed gang territory.” Also, Miguel had worn a Houston Astros baseball cap with a “prominently featured H,” which was “indicative of the Hillside subset.” He bears a “very large and prominent [chest] tattoo” of the word “Lomero,” which demonstrated that he was “a Loma Baker gang member.” A closer inspection of that tattoo revealed the number “1” “just inside the angle of the L” and the number “3” “inside of the O next to it,” “form[ing] 13 for the Sureños and La Eme.” Finally, in prior encounters with police, Miguel was in the company of other gang members.

Based on the totality of the circumstances, Jones opined that Lizeth was a member of the Loma Bakers at the time of the January 25, 2017 incident. She had been “riding around in a vehicle with [Avendano and Miguel] doing gang crimes.” Given that Lizeth “is in an intimate dating relationship” with Avendano and is Miguel’s sister, Jones could not imagine that “she would not have any knowledge of what [the Loma Bakers] is and what her . . . brother and . . . dating partner are involved in and how much they are involved in.” During the jail call with Avendano, Lizeth “specifically t[old] . . . Avendano that he should have smashed,” i.e., “gone on a pursuit with police.” Jones considered this to be “an admission that she knew what was in the vehicle and was taking part of this criminal act.” During the same call, Lizeth mentioned that she had spoken with Jokes, the moniker of a known Loma Baker. Jones believed that her “consulting with and relay[ing] to [Avendano] about what [Jokes] had said . . . show[ed] a clear pattern of involvement and . . . ‘immersion’ in this gang lifestyle, and extreme familiarity with their actions and who they are.” Finally, in 2019, Jones visited Lizeth’s residence and photographed graffiti on a garage wall of the word “Jokes” and the initials “HSP” for Hillside Primos. A closer inspection of “Jokes” revealed the numbers 1 and (an upside down) 3. III. Defense’s case-in-chief a. Testimony of Ace Pierce Pierce, a bail bondsman and private investigator, was called as a gang expert by Miguel’s attorney. He testified that he “grew up off of Cottonwood Road and Highway 58” in Kern County. Pierce became familiar with gangs at a young age: he attended school and other community functions with gang members and his two older brothers were gang members. As a bail bondsman for “[a]bout 22 years” and a private investigator for “[a]bout a year and a half,” Pierce came into contact with gang members “[d]aily” and openly discussed gang-related matters with them. He also came into contact with law enforcement officials “[t]hree to five times a week” and discussed topics

Later, the parties stipulated that the police conducted the vehicle search without a warrant. A motion hearing was held on May 30, 2018. Sergeant Eddy testified that he was driving his patrol vehicle westbound on Columbus Street at approximately 1:00 a.m. on January 25, 2017, when he noticed “a white Honda” heading in the opposite direction. Avendano was driving the Accord, Lizeth was sitting in the front passenger seat, and Miguel was sitting “[b]ehind her on the passenger side.” Eddy’s interest was piqued because (1) Honda automobiles were “a very commonly stolen vehicle”; (2) he encountered the Accord in a “high-crime area” where vehicle thefts were common; and (3) he encountered the Accord during the “violent crime window,” i.e., between “9:00 p.m. and about 3:00 a.m.,” when “[t]he area is not really well lit” and most vehicle thefts and other crimes occurred. Eddy—a 17-year veteran of the police force—“worked pretty much either patrol or the Gang Unit pretty much the majority of [his] career” and was familiar with the locale, having “made numerous arrests in the area for weapons violations, narcotics violations, assault with deadly weapons, [and] stolen vehicles.” Eddy followed the Accord and “observed [Avendano] turn to look back at [the] patrol car,” which “indicat[ed] to [him] that [Avendano] [wa]s concerned about [the] patrol vehicle.” He also saw “some movement between [Miguel] and [Avendano].” Eventually, the Accord approached the intersection of Alta Vista Drive and Columbus Street, a four-way stop. It “rolled past the limit line” before coming to a stop. Eddy observed the moving violation and “turned on [his] overhead emergency lights to effect [a traffic] stop.” He then perceived “major movements” inside the Accord that caused it to “mov[e] back and forth quite a bit.” Eddy eventually pulled over the Accord. By and large, during a traffic stop, Eddy would “walk up to about the B pillar behind the driver door” and “make contact with the [driver].” However, because of “the time” and “the location of the stop” as well as the “the movements that [he] saw,” he was concerned about his safety and “ordered [Avendano, Lizeth, and Miguel] to put their

b. Standard of review “In reviewing a court’s ruling on a suppression motion, ‘[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. . . .’ [Citation.]” (People v. Smith (2020) 46 Cal.App.5th 375, 383 (Smith); see People v. Dominguez (1988) 201 Cal.App.3d 345, 353 [“[W]e must ‘view the facts upon which the suppression motions were submitted in the light most favorable to the People, drawing therefrom all reasonable inferences in support of the trial court’s order denying the motions.’ ”].) “ ‘In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ [Citation.]” (Smith, supra, at p. 383.) “[I]n reviewing the trial court’s suppression ruling, we consider only the evidence that was presented to the trial court at the time it ruled.” (In re Arturo D. (2002) 27 Cal.4th 60, 78, fn. 18, overruled in part by People v. Lopez (2019) 8 Cal.5th 353, 381.) Moreover, “ ‘we consider the correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons for reaching its decision.’ [Citation.]” (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1360.) c. Analysis In California, “[a] defendant may move to suppress evidence on the ground that ‘[t]he search or seizure without a warrant was unreasonable.’ ” (Smith, supra, 46 Cal.App.5th at p. 382, quoting § 1538.5, subd. (a)(1)(A).) “[I]ssues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.” (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) “The Fourth Amendment provides ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .’ [Citation.] This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. [Citation.]”

‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Long, supra, 463 U.S. at p. 1049, fn. omitted, citing Terry, supra, 392 U.S. at p. 21; accord, Bush, supra, 88 Cal.App.4th at pp. 1051- 1052.) The record at the time of the motion hearing—viewed in the light most favorable to the prosecution—showed that defendants were traveling in the Honda Accord through a “high-crime area” at around 1:00 a.m. When Sergeant Eddy began to follow them, Avendano—the driver—“turn[ed] to look back at [the] patrol car.” Shortly thereafter, Eddy perceived “some movement” between Avendano and Miguel, the backseat passenger. At the intersection of Alta Vista Drive and Columbus Street, the Accord “rolled past the limit line” before coming to a stop. Consequently, Eddy “turned on [his] overhead emergency lights to effect [a traffic] stop.” (See People v. Lomax (2010) 49 Cal.4th 530, 564 [“ ‘As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ”].) Before pulling the Accord over, Eddy observed “major movements” inside the vehicle that caused it to “mov[e] back and forth quite a bit.” While he would normally “walk up to about the B pillar behind the driver door” and “make contact with the [driver]” during a traffic stop, he ordered defendants to “put their hands where [he] could see them.” Eddy testified that he was concerned for his safety given (1) “the movements that [he] saw” in the Accord (cf. People v. King (1989) 216 Cal.App.3d 1237, 1239 [driver reached under his seat after his vehicle was pulled over by police]); (2) the location of the stop in a “high-crime area,” with which he was well acquainted and where he personally “made numerous arrests . . . for weapons violations, narcotics violations, assault with deadly weapons, [and] stolen vehicles” (see id. at p. 1240 [“ ‘ “The reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely.” ’ ”]); and (3) the time of the stop, i.e., between “9:00 p.m. and about 3:00 a.m.,” when the aforementioned crimes typically occurred under cover of darkness (see People

clause barred the admission of any out-of-court statement admitted for its truth if the hearsay declarant was not available for cross-examination, unless the statement bore ‘adequate “indicia of reliability” ’—that is, unless (1) the evidence fell within a ‘firmly rooted hearsay exception,’ or (2) the evidence otherwise had ‘particularized guarantees of trustworthiness.’ [Citation.]” (Washington, supra, 15 Cal.App.5th at pp. 27-28.) “In Crawford . . . , the United State Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence . . . against a criminal defendant.” (People v. Cage (2007) 40 Cal.4th 965, 969.) “It narrowed the clause’s reach from all out-of-court statements admitted for their truth to only those out-of-court statements that qualify as ‘testimonial,’ but completely barred the admission of such testimonial statements—irrespective of their reliability—absent the defendant’s current or prior opportunity to cross-examine the declarant.” (Washington, supra, at p. 28, citing Crawford, supra, at pp. 51, 53-54; see People v. Cortez (2016) 63 Cal.4th 101, 129 [“[T]he high court unequivocally held ‘that the confrontation clause applies only to testimonial hearsay statements and not to [hearsay] statements that are nontestimonial.’ ”].) “Although the [United States] Supreme Court has not settled on a clear definition of what makes a statement testimonial, [the California Supreme Court] ha[s] discerned two requirements. First, ‘the out-of-court statement must have been made with some degree of formality or solemnity.’ [Citation.] Second, the primary purpose of the statement must ‘pertain[] in some fashion to a criminal prosecution.’ [Citations.]” (People v. Leon (2015) 61 Cal.4th 569, 603, fn. omitted; see Crawford, supra, at p. 68 [“Whatever else the term [‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.”].)

“Bruton and Aranda . . . predate Crawford, which narrowed the scope of the right to confrontation to testimonial statements.” (Gallardo, supra, 18 Cal.App.5th at p. 68.) “[B]ecause it is premised on the confrontation clause, ‘ “the Bruton rule, like the Confrontation Clause itself, does not apply to non-testimonial statements.” ’ [Citation.]” (People v. Almeda (2018) 19 Cal.App.5th 346, 362.) Here, with respect to the jail call, “[t]here was nothing formalized about [Avendano] and [Lizeth]’s meandering and profane conversation.” (People v. Jefferson (2008) 158 Cal.App.4th 830, 843.) Furthermore, any statements between the two “cannot be deemed testimonial within the meaning of Crawford because it was not a conversation involving an agent of the police.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1203, overruled in part by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) “[One] who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Crawford, supra, 541 U.S. at p. 51.) Avendano and Lizeth “made no ‘formal statement to government officers,’ ” “[n]o official with an agenda was asking questions and taking notes,” and “[n]o government player was inserting veiled threats or subtle cues to get the goods on these two.” (People v. Jefferson, supra, at p. 842.) “No prosecutorial abuse or government coercion prompted their damning words” (id. at p. 844): “[h]ow and what [Avendano] and [Lizeth] said was entirely up to [Avendano] and [Lizeth]” (id. at p. 843). With respect to Avendano’s statements to Romero about his gang affiliation, “[t]here is no evidence to suggest any of this information bore any degree of [the required] solemnity or formality . . . , or resembled in any way formal dialogue or interrogation . . . .” (People v. Valadez (2013) 220 Cal.App.4th 16, 35-36.) Romero saw Avendano walking in the middle of a street, ordered him to move to the side, and asked if he “was . . . affiliated with any gangs in Bakersfield” given the tattoo of the letter “P” on his right cheek. Avendano then freely divulged that he “was a member of the Loma Bakers”; “had been ‘putting in work’ ” such as “tagging and spray painting on the wall”

III. Substantial evidence supported defendants’ convictions. a. Background Avendano, Lizeth, and Miguel were each convicted of unlawful transportation of a controlled substance, unlawful possession of a controlled substance for sale, and open carry of a loaded firearm by a nonregistered owner; Lizeth was convicted of unlawful possession of a firearm under the age of 30 by an individual previously adjudged a ward of the juvenile court; and Miguel was convicted of unlawful possession of a firearm by a convicted felon. According to defendants, the prosecution introduced two theories of culpability: (1) defendants “individually committed the offenses”; and (2) defendants “were part of a conspiracy and, as such, were liable for each other’s acts.” b. Standard of review “To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ ” (People v. Tripp, supra, at p. 955, italics omitted.) “This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” (Ibid.)

“Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond, supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ” (People v. Lee (2011) 51 Cal.4th 620, 632.) c. Analysis On appeal, each defendant contends that his or her convictions must be overturned because substantial evidence did not establish that he or she either (1) knew that the methamphetamine and firearm were in the backpack; or (2) conspired to commit the offenses with at least one other codefendant. “Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) “Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.” (Id. at pp. 1745-1746.) To prove that an accused is guilty of unlawfully carrying a loaded firearm in violation of section 25850, subdivision (a), the prosecution must establish—among other things—that the accused knew about the gun’s presence. (See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332.) Likewise, to prove that an accused is guilty of unlawful possession of a firearm in violation of either section 29800 or section 29830, the prosecution must establish—among other things—that the accused knew about the gun’s presence. (See People v. Snyder (1982) 32 Cal.3d 590, 592.) “Evidence of a defendant’s state of mind is almost inevitably circumstantial, but

circumstantial evidence is as sufficient as direct evidence to support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208; see People v. Pre (2004) 117 Cal.App.4th 413, 420 [“Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.”].) “ ‘ “Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy.” ’ [Citation.] ‘ “Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’ ” ’ [Citations.]” (People v. Dalton (2019) 7 Cal.5th 166, 244.) “ ‘ “One who conspires with others to commit a felony is guilty as a principal. [Citation.] ‘ “Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design.” [Citations.]’ [Citation.]” [Citation.]’ ” (Ibid.) “ ‘[A]n uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] “Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation] . . . .” [Citation.]’ [Citations.]” (People v. Valdez (2012) 55 Cal.4th 82, 150.) The record—viewed in the light most favorable to the prosecution—demonstrates that Avendano, Lizeth, and Miguel (1) knew about the presence of the methamphetamine and firearm; and (2) conspired to commit the substantive offenses with at least one other codefendant. In the wee hours of January 25, 2017, Avendano was driving his girlfriend Lizeth’s Honda Accord on Columbus Street when he passed Eddy’s patrol vehicle, “crane[d] [his] neck,” and gave Eddy a “long look.” After Eddy turned around and

trailed the Accord, there was “some movement going on within the vehicle” and Avendano “look[ed] at [Eddy] in the rearview mirror.” Following a moving violation at the intersection of Alta Vista Drive and Columbus Street, Eddy effected a traffic stop. After the Accord was pulled over, (1) Avendano “look[ed] at [Eddy] in the side mirror” and then “turn[ed] around and . . . ha[d] a conversation with somebody,” either Lizeth (the front seat passenger) or her brother Miguel (the rear passenger); and (2) all three “mov[ed] around.” (Cf. People v. Meza, supra, 38 Cal.App.4th at p. 1746 [the defendants “looked around in all directions” before they entered a residence and left in a vehicle carrying over 70 pounds of cocaine].) Subsequently, defendants were removed from the Accord and Poteete conducted a search of the vehicle. “[O]n the floorboard in between the back passenger’s seat and the backseat of the front passenger,” she found the backpack containing plastic bags filled with methamphetamine (the total quantity of which far exceeded the amount normally associated with personal use), a loaded firearm, a digital scale with methamphetamine residue, money (including smaller bills), black gloves, a cell phone, and a gold watch. Though “[t]here was no evidence [that Avendano, Lizeth, or Miguel] physically possessed the [contraband] in question” (People v. Johnson (1984) 158 Cal.App.3d 850, 854), “ ‘possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another’ ” (ibid.). Avendano, Lizeth, and Miguel had all been within reach of the backpack. (See People v. Williams (2009) 170 Cal.App.4th 587, 624 [officers found a loaded firearm in the defendant’s bedroom “about a foot away” from where he had been using his computer]; People v. Hunt (1963) 221 Cal.App.2d 224, 225, 227 [police pulled over the defendant’s vehicle and found a revolver on the floorboard in front of his passenger].) In addition, Lizeth was the owner of the Accord and ostensibly gave Avendano permission to drive it. (See People v. Jenkins (1979) 91 Cal.App.3d 579, 584 [“The inference of dominion and

control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].”].) Poteete searched Lizeth’s person and seized five $1 bills; Barrier searched Miguel’s person and seized a $10 bill and an empty “clear plastic Baggie.” A few days later, during a jail call between Avendano and Lizeth, Lizeth alluded to her awareness of the contraband when she remarked, “[L]ike you guys should have did what I told you guys to do. [¶] . . . [¶] . . . When we got pulled over. [¶] . . . [¶] . . . When the cop got off you should’ve smashed off, ‘cause it was only one cop.” At trial, the parties stipulated that the Loma Bakers are a criminal street gang pursuant to section 186.22. Jones testified that members of this Sureño-affiliated gang (1) primarily engage in drug sales and illegal firearm possessions, among other crimes; (2) sell drugs to raise money to “buy[] more drugs,” “buy[] weapons,” and “bail[] out fellow gang members”; (3) often possess firearms while conducting drug sales to defend themselves against rivals and law enforcement; (4) commit crimes in numbers for “safety” and “camaraderie”; and (5) are subject to the traditional Sureño rule that armed members must inform fellow members of the gun. Jones opined that Avendano, Lizeth, and Miguel were members of the Loma Bakers at the time of the January 25, 2017 incident, given that (1) at the time of the traffic stop, defendants’ vehicle carried a large quantity of methamphetamine and a loaded firearm and was “on the edge of disputed gang territory”; (2) at the time of the traffic stop, Miguel was wearing gang-related apparel; (3) Avendano and Miguel bear gang-related tattoos; (4) during the jail call, Avendano expressed a gang-related phrase (“[o]n the hood”) and Lizeth revealed that she had consulted Jokes, a known Loma Baker; (5) in the past, Avendano admitted to police officers that he is a Loma Baker; (6) in the past, Avendano and Miguel were each seen in the company of other gang members; and (7) there was gang-related graffiti on the walls

testimony on criminal street gangs.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez).) “Section 186.22, subdivision (b)(1) provides three alternatives for establishing the first prong—that the underlying offense was ‘gang related.’ The offense may be committed (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in association with a gang. [Citation.] Because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member. [Citations.]” (Weddington, supra, 246 Cal.App.4th at p. 484.) “As to the second prong of the enhancement, all that is required is a specific intent ‘to promote, further, or assist in any criminal conduct by gang members.’ [Citation.]” (Villalobos, supra, 145 Cal.App.4th at p. 322; see People v. Pre, supra, 117 Cal.App.4th at p. 420 [“Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.”].) Both Lizeth and Miguel argue that “there [i]s no substantial evidence to prove either prong.” We disagree. The parties stipulated that the Loma Bakers are a criminal street gang pursuant to section 186.22. Based on the totality of the circumstances, Jones opined that each defendant was a member of the Loma Bakers at the time of the January 25, 2017 incident. Avendano bears tattoos of various letters and symbols associated with the gang and previously admitted to police officers that he is a Loma Baker who “put[s] in work.” (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1331 [evidence of gang tattoos and admission of gang membership].) Miguel similarly bears gang-related tattoos of the word “Lomero” and the number “13” and was seen in the company of Soliz—a known member of the Gage Street subset of the Loma Bakers— in 2015. (See In re Jose P. (2003) 106 Cal.App.4th 458, 468 [minor had been contacted on several occasions in the company of known gang members], disapproved in part by People v. Prunty (2015) 62 Cal.4th 59, 78, fn. 5.) On the morning of January 25, 2017,

defendants’ vehicle was pulled over in disputed gang territory and a search thereof uncovered a large quantity of methamphetamine, a loaded firearm, a digital scale with methamphetamine residue, money, black gloves, a cell phone, and a gold watch. According to Jones, Loma Bakers primarily engage in drug sales and illegal firearm possessions, have guns for protection during such sales, and commit crimes collectively for “safety” and “camaraderie.” (See Weddington, supra, 246 Cal.App.4th at p. 485 [gang’s “signature crime”].) At the time of the traffic stop, Miguel was wearing gang apparel. (See Jose P., supra, at p. 468 [minor observed wearing gang-related attire].) During the jail call on or around January 29, 2017, Lizeth divulged that she had communicated with Jokes, a known Loma Baker. (See ibid.) There was also gang- related graffiti sprayed on her garage wall. “Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in ‘association’ with a gang.” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367; see Weddington, supra, 246 Cal.App.4th at p. 484.) “Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.” (Villalobos, supra, 145 Cal.App.4th at p. 322.) Jones also testified about the benefits that the Loma Bakers obtain from selling methamphetamine and possessing firearms. As to the former, the gang acquires funds to purchase more drugs and weapons and to bail out members. As to the latter, the gun provides protection against rivals and law enforcement and can instill fear in the community at large, which would allow the gang to “get away with” more crimes. Jones added that (1) members who “put[] in work for the gang,” e.g., “burglarizing someone, stealing their car, shooting, stabbing, robbing,” “bolster [their] reputation[s] within the gang” as trustworthy individuals and enhances the gang’s reputation “through . . . word- of-mouth” and portrayal in the media; and (2) money-making ventures “in turn build[] . . . power . . . [and] respect” for the gang. (See People v. Vang, supra, 52 Cal.4th at

and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801.) “A witness may not express an opinion on a defendant’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’ [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) “The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 247, quoting Watson, supra, 46 Cal.2d at p. 836.) Miguel contends that Jones’s responses to the prosecutor’s hypothetical questions “improperly and repeatedly expressed an opinion on [his] guilt.” Assuming arguendo that the prosecutor’s hypothetical questions and Jones’s responses thereto were erroneous, in their absence, we find no reasonable probability that a result more favorable to Miguel would have been reached. In view of the record (see ante, at pp. 32-41), it is still likely that the jury would have convicted him of unlawful transportation of a controlled substance (count 1), unlawful possession of a firearm by a convicted felon (count 3), open carry of a loaded firearm by a nonregistered owner (count 4), and unlawful possession of a controlled substance for sale (count 5) and found true the

evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material ‘ “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” ’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (Salazar, supra, 35 Cal.4th at p. 1042.) “ ‘There are three components of a . . . Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.” ’ [Citation.]” (Salazar, supra, 35 Cal.4th at p. 1043.) “The requisite ‘reasonable probability’ is a probability sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court. [Citations.] It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]” (In re Sassounian (1995) 9 Cal.4th 535, 544.) The record indicates that the prosecution relied on evidence of an uncharged conspiracy among defendants to prove derivative criminal liability. That the extraction report tends to attribute ownership of the backpack and its contents—e.g., the methamphetamine and loaded firearm—to Miguel does not refute the prosecution’s theory and does not establish a probability sufficient to undermine confidence in the

jury’s verdict. (Cf. People v. Martinez (1984) 36 Cal.3d 816, 823 [the defendant’s new trial motion proffered newly discovered evidence that “reopen[ed] [a] critical gap in the prosecution’s chain of proof”].) Without the materiality and prejudice needed to establish a Brady violation, we uphold the court’s finding that there was “no prosecutorial [mis]conduct.” ii. Newly discovered evidence “ ‘ “In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” ’ ” ’ [Citation.]” (People v. O’Malley (2016) 62 Cal.4th 944, 1016-1017.) We cannot conclude that a different result is probable on retrial in light of the extraction report. As mentioned, while the report tends to attribute ownership of the backpack and its contents to Miguel, this does not undercut the prosecution’s theory that all three defendants conspired to commit the charged crimes and were therefore liable for each other’s acts. (See People v. Martinez, supra, 36 Cal.3d at p. 823.) Avendano and Lizeth question the brevity of the court’s ruling. Although the ruling “was stated succinctly, we infer from the record of the hearing itself that the court properly ‘discharge[d] [its] duty to conscientiously consider [the] motion for new trial . . . . The hearing transcript reveals that [the court] was well acquainted with the briefs . . . and carefully considered those claims before denying the motion.’ [Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1063.) VIII. There was no cumulative error. Each defendant contends the cumulative effect of the purported errors requires reversal of the convictions. “[A] series of trial errors, though independently harmless,

retroactively, defendants “cannot show it is ‘reasonably probable’ [they] would have obtained a more favorable result if [their] trial had been bifurcated.” (People v. E.H. (2022) 75 Cal.App.5th 467, 480, citing Watson, at p. 836; see People v. Burch (2007) 148 Cal.App.4th 862, 868-869 [trial court’s denial of bifurcation request harmless under Watson]; see also People v. Gonzales (2011) 51 Cal.4th 894, 924 [exercise of discretion under Evid. Code, § 352 subject to Watson standard].) The California Supreme Court has held that—in cases not involving the gang enhancement—“evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (Hernandez, supra, 33 Cal.4th at p. 1049.) However, “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. 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.” (Ibid.; see People v. Montes (2014) 58 Cal.4th 809, 859 [“While gang membership evidence does create a risk the jury will impermissibly infer a defendant has a criminal disposition and is therefore guilty of the offense charged [citation], ‘nothing bars evidence of gang affiliation that is directly relevant to a material issue.’ ”].) As noted, in the instant case, the record indicates the prosecution relied on evidence of an uncharged conspiracy among defendants to prove derivative criminal liability, which is proper. (People v. Valdez, supra, 55 Cal.4th at p. 150.) Since “ ‘ “ ‘[t]he existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy’ ” ’ ” (People v. Dalton, supra, 7 Cal.5th at p. 244) and “common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy” (People v. Superior Court (Quinteros), supra, 13 Cal.App.4th at p. 20), the prosecution introduced evidence that defendants were members of the Loma Bakers at the time of the January 25, 2017

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.” Defendants again make two contentions. First, the amended section 186.22 applies retroactively. Second, the gang enhancements must be vacated because section 186.22, subdivision (g) “redefines the enhancement in a manner the jury was not instructed.” The Attorney General concedes that “[t]he recent amendments to section 186.22 apply retroactively to appellants” but maintains that “remand is unnecessary” because while “the People presented some evidence of the reputational benefit the gang achieves from possessing drugs for sale and gun possession, it also presented overwhelming evidence of common benefits to gang members that are more than reputational, i.e., the gang’s financial gain from drug sales and possessing a firearm to protect the drug sale activity.” “By requiring proof for a gang enhancement that the benefit to the gang was more than reputational, Assembly Bill No. 333 essentially adds a new element to the enhancement. When jury instructions are deficient for omitting an element of an offense, they implicate the defendant’s federal constitutional rights, and we review for harmless error under the strict standard of Chapman . . . . [Citations.] . . . Under the Chapman standard, reversal is required unless ‘it appears beyond a reasonable doubt that the error did not contribute to th[e] jury’s verdict.’ [Citation.]” (People v. Sek (2022) 74 Cal.App.5th 657, 668.) “[I]t is not enough to show that substantial or strong evidence existed to support a [true finding] under the correct instructions.” (Ibid.) Here, “[a]lthough there was a great deal of evidence of benefits to the gang that went beyond reputational, we cannot rule out the possibility that the jury relied on reputational benefit to the gang as its basis for finding the enhancements true. Thus, the instructional error on this question was not harmless under the Chapman standard.” (Id. at p. 669.) “ ‘We

People v. Avendano CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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