People v. Perez CA2/7

Filed 8/4/21 P. v. Perez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B302245

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA108005)
v.

GERARDO PEREZ et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant Gerardo Perez.
Lynda A. Romero, under appointment by the Court of
Appeal, for Defendant and Appellant Juan Jose Bueno.
Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and William H. Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
 Codefendants Juan Jose Bueno and Gerardo Perez appeal
from judgments entered after a jury convicted Bueno of second
degree murder of Jesus Aleman and possession of a firearm by a
felon and Perez of accessory after the fact. The jury also found
true gang enhancement allegations as to both Bueno and Perez.
On appeal, Bueno and Perez contend the gang
enhancement allegations were not supported by substantial
evidence. They also contend the trial court abused its discretion
in allowing the jury to view video from the body camera of a
police officer who provided medical support to Aleman. Perez
also argues the use of his prior juvenile adjudication as a strike
for purposes of sentencing under the three strikes law (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12)1 violated his constitutional right to
a jury trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial
1. The shooting of Jesus Aleman
On December 4, 2017 Perez and his sister Tanya Perez2
were living at their mother’s home on East Q Street in the
Wilmington area of Los Angeles. Perez’s good friend Bueno, who
was “like a cousin” to Tanya, was also at the home that day.
Tanya knew that Perez and Bueno were both members of the
West Side Wilmas street gang and Bueno’s gang moniker was
Terror.

1 All undesignated statutory references are to the Penal
Code.
2 To avoid confusion, we refer to Tanya Perez as Tanya.

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 After 9:00 p.m. that evening Tanya was outside the house
and saw Bueno, Perez, and Esmeralda Venegas talking on the
street by Venegas’s car. The street was dark. Another car
arrived, which dropped Aleman off at the location. Bueno asked
Aleman where he was from. When Aleman did not answer,
Bueno shot him a “‘couple of times.’”3 Perez and Venegas were
standing behind Bueno at the time, and Perez appeared to Tanya
to be in shock. Immediately after the shooting, Bueno, Perez, and
Venegas got into Venegas’s car, and “‘they just took off.’”
A few minutes later—at 9:39 p.m.—Tanya received a text
message from Perez stating, “Ayy tell mom not to say shit.”
Between 9:47 and 9:49 p.m. the following exchanged occurred. At
9:47 p.m. Tanya responded, “U fucken stupid they looking for u
guys[.]” Perez messaged Tanya back, “Don’t tell em shit” and
“Tell em you don’t know what happen[.]” Tanya answered, “I saw
everything.” Perez wrote, “You just heard the gunshots” and
“You better [not] say shit.” Tanya did not receive any further
messages from Perez that night.
Los Angeles Police Officer Jacob Maynard and his partner
responded to the scene of the shooting at approximately 9:39 p.m.
Officer Maynard found Aleman lying on the street, and a woman
was performing chest compressions on him. Aleman was wearing
a gray shirt and red beanie and appeared to have a gunshot

3 Tanya initially told the police an unidentified male shot
Aleman, but she later admitted Bueno and Perez were involved,
and she testified at the preliminary hearing that Bueno was the
shooter. During her examination by the prosecutor at trial,
Tanya testified she had no recollection of the shooting, and
excerpts of her preliminary hearing testimony were read to the
jury.

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wound in the back of his head or neck. Officer Maynard called for
an ambulance, and he and his partner continued with chest
compressions. After about five minutes paramedics from the Los
Angeles Fire Department arrived, and Aleman was transported
to the hospital.
One minute and 50 seconds of a video recorded by Officer
Maynard’s body camera was played for the jury. The video shows
Officer Maynard and his partner performing chest compressions
and checking Aleman’s pulse while Aleman was lying on his back
on the street several feet from the curb. Blood was pooled
beneath Aleman’s head, and Aleman appeared to make some
facial movements. Officer Maynard exclaimed, “He’s got a pulse”
and told Aleman, “Stay with me buddy.” Officer Maynard is also
seen removing the red beanie from Aleman’s head as the officers
looked for the wound.
Aleman never regained consciousness, and he died in the
hospital on April 27, 2018. Los Angeles County deputy medical
examiner Dr. Ajay Panchal conducted an autopsy and opined at
trial that Aleman died of pneumonia as a consequence of gunshot
wound trauma.

2. The arrest of Perez and Bueno
On December 4, 2017 at approximately 9:49 p.m. Long
Beach Police Officer Douglas Hara was on routine patrol when he
observed a brown Honda Accord with no lights on swerving as it
traveled eastbound on Broadway in Long Beach. Officer Hara
followed the car, then pulled it over to investigate suspected
drunk driving. He called for backup because he could see there
were multiple occupants in the car. Officer Hara arrested
Venegas, the driver and registered owner of the car, for driving
under the influence. Long Beach Police Officer Javier Sepulveda

4
instructed Bueno and Perez, who were seated in the back seat, to
exit the vehicle.
After Bueno and Perez got out of the vehicle, Officer
Sepulveda recovered a nine-millimeter Glock semiautomatic
pistol with an empty 10-round magazine lying on the rear
floorboard, which had been obscured by a plastic bag. Sepulveda
booked the weapon into evidence and arrested Bueno and Perez.
At the time Sepulveda was not aware of the shooting in
Wilmington.

3. The police investigation
Los Angeles Police Detectives Jeffrey Tiffin and Boris Oliva
responded to the scene of the shooting at approximately 12:50
a.m. on December 5, 2017. They photographed the scene and
recovered several items of Aleman’s blood-stained clothing on the
street, including Aleman’s red beanie. Detective Tiffin also
recovered two expended bullets and nine 9-millimeter shell
casings. Fadil Biraimah, a criminalist in the Los Angeles Police
Department Firearms Analysis Unit, analyzed the casings and
concluded they had been ejected from the gun recovered from the
back seat of Venegas’s vehicle.
Detective Oliva obtained surveillance video from two
cameras located on a house on East Q Street down the block from
the shooting. Footage from one of the cameras stamped between
9:23 and 9:36 p.m. on December 4 was played for the jury. The
video shows three people milling around, then standing by or
sitting in a parked car on East Q Street. At approximately 9:35
p.m. a car pulled up on the opposite side of the street, a
passenger exited the car, and the car drove off. One of the people

5
standing by the car4 walked halfway across the street toward the
man who had just arrived, raised his arm, and fired numerous
shots at the man. The shooter walked back to the parked car and
entered the rear driver’s seat. The car drove off without any
lights at 9:36 p.m., leaving the victim lying in the street. Footage
from the second camera shows a car with no lights on speeding
down East Q Street and through a stop sign at the intersection
with Baypoint Avenue at 9:36 p.m.

4. The gang expert testimony
Los Angeles Police Officer Robert Hargrove testified as the
prosecution’s gang expert. Officer Hargrove was assigned to the
Harbor Division gang unit and was tasked with monitoring the
West Side Wilmas criminal street gang for nearly nine years.
Officer Hargrove testified the West Side Wilmas had
approximately 400 documented members. The gang’s territory
was bordered by the 110 Freeway on the west, Avalon Boulevard
on the east, Lomita Boulevard on the north, and John S. Gibson
Street leading to the Port of Los Angeles on the south. The
gang’s three main rival gangs were the Harbor City Boys, Rancho
San Pedro, and East Side Wilmas. The gang has several
identifying signs and symbols, including the color blue, the
cursive letter “W,” the initials “WS” and “WSW,” and the

4 The shooter walked with a limp, and Officer Sepulveda
testified he observed Bueno walking with a limp and complaining
of a leg injury at the time of his arrest. Portions of the video also
showed the shooter and his companion as they walked toward the
surveillance camera. The shooter wore jeans and was larger than
the other man, who was wearing shorts, consistent with the
physical descriptions of Bueno and Perez given by the Long
Beach Police officers.

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number 23. The gang’s primary activities included robberies,
assaults with a deadly weapon, shootings, witness intimidation,
possession of ammunition, carjacking, attempted carjacking,
murder, and attempted murder. As part of his assignment,
Officer Hargrove encountered West Side Wilmas gang members
on numerous occasions during his investigation of these crimes.
Officer Hargrove testified that the location of the shooting
on East Q Street was within the territory of the rival East Side
Wilmas gang. In the Wilmington area, the East Side Wilmas are
associated with the color red. Within gang culture, the question,
“Where you from?” is a challenge rather than a question—when a
gang member asks another person “where you from,” the gang
member is both challenging the other person to identify his or her
gang membership and announcing the gang member’s
willingness to commit an act of violence, which could be as severe
as a stabbing or shooting.
Officer Hargrove opined Bueno was a member of the West
Side Wilmas gang with the moniker TK based on the officer’s
previous encounters with Bueno in which Bueno admitted he was
a West Side Wilmas gang member; numerous gang tattoos on
Bueno’s shoulders, torso, arms, face, neck, and head; and Bueno’s
association with other known members of the gang. Hargrove
likewise opined Venegas was a member of the West Side Wilmas
gang with the moniker Kurious based on his previous encounters
in which she admitted she was a member of the gang and on her
association with other known gang members. Officer Hargrove
testified as to Perez that he had observed multiple tattoos related
to the West Side Wilmas gang on Perez’s arms, torso, and
shoulders.
Presented with a hypothetical based on the shooting in this
case, Officer Hargrove testified the crime was committed in

7
association with and for the benefit of the West Side Wilmas gang
with the specific intent to promote or further assist in criminal
conduct by members of that gang. Officer Hargrove explained
that where multiple gang members are present in rival gang
territory and are approached by someone wearing the colors
associated with the rival gang, for one of the members to
challenge the rival by saying “where you from” and then to
commit violence against him or her was conduct that would
benefit the gang because violence against rivals in rival territory
increases the status of the gang, reduces the likelihood the gang’s
own members will be preyed upon, intimidates members of the
community, and reduces the likelihood that witnesses will
cooperate with law enforcement, making it easier for the gang to
engage in other criminal conduct. The presence of multiple West
Side Wilmas gang members at the time the challenge was made,
who then drove away together, showed the gang members were
acting in association with one another during the commission of a
crime. Through this conduct, the shooter was also attempting to
promote the West Side Wilmas gang and his status within the
gang subculture.
Presented with a hypothetical based on Perez’s text
messages to Tanya after the shooting, Officer Hargrove testified
this conduct also was committed for the benefit of the West Side
Wilmas gang with the specific intent to promote or assist in
criminal conduct by gang members. Sending text messages
specifically directed at stopping a witness from cooperating with
law enforcement reduces the likelihood gang perpetrators will be
apprehended for crimes, increases the number of gang members
on the street involved in criminal activity, and benefits the gang
and the individual urging noncooperation by increasing the gang
member’s status within the gang.

8
 During cross-examination, Officer Hargrove admitted that
Aleman was also a member of the West Side Wilmas with the
moniker Knickknack, not a rival gang member. But Officer
Hargrove opined it would not be unusual for a West Side Wilmas
gang member to assume that a person approaching him wearing
a red beanie was a member of a rival gang. Officer Hargrove also
admitted that the desire to protect one’s mother and sister from
being witnesses to a gang shooting, which might place them in
danger, could “potentially be an additional motivation” for
sending text messages urging a witness not to say anything.
However, on redirect examination, Officer Hargrove testified,
“Just the fact that somebody is your sibling, you may have the
additional motivation of attempting to persuade them not to
cooperate because you are afraid for their safety or repercussions
they may suffer from your own gang doesn’t mean it’s a mutually
exclusive motivation. You could be motivated both by concerns
for your siblings and concerns for your gang.”
Officer Hargrove testified regarding two predicate offenses
committed by West Side Wilmas gang members.5 Edward
Guerrero was convicted of attempted carjacking in April 2015.
Officer Hargrove had arrested Guerrero on multiple occasions,
and he knew Guerrero was a member of West Side Wilmas
because Guerrero personally admitted to being a member of the
gang with the moniker Toro. In addition, Officer Hargrove

5 The prosecution initially submitted the criminal docket for
a third predicate offense: the 2016 conviction of Jimmy Amaya for
unlawful possession of ammunition. However, the prosecution
elected not to rely on this offense after defense counsel objected
on hearsay grounds to Officer Hargrove’s testimony that Amaya
was a member of the West Side Wilmas gang.

9
observed numerous West Side Wilmas tattoos on Guerrero.
Sebastian Guimary was convicted of assault with a
semiautomatic firearm in June 2018. Officer Hargrove had
arrested Guimary on multiple occasions, and Guimary admitted
to Officer Hargrove that he was a West Side Wilmas gang
member with the moniker Boo Boo. Officer Hargrove also
observed that Guimary had West Side Wilmas gang tattoos.6

B. The Verdicts and Sentencing
The jury found Bueno guilty of second degree murder
(§ 187, subd. (a); count 5) and possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 3).7 As to the murder, the jury found
true the firearm enhancement allegations (§ 12022.53, subds. (b),
(c), (d)). The jury also found true as to both counts the gang
enhancement allegations (§ 186.22, subd. (b)(1)(A), (C)). In a
bifurcated proceeding Bueno admitted he suffered a prior felony
conviction in 2013 for violation of section 245, subdivision (a)(2).
The trial court sentenced Bueno to an aggregate term of 55
years to life plus nine years in state prison. On count 5 for
murder the court imposed a sentence of 15 years to life, doubled
under the three strikes law, plus 25 years to life on the firearm
enhancement (§ 12022.53, subd. (d)), for a total of 55 years to life.
The court stayed the sentence on the gang enhancements.8 As to

6 Bueno and Perez did not testify or call any witnesses.
7 The parties stipulated that Bueno was prohibited from
possessing a firearm within the meaning of section 29820.
8 The trial court also struck the allegations Bueno’s prior
strike conviction was a serious felony conviction within the
meaning of section 667, subdivision (a)(1), and that he had served

10
count 3, the court imposed the upper term of three years, doubled
under the three strikes law, plus three years for the gang
enhancement (§ 186.22, subd. (b)(1)(A)), for a total of nine years.9
The jury found Perez guilty of accessory after the fact (§ 32;
count 2) and found true the gang enhancement allegation
(§ 186.22, subd. (b)(1)(A)).10 In a bifurcated proceeding Perez
admitted he suffered a prior juvenile adjudication in 2014 for a
felony violation of section 245, subdivision (a)(1). The court
sentenced Perez to nine years in state prison (the upper term of
three years doubled under the three strikes law, plus three years
for the gang enhancement).
Bueno and Perez timely appealed.

DISCUSSION

A. Substantial Evidence Supports the Gang Enhancements
1. Applicable law and standard of review
To prove a gang enhancement, the prosecution must prove
“both of the two prongs of the gang enhancement under section
186.22, subdivision (b)(1). ‘First, the prosecution is required to

a prior prison term within the meaning of section 667.5,
subdivision (b). We assume the trial court struck or stayed the
remaining firearm enhancement allegations.
9 Bueno requests we correct the abstract of judgment to
reflect he was entitled to an additional day of pretrial custody
credit. However, on October 6, 2020 the trial court amended the
abstract of judgment to correct Bueno’s custody credit.
Accordingly, Bueno’s request is moot.
10 The jury found Perez not guilty of unlawful firearm
activity. (§ 29820, subd. (b).)

11
prove that the underlying felonies were “committed for the
benefit of, at the direction of, or in association with any criminal
street gang.”’” (People v. Perez (2017) 18 Cal.App.5th 598, 606-
607 (Perez); accord, People v. Weddington (2016) 246 Cal.App.4th
468, 484 [“The first prong requires that the prosecution prove the
underlying felony was ‘gang related.’”].) “‘Second, there must be
evidence that the crimes were committed “with the specific intent
to promote, further, or assist in any criminal conduct by gang
members.”’” (Perez, at p. 607, quoting People v. Rios (2013) 222
Cal.App.4th 542, 561.)
“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.”
(People v. Weddington, supra, 246 Cal.App.4th at p. 484; accord,
People v. Leon (2008) 161 Cal.App.4th 149, 162.) “The first prong
therefore may be established with substantial evidence that two
or more gang members committed the crime together, unless
there is evidence that they were ‘on a frolic and detour unrelated
to the gang.’” (Weddington, at p. 484; accord, People v. Garcia
(2016) 244 Cal.App.4th 1349, 1367 [gang members committed
armed robberies in association with the gang because crimes
were committed in concert with fellow gang members]; see People
v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar) [three gang
members who raped victim committed crimes in association with
gang because they “relied on their common gang membership and
the apparatus of the gang in committing the sex offenses”].)
Alternatively, expert opinions based on hypothetical
questions “‘that particular criminal conduct benefited a gang’
[are] not only permissible but can be sufficient to support the
Penal Code section 186.22, subdivision (b)(1), gang

12
enhancement.” (People v. Vang (2011) 52 Cal.4th 1038, 1048;
accord, Albillar, supra, 51 Cal.4th at p. 63 [“Expert opinion that
particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference
that the conduct was ‘committed for the benefit of . . . a[] criminal
street gang’ within the meaning of section 186.22(b)(1).”]; Perez,
supra, 18 Cal.App.5th at p. 608.) However, expert gang
testimony cannot be “purely conclusory and factually
unsupported.” (People v. Ramirez (2016) 244 Cal.App.4th 800,
819-820; accord, People v. Richardson (2008) 43 Cal.4th 959, 1008
[an “expert’s opinion may not be based ‘on assumptions of fact
without evidentiary support’”].)
As to the second prong that the defendant committed the
underlying offenses with the specific intent to further, promote,
or assist in the criminal activity of gang members, “‘“[i]ntent is
rarely susceptible of direct proof and usually must be inferred
from the facts and circumstances surrounding the offense.”’”
(People v. Franklin (2016) 248 Cal.App.4th 938, 949.) “For this
reason, ‘we routinely draw inferences about intent from the
predictable results of action.’” (People v. Miranda (2011)
192 Cal.App.4th 398, 411 (Miranda).) “While a gang expert is
prohibited from opining on a defendant’s specific intent when
committing a crime, the prosecution can ask hypothetical
questions based on the evidence presented to the jury . . .
whether the hypothetical perpetrator harbored the requisite
specific intent.” (Perez, supra, 18 Cal.App.5th at p. 607.) Specific
intent may also be inferred where a gang member commits a
crime to intimidate “rival gang members and neighborhood
residents, thus facilitating future crimes committed by himself
and his fellow gang members.” (People v. Vazquez (2009)
178 Cal.App.4th 347, 353.)

13
 “In deciding whether substantial evidence supports both
prongs, we apply the familiar standard of review for challenges to
the sufficiency of the evidence.” (Perez, supra, 18 Cal.App.5th
598, 607; accord, In re Daniel C. (2011) 195 Cal.App.4th 1350,
1359.) “[W]e review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] 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, supra, 51 Cal.4th at pp. 59-60;
accord, Perez, at p. 607.)

2. There was substantial evidence Bueno’s shooting of
Aleman and possession of a firearm were committed
to benefit and in association with the West Side
Wilmas gang with the specific intent to further,
promote, or assist criminal activity of gang members
Bueno contends there was insufficient evidence to support
the gang enhancements because “there was no evidence nor
argument that [he] was doing anything besides enjoying the
evening with Perez” and “[t]here was no expression of gang signs,
gang epithets, gang challenges or anything based on gangs.”
Substantial evidence supports the gang enhancement allegations.

14
 As Tanya testified, Bueno, Perez, and Venegas—all
members of the West Side Wilmas gang11—were gathered outside
when Aleman arrived. The surveillance video showed that right
after Aleman was dropped off, Bueno walked into the middle of
the street. Bueno asked Aleman where he was from, and when
Aleman did not respond, Bueno shot him multiple times.
Immediately after the shooting, Bueno, Perez, and Venegas got
into Venegas’s car and left. The nine shell casings recovered at
the scene matched the gun found in Venegas’s car. Officer
Maynard’s body camera footage showed Aleman was wearing a
red beanie, the color of the rival East Side Wilmas gang.
Further, the shooting was in rival East Side Wilmas gang
territory.
Contrary to Bueno’s contention there was no evidence of a
gang motive, Officer Hargrove testified that a gang member
asking “where you from?” is making a gang challenge. Officer
Hargrove opined that a gang member who makes this challenge
in the presence of fellow gang members to a person wearing rival
gang colors, then commits violence on the person if he or she does
not respond, is acting in association with and for the benefit of a
criminal street gang. The conduct is intended to further the
interests of gang members by increasing the gang’s status,
discouraging rivals from preying on members, intimidating the
community, and reducing witness cooperation with the police, all
of which would promote the gang’s criminal activities. Tanya’s

11 Tanya testified Perez and Bueno were both members of the
West Side Wilmas gang. Officer Hargrove testified Bueno and
Venegas were members of the gang and described Perez’s gang
tattoos, but he did not specifically opine that Perez was a member
of the gang.

15
testimony, the video evidence, and the expert testimony therefore
amply support the first prong of the gang enhancement because
the murder and possession of the firearm used in the shooting
were committed in association with the West Side Wilmas gang
and for the benefit of the gang.
As to the second prong, Bueno argues there was not
substantial evidence of his intent to promote, further, or assist
criminal conduct by the gang because he was merely socializing
with Perez and Venegas, and he shot Aleman based on his
“sensing an impending confrontation” due to his mistaken belief
that Aleman was a rival gang member. The jury was instructed
on self-defense (CALCRIM NO. 505) and imperfect self-defense
(CALCRIM No. 571), but it rejected those theories in convicting
Bueno of second degree murder. Bueno’s argument that a
mistaken shooting cannot benefit the gang by killing a fellow
gang member lacks merit. The relevant question for the second
prong is whether Bueno specifically intended to promote the
criminal activity of gang members. Bueno may have been
mistaken, but the facts of the shooting support the jury’s finding
Bueno challenged and killed Aleman with the specific intent to
kill a rival gang member and promote the criminal activity of
West Side Wilmas gang members.

3. There was substantial evidence Perez acted for the
benefit of and in association with the gang and
specifically intended to further, promote, or assist in
criminal activity by gang members
Perez contends there was not substantial evidence to prove
the gang enhancement because the prosecution’s case relied
solely on Officer Hargrove’s speculative opinion that Perez’s text
messages to Tanya were intended to keep a member of the West

16
Side Wilmas gang out of custody. There was substantial
evidence.
Tanya’s testimony and the surveillance footage established
that immediately after Bueno shot Aleman, Perez got into
Venegas’s car with Venegas and Bueno, and they “took off,”
leaving Aleman lying in the street. Four minutes later, Perez
messaged Tanya from Venegas’s car, “[T]ell mom not to say shit.”
After the police officers arrived at the scene, Tanya alerted Perez
that the police were “looking for you guys,” to which Perez again
told Tanya not to say anything. When Tanya responded she saw
everything, Perez instructed her to say she only heard the
gunshots and again cautioned, “You better [not] say shit.” This
evidence was sufficient for the jury to find that Perez acted with
the intent to help fellow gang member Bueno evade arrest.
Although the jury could have found Perez was only trying to
protect Tanya and his mother from reprisal from the gang if his
family members cooperated with the police, as argued by defense
counsel, “reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.” (Albillar, supra, 51 Cal.4th at p. 60.)
Further, in finding Perez guilty of being an accessory after
the fact, the jury necessarily found that he “conceal[ed] or aid[ed]
a principal in [a] felony, with the intent that said principal may
avoid or escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed such
felony.”12 (§ 32.) As Officer Hargrove opined based on his

12 The jury was instructed with CALCRIM No. 440 in part as
follows: “To prove that the defendant is guilty of this crime, the
People must prove that: [¶] 1. Another person, whom I call the

17
experience with the West Side Wilmas gang, sending a message
intended to prevent witnesses from cooperating with the police in
investigating a shooting benefits the gang by reducing the
likelihood gang perpetrators are apprehended and increasing the
number of gang members engaged in criminal activity on the
street.
The cases cited by Perez are distinguishable. In People v.
Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), the Court of Appeal
reversed the gang enhancements on the defendant’s convictions
for carjacking and attempted robbery where the defendant acted
alone and gave no indication he was a member of a gang, and the
expert cited no evidence to support his opinion a carjacking could
benefit the gang, for example that the defendant used or intended
to use the stolen car for a gang purpose. (Ochoa, supra, at pp.
653, 662-664; see Miranda, supra, 192 Cal.App.4th at p. 413
[distinguishing Ochoa where there was evidence the defendant
was joined by fellow gang members in robbing and shooting a
man sitting in his car, the crime was committed in the gang’s
territory, and the gang’s name was called out].)
In People v. Ramon (2009) 175 Cal.App.4th 843, 848 the
Court of Appeal reversed the gang enhancements on a
defendant’s conviction for receiving a stolen vehicle and
possession of a firearm by a felon where the deputy sheriff opined

perpetrator, committed a felony; [¶] 2. The defendant knew that
the perpetrator had committed a felony or that the perpetrator
had been charged with or convicted of a felony; [¶] 3. After the
felony had been committed, the defendant either harbored,
concealed, or aided the perpetrator; [¶] and [¶] 4. When the
defendant acted, he intended that the perpetrator avoid or escape
arrest, trial, conviction, or punishment.”

18
only that the fact two gang members were driving a stolen vehicle
in gang territory with an unregistered firearm benefitted the
gang because the gang members “could commit” crimes while
they were in possession of the vehicle and firearm. The court
concluded, “While it is possible the two were acting for the benefit
of the gang, a mere possibility is nothing more than speculation,”
and “[s]peculation is not substantial evidence.” (Id. at p. 851; see
People v. Hunt (2011) 196 Cal.App.4th 811, 822 [distinguishing
Ramon on the ground that there “the expert had not identified
the crime the defendant and his fellow gang member committed
as one of the activities of the gang”]; Miranda, supra, 192
Cal.App.4th at p. 413 [same].) Here, unlike in Ochoa and Ramon,
Perez’s underlying offense was not one with the “mere possibility”
of having been carried out to further gang activity, but rather,
the jury found that by texting Tanya, Perez specifically intended
to help Bueno evade arrest.13

13 In re Daniel C., supra, 195 Cal.App.4th 1350, also relied on
by Perez, is distinguishable. There, a minor affiliated with a
gang entered a supermarket with two friends, one of whom was a
gang member, attempted to steal a liquor bottle, struck the store
manager with a bottle that broke, and fled with his friends. (Id.
at p. 1353.) The Court of Appeal concluded there was not
substantial evidence to support the intent prong for the gang
enhancement, noting the minor and his friends did not identify
themselves as gang members, the victim did not perceive the
friends to be gang members, there was no evidence the friends
entered the store planning to commit a violent crime, and the
minor’s assault was “simply a spur-of-the-moment reaction” to
the manager’s attempt to stop the theft. (Id. at pp. 1363-1364.)

19
 4. The gang expert’s testimony as to the gang’s primary
activities was sufficient
Perez and Bueno contend substantial evidence does not
support the jury’s true finding on the gang enhancement because
Officer Hargrove’s testimony did not provide sufficient proof of
the primary activities of the West Side Wilmas gang. The
testimony was sufficient.
“[Section 186.22,] subdivision (b)(1) enhances the sentence
for any ‘felony committed for the benefit of . . . any criminal street
gang.’ The definition of a criminal street gang in section 186.22,
subdivision (f) requires that the gang have ‘as one of its primary
activities’ the commission of one or more of the criminal acts
enumerated in subdivision (e). Evidence of both past offenses
and the currently charged offenses may be considered in
determining whether one of the primary activities of the gang is
committing one or more of the offenses enumerated in the
statute.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1068; accord,
People v. Sengpadychith (2001) 26 Cal.4th 316, 323 [“The phrase
‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes
is one of the group’s ‘chief’ or ‘principal’ occupations.”].)
“‘Sufficient proof of the gang’s primary activities might
consist of evidence that the group’s members consistently and
repeatedly have committed criminal activity listed in the gang
statute.’” (People v. Nguyen, supra, 61 Cal.4th at p. 1068; accord,
People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) Expert
testimony as to the gang’s primary activities may be based on a
gang expert’s conversations with gang members and the expert’s
personal investigation of crimes committed by gang members.
(Sengpadychith, at p. 324; see People v. Prunty (2015) 62 Cal.4th
59, 82 [gang expert’s testimony about gang’s “various criminal

20
practices, including homicide, assault, and firearms offenses” was
“likely sufficient” to establish primary activities element];
Nguyen, at p. 1068 [expert’s testimony listing multiple crimes
enumerated in statute as primary activities of the gang was
sufficient]; People v. Vy (2004) 122 Cal.App.4th 1209, 1226
[testimony by a gang expert as to three violent felonies
committed by small gang over three-month period was sufficient
to satisfy primary activities element].) We review the jury’s
implied finding the primary activities element of the gang
enhancement was proven for substantial evidence. (People v.
Garcia, supra, 244 Cal.App.4th at p. 1368.)
Officer Hargrove testified the primary activities of the West
Side Wilmas gang included robberies, assaults with a deadly
weapon, shootings, witness intimidation, possession of
ammunition, carjacking, attempted carjacking, murder, and
attempted murder. These activities are among the enumerated
offenses under section 186.22, subdivision (e)(1) (assault with a
deadly weapon), (2) (robbery), (3) (homicide), (5) (shooting at
inhabited dwelling or occupied vehicle), (6) (shooting from
vehicle), (8) (witness intimidation), and (21) (carjacking). Officer
Hargrove also testified regarding two offenses committed by
members of the West Side Wilmas gang: Guerrero’s conviction for
attempted carjacking in April 2015 and Guimary’s conviction of
assault with a semiautomatic firearm in June 2018.14

14 Bueno relies on People v. Sanchez (2016) 63 Cal.4th 665,
670 to argue Officer Hargove’s testimony that Guerrero and
Guimary were gang members was improperly based on case-
specific hearsay. But Sanchez is inapposite because Guerrero’s
and Guimary’s statements that they were gang members were

21
 Further, Officer Hargrove provided a foundation for his
testimony about the West Side Wilmas gang’s primary activities,
explaining his testimony was based on his assignment in the
Harbor division gang unit, where he was tasked with monitoring
the West Side Wilmas gang since 2011, and daily contact with
gang members. He also encountered members of the gang “on
numerous occasions” during his investigations of gang crimes.
Moreover, Officer Hargrove had arrested Guerrero and Guimary
multiple times prior to the murder of Aleman.15

admissible under the hearsay exception for declarations against
interest. (Evid. Code, § 1230.)
15 The cases cited by Perez in which a gang expert’s primary
activities testimony was deemed insufficient are distinguishable.
In In re Alexander L. (2007) 149 Cal.App.4th 605, 611, the gang
expert testified only that the gang “committed quite a few
assaults with a deadly weapon,” and had “been involved in”
murders, auto thefts, vehicle burglaries, felony graffiti, and
narcotic violations. The Court of Appeal concluded the testimony
lacked an adequate foundation because the expert provided no
specifics on the crimes and failed to testify the crimes constituted
the gang’s primary activities. (Id. at p. 612.) In People v. Perez
(2004) 118 Cal.App.4th 151, 160, the Court of Appeal held a gang
expert’s testimony that the defendant’s gang was responsible for
shooting “a few individuals over a period of less than a week,”
plus one beating of an Asian child six years earlier, was
insufficient to show gang members “consistently and repeatedly”
committed criminal activity enumerated in section 186.22,
subdivision (e)(1).

22
B. The Trial Court Did Not Abuse Its Discretion in Admitting
the Video from Officer Maynard’s Body Camera
Bueno and Perez contend the trial court abused its
discretion under Evidence Code sections 350 and 35216 and
violated their due process rights in admitting video footage from
Officer Maynard’s body camera showing Aleman after the
shooting. They argue the footage, which shows Officer Maynard
performing chest compressions on Aleman, checking his pulse,
and examining his head for injuries, was unnecessary to prove
the People’s case and was cumulative. Further, they contend the
video was prejudicial because it contains a “gruesome image of
Mr. Aleman being brought back to life by the officers” and
“show[s] the victim bloody from his gunshot wounds and gasping
for breath with the police officers frantically trying to save him.”
(Perez AOB 39)~ The trial court did not abuse of discretion.
Courts are “‘“often asked to rule on the propriety of the
admission of allegedly gruesome photographs. [Citations.] At
base, the applicable rule is simply one of relevance, and the trial
court has broad discretion in determining such relevance.
[Citation.] ‘“[M]urder is seldom pretty, and pictures, testimony
and physical evidence in such a case are always unpleasant”’
[citation] . . . . [W]e rely on our trial courts to ensure that
relevant, otherwise admissible evidence is not more prejudicial

16 Evidence Code section 350 provides, “No evidence is
admissible except relevant evidence.” Section 352 states, “The
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”

23
than probative (Evid. Code, § 352). A trial court’s decision to
admit photographs . . . will be upheld on appeal unless the
prejudicial effect . . . clearly outweighs their probative value.
[Citation.] Finally, prosecutors, it must be remembered, are not
obliged to prove their case with evidence solely from live
witnesses; the jury is entitled to see details of the victims’ bodies
to determine if the evidence supports the prosecution’s theory of
the case.”’” (People v. Powell (2018) 6 Cal.5th 136, 163-164;
accord, People v. Suarez (2020) 10 Cal.5th 116, 173.) The
appellate courts “afford trial courts wide discretion in assessing
whether in a given case a particular piece of evidence is relevant
and whether it is more prejudicial than probative.” (People v.
Duff (2014) 58 Cal.4th 527, 558.)
Although the jury heard Tanya’s description of the
shooting, viewed surveillance video, and heard testimony from
Officer Maynard and Dr. Panchal about Aleman’s injuries and
the cause of death, the body camera video was relevant to show
that Bueno shot Aleman in the back of the head or neck and left
him bleeding on the street to prove Bueno’s intent to kill (and the
lack of self-defense), as well as the gang-related nature of the
offense. (See People v. Merriman (2014) 60 Cal.4th 1, 80 [“the
court is not required to exclude photographic or other
documentary evidence simply because the images they depict
could have been described by a witness]; People v. Sattiewhite
(2014) 59 Cal.4th 446, 471 [“crime scene photographs were
relevant to establish the killer’s mental state” and were not
cumulative]; People v. Booker (2011) 51 Cal.4th 141, 170-171
[trial court did not abuse its discretion in admitting “particularly
gruesome photographs” where they “tended to prove an intent to
kill”].) The video also showed that Aleman was wearing a red
beanie just after he was shot. Although the crime scene

24
photographs showed a red beanie among the items later found on
the street, the video of Aleman wearing the red beanie at the
time of the shooting was stronger evidence to support a finding
Bueno intended to kill a rival gang member.
We agree the video is unpleasant to watch (showing a pool
of blood under Aleman’s head and depicting efforts to keep him
alive), but it was not gruesome, and the officers succeeded at
sustaining Aleman’s life as shown in the video. As the Supreme
Court held in People v. Watson (2008) 43 Cal.4th 652, 684 in
concluding the trial court did not abuse its discretion in
admitting crime scene photographs of the victim’s body and blood
splatters on the sidewalk, “Although unpleasant, they depict the
nature of the crime without unnecessarily playing upon the
jurors’ emotions.” Because there was no abuse of discretion,
admission of the video footage did not violate Bueno’s and Perez’s
due process rights.

C. The Trial Court’s Enhancement of Perez’s Sentence on the
Basis of His Prior Juvenile Adjudication Did Not Violate
His Constitutional Right to a Jury Trial
Perez contends that because he did not have a right to a
jury trial in his 2014 juvenile adjudication for assault, the trial
court’s reliance on the adjudication to enhance his sentence under
the three strikes law violated his Sixth Amendment right to a
jury trial. Perez acknowledges the Supreme Court has held that
use of prior juvenile adjudications to enhance a defendant’s
sentence does not violate the defendant’s Sixth Amendment right
to a jury trial. (See People v. Nguyen (2009) 46 Cal.4th 1007,
1028 (Nguyen).) But Perez contends recent decisions by the
United States and California Supreme Courts have “eviscerated”
the holding of Nguyen. They have not.

25
 Relying on Descamps v. United States (2013) 570 U.S. 254
(Descamps), Mathis v. United States (2016) 579 U.S. ___ [136
S.Ct. 2243] (Mathis), and People v. Gallardo (2017) 4 Cal.5th 120
(Gallardo), Perez argues Nguyen is no longer controlling
precedent. However, these cases did not involve the validity of
using prior juvenile adjudications rendered without the right to a
jury trial to enhance a sentence subsequently imposed on an
adult convicted of a felony. Instead, those cases involved limits
on judicial factfinding with respect to whether a prior conviction
was for conduct that qualifies as a sentence enhancement.
As the California Supreme Court explained in Nguyen, “[a]
series of United States Supreme Court decisions, beginning with
[Apprendi v. New Jersey (2000) 530 U.S. 466], establishes an
adult criminal defendant’s general right . . . to a jury finding
beyond reasonable doubt of any fact used to increase the sentence
for a felony conviction beyond the maximum term permitted by
conviction of the charged offense alone.” (Nguyen, supra, 46
Cal.4th at p. 1010.) Notably excepted from Apprendi’s general
rule is “the fact of a prior conviction,” which may properly be
determined by the sentencing court. (Apprendi, supra, 530 U.S.
at p. 490.) In Nguyen, the California Supreme Court held that
“Apprendi does not bar the use of a constitutionally valid, fair,
and reliable prior adjudication of criminal conduct to enhance a
subsequent adult sentence simply because the prior proceeding
did not include the right to a jury trial.” (Nguyen, at p. 1025.)
Subsequently, the United States Supreme Court decided
Descamps and Mathis, both of which interpreted the federal
Armed Career Criminal Act (ACCA; 18 U.S.C. § 924(e)) in light of
Apprendi’s Sixth Amendment limits on judicial factfinding.
Those cases involved the “categorical” and “modified categorical”
approaches to a sentencing court’s determination of whether a

26
prior conviction qualifies as a predicate offense to enhance a
subsequent sentence under the ACCA. (Descamps, supra, 570
U.S. at p. 257; Mathis, supra, 136 S.Ct. at p. 2248.) The United
States Supreme Court concluded in each case that the sentencing
courts were generally barred from looking beyond the statutory
elements of the prior offenses to determine whether the
defendant’s conduct qualified for imposition of a sentence
enhancement under the ACCA. (See Descamps, at pp. 259, 268-
269 [sentencing court impermissibly relied on record of plea
colloquy to find defendant’s prior conviction for burglary involved
unlawful entry]; Mathis, at p. 2250 [sentencing court
impermissibly relied on records of prior conviction to determine
that defendant had burglarized structures, rather than vehicles].)
In Gallardo, the California Supreme Court reevaluated its
prior precedent in People v. McGee (2006) 38 Cal.4th 682 in light
of Descamps and Mathis. The Court held: “McGee is no longer
tenable insofar as it authorizes trial courts to make findings
about the conduct that ‘realistically’ gave rise to a defendant’s
prior conviction. The trial court’s role is limited to determining
the facts that were necessarily found in the course of entering the
[prior] conviction.” (Gallardo, supra, 4 Cal.5th at p. 134.) The
Supreme Court concluded the trial court erred in relying on the
preliminary hearing transcript to determine “the nature of [the]
prior conviction[],” which was “to be made by the court, rather
than a jury, based on the record of conviction.” (Id. at pp. 136-
138.)
Although Gallardo limited the scope of permissible
factfinding by the sentencing court in determining whether the
defendant suffered a prior conviction, it did not disturb Nguyen’s
holding that a sentencing court may validly impose a sentence
enhancement based on the fact of a prior juvenile adjudication,

27
despite the lack of right to a jury trial in that proceeding.
Nguyen remains controlling precedent binding on this court.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455 [“Courts exercising inferior jurisdiction must accept the law
declared by courts of superior jurisdiction. It is not their function
to attempt to overrule decisions of a higher court.”]; People v.
Martin (2018) 26 Cal.App.5th 825, 832-833 [same].) Accordingly,
the trial court’s reliance on Perez’s 2014 juvenile adjudication of
assault for the purposes of the three strikes law did not violate
Perez’s constitutional right to a jury trial.17

DISPOSITION

The judgments are affirmed.

FEUER, J.
We concur:

PERLUSS, P. J. SEGAL, J.

17 The People contend Perez forfeited his claim because
defense counsel did not object to use of the prior juvenile
adjudication at sentencing. Perez responds that an objection
would have been futile because Nguyen was controlling law at the
time of the sentencing. Because we would need to reach whether
Nguyen is controlling to determine whether an objection would
have been futile, we address the merits of Perez’s claim.

28