People v. Palomino CA4/3

Filed 9/25/20 P. v. Palomino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

4TH APPELLATE DISTRICT

DIVISION 3

THE PEOPLE,

Plaintiff and Respondent, G057727

v. (Super. Ct. No. 16NF2375)

OSVALDO PALOMINO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Denise
de Bellefeuille (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) and Patrick Donahue, Judge. Affirmed
in part, conditionally reversed in part and remanded with directions.
Jennifer A. Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis
and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant Osvaldo Palomino was charged with assault with a firearm on
A.M. (Pen. Code, § 245, subd. (a)(2); count 1);1 residential burglary (§§ 459, 460, subd,
(a); count 2); assault with a deadly weapon on A.M. (§ 245, subd. (a)(1); count 3); assault
with force likely to cause great bodily injury on A.M. (§ 245, subd. (a)(4); count 4);
kidnapping H.M. during a carjacking (§ 209.5, subd. (a); count 5); carjacking (§ 215,
subd. (a); count 6); assault with semiautomatic firearm on H.M. (§ 245, subd. (b); count
7); assault with a semiautomatic firearm on a police officer (§ 245, subd., (d)(2); count
8); and active participation in a criminal street gang (§ 186.22, subd. (a); count 9).2
Regarding the burglary count, the information alleged a nonaccomplice was
present in the residence at the time of the burglary (§ 667.5, subd. (c)(21). It further
alleged counts 1 through 8 were committed for the benefit of a criminal street gang (§
186.22, subd. (b)(1)); Palomino personally used a firearm in committing the offenses
charged in counts 1, 7 and 8 (§ 12022.5, subd. (a)); he personally used a firearm in
committing the offenses charged in counts 5 and 6 (§ 12022.53, subd. (b)); and that he
suffered a prior strike conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)).
The jury found Palomino guilty of simple assault (§ 240) as a lesser
included offense of count 1, guilty on counts 3, 4, 5, 7, 8, and 9; and found true the gang
enhancement as to counts 3, 4, 5, 7, and 8, and the firearm use allegations true on counts
5, 7, and 8. Palomino was acquitted of the charges in counts 2 and 6. He waived jury
trial on his prior strike allegation and the court found that allegation true.
The court imposed an indeterminate term of 24 years to life and a
concurrent determinate term of 28 years in prison; and 180 days in county jail on the
misdemeanor lesser included offense of count 1 but deemed that sentenced served.

1 All undesignated statutory references are to the Penal Code.

2The original information also charged Julie Borboa and Frank Velasquez
along with Palomino.

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 On appeal, Palomino contends the evidence is insufficient to support the
verdict on count 3 or the true finding on the gang enhancement on count 8, assaulting a
police officer with a semiautomatic firearm. We disagree.
Palomino also contends the trial court erred in ruling on his pretrial motion
under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Again, we agree.
The trial court abused its discretion in denying him discovery of Pitchess material about a
complaint alleging one of the investigating officers planted evidence and filed a false
police report, and a separate complaint about filing a false police report. So, the
convictions on the remaining counts (5, 7, 8 & 9), the true findings on the gang
enhancements, and true findings on the firearm enhancements are conditionally reversed
and the matter is remanded with directions for further proceedings.
On remand, Palomino is entitled to the Pitchess material which should have
been disclosed to him. The trial court shall grant Palomino sufficient time to investigate
the disclosed information and thereafter file a motion for a new trial. If Palomino fails to
file a motion for a new trial or if the court denies the motion, the court shall reinstate the
conditionally reversed convictions and true findings.
FACTS3
Counts 1 Through 4
On August 23, 2016, A.M., his girlfriend J.W., J.Z., her older boyfriend
Miguel, and M.Z., J.Z.’s cousin, all lived in an apartment in the Glen Neighbors
(Neighbors) area of Anaheim. That afternoon, J.Z. and Miguel took M.Z.’s baby and
headed to the park. They did not get that far and were confronted by J.Z.’s father. J.Z.’s
father was upset with her and Miguel because Miguel is 14 years older than J.Z., who
was 18 years old at the time and pregnant.

3 We present the facts from the trial in the light most favorable to the
judgment in accord with established principles of appellate review. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206.).

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 J.Z. telephoned J.W. back at the apartment. J.W., A.M., and M.Z. went
looking for J.Z. and Miguel, and found them at the end of the alley. A.M. said J.Z. and
Miguel were being threatened. The group headed back toward the apartment as they
walked through the alley. Behind them was J.Z.’s father, who started whistling, calling
forth or signaling others. Three males and a female then arrived. Palomino, who J.Z.
knew as “Felon,” was one of the males.
Palomino said, “Folks gang.” Because he thought Palomino was looking at
him “wrong,” A.M. asked what he was looking at. Palomino then swung at A.M. and
punched him on the left side of his face. A.M. said he saw the black handle of a gun in
Palomino’s hand. According to A.M., Palomino pointed a revolver at him and lifted his
shirt to reveal a second firearm, a semiautomatic.4 A.M. was not afraid of being shot. He
said he could see in Palomino’s eyes that Palomino was not going to shoot. J.Z. saw only
one gun. It was tucked into Palomino’s waistband.
A.M. said he and Palomino cursed at each other, Palomino asked where
A.M. was from and said, “This is Folks neighborhood.” During the scuffle, the female
with Palomino, later identified as Julie Borboa, struck A.M. in the left arm with a metal
bat that had spikes on the end. The spikes did not make contact when she hit A.M.
A.M. and his group made it back to their apartment, but Palomino, Borboa,
and a male A.M. knew only as “Blind Guy” broke into the patio of the apartment where
the fight continued for about a minute. Blind Guy was later identified as Frank
Velasquez. Eventually, A.M. made it to the inside of the apartment. Shortly thereafter,
came a knock at the door. Someone said the male at the door wanted to talk with A.M.
Thinking there was a truce, A.M. went to the door. When he got there, “they” grabbed
him and pulled him out of the apartment.

4 A video of the incident was played for the jury. Apparently, the video
did not show Palomino pointing a gun at A.M., but A.M. remained positive Palomino
pointed a firearm at him.

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 Another struggle ensued on the patio, where Palomino and Velasquez
fought A.M. Velasquez was behind A.M. and Palomino was in front of him. Palomino
punched A.M. with both hands, landing punches to A.M.’s stomach area and face. A.M.
felt blows from behind and a hard object hit him on the back of his head. J.W. and J.Z.
saw Velasquez with what appeared to be a large kitchen knife. Borboa attempted to hit
A.M. with “the stick with stuff on it.” A.M. did not see a gun or a knife during this
struggle, but he suffered a small hole in the back of his shirt and believes he was stabbed
with something. The only other injuries A.M. suffered were small bumps on his head.
Counts 5 Through 9
Later that evening, between 9:00 and 10:00 p.m., Velasquez called H.M.
and asked for a ride to Walmart. H.M. drove his two-door Civic and picked up
Velasquez and a “young man” he had seen before but did not know,5 in the alley between
Neighbors and Glen Avenue. Velasquez got into the back seat and Palomino sat in the
front passenger seat. H.M. drove down the alley to La Palma Avenue, where he saw two
patrol cars. Palomino got nervous and said, “Police. Police.”
While they continued on La Palma Avenue toward Euclid Avenue, a police
car pulled in behind H.M.’s vehicle and turned on its emergency lights. Palomino
nervously told H.M. not to stop, to turn around, and to get as close as he can to
Neighbors. When H.M. slowed down, Palomino told him to speed up. Palomino took
out a gun and said, “Go, go, go.” After hearing Palomino rack the pistol, Velasquez told
Palomino to “be careful with the Paisan (H.M.).” H.M. was afraid Palomino would shoot
him.
Slowly, H.M. drove as close as he could to Neighbors, but there were “a lot
of police there,” and two of the patrol vehicles hit H.M.’s car. H.M. stopped his car and
Palomino got out and ran. H.M. and Velasquez remained in the car.

5 The young man was later identified as Palomino.

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 Anaheim Police Department Investigator Jacob Slechta was part of the
surveillance team set up earlier that evening in Neighbors, an area claimed by the Latin
Kings street gang (Folks). Anaheim’s helicopter (Angel) was also involved in the
surveillance. The police were looking for Palomino and Velasquez. Slechta was in one
of the vehicles and gave chase when Palomino got out of the car and ran. Slechta could
see something in Palomino’s hand, but could not tell what it was. Another officer, Smith,
was in front of Slechta during the chase. Slechta lost sight of Palomino when Palomino
turned into a breezeway, but he saw Smith fire his service weapon multiple times.
Smith, who was in a police uniform, was also part of the surveillance team
looking for Palomino and Velasquez. It was Smith’s vehicle that was immediately
behind H.M.’s car as they approached La Palma and Euclid Avenues. Smith turned on
his lights and siren to initiate a stop. H.M.’s vehicle did not stop; it continued at a slower
speed. Smith hit H.M.’s vehicle’s left rear quarter panel with the squad car’s right
bumper and it stopped. Palomino, the right front passenger got out and ran. Smith gave
chase. He kept gaining on Palomino and shouted for Palomino to stop, drop what was in
his hand, and get on the ground. Smith could see something dark in Palomino’s right
hand, but could not see what it was. Palomino kept running.
Palomino, with his hand in his waistband, went around a corner that led to
Neighbors. He turned, made eye contact with Smith, and raised a chrome barreled gun.
The video from Smith’s body camera showed Palomino raising a gun. Smith
instinctively fired at Palomino. He said he fired at least 2 shots. Palomino did not fire
his weapon. Palomino was struck by a bullet. He was taken into custody after having
been treated by paramedics.
Approximately two-thirds of the way down the alley into which Palomino
ran and was wounded, the police found a loaded semiautomatic Raven Arms MP-25
handgun. The firearm was consistent with the one Smith said he saw in Palomino’s hand.
A cell phone found in the alley contained a photograph of Palomino.

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Gang Evidence
Palomino had a number of tattoos, including “Neighbors” on his upper left
forearm; and “Anaheim,” “OC,” and the Atlanta Falcons logo on his right abdomen.
Tattooed on top of his head is the letter “F” and “Folks” is tattooed above his hairline.
The parties stipulated that: Family of Latin Kings (Folks) was a criminal
street gang on August 23, 2016; Folks had a common name or identifying signs or
symbols, including “Folks, AFG, 167, Neighbors, AFGX3, Folks X3, and AF”; the
gang’s primary activities include assault with a deadly weapon, felony vandalism, and
unlawful possession of firearms; Folks gang members have engaged in a pattern of
criminal gang activity after September 26, 1988, and two of the gang crimes occurred
within three years of each other; and on August 23, 2016, Folks claimed two territories in
Anaheim, one of which is the area where the charged offenses occurred. The police
department’s last known address for Palomino is in the second area claimed by the gang.
Kevin Avila, a gang investigator for Anaheim Police Department testified
as a gang expert. Avila said respect is important to gangs. Gang members earn respect
by committing crimes. A gang member with a gun garners more respect than one who
does not have one. The more violent the act, the more respect is garnered. Gang-related
tattoos are earned and considered a badge of honor. Tattoos on the head, neck or face,
i.e., places not easily concealable, show the person constantly represents the gang.
Avila stated gangs use guns for offensive and defensive purposes.
Members are expected to defend their territory and they use guns to do so. As acquiring
firearms is hard for gang members, when they have one “they do whatever it takes to
hold on to them.”
Avila said a “hit-up” occurs when one gang member asks someone he
believes to be a gang member “where they are from.” The result of a hit-up is usually a
physical alteration. If a gang member is hit-up, he or she is expected to state their gang’s
name. Failure to do so shows weakness.

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 The prosecutor gave Avila a hypothetical set of facts tracking the evidence
in this case, including the fact that in the Neighbors alley where Palomino hit-up A.M.;
Palomino assaulted him immediately after the hit-up, and followed him to the apartment
and pulled him out of the apartment to assault him some more; and then later that night,
two gang members (Palomino & Velasquez) are in a car when Palomino pulls a gun on
the driver of the vehicle and tells him to keep driving when police are spotted and orders
the driver to drive to the gang’s territory. The facts included Palomino’s tattoos and that
Palomino pulled a firearm on a police officer who chased him. Based on the facts in the
hypothetical, Avila opined Palomino was an active gang participant. He further opined
all the remaining charges were committed for the benefit of a criminal street gang. In so
testifying, Avila relied on the fact that the crimes occurred in the gang’s territory and
were likely to cause fear in residents of the area.
Avila conceded that just because a gang member flees from the police does
not necessarily make the flight gang related. In other words, not every crime committed
by a gang member is gang related.
Defense Case
M.Z. testified she lived in an apartment in the Neighbors area in August
2016. On the afternoon of August 23, 2016, as the group (M.Z., J.W., A.M., J.Z., &
Miguel) were walking in the alley back toward their apartment, J.Z.’s father whistled and
M.Z. believed it was a call for gang members to attack J.Z.’s boyfriend Miguel. She said
J.Z.’s father likes to cause problems. She heard him say, “Get ‘em.” M.Z. believes J.Z.’s
father wanted Miguel to get beat, not A.M.
Prior to the altercation, however, A.M. looked at Palomino, who M.Z. has
heard being called “Felon,” and said something to him. Palomino answered, “What” and
“went towards” A.M. M.Z. did not hear anyone other than J.Z.’s father say “Folks.”
M.Z. did not see a gun or a knife that day, but when the fight continued on
her patio, she heard someone scream, “he has a knife,” and saw something in Velasquez’s

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hand that could have been a knife. After the fight, she J.Z. and Miguel went in the
bathroom, and began cutting themselves. J.Z. then called the police, claiming her
boyfriend was being killed. M.Z. heard J.W. tell J.Z. to embellish her story when she
talks to the police.
M.Z. said Borboa and Velasquez are Folks gang members. She said H.M.
is a drug addict who smokes methamphetamine.
The parties stipulated the recovered firearm was swabbed for DNA and
compared to DNA obtained from Palomino. Due to the mixture of the small amount of
DNA on the weapon, it was not suitable for comparison. Lastly, the jury saw where on
Palomino’s body a bullet fired by Smith entered and where the bullet was removed.
DISCUSSION
1. Insufficient Evidence Claims
Palomino contends the evidence is insufficient to support the guilty verdict
on count 3 (assault with a deadly weapon on A.M.) or the true finding on the gang
enhancement on count 8 (assault with semiautomatic on a police officer). We disagree.
“In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.) We “presume[] in support of the judgment the
existence of every fact the trier of fact could reasonably deduce from the evidence.
[Citations.]” (Ibid.) “‘“If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.
[Citation.]”’ [Citation.]” (Id. at p. 1054.) We may reverse only if under no hypothesis
whatever is there substantial evidence. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

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 A. Count 3
Count 3 of the information charged Palomino with assault with a deadly
weapon (§ 245, subd. (a)(1)) on A.M. The information alleged the weapon used was a
knife. It appears this charge was based on the second assault on A.M., the one inside the
patio at the apartment. It was after that incident that A.M. discovered a small whole in
the back of his shirt and believed he was stabbed. According to A.M., during this
encounter Palomino was in front of him, punching with both hands. Velasquez was
behind A.M. A.M. felt blows from behind and from an object. A hard object hit him in
the back of the head. During the fight, someone saw a knife and screamed “he has a
knife.” M.Z., a defense witness, testified to seeing something in Velasquez’s hand that
could have been a knife.
Palomino was prosecuted on count 3 on an aiding and abetting theory, that
Velasquez stabbed A.M. during this fight and Palomino aided and abetted the stabbing. 1
who aids and abets a principal’s commission of a crime shares the guilt of the actual
perpetrator. (§ 31.) “[A]n aider and abettor is a person who, ‘acting with (1) knowledge
of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.’ [Citation.]” (People v.
Prettyman (1996) 14 Cal.4th 248, 259.)
Given that Palomino assaulted A.M. minutes earlier in the alley and
followed A.M. and his roommates back to their apartment where Palomino and
Velasquez pulled A.M. out of his apartment and started hitting him on the patio, it is
reasonable to infer Palomino wanted Velasquez to take part in the beating. Palomino
contends there is no evidence he knew “Velasquez planned to assault [A.M.] with a knife
or that he specifically intended to help Velasquez commit that assault with a knife.” Such
knowledge is not required.

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 “‘A person who knowingly aids and abets criminal conduct is guilty of not
only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of the
intended crime. The latter question is not whether the aider and abettor actually foresaw
the additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citation.]’ [Citation.] Liability under the natural and probable consequences doctrine
‘is measured by whether a reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted.’ [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920.)
“A reasonably foreseeable consequence is to be evaluated under all the circumstances of
the individual case [citation] and is a factual issue to be resolved by the jury.
[Citations.]” (Ibid.) In other words, “[a]ider and abettor liability under the natural and
probable consequences doctrine does not require assistance with or actual knowledge and
intent relating to the nontarget offense, nor subjective foreseeability of either that offense
or the perpetrator’s state of mind in committing it. [Citation.]” (People v. Chiu (2014)
59 Cal.4th 155, 165-166.)
In gang settings, cases finding culpability based on a natural and probable
consequences theory where the defendant purportedly did not know the perpetrator would
elevate the seriousness of the attack by introducing a weapon into the fray are not rare.
(See, e.g., People v. Medina, supra, 46 Cal.4th at pp. 920-921, and cases cited therein.)
Here, just minutes before the fight inside the patio, Palomino and a fellow gang member,
Borboa, assaulted A.M. Palomino was armed with a gun and Borboa used a spiked bat.
Minutes later another gang member joined Palomino in pulling A.M. out of his apartment
and assaulted him with a weapon, as Borboa had just done in the alley and on the patio.
Palomino could hardly have been surprised. An assault by Velasquez with a weapon was
reasonably foreseeable and, as a result, sufficient evidence supports Palomino’s
conviction on count 3 based on his aiding and abetting Velasquez’s assault on A.M.

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 B. The Gang Enhancement Attached to Count 8
The jury found Palomino’s assault with a semiautomatic firearm on Smith
was “committed . . . for the benefit of, at the direction of, or in association with Folks, a
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members of that gang.” (§ 186.22, subd. (b)(1).) “The
enhancement . . . requires proof that the defendant commit a gang-related crime in the
first prong—i.e., that the defendant be convicted of a felony committed for the benefit of,
at the direction of, or in association with a criminal street gang. [Citation.] There is no
further requirement that the defendant act with the specific intent to promote, further, or
assist a gang; the statute requires only the specific intent to promote, further, or assist
criminal conduct by gang members.” (People v. Albillar (2010) 51 Cal.4th 47, 67.)6 “To
prevail under the substantial evidence standard, defendants must demonstrate that no
reasonable fact finder could have found true the alleged gang enhancement.” (People v.
Garcia (2016) 244 Cal.App.4th 1349, 1368.)
Palomino argues the only evidence supporting the gang enhancement is the
gang expert’s testimony and that expert testimony alone cannot support the true finding,
citing People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (“[a] gang expert’s testimony
alone is insufficient to find an offense gang related”). He is wrong.
In In re Frank S. (2006) 141 Cal.App.4th 1192, a minor was detained by a
police officer for failing to stop for a red light while riding a bicycle. A subsequent
search of the minor turned up a knife, methamphetamine, and a red bandana. The minor,
who had several friends in northern gangs, said he needed the knife for protection
because he had been attacked two days earlier by southern gang members. (Id. at p.

6 The prosecution must also prove the street gang has engaged in a
“‘pattern of criminal gang activity.’” (People v. Hernandez (2004) 33 Cal.4th 1040,
1044.) That element was established by the stipulation between the parties.

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1195.) In addition to other charges, the minor was accused of possessing a concealed
dirk or dagger with a section 186.22, subdivision (b)(1) gang enhancement. (Ibid.)
When the minor entered the juvenile detention facility, he identified
himself as an affiliate of the Nortenos gang. (In re Frank S., supra, 141 Cal.App.4th at
p. 1195.) A gang expert testified at the minor’s jurisdictional hearing that the minor’s
admission of gang affiliation, his possession of the knife and a red bandana, and his
stated need to protect himself from southern gang members led her to believe he was an
active participant in the Northside Visalia gang. (Ibid.) She also opined the knife
benefits Nortenos by providing protection from rival gangs. (Id. at pp. 1195-1196.) The
juvenile court found all counts true. (Id. at p. 1196.)
The appellate court found the gang enhancement was not supported by
substantial evidence. (In re Frank S., supra, 141 Cal.App.4th at p. 1196.) It reviewed
previous opinions involving the propriety of expert testimony (id. at pp. 1196-1198; see
People v. Gardeley (1996) 14 Cal.4th 605, 618 [expert opinion based on a hypothetical
rooted in the facts of the case]; People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658
[expert may testify to the culture and habits of gangs, but cannot testify that a specific
individual possessed a specific intent]) and concluded the expert testified to the minor’s
specific intent, but whether the minor had the requisite specific intent was an issue for the
court, not an expert. (In re Frank S., at p. 1199.) What the record lacked was any
evidence to support the expert’s opinion. “The prosecution did not present any evidence
that the minor was in gang territory, had gang members with him, or had any reason to
expect to use the knife in a gang-related offense. In fact, the only other evidence was the
minor’s statement to the arresting officer that he had been jumped two days prior and
needed the knife for protection. To allow the expert to state the minor’s specific intent
for the knife without any other substantial evidence opens the door for prosecutors to
enhance many felonies as gang-related and extends the purpose of the statute beyond
what the Legislature intended.” (Ibid.)

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 Moreover, gang membership does not prove the specific intent required
under subdivision (b)(1) of section 186.22. (In re Frank S., supra, 141 Cal.App.4th at
p. 1199.) To sustain the gang enhancement, there must be evidence the crime had some
connection with the activities of a criminal street gang. (Ibid.) “A gang expert’s
testimony al1 is insufficient to find an offense gang related. [Citation.] ‘[T]he record
must provide some evidentiary support, other than merely the defendant’s record of prior
offenses and past gang activities or personal affiliations, for a finding that the crime was
committed for the benefit of, at the direction of, or in association with a criminal street
gang.’ [Citation.]” (People v. Ochoa, supra, 179 Cal.App.4th at p. 657.)
The Attorney General counters Palomino’s argument, relying on our
Supreme Court’s decision in People v. Vang (2011) 52 Cal.4th 1038. “‘Expert opinion
that particular criminal conduct benefited a gang’ is not only permissible but can be
sufficient to support the . . . section 186.22, subdivision (b)(1), gang enhancement.
[Citation.]” (Id. at p. 1048.) The issue in Vang was not whether the evidence was
sufficient to support a true finding on the alleged gang enhancement, but rather, whether
an expert is entitled to answer a hypothetical question closely tracking the evidence
admitted at trial. (Id. at pp. 1041, 1044.)
Here, there was evidence other than the gang expert’s opinion to support
the true finding on the gang enhancement. On the day of the charged offenses, Palomino
was in possession of at least one firearm, attacked A.M. twice in a very short period of
time and, at least in the first attack, invoked his gang’s name. That evening when the
police attempted to stop the vehicle in which Palomino was a passenger, he pulled a gun
on the driver and told him to drive back to the territory claimed by Palomino’s gang.
When the driver was not able to do so, Palomino attempted to run from the police to the
gang’s turf. He did not get that far because an officer shot him when, during the flight,
he turned and pointed a gun at the officer.

14
 It was evident Palomino attempted to flee back to the gang’s territory. The
gang expert testified to the importance of guns to gangs and that guns are hard to come
by for gang members. When he was then asked about a gang member’s attempt to return
to the gang’s turf he ventured that “[gang members] would like to go back to their gang
territory because that’s their home turf. They will be able to hide a little easier. They can
stash a firearm. [¶] So that would explain why a gang member would want to go back to
a neighborhood. Because . . . he is going to be safer there and because he has a firearm.
He does not want to lose a firearm because they are very important to the gang.” Thus, a
jury could find the need to get back to Folks territory in order to save the gun from falling
into the hands of the police was done specifically to benefit the gang. Accordingly, we
conclude sufficient evidence supports the true finding on the gang enhancement attached
to count 8.
2. Pitchess Motion
A. Procedural Background
Prior to trial, Palomino brought a Pitchess motion seeking to discover
information contained in Smith’s personnel files at the Anaheim Police Department.
(Pitchess, supra, 11 Cal.3d 531; Evid. Code, § 1043 et seq.) He sought “[a]ny reports,
documents, or other evidence of complaints of: excessive force, aggressive conduct,
unnecessary violence, unnecessary force, unnecessary use of a firearm, racist remarks,
false arrest, false statements in reports, false claims of probable cause, false claims of
disability, false time cards, any conduct arguably evidencing moral turpitude, or any
other evidence of or complaints of dishonesty.” Judge David A. Hoffer found the
declaration in support of the motion insufficient, and denied it without prejudice.
Thereafter, Palomino filed a second Pitchess motion with a new
declaration. Judge Denise de Bellefeuille, sitting by assignment, found the new
declaration made the threshold showing necessary to compel review of Smith’s personnel
files in camera. The custodian of records brought to court files containing complaints

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“relative to the motion.” After reviewing these files in camera, Judge De Bellefeuille
concluded they did not contain any discoverable information.
On appeal, Palomino filed a request to augment the appellate record with
the files reviewed by Judge de Bellefeuille during the in camera portion of the Pitchess
motion. We granted that request and ordered the documents to be transferred from the
trial court to this court within 20 days. Alternatively, if the trial court did not retain a
copy of the files reviewed by Judge de Bellefeuille, we ordered the trial court to conduct
a new hearing with the same files previously reviewed and to submit to this court a copy
of the files reviewed.
In response to our order, Judge Craig Robison conducted another in camera
hearing on the Pitchess motion originally heard by Judge de Bellefeuille (who was
unavailable.) The deputy city attorney and the custodian of records from the first in
camera hearing were not present at the second in camera hearing. The deputy city
attorney present at the second in camera hearing stated he spoke with the deputy city
attorney and the custodian of records who had been at the first in camera hearing and
neither had any “recollection of the specific documents that were reviewed.”
In the second in camera hearing, Judge Robison noted a complaint by an
individual alleging Smith and two other officers planted evidence on him and filed a false
police report, and another complaint by another individual alleging Smith filed a false
police report. Judge Robison ordered disclosure of those complaints, but noted it was
unknown whether the files he reviewed were the same as those reviewed by Judge de
Bellefeuille in the first in camera hearing. We note, however, that in the first in camera
hearing, the custodian of records stated he uncovered two complaints in the preceding
five years. (See Evid. Code, § 1045, subd. (b)(1) [complaints older than five years not to
be disclosed].)

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 B. Analysis
Generally, we review an order denying a Pitchess motion for an abuse of
discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) “In Mooc, the Supreme
Court held that in order to preserve the defendant’s ability to obtain appellate review of
the denial of a Pitchess motion, the trial court should make a record of the documents it
reviewed in camera, either by photocopying the documents, preparing a written list of the
documents it reviewed and/or stating on the record the documents it reviewed. [Citation.]
Discoverable information generally includes limited information from a peace officer’s
confidential personnel records that is potentially relevant to the defense’s case—either a
proposed defense or the impeachment of an officer.” (People v. Nguyen (2017) 12
Cal.App.5th 44, 47-48.) Judge de Bellefeuille failed to make the required record here.
We independently reviewed the first hearing on the Pitchess motion
conducted by Judge de Bellefeuille, as well as the second hearing conducted by Judge
Robison pursuant to our order. As to the latter, we agree with Judge Robison that trial
counsel’s declaration established the good cause necessary for an in camera review of the
officer’s personnel records. Counsel alleged a witness to the incident saw Palomino
running from the police and did not see him carrying a gun. He further alleged the
defense was that Palomino was unarmed at the time he was shot by Smith in the back
three times. He further alleged Smith was the only one of approximately 12 officers
involved who claims to have seen Palomino with a gun, and Smith’s allegation that
Palomino was armed with a firearm was false. Additionally, counsel asserted a witness
to the charged carjacking, kidnapping in the course of a carjacking, and assault with a
semiautomatic firearm, each of which purportedly occurred just moments prior to
Palomino jumping out of the vehicle, stated Palomino did have a gun inside the vehicle.
Thus, the prior complaints about the investigator planting evidence and submitting false
police reports were material to Palomino’s defense and should have been disclosed to the
defense. Judge de Bellefeuille’s failure to order disclosure of these complaints was error.

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 Even so, in order to obtain a reversal, Palomino “must also demonstrate a
reasonable probability of a different outcome had the evidence been disclosed.
[Citations.]” (People v. Gaines (2009) 46 Cal.4th 172, 182-183.) But that showing is
impossible here because he has no knowledge of the information he was denied.
In these situations, where Pitchess material was erroneously withheld, it is
appropriate for the appellate court to conditionally reverse the conviction for further
proceedings. On remand, the defendant is provided the Pitchess material erroneously
withheld and given an appropriate period of time to investigate that information.
Thereafter he must demonstrate the prejudicial effect of the trial court’s error. If the
defendant carries his burden and demonstrates he likely would have received a different
result in the prior trial had he been given the Pitchess material, the trial court grants the
defendant’s motion for a new trial. If the defendant fails to carry his burden, the trial
court reinstates the judgment. (See People v. Wycoff (2008) 164 Cal.App.4th 410, 416.)
We cannot determine on this record whether Palomino was prejudiced by
Judge de Bellefeuille’s failure to disclose the Pitchess material after the first in camera
hearing. The Attorney General argues the appropriate remedy is to conditionally reverse
only count 8 (assault with a semiautomatic firearm on a police officer).
The Attorney General’s argument is based on People v. Fernandez (2012)
208 Cal.App.4th 100, 104, where the defendant was convicted of robbery and willfully
inflicting corporal injury on a spouse, cohabitant, or child’s parent. On appeal, he
contended the trial court abused its discretion in denying his Pitchess motion. (Id. at
pp. 104-105.) Finding the trial court had abused its discretion, the appellate court
conditionally reversed one of the two counts; the one to which the police officer whose
personnel records were sought to be discovered testified. (Id. at pp. 105, 123.)
As to count 8 in this case, Smith testified he observed H.M.’s car stopping,
Palomino jumping out, and the subsequent chase, including the officer’s shooting of
Palomino when, according to Smith, Palomino stopped and raised a firearm pointing it at

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Smith. The Pitchess information Palomino was denied involved allegations that Smith
planted evidence in the past and filed false police reports. Palomino is entitled to take
this new information and demonstrate to the trial court, if he can, that the evidence
derived from this information “demonstrate a reasonable probability of a different
outcome had the [information] been disclosed. [Citations.]” (People v. Gaines, supra, 46
Cal.4th at pp. 182-183.) Accordingly, we will conditionally reverse Palomino’s
conviction on count 8 (assault with a semiautomatic firearm), as well as the
enhancements found true in connection with that count. (See People v. Huynh (1987)
194 Cal.App.3d 634, 640, fn 6 [enhancement has no life independent of count to which it
attaches].)
That does not, however, end the analysis. Counts 1 through 4 concerned
events that occurred in the late afternoon/early evening of August 23, 2016. Smith did
not testify in connection with any of those counts. His testimony about events that
occurred hours later could not have affected the verdicts on those charges. Thus, as to
those charges, the Pitchess error was harmless, regardless of what information is
uncovered as a result of the material now to be disclosed to Palomino.
Although Smith’s testimony about Palomino’s pointing a semiautomatic
gun at him could not have affected the jury’s verdicts on counts 1 through 4, the
prosecutor used Smith’s testimony in forming the hypothetical questions posed to the
gang expert. Based on those hypothetical questions, the gang expert opined all the
offenses to which the gang enhancements were attached had been committed for the
benefit of a criminal street gang and that Palomino was an active gang participant.
Smith’s contribution to the hypothetical facts cannot be parsed. The gang expert reached
his conclusions “based on the totality of all those crimes.” Therefore, the conviction on
count 9 (active participation in a criminal street gang) and all the gang enhancements that
were found true as to the other counts must also be conditionally reversed.

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 So too, must we conditionally reverse the convictions on counts 5
(kidnapping in course of carjacking) and 7 (assault with a semiautomatic firearm on
H.M.). The commission of these offenses occurred simultaneously. As noted, Palomino
was the right front passenger in H.M.’s vehicle that evening. When the police followed
the vehicle, he told H.M. to get as close to as possible to Neighbors. When asked if
Palomino pulled out a gun during the incident, H.M. stated Palomino took out something,
but he did not know what it was. Smith’s testimony that Palomino had a gun after he
jumped out of the vehicle and ran, supported the jury’s verdict that Palomino assaulted
H.M. with the semiautomatic firearm while attempting to get H.M. to flee from the police
and drive him (Palomino) as close to the gang’s territory as possible. Consequently, if
Palomino is able to use the Pitchess material to discover evidence that would impeach
Smith’s testimony that he had a gun, that evidence could have made a difference in the
verdicts on counts 5 and 7 and the firearm enhancements attached to each.

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 DISPOSITION
The conviction for assault as a lesser included offense of count 1, and the
convictions on counts 3 and 4 are affirmed. The convictions on the remaining counts (5,
7, 8 & 9), the true findings on the gang enhancements, and true findings on the firearm
enhancements are conditionally reversed and the matter is remanded for further
proceedings.
On remand, Palomino is entitled to the Pitchess material Judge Robison
found should have been disclosed to him. The trial court shall grant Palomino sufficient
time to investigate the disclosed information and thereafter file a motion for a new trial.
If Palomino fails to file a motion for a new trial or if the court denies the motion, the
court shall reinstate the conditionally reversed convictions and true findings.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.

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