Filed 8/17/21 P. v. Quevedo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, 2d Crim. No. B300862
(Super. Ct. No. BA456662)
Plaintiff and Respondent, (Los Angeles County)
v.
JONATHAN QUEVEDO,
Defendant and Appellant.
Jonathan Quevedo appeals from the judgment entered after
a jury had found him guilty on 10 counts involving four victims:
three counts of assault with a deadly weapon, to wit, a cane and
the base unit of a telephone (Pen. Code, § 245, subd. (a)(1));1 two
counts of willful, deliberate, and premeditated attempted murder
(§§ 187, subd. (a), 189); one count of discharging a firearm at an
occupied motor vehicle (§ 246); one count of dissuading a witness
by use of force (§ 136.1, subd. (c)(1)); two counts of assault with a
1
All statutory references are to the Penal Code.
semiautomatic firearm (§ 245, subd. (b)); and one count of
possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)).
The jury found true allegations that all of the offenses had
been committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). As to the convictions for attempted
murder and shooting at an occupied motor vehicle, the jury found
true allegations that appellant had personally discharged a
firearm causing great bodily injury (§ 12022.53, subd. (d)).
Except for the convictions of assault with a deadly weapon, the
jury found true allegations that appellant had committed the
offenses while released from custody on another felony offense
(§ 12022.1).
The court found true one prior serious felony conviction
(§ 667, subd. (a)(1)), three prior prison terms (§ 667.5, subd. (b)),
and one prior strike within the meaning of California’s “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Appellant was sentenced to prison for an aggregate determinate
term of 22 years, 8 months, plus an aggregate indeterminate
term of 158 years to life. The indeterminate term included two
years for two prior prison terms (§ 667.5, subd. (b)). The court
directed that appellant shall serve the determinate sentence
prior to serving the indeterminate sentence.
Appellant contends that, as to all of the convictions except
the three convictions for assault with a deadly weapon, the
evidence is insufficient to support the gang allegations. In
addition, he claims that his trial counsel was ineffective because
counsel failed to object to a portion of a jury instruction on
eyewitness identification. Finally, appellant argues, and the
Attorney General concedes, that the two one-year enhancements
for prior prison terms must be stricken because of an amendment
2
to section 667.5, subdivision (b). We strike the prior prison terms
and affirm in all other respects.
Facts
Three Counts of Assault with a Deadly Weapon
Appellant was a member of the Temple Street criminal
street gang. One evening in March 2017, E.P. (husband) and his
wife, V.P. (wife), were eating dinner at a restaurant within the
territory claimed by the Temple Street gang. Appellant entered
the restaurant and “looked at . . . husband with . . . a bad face.”
“He was mad-dogging [husband] . . . .” “ [‘M]ad-dogging[’] . . . is
street vernacular for staring at him to intimidate him.” Husband
and appellant exchanged words. “[A] verbal altercation between
the two took place.”
Husband and wife finished their meal and got up to leave.
As they were walking toward the exit, appellant ran toward
husband and tried to hit him. Wife “got in between” appellant
and husband. Appellant kicked wife in the “left side” of her
“inner thigh.” He picked up the base unit of the restaurant’s
telephone and threw it at either husband or wife. The base unit
hit wife in the head, causing a wound that began to bleed.
Appellant was yelling, “‘This is Temple Street.’”
In an apparent attempt to mollify appellant, husband said
he knew “Thumper,” a member of the Temple Street gang.
Appellant replied, “‘He ain’t shit in our neighborhood.’ . . . ‘Fuck
him.’” Appellant hit husband and wife with a cane. Appellant
was yelling, “‘This is Temple Street, this is Temple Street.’”
Husband and wife left the restaurant, drove away, and
contacted the police. Husband told the police that the assailant
had said, “‘I’m from Temple Street, and I will get my homies to
come through.’”
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Appellant was arrested for the assault at the restaurant.
Thumper told husband’s and wife’s relatives that husband/wife
should “not . . . go to court and not . . . testify.”
Remaining Seven Counts Based on Shooting
Husband and wife came to court for the preliminary
hearing, but did not see appellant. They remained in the witness
waiting room. Wife told detectives about Thumper’s warning and
said she was afraid to testify against appellant. The prosecutor
obtained a protective order for wife and her family. Appellant,
who was out on bail, was served with the protective order in open
court. The preliminary hearing was continued.
Wife was horrified when she read the protective order
served on appellant. The order stated her name, home address,
and the names of her children. Wife complained to a detective,
“‘You just basically gave [appellant] the keys to my house.’”
Husband’s and wife’s son, J.P. (son), lived at his parents’
home with his wife, D.V. Early one morning after the protective
order had been served on appellant, son was in his car at home
waiting for D.V. so he could drive her to work. It was the day
before appellant was supposed to participate in a live lineup in
the restaurant assault case. Son and D.V. were not aware of the
assault or Thumper’s warning. Husband and wife said nothing
about the incident to son and D.V. because they “didn’t want to
spook [their] kids out.”
Son was seated in the driver’s seat. Appellant approached
the driver’s side and told son to lower his window. Son complied.
Appellant said, “‘You’re [wife’s] son; right?’” Son answered,
“‘Yeah.’” Appellant warned, “‘You need to tell your mom that she
better not show up to court.’” “‘She better not show up to the
fucking lineup tomorrow.’” Son said, “‘Well, who are you?’”
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Appellant replied, “‘She knows who the fuck I am. Better tell her
that I’m gonna hurt you guys.’” Appellant displayed the form of a
gun under his sweater. A car alarm sounded, and appellant ran
“down the driveway.”
D.V. entered son’s vehicle. Son slowly drove away and
stopped at a nearby stop sign. Appellant was waiting for him
there. Son persisted in questioning appellant as to his identity.
Appellant removed a gun from under his sweater and “just
open[ed] fire on us.” He fired six to eight times.
D.V. was shot three times – in the stomach, right leg, and
left hand. She had “open stomach surgery.” Son was shot twice –
in the shoulder and the back of the head.
Gang Expert’s Testimony
A gang expert testified: “Temple Street’s been around since
1923. . . . So . . . you have multiple generations of this gang. You
also have multiple generations of people who have lived in this
area, who’ve known of Temple Street . . . . [¶] . . . [T]hey’ve seen
the shootings, seen the murders, they’ve seen the robberies . . . .”
When a Temple Street gang member yells the name of his gang
within hearing distance of other persons, he “not only is
identifying himself with that gang, but he’s also using the
established reputation of that gang to intimidate people around
him.”
The expert noted how engendering fear in the community
serves the purpose of the gang: “[I]f you have a gang [such as
Temple Street] within a community, and the residents of that
community know that this gang . . . is willing to use violence or is
a violent gang, it creates an atmosphere of fear within that
community. And once that [fear] takes . . . ahold of that
community, . . . you have community members who are more
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hesitant to cooperate with law enforcement [out of concern for
retaliation by the gang]. [¶] So . . . you have victims who won’t
report a crime . . . ; you have witnesses . . . who won’t cooperate
or won’t come forward with the police. [¶] . . . [T]hat . . .
emboldens the gang.”
The prosecutor presented the gang expert with a
hypothetical that tracked the facts underlying the assault at the
restaurant. The expert opined that the gang member “did . . . the
acts for the benefit of the gang.” The expert explained: When the
gang member announced, “This is Temple Street,” he was saying
“he’s got an entire gang behind him.” The gang benefited from
the member’s announcement and attack on husband/wife because
his actions would enhance the gang’s reputation for violence and
would “create[] this atmosphere of intimidation and fear within
the community.” “Now you have potential witnesses, and maybe
even future victims, who will be hesitant to cooperate with law
enforcement.”
The gang member’s assault “would enhance his status
within the gang.” Gangs “equate violence with respect. So the
more violent a particular gang member . . . or a gang is, the more
they’re respected, and their reputation . . . is enhanced.”
The prosecutor added facts to the hypothetical that tracked
appellant’s shooting of son and D.V. The expert opined that the
shooting “was done for the benefit of the gang.” The expert
explained: The shooting shows “that Temple Street . . . will take
the ultimate step to prevent any potential witnesses or victims
from testifying in court.” “Now you have an individual who has
committed that ultimate act, and he’s associated with this . . .
gang. . . . [I]f anybody ever gets involved with Temple Street,
either they’re a witness or victim, they know that this gang has
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committed this act and it would strongly . . . dissuade anybody
from cooperating with police.” The shooter personally benefited
because the violence of his act elevated “his level of status within
the gang.”
Substantial Evidence Supports Gang
Enhancements as to the Shooting
Appellant argues that the evidence is insufficient to prove
the gang enhancements as to the seven counts based on his
shooting of son and D.V. “In considering a challenge to the
sufficiency of the evidence to support an enhancement, we 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.
[Citation.] ‘A reviewing court neither reweighs evidence nor
reevaluates a witness's credibility.’” (People v. Albillar (2010) 51
Cal.4th 47, 59-60.)
“Under the terms of the gang enhancement statute, the
enhancement applies to ‘any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members . . . .’
(§ 186.22, subd. (b)(1).) Thus, the trial court can impose the
enhancement only if the prosecution establishes both of the
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following elements beyond a reasonable doubt: first, that the
defendant committed a felony (a) for the benefit of, (b) at the
direction of, or (c) in association with a criminal street gang; and
second, that in connection with the felony, the defendant
harbored the specific intent to (a) promote, (b) further, or (c)
assist in any criminal conduct by gang members.” (In re Daniel
C. (2011) 195 Cal.App.4th 1350, 1358.) As to the specific intent
element, “‘[i]ntent is rarely susceptible of direct proof and usually
must be inferred from the facts and circumstances surrounding
the offense.’” (People v. Rios (2013) 222 Cal.App.4th 542, 567-568
(Rios); see also People v. Miranda (2011) 192 Cal.App.4th 398,
411 [“There is rarely direct evidence that a crime was committed
for the benefit of a gang. For this reason, ‘we routinely draw
inferences about intent from the predictable results of
action . . .’”].)
Appellant asserts: “Apart from [his] gang status, . . . there
was no evidence [other than the gang expert’s opinion] that the
shooting . . . [was] committed for the benefit of Temple Street.”
“Nor was there any evidence that Temple Street’s status or
reputation had been enhanced due to the violent nature of
appellant’s crimes.” “At the time of the shooting, neither [son]
[n]or [D.V.] knew that the suspect was a gang member charged in
a gang-related case. Nor did appellant do anything to let them
know. Appellant did not shout out the gang’s name, or make
gang symbols. . . . There was no evidence that the shooting was
in Temple Street territory. Likewise, there was no evidence that
appellant’s status or reputation for violence increased within the
Temple Street gang.” “[T]here was no evidence that other gang
members were involved in the shooting. . . . [A]ny person charged
with a crime, not only a gang member, would benefit by violently
8
attempting to prevent a witness from testifying by attempting to
murder the witness’s relatives . . . .” The “facts reasonably
indicate . . . that appellant acted alone.”
Appellant is viewing the shooting with blinders on. The
shooting must be viewed together with the earlier assault on
son’s parents at the restaurant. When appellant committed the
earlier assault, he made clear he was acting for the benefit of
Temple Street. He repeatedly invoked the gang’s name: “‘This is
Temple Street, this is Temple Street.’” At the subsequent
shooting of son and D.V., there was no need for appellant to again
invoke the gang’s name. Any reasonable person in the
community, and certainly son’s parents, would understand the
message of the shooting – if you bring charges against appellant
or other West Temple gang members, your family will face life-
threatening retribution. When son asked appellant to identify
himself, appellant replied, “‘She [son’s mother] knows who the
fuck I am.’” Appellant understood that son’s mother would
realize he was the gang member who had assaulted her at the
restaurant.
It did not matter whether the shooting was committed in
the gang’s territory. The frightening message would be the same
irrespective of where the shooting had occurred. Based on the
gang expert’s testimony, the jury could reasonably infer that the
shooting would benefit the gang because it would deter the public
from reporting gang crimes and from cooperating in the
investigation and prosecution of such crimes. The jury could also
reasonably infer that the brutality of the shooting would enhance
both the gang’s and appellant’s reputation for violence. This
would increase respect for the gang and elevate appellant’s
stature within the gang.
9
The evidence as to the gang enhancements was not
insufficient because appellant acted alone during the shooting.
(Rios, supra, 222 Cal.App.4th at p. 564 [“the section 186.22(b)(1)
gang enhancement may be applied to a lone actor”].) Nor was it
insufficient because the shooting personally benefited appellant
by having the potential of dissuading witnesses from testifying
against him in the restaurant assault case. A reasonable trier of
fact could find beyond a reasonable doubt that appellant
specifically intended to promote criminal gang activity by
instilling fear in the community, thus facilitating the gang’s
commission of crimes with impunity. (See People v. Vazquez
(2009) 178 Cal.App.4th 347, 353 [“A reasonable jury could
infer . . . that appellant intended for the Lopez murder to have
the predicted effect of intimidating . . . neighborhood residents,
thus facilitating future crimes committed by himself and his
fellow gang members”].)
Counsel Was Not Ineffective
Appellant contends that trial counsel was constitutionally
ineffective for not objecting to the portion of CALCRIM No. 315
providing that, “[i]n evaluating identification testimony,” the jury
should consider “[h]ow certain” a witness was “when he or she
made an identification.” We refer to this portion of the
instruction as “the certainty factor.”
“To establish constitutionally inadequate representation, a
defendant must show that (1) counsel’s representation was
deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2)
counsel’s representation subjected the defendant to prejudice, i.e.,
there is a reasonable probability that, but for counsel’s failings,
10
the result would have been more favorable to the defendant.”
(People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.)
Counsel’s representation was not deficient. An objection to
the certainty factor would have been futile. Three years earlier,
our state Supreme Court upheld the inclusion of the certainty
factor in a similar jury instruction (CALJIC No. 2.92) on
eyewitness identification. (People v. Sanchez (2016) 63 Cal.4th
411, 461-462.) The court noted that, in a prior opinion, “[w]e
specifically approved CALJIC No. 2.92, including its certainty
factor. [Citation.] We have since reiterated the propriety of
including this factor. [Citation.]” (Id. at p. 462.) Pursuant to the
principle of stare decisis, the trial court was required to follow
Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) “Counsel does not render ineffective assistance
by failing to make motions or objections that counsel reasonably
determines would be futile.” (People v. Price (1991) 1 Cal.4th 324,
387.)
Even if counsel’s performance had been deficient, appellant
would not have been prejudiced in view of our state Supreme
Court’s recent decision in People v. Lemcke (2021) 11 Cal.5th 644,
(Lemcke). The Supreme Court concluded that the defendant had
“failed to establish that the trial court's decision to include the
certainty factor in CALCRIM No. 315 violated his due process
rights or otherwise constituted error under the circumstances
presented here.” (Id. at p. 669.) The Supreme Court reasoned:
“[W]e find nothing in CALCRIM No. 315’s instruction on witness
certainty that operates to ‘lower the prosecution’s burden of
proof.’ . . . [T]he instruction does not direct the jury that ‘certainty
equals accuracy.’ [Citation.] Nor does the instruction state that
the jury must presume an identification is accurate if the
11
eyewitness has expressed certainty. [Citation.] Instead, the
instruction merely lists the witness's level of certainty at the time
of identification as one of 15 different factors that the jury should
consider when evaluating the credibility and accuracy of
eyewitness testimony. The instruction leaves the jury to decide
whether the witness expressed a credible claim of certainty and
what weight, if any, should be placed on that certainty in relation
to the numerous other factors listed in CALCRIM No. 315.
Indeed, even [the defendant] acknowledges that, on its face, the
instruction is ‘superficially neutral.’”2 (Id. at p. 657.)
The One-Year Prior Prison Terms Must Be Stricken
Appellant was sentenced in August 2019. Effective
January 1, 2020, Senate Bill No. “136 amended Penal Code
section 667.5, subdivision (b) such that a one-year enhancement
for a prior prison term shall be imposed only if the prior term was
for a sexually violent offense.” (People v. Winn (2020) 44
Cal.App.5th 859, 872.) “The trial court imposed [two] one-year
terms under the prior version of . . . section 667.5. None of the
prior prison terms was imposed for a sexually violent offense as
defined by the amended version of section 667.5.” (Ibid.) “The
Attorney General concedes the merit of [appellant’s] claim [that
2
Nevertheless, the Supreme Court stated: “[W]e believe
there is a risk that the current version of the instruction will
prompt jurors to infer that an eyewitness’s certainty in an
identification is generally a reliable indicator of accuracy.
Accordingly, in the exercise of our supervisory powers, we direct
our trial courts to omit the certainty factor from CALCRIM No.
315 until the Judicial Council has the opportunity to consider
how the language might be better worded to minimize juror
confusion on this point.” (Lemcke, supra, 11 Cal.5th at p. 669.)
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the two prior prison terms must be stricken]. [¶] The concession
is well-taken.” (Ibid.) “Accordingly, we will strike the [two prior
prison term] enhancements, modify the sentence, and affirm the
judgment as modified.” (Id. at p. 873.)
Disposition
The two one-year enhancements imposed for prior prison
terms under section 667.5, subdivision (b) are stricken, and the
aggregate indeterminate term is reduced from 158 years to life to
156 years to life. The aggregate determinate term remains the
same – 22 years, 8 months. As modified, the judgment is
affirmed. Upon issuance of the remittitur, the trial court shall
send an amended indeterminate abstract of judgment along with
the original determinate abstract of judgment to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Eleanor J. Hunter, Judge
Superior Court County of Los Angeles
______________________________
Alex Green, 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, Colleen M. Tiedemann, Daniel C.
Chang, Deputy Attorneys General, for Plaintiff and Respondent.