Filed 1/26/21 P. v. Medina CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE OF THE STATE 2d Crim. No. B300830
OF CALIFORNIA, (Super. Ct. No. 18CR01185)
(Santa Barbara County)
Plaintiff and Respondent,
v.
DANIEL MEDINA,
Defendant and Appellant.
Daniel Medina appeals the judgment entered after a jury
convicted him of assault with a deadly weapon (Pen. Code,1
(§ 245, subd. (a)(1); count 2) and found true the allegation that
the crime was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(B)). Appellant admitted suffering a prior
strike and serious felony conviction (§§ 667, subd. (a)(1), 1170.12,
subd. (b)(1), 1192.7, subd. (c)(28)). The trial court sentenced him
All statutory references are to the Penal Code unless
1
otherwise stated.
to 18 years in state prison, consisting of the high term of four
years, doubled for the strike prior, plus five years each for the
gang and prior serious felony enhancement allegations.2
Appellant contends the evidence is insufficient to support the
true finding on the gang enhancement allegation. He also claims
the enhancement was improperly imposed under subdivision
(b)(1)(B) of section 186.22. We affirm.
STATEMENT OF FACTS
On the night of February 3, 2018, Carlos Flores-Escamilla
and his niece Jasmine Flores went to a bar in Santa Barbara.
Carlos3 saw Mario Hernandez, a local rapper known as “Sad Boy”
who is a member of the Eastside criminal street gang. Carlos
approached Hernandez, who was sitting among a group of people,
2 Appellant and codefendant Juan Rios were charged with
the attempted premeditated murder of Carlos Flores-Escamilla
(§§ 187, subd. (a), 664; count 1), assault with a deadly weapon
upon Callisto Caldwell (count 2), assault with a deadly weapon
upon Thomas Martinez (count 3), and participation in a criminal
street gang (§ 186.22, subd. (a); count 4). Prior strike and serious
felony conviction allegations were alleged as to all four counts. It
was further alleged as to counts 1 through 3 that the crimes were
committed for the benefit of a gang, and that appellant and Rios
both personally inflicted great bodily injury upon the victims of
those crimes (§ 12022.7, subd. (a)). Count 1 also included a
personal weapon use allegation (§ 12022, subd. (b)(1)). The jury
convicted appellant on count 2 and found the attendant gang and
prior conviction allegations true, but found the great bodily injury
allegation not true. The jury acquitted appellant on counts 1 and
3 and was unable to reach a verdict on count 4.
For ease of reference, we refer to Carlos Flores-Escamilla
3
and Jasmine Flores by their first names.
2
and told him he liked his music. Carlos took offense when
Hernandez looked at Jasmine in a “sexual way” and told him
“that’s my niece.” After Hernandez and Carlos engaged in a
“stare down,” Carlos left the bar with Jasmine.
After Carlos and Jasmine left the bar they noticed that
they were being followed by two men, later identified as appellant
and codefendant Juan Rios. Appellant and Rios approached
Carlos and Jasmine while Rios flashed Eastside gang signs.
Appellant punched Jasmine in the face, causing her to fall to the
ground, then joined Rios in assaulting Carlos. Appellant
repeatedly yelled “Traviesos” before and after he hit Jasmine.
Calisto Caldwell, Thomas Martinez, and Trina Garcia
witnessed the attack as they were returning to their car after a
concert. Caldwell grabbed appellant and pulled him away from
Carlos, while Martinez punched Rios.
After appellant and Rios ran away, Caldwell noticed that
he had a three-and-a-half inch gash on his thigh and a puncture
wound on his stomach. Caldwell subsequently received staples
and stitches for his wounds. Martinez suffered knife wounds to
his right hand that also required stitches. Carlos suffered a large
gash wound to his chest and wounds to his leg and arm, all of
which required staples or stitches. He also had to undergo
surgery for a wound to his left hand.
Jonathan Reddinger witnessed the assault from a distance.
After appellant and Rios ran away, Reddinger observed one of
them throw what appeared to be a knife or box cutter into the
gutter near the intersection of State Street and Cota Street. The
police subsequently recovered a box cutter from that location.
The box cutter was open and had blood on the blade that matched
Carlos’s DNA profile.
3
Detective Michael Claytor testified as the prosecution’s
gang expert. Appellant and Rios are members of the Traviesos
clique of the Eastside criminal street gang. Both men have
Eastside gang tattoos and were in possession of Traviesos
paraphernalia when they were arrested. The gang’s primary
activities include assault with a deadly weapon and attempted
murder. Respect for the gang is of paramount importance, and
its members often respond with violence to any acts or behavior
perceived as disrespectful. It is also common for gang members
to shout their gang’s name or flash gang signs while committing a
crime. “Claiming” the gang in this manner provides more stature
for the gang.
In response to a hypothetical tracking the facts of the case,
Detective Claytor opined that all of the charged offenses were
committed for the benefit of the Eastside gang. Appellant and
Rios are both members of the gang and acted in association with
each other in committing the crimes. Appellant flashed the
gang’s hand signs and repeatedly shouted “Traviesos” before and
during the attack. Doing so enhanced the fear and intimidation
that any eyewitnesses to the attack would experience. Moreover,
the gang benefitted from the attack because witnesses would be
less willing to cooperate with law enforcement, which enhanced
the gang’s ability to commit additional crimes in the future.
Martin Flores testified as a gang expert on behalf of the
defense. According to Flores, gang members do not need to
respond to disrespect from others because they experience
disrespect on an “ongoing basis” as “part of their reality.”
Although some gang members may respond to perceived
disrespect, it is not due to any rules imposed by the gang. In
response to a hypothetical based on the facts of the case, Flores
4
opined that the charged offenses were not committed for the
benefit of the Eastside gang. The crimes were not gang-related
because they did not involve rival gang members and Rios
apparently fled the scene after being repeatedly punched by
Martinez. Flores also opined that Rios was no longer an active
member of the gang when the crimes were committed.
DISCUSSION
Sufficiency of the Evidence
Appellant contends the evidence is insufficient to support
the jury’s true finding on the gang enhancement. We disagree.
“In reviewing a challenge to the sufficiency of the evidence
under the due process clause of the Fourteenth Amendment to
the United States Constitution and/or the due process clause of
article I section 15 of the California Constitution, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could have found the
[enhancement true] beyond a reasonable doubt.” (People v. Cole
(2004) 33 Cal.4th 1158, 1212; accord, People v. Albillar (2010) 51
Cal.4th 47, 59-60 (Albillar) [reviewing gang enhancement for
sufficient evidence].) “We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] 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, at
p. 60.) It is well settled that “‘[a] reversal for insufficient
evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to
5
support’” the jury's verdict.’” (People v. Penunuri (2018) 5 Cal.5th
126, 142.)
Section 186.22, subdivision (b)(1) punishes gang-related
crimes that are committed with the specific intent to aid crimes
by gang members. (People v. Rodriguez (2012) 55 Cal.4th 1125,
1138.) Among other things, a prosecutor must prove beyond a
reasonable doubt (1) that the underlying crime was “gang-
related” because the defendant committed it “for the benefit of, at
the direction of, or in association with any criminal street gang,”
and (2) that the defendant committed the crime “with the specific
intent to promote, further, or assist in any criminal conduct by
gang members.” (§ 186.22, subd. (b)(1); Albillar, supra, 51
Cal.4th at p. 59.) The specific intent prong may be satisfied with
proof “that the defendant intended to and did commit the charged
felony with known members of a gang,” because from such proof
“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, at p. 68; see also People v.
Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a
crime in concert with known gang members . . . supports the
inference that the defendant acted with the specific intent to
promote, further or assist gang members in the commission of the
crime”].
Expert opinion testimony can be sufficient to support a
gang enhancement. (Albillar, supra, 51 Cal.4th at p. 63.)
Because “[n]ot every crime committed by gang members is
related to a gang” (id. at p. 60), an expert’s opinion that a crime
was committed to benefit a gang must rest upon more than the
assumed occurrence of the charged offense, evidence that a
defendant is a gang member, and generalizations about gang
6
culture or habits (People v. Perez (2017) 18 Cal.App.5th 598, 612-
613; People v. Rios (2013) 222 Cal.App.4th 542, 573-574 (Rios);
People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa)). The
specific circumstances of the offense must support the expert’s
inferences that the conduct was committed to benefit the gang.
For example, an expert opinion is sufficient to support a gang
enhancement where there is evidence the defendant committed a
charged crime with known gang members while displaying gang
paraphernalia and tattoos. (Albillar, at pp. 62, 68.) Conversely,
an expert’s opinion that a charged crime by a gang member
acting alone was for the benefit of the gang because the
defendant is a gang member and any violent crime enhances the
gang’s reputation is insufficient to support a gang enhancement.
(See, e.g., Perez, at pp. 612-613 [expert testimony insufficient to
support gang enhancement where defendant acted alone and
there was no evidence that gang signs were used or gang
affiliations declared, that the offense occurred in gang territory,
or that the victims were rival gang members or saw gang tattoos
or clothing]; Rios, at p. 574 [same]; Ochoa, at pp. 662–663
[same].)
In challenging the gang enhancement, appellant does not
dispute that the evidence is sufficient to establish that both he
and Rios were members of the Eastside gang. He also effectively
concedes that the evidence is sufficient to support Detective
Claytor’s opinion that appellant and Rios acted in association in
attacking Carlos and Jasmine, and “that the gang signs appellant
threw before the fight with the Flores’ was perhaps sufficient to
buttress Claytor’s opinion that had appellant been convicted on
count one, a true finding on a gang enhancement would be based
on sufficient evidence.” He nevertheless claims that as to the
7
assault upon Caldwell (count 2), “appellant and Rios were not
acting to assist each other, nor was the crime alleged in that
count in any way anticipated when they confronted the Flores’.
Rather, the crime in count two occurred when Mr. Caldwell
crossed the street with the intent of breaking up the fight
between appellant and Rios and the Flores’.” He claims the
evidence is thus insufficient to support Detective Claytor’s
opinion that appellant and Rios acted in association in
committing the assault on Caldwell with the specific intent to
assist each other’s criminal conduct.
We are not persuaded. Appellant and Rios were both
convicted of assaulting Caldwell with a deadly weapon. They
committed the assault when Caldwell intervened in their attack
on Carlos and Jasmine. Just prior to that attack, both appellant
and Rios flashed their gang’s hand signs; before and during the
attack, appellant repeatedly yelled “Traviesos.” This evidence
supports an inference appellant and Rios assaulted Caldwell with
the intent to prevent him from interfering with their gang-related
attack on Carlos and Jasmine. Appellant and Rios “not only
actively assisted each other in committing [the assault on
Caldwell], but their common gang membership ensured that they
could rely on each other’s cooperation in committing the[] crime[]
and they would benefit from committing [it] together.” (Albillar,
supra, 51 Cal.4th at pp. 61-62.) Appellant’s claim that the
evidence is insufficient to support the gang enhancement thus
fails.
Sentencing on Gang Enhancement
Appellant contends the court erroneously sentenced him
under subdivision (b)(1)(B) of section 186.22, which provides for a
five-year gang enhancement when the substantive offense
8
constitutes a serious felony as defined in section 1192.7,
subdivision (c). He claims the matter must be remanded for him
to be resentenced under subdivision (b)(1)(A) of section 186.22—
which provides for an enhancement of two, three or four years—
because the crime of assault with a deadly weapon is not defined
as a serious felony in subdivision (c) of section 1192.7. Appellant
is mistaken. Assault with a deadly weapon is clearly defined as a
serious felony in section 1192.7, subdivision (c)(31). (See People
v. Gallardo (2017) 4 Cal.5th 120, 125 [recognizing that “[t]he
term ‘serious felony’ is defined to include ‘assault with a deadly
weapon’”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
9
Thomas R. Adams, Jr., Judge
Superior Court County of Santa Barbara
______________________________
Leonard L. Klaif, 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, Senior
Assistant Attorney General, Michael C. Keller, Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.