P. v. Ramirez

Filed 9/28/17 P. v. Ramirez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ANTONIO
RAMIREZ,
Defendant and Appellant.
B265610
(Los Angeles County
Super. Ct. No. VA130983)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed.
Jerome McGuire, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Zee Rodriguez,
Michael C. Keller and Russell A. Lehman, Deputy Attorneys

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General; Max Carter-Oberstone, Associate Deputy Solicitor
General, for Plaintiff and Respondent.
______________________________
A jury convicted Robert Antonio Ramirez of two counts of
attempted murder, two counts of assault with a firearm and one
count of shooting at an inhabited dwelling and found true special
criminal street gang and firearm-use enhancement allegations.
On appeal Ramirez, who was found guilty on an aiding and
abetting theory, contends his convictions should be reversed
because the natural and probable consequences doctrine relied on
by the People was inapplicable to the facts of the case. Ramirez
also contends the gang expert’s opinion was based on inadmissible
testimonial hearsay and there was insufficient evidence to support
the jury’s finding the charged offenses were committed for the
benefit of a criminal street gang. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting
In July 2013 Joe Gandara and his sister’s boyfriend, Gilbert,
stood outside a corner market in South Gate waiting for
Gandara’s brother, Steve Barraza, to leave the store.1 Gilbert
belonged to the Grape Street Watts gang and had prominent
tattoos. While they were waiting, Ramirez, a member of the
Lynwood Young Crowd gang who also had prominent gang
tattoos, rode his bicycle toward Gandara and Gilbert, staring at
them, and then rode back to an apartment complex on the corner
across from the market. After Ramirez left, Gilbert told Gandara
1 Gandara is the only one of the three victims to testify.
Gilbert (Gandara did not know his last name) and Barraza were
never located by the police.

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Ramirez had previously approached him, but nothing had come
of it.
Ramirez returned on his bicycle several seconds later and
rode up the sidewalk within three to four feet of Gandara and
Gilbert. Ramirez appeared calm and asked, “Where you guys
from?” Gandara, who was not a member of a gang, understood
Ramirez was asking what gang they were from and said nothing.
Gilbert answered he was from Grape Street Watts. Ramirez, who
had the letters Y and C tattooed on his face, said, “This is
Lynwood Young Crowd” or, perhaps, “I am Lynwood Young
Crowd.” Gandara and Gilbert answered, “OK,” and Ramirez
returned to the apartment complex.2
At this point Barraza came out of the market; and the three
men began walking down the block to their house, which was five
lots from the corner. Gandara told his brother “some guy” had
just “hit [them] up.” Barraza, a member of the South Side
Lynwood gang, told him not to worry about it. Looking back at
the apartment complex as they passed, Gandara saw Ramirez on
his bike and three men standing next to the building, one with his
hand tucked inside his waistband. That man began running
toward Gandara, Barraza and Gilbert and yelled, “Hey, fuck Fake
Street” (a derogatory name for Grape Street). Barraza said, “He’s
got a gun. Hurry up. Let’s go.” Gandara, who had a bike, began
pedaling harder. Barraza and Gilbert ran. As they fled, Gandara
saw the man with the gun running after them, followed by one of
the other two men. Ramirez, still on his bike, was slowly
2 At the preliminary hearing Gandara stated he had not been
concerned after the exchange with Ramirez because “it was like a
friendly-type encounter.”

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following the man with the gun, who was never identified, and a
man later identified as Ramirez’s brother, Andres, down the
street. Gandara never saw Ramirez talk or gesture to the man
with the gun.
Gandara followed Barraza and Gilbert into their driveway
toward the rear building where they lived. As Gilbert ran up the
stairs to their apartment, Gandara again looked back and saw
Ramirez was still “way back” toward the market, weaving back
and forth on his bike. The man with the gun, who had reached
the driveway, shot twice from the street toward the rear building.
No one was struck. Abandoning his bike, Gandara climbed onto a
neighbor’s roof. He saw Andres standing across the street from
the driveway. He did not see Ramirez after the shots were fired.
2. The Investigation
Responding South Gate police officers recovered a bullet
fragment on the driveway next to the wall of the rear structure,
located a bullet impact mark on the wall of the structure above
the fragment and found two expended cartridge casings in the
front yard adjacent to the street. At the apartment complex
officers found Ramirez’s brother, Andres, an Elm Street Watts
gang member, and Efrain Parra, a Willow Street gang member, as
well as a black BMX bike, in an apartment rented to Ramirez’s
mother. Later, Ramirez and his mother arrived in her car and
parked in the complex carport. In the carport near Ramirez’s
mother’s car a detective found two semiautomatic handguns
wrapped in a rag. Four live rounds and two expended shell
casings were recovered from the handguns. Forensic examination
confirmed the cartridge casings and bullet fragments recovered
from the shooting scene had been fired by one of the guns found in
the carport.

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In a field show-up Gandara identified Andres Ramirez and
Parra as the men who had watched the shooter and the bike found
in the Ramirez apartment as the one ridden by Ramirez. Later
that day Gandara identified Ramirez in a photographic lineup as
the one who had ridden the bike.
3. The Information
Ramirez was charged with two counts of attempted willful,
deliberate and premeditated murder (Pen. Code, §§ 664, 187,
subd. (a))3 (counts 1 and 2); two counts of assault with a firearm
(§ 245, subd. (a)) (counts 3 and 4); and one count of shooting at an
inhabited dwelling (§ 246) (count 5). As to all counts the
information alleged the crimes had been committed for the benefit
of a criminal street gang (§ 186.22, subds. (b)(1)(B) & (C), (b)(4)).4
As to counts 1, 2 and 5 the information alleged a principal had
personally used and intentionally discharged a firearm
(§ 12022.53, subds. (c), (e)(1)). The information further alleged
Ramirez had suffered a prior conviction for a serious or violent
felony within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12) and a serious felony conviction under
section 667, subdivision (a)(1), and had served two prior prison
3 Statutory references are to this code unless otherwise
stated.
4 For simplicity this opinion on occasion uses the shorthand
phrase “to benefit a criminal street gang” to refer to crimes that,
in the statutory language, are 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); see People v.
Jones (2009) 47 Cal.4th 566, 571, fn. 2.)

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terms for felonies within the meaning of section 667.5,
subdivision (b).
Ramirez pleaded not guilty and denied the special
allegations.
4. The People’s Gang Evidence
The People presented evidence from two gang experts.
South Gate Police Detective Christian Perez, an investigator with
six years of experience investigating gang-related crimes in South
Gate, had previous contact with Ramirez, who had admitted to
Perez he was a member of the Lynwood Young Crowd gang with a
moniker of “Snoops.” Perez testified the area near the corner
market was claimed by numerous gangs, including the Bad Ass
Youngsters, South Side Players and Florencia. Without
identifying members of the gang other than Ramirez, Perez stated
members of Lynwood Young Crowd who lived in the area claimed
the area as their territory. Gang members claim territory by
“hitting up” other gang members in the area, that is, asking where
others are from; stating where the gang member is from;
assaulting other gang members with fists, weapons or guns; or
tagging the area with graffiti. Gang members try to instill fear
and intimidation in residents of the community and in rival gang
members to establish respect for themselves and their gangs.
Los Angeles County Sheriff’s Detective Marc Boisvert,
assigned to the Sheriff’s gang investigation unit, testified he had
once patrolled Lynwood and was familiar with the Lynwood
Young Crowd gang, which claims territory bounded by Imperial
Highway to the north, Atlantic Avenue to the west, the
105 Freeway to the south and the 710 Freeway to the east.
South Gate, and specifically the corner market, was not in
territory traditionally claimed by Lynwood Young Crowd. That

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gang’s principal rivals were South Side Lynwood, South Side
Gangsters, Lynwood Neighborhood Crips and Lynwood 211 Crips.
According to Boisvert, it was not uncommon for family members
to belong to different—even rival—gangs and to assist one
another in committing crimes. The primary activities of the
Lynwood Young Crowd gang include felony vandalism, shootings,
assaults, drug sales, weapons possession and murder.
Although Detective Boisvert did not personally know
Ramirez and had no experience with South Gate gangs, his
research (including conversations with other officers) revealed
Ramirez was an active member of Lynwood Young Crowd.
Boisvert also testified that the question “Where are you from?” is
a challenge that usually leads to a violent altercation, especially
when the gang member questioned claims his gang. If a gang
member issuing such a challenge was outnumbered, he might
wait until he had the support of others to initiate violence. If a
gang member lives in territory claimed by other gangs, he would
still be expected to represent his gang and make his name and the
gang’s name known in the area. In gang culture disrespect leads
to violence. “Fake Street” is a derogatory term for the Grape
Street gang.
Detective Boisvert testified about two predicate convictions
involving Lynwood Young Crowd gang members who were each
found guilty of second degree murder with the specific intent to
benefit their gang. Given a hypothetical based on the evidence
presented against Ramirez, Boisvert opined the shooting had been
committed on behalf of a criminal street gang: A gang member
had hit up the victims and claimed his own gang; the crime was
committed in association with a criminal street gang because the
gang member was assisted by other individuals, one of whom

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yelled a derogatory reference to the gang claimed by one of the
victims; and instilling fear benefits the gang, in this case,
Lynwood Young Crowd.
5. The Defense Evidence
Ramirez did not testify at trial. Martin Flores, the director
of a center providing services to at-risk youth and a member of the
Los Angeles County Superior Court gang expert panel, testified on
behalf of the defense. Flores had worked in Watts for many years
and knew South Gate well. Flores testified gangs are very
oriented to their boundaries and the major gangs in the portion of
South Gate where the shooting took place were Bay Ardmore
Youngsters Trece, Southside Players, Garden View, Willow Street,
Kansas Street and Florencia. Elm Street, a Watts gang,
overflowed past the west boundary of South Gate. Flores agreed
with Detective Boisvert’s description of Lynwood Young Crowd’s
territory and confirmed that the gang’s territory was far from the
area of the incident. He also opined a gang member who moves
into another gang’s territory must “respect that neighborhood,”
then “you have a pass . . . to go from your house to . . . the bus
stop, the market” and “other places in the neighborhood.” A gang
member claiming the area around the corner market for Lynwood
Young Crowd would be “looking for trouble.”
Considering the same hypothetical posed to Detective
Boisvert, Flores believed it would be important to know the gang
affiliation of the shooter, as well as those of the other men who
participated in the incident, to understand whether the crime
benefited Lynwood Young Crowd. Although he acknowledged
gang members from different gangs do commit crimes together, he
“disagree[d] that those crimes are done on behalf of a hood.” In
light of the participants’ differing gang affiliations, Flores opined

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the shooting did not have to do with a particular gang; instead,
“very likely” the shooting was “a personal response” tied to the
shooter’s rivalry with Grape Street Watts. Lynwood Young Crowd
and Grape Street are not rivals.
Flores also disagreed with Detective Boisvert’s assertion
that any time a gang member hits someone up, violence is likely
to result. In Flores’s experience many such encounters do not
result in violence and are simply inquiries, particularly when a
gang member moves into a new area.
6. Jury Instructions and Verdict
The jury was instructed with CALCRIM No. 400, advising it
a person is guilty of a crime whether he or she “committed it
personally or aided and abetted the perpetrator,” and CALCRIM
No. 401, defining the elements for finding the defendant guilty of
a crime based on aiding and abetting that crime. Over Ramirez’s
objection that there was insufficient evidence for the jury to find
Ramirez had committed the uncharged (target) crime of
disturbing the peace in violation of section 415 by challenging
someone to a fight, the court instructed the jury pursuant to
CALCRIM No. 403 that, “[b]efore you may decide whether the
defendant is guilty of attempted murder and/or assault with a
firearm and/or shooting at an inhabited dwelling, you must decide
whether he is guilty of disturbing the peace.” If Ramirez is guilty
of disturbing the peace (the target offense), the court continued,
he may be found guilty of attempted murder and/or assault with a
firearm and/or shooting at an inhabited dwelling (the nontarget
offenses) if the People proved that, during the commission of the
target offense, a “coparticipant” in the target offense committed
one or more of the nontarget offenses and “[u]nder all the
circumstances, a reasonable person in the defendant’s position

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would have known that the commission of [one or more of those
offenses] was a natural and probable consequence of the
commission of disturbing the peace.”5 The court defined
“coparticipant” in the language of CALCRIM No. 403 as “the
perpetrator or anyone who aided and abetted the perpetrator. It
does not include a victim or innocent bystander.”
In closing argument the prosecutor read the jury excerpts
from CALCRIM No. 403 and argued, relying on Detective
Boisvert’s testimony that a hit-up usually leads to gang violence,
Ramirez’s apparent communication with the shooter regarding
Gilbert’s affiliation with Grape Street Watts and the discovery of
the handguns in the carport, that Ramirez and the shooter were
coparticipants in unlawfully challenging Gandara and Gilbert to
fight and that shooting at the three men was the natural and
probable consequence of that uncharged offense.
The jury convicted Ramirez on all counts, found the
attempted murders had been committed willfully, deliberately and
with premeditation, and found true the special firearm-use and
criminal street gang allegations. Ramirez waived trial and
admitted the prior conviction and prison term allegations.
Ramirez moved unsuccessfully for a new trial on the ground there
was insufficient evidence to support a conviction for attempted
murder as a natural and probable consequence of the offense of
disturbing the peace.
5 The court separately instructed on the elements necessary
to prove disturbing the peace (CALCRIM No. 2688), attempted
murder (CALCRIM Nos. 600 & 601), assault with a firearm
(CALCRIM No. 875) and shooting at an inhabited house
(CALCRIM No. 965).

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The court sentenced Ramirez to an aggregate indeterminate
term of 39 years to life in state prison: An indeterminate term of
14 years to life on count 1 (seven years to life, doubled under the
three strikes law), plus a consecutive 20-year term for the firearm-
use enhancement, plus a consecutive five-year term for the prior
serious felony conviction; a concurrent term of 14 years to life on
count 2 (seven years to life, doubled under the three strikes law),
plus a consecutive 20-year enhancement for the firearm use; and a
concurrent determinate term of 14 years on count 5 (the upper
term doubled under the three strikes law), plus a consecutive 20-
year enhancement for the firearm use. The court stayed
sentencing on counts 3 and 4 under section 654. The court also
stayed sentence under section 667.5, subdivision (b), and imposed
appropriate fees and costs.
DISCUSSION
1. Ramirez’s Convictions Under the Natural and Probable
Consequences Doctrine Were Proper
The jury was instructed it could convict Ramirez of
attempted murder, assault with a firearm and shooting at an
inhabited dwelling if he was guilty of the uncharged target offense
of disturbing the peace, a coparticipant in that crime committed
one or more of the charged offenses and those offenses were the
natural and probable consequence of the target offense. Ramirez
does not challenge the accuracy of the court’s instructions, but
contends the natural and probable consequences doctrine did not
apply under the circumstances of this case and all five convictions
based on that theory must be reversed. (Cf. People v. Guiton
(1993) 4 Cal.4th 1116, 1129 [error to give an instruction that,

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while correctly stating a principle of law, has no application to the
evidence presented].)6
Ramirez raises three distinct points. First, there was
insufficient evidence to convict him of the target offense,
disturbing the peace. Second, even if he was guilty of that offense,
he was the sole perpetrator, not an aider and abettor or
coparticipant within the scope of the natural and probable
consequences doctrine. Third, the target offense was too trivial to
support convictions for the serious felonies charged as the natural
and probable consequence of that minor crime. None of Ramirez’s
arguments has merit.
a. Governing law
In People v. Prettyman (1996) 14 Cal.4th 248, 259-260
(Prettyman), the Supreme Court explained, “It sometimes happens
that an accomplice assists or encourages a confederate to commit
6 The court did not instruct the jury, and the prosecutor did
not argue, that Ramirez could be found guilty of attempted
murder, assault with a firearm or shooting at an inhabited
dwelling as a direct aider and abettor or coconspirator of the
shooter. Accordingly, Ramirez’s challenge to the verdict does not
depend on evaluating whether the jury may have relied on a
legally correct, factually supported alternate theory of guilt.
(Compare People v. Chiu (2014) 59 Cal.4th 155, 167 [“[w]hen a
trial court instructs a jury on two theories of guilt, one of which
was legally correct and one legally incorrect, reversal is required
unless there is a basis in the record to find that the verdict was
based on a valid ground”] with People v. Thompson (2010)
49 Cal.4th 79, 119 [“‘[w]here the jury considers both a factually
sufficient and a factually insufficient ground for conviction, and it
cannot be determined on which ground the jury relied, we affirm
the conviction unless there is an affirmative indication that the
jury relied on the invalid ground’”].)

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one crime, and the confederate commits another, more serious
crime (the nontarget offense). Whether the accomplice may be
held responsible for the nontarget offense turns not only upon a
consideration of the general principles of accomplice liability set
forth in People v. Beeman [(1984)] 35 Cal.3d 547, but also upon a
consideration of the ‘natural and probable consequences’
doctrine . . . .”
Addressing the scope of the doctrine, the Prettyman Court
held, “Under the ‘natural and probable consequences’
doctrine . . . , the jury must decide: whether the defendant
(1) with knowledge of the confederate’s unlawful purpose; and
(2) with the intent of committing, encouraging, or facilitating the
commission of any target crime(s); (3) aided, promoted,
encouraged, or instigated the commission of the target crime(s).
The jury must also determine whether (4) the defendant’s
confederate committed an offense other than the target crime(s);
and whether (5) the offense committed by the confederate was a
natural and probable consequence of the target crime(s) that the
defendant encouraged or facilitated.” (Prettyman, supra,
14 Cal.4th at p. 271; accord, People v. Chiu (2014) 59 Cal.4th 155,
158 (Chiu) [“‘under the natural and probable consequences
doctrine, an aider and abettor is guilty not only of the intended
crime, but also “for any other offense that was a ‘natural and
probable consequence’ of the crime aided and abetted,”’” quoting
People v. McCoy (2001) 25 Cal.4th 1111, 1117; see § 31.)7
7 Section 31 provides, “All persons concerned in the
commission of a crime, whether it be felony or misdemeanor, and
whether they directly commit the act constituting the offense, or
aid and abet in its commission, or, not being present, have advised

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“A nontarget offense is a ‘“natural and probable
consequence”’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor actually
foresaw the nontarget offense. [Citation.] Rather, liability ‘“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.] Reasonable foreseeability ‘is a factual
issue to be resolved by the jury.’” (Chiu, supra, 59 Cal.4th at
pp. 161-162, quoting People v. Medina (2009) 46 Cal.4th 913, 920
(Medina).)
In People v. Smith (2014) 60 Cal.4th 603 (Smith) the
Supreme Court, in disapproving a sentence in an earlier version of
CALCRIM Nos. 402 and 403,8 discussed the natural and probable
and encouraged its commission . . . are principals in any crime so
committed.”
8 At the time of Smith’s trial CALCRIM Nos. 402, to be given
when both the target and nontarget offenses were charged, and
403, to be given when only the nontarget offense was charged,
instructed the jury, “If the [nontarget offense] was committed for a
reason independent of the common plan to commit the [target
offense], then the commission of [the nontarget offense] was not a
natural and probable consequence of [the target offense].” The
Supreme Court explained this language in the CALCRIM
instruction—which was also included in the instruction as given
in the case at bar—“if correct, would mean that a nontarget
offense, even if reasonably foreseeable, is not the natural and
probable consequence of the target offense if the jury finds it was
committed for a reason independent of the common plan to
commit the target offense.” (Smith, supra, 60 Cal.4th at pp. 613-
614.) The Court noted the sentence was likely based on language

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consequences doctrine and, at least to a limited extent, seems to
have expanded its contours. The defendant in Smith was
convicted of the murders of two of his fellow gang members—one a
friend; the other his cousin—who were shot by members of a rival
gang as the outgrowth of an incident in which the two rival gangs
had cooperated in staging a “jump out”9 and, in doing so, had
aided and abetted each other in committing the target crimes of
disturbing the peace and assault or battery. (Smith, at pp. 611-
612.) As described by the Supreme Court, “The prosecutor had
argued that during the commission of the target crimes, a
principal in those crimes (a member of [the rival gang]) committed
the murders, and the murders were the natural and probable
consequence of the target crimes.” (Id. at p. 612.)
appearing in cases involving conspirator liability (id. at p. 614)
and held this limitation does not apply in cases in which the
liability for a nontarget offense is based on the natural and
probable consequences theory: “If the prosecution can prove the
nontarget crime was a reasonably foreseeable consequence of the
crime the defendant intentionally aided and abetted, it should not
additionally have to prove the negative fact that the nontarget
crime was not committed for a reason independent of the common
plan.” (Id. at p. 617.) Because the incorrect sentence was
favorable to the defendant, however, including it in the
instructions was necessarily harmless. (Ibid.) The current
versions of CALCRIM Nos. 402 and 403, amended in February
2015 following Smith, omit the sentence.
9 “‘[I]n order to get out of a gang, a member must be “jumped
out,” which typically involves a beating of that member by the
same members who jumped him or her into the gang.’” (Smith,
supra, 60 Cal.4th at p. 608.)

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The defendant argued that the natural and probable
consequences doctrine had been misapplied in his case and that
principals in the target crime may not be found guilty of nontarget
crimes, even if those nontarget crimes are otherwise foreseeable, if
they did not intend to aid and abet the perpetrator of the
nontarget offenses. The Supreme Court rejected the argument,
quoting with apparent approval the definition of “coparticipant” in
CALCRIM No. 402—“‘the perpetrator or anyone who aided and
abetted the perpetrator’” (Smith, supra, 60 Cal.4th at p. 612)—
and explained, “The statutes and, accordingly, the natural and
probable consequence doctrine, do not distinguish among
principals on the basis of whether they directly or indirectly aided
and abetted the target crime, or whether they directly or
indirectly aided and abetted the perpetrator of the nontarget
crime.” (Id. at p. 613.)10 Affirming Smith’s convictions, the Court
noted his liability “was based on his being a principal [in the
target offenses] under Penal Code section 31” (ibid.) and
concluded the jury could have reasonably found that all the
possible shooters had been aiders and abettors in the target
offenses (disturbing the peace and assault), and therefore
principals in those offenses, regardless of their gang affiliation.
(Id. at p. 619.) Thus, at least in the context of gang violence, the
10 In the court of appeal Smith had articulated this argument
as limiting liability under the natural and probable consequences
doctrine to reasonably foreseeable nontarget offenses committed
by a “confederate,” the term employed by the Supreme Court in
Prettyman, supra, 14 Cal.4th at page 267. By using the word
“coparticipant,” CALCRIM Nos. 402 and 403 permit liability to be
imposed on anyone, regardless of affiliation, who participates in a
target offense as a direct perpetrator or aider and abettor.

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Supreme Court appears to have sanctioned the use of the natural
and probable consequences doctrine to impose liability on any
principal (whether perpetrator or aider-or-abettor) in the target
offense when another principal (whether perpetrator or aider-or-
abettor) in that offense commits a reasonably foreseeable
nontarget offense.
b. Substantial evidence supports the jury’s implied
finding Ramirez committed the target offense of
disturbing the peace
The target offense identified by the court in instructing the
jury with CALCRIM No. 403 was disturbing the peace, a violation
of section 415, subdivision (1), which imposes misdemeanor
liability on “[a]ny person who unlawfully fights in a public place or
challenges another person in a public place to fight.” As
discussed, Ramirez first rode his bicycle toward Gandara and
Gilbert while staring at them. He returned shortly thereafter,
rode close to them and asked, “Where you guys from?” When
Gilbert answered he was from Grape Street Watts, Ramirez
identified either the territory or himself as Lynwood Young
Crowd. Ramirez asserts this evidence of his statements and
conduct was insufficient to establish culpability for the target
offense of disturbing the peace, thereby negating his liability
under the natural and probable consequences doctrine for the
nontarget offenses.11 In support of his challenge to the sufficiency
11 In evaluating a claim for lack of substantial evidence, “we
review the whole record to determine whether any rational trier of
fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. . . . [W]e review
the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the

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of the evidence, Ramirez cites Gandara’s testimony acknowledging
the lack of aggression or threat in Ramirez’s conduct—thereby
negating any intent to provoke a fight—and the fact, as his expert
testified, that similar questions frequently do not result in
violence.
Ramirez’s first point—his subjective intent in hitting up
Gilbert and Gandara—is irrelevant. Evaluating the mental state
required to support a charge under section 415, subdivision (1),
the Sixth District concluded specific intent to provoke a fight was
not required to establish culpability under the statute. (In re
Cesar V. (2011) 192 Cal.App.4th 989, 998-999.) In Cesar V. a
police officer saw two teens making gang signs from the side of a
busy street. The officer testified he could not tell if the hand signs
were directed at a car or someone across the street but saw the
gestures becoming more aggressive as if inviting a violent
response. (Id. at pp. 991-992.) The officer stopped the teens, who
claimed they had been responding to disrespectful signs thrown by
a passenger in a passing car. (Id. at pp. 992-993.) Citing the
testimony of the officer and a gang expert’s opinion the teens’
jury could reasonably have deduced from the evidence. . . . We
resolve neither credibility issues nor evidentiary conflicts; we look
for substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to
support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th
327, 357; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87.)
“‘Where the circumstances reasonably justify the trier of fact’s
findings, a reviewing court’s conclusion the circumstances might
also reasonably be reconciled with a contrary finding does not
warrant the judgment’s reversal.’” (People v. Clark (2016)
63 Cal.4th 522, 626.)

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actions constituted a gang challenge for which violence was a
common response, the court affirmed their convictions for
disturbing the peace in violation of section 415, subdivision (1).
(Cesar V., at p. 999.) As the court explained, “A challenge to fight
is prohibited because such a challenge may provoke a violent
response that endangers not only the challenger but any other
persons who may be in the public place where the challenge
occurs. Because the statute is aimed at the inherent danger that
a challenge will result in violence, it is irrelevant whether the
challenger intended to actually cause a fight. The mere fact that
the challenger may naively believe that his challenge will go
unanswered does not reduce the danger that the challenge poses
to both the challenger and the public. Since the danger that a
challenge to fight creates, and that the Legislature intended to
prohibit, is unaffected by the challenger’s subjective intent to
actually cause a fight or his subjective belief that a fight will not
occur or is unlikely to occur, no specific intent is required. If a
person challenges another person to fight in a public place, he or
she violates Penal Code section 415, subdivision (1).” (Id. at
pp. 998-999, fns. omitted.) Under In re Cesar V., based on
Detective Boisvert’s testimony that the question “Where are you
from?” initiated a challenge to fight, the jury could reasonably
conclude Ramirez committed a violation of section 415,
subdivision (1).
Ramirez’s second argument—that violence was a possible
but not probable result of his conduct—is a thinly disguised
invitation to reweigh the evidence, an invitation we decline. To be
sure, we have found no case in which the question “Where are you
from?”, standing alone or paired with an explicit gang
identification and belligerent staring—Ramirez’s actions—has

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20
been deemed sufficient to support liability for serious nontarget
offenses under the natural and probable consequences doctrine.
Typically, cases involving such challenges provoke an immediate
fight that results in the more serious offenses of murder or
attempted murder, allowing the prosecutor to allege assault as the
target offense. (See, e.g., Medina, supra, 46 Cal.4th at pp. 920-921
[verbal challenge followed by a fistfight; nontarget offenses of
murder and attempted murder were natural and probable
consequences of target offense of assault]; People v. Hoang (2006)
145 Cal.App.4th 264, 271-272 [stabbing was natural and probable
consequence of aider and abettor’s summoning of gang members
and inciting them to assault victim]; People v. Gonzales (2001)
87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related
fistfight was natural and probable consequence of fistfight]; People
v. Montes (1999) 74 Cal.App.4th 1050, 1055 (Montes) [shooting of
rival gang member during retreat after a fight was natural and
probable consequence of gang fight instigated by gang challenge];
cf. Smith, supra, 60 Cal.4th at p. 612 [murders were natural and
probable consequence of defendant’s participation in “jump out” by
two rival gangs; defendant committed the target offenses of
assault and disturbing the peace]; see generally Prettyman, supra,
14 Cal.4th at pp. 262-263 [describing range of cases applying
natural and probable consequences doctrine].)12
12 Ramirez argues the trial court here should have followed
the approach of the trial court in People v. Hoang, supra,
145 Cal.App.4th 264, in which the defendant incited a gang
assault on the victim that resulted in the victim’s stabbing. The
trial court refused to allow the prosecutor to proceed under the
theory the attempted murder was the natural and probable
consequence of disturbing the peace and instead directed the

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21
Despite this lack of direct authority, the Supreme Court’s
broad language in Medina, supra, 46 Cal.4th 913 compels our
rejection of Ramirez’s argument. In Medina three gang members
attending a party in Lakewood hit up another gang member,
Barba, who had stopped by the house to deliver something to the
homeowner, by asking, “‘Where are you from?’” Viewing Barba’s
claim of his own gang affiliation as disrespectful, one of the three
punched Barba, and the other two (including Medina) joined in
the fight. (Id. at p. 917.) Though outnumbered, Barba held his
own against his assailants. Eventually, the owner of the home
managed to pull Barba away and escorted him and his girlfriend
to their car, advising them to leave. (Ibid.) Although the fight
was over, someone yelled, “‘get the heat.’” (Ibid.) As Barba drove
off, Medina stepped into the middle of the street and fired a gun
repeatedly at Barba’s car. Barba died of a gunshot wound to the
head. (Ibid.) The jury convicted Medina of murder and attempted
murder as the perpetrator and convicted the two other gang
members of murder and attempted murder as aiders and abettors.
(Id. at pp. 916, 917, 919.) The court of appeal reversed the
convictions of the aiders and abettors on the ground there was
insufficient evidence the nontarget crimes of murder and
attempted murder were reasonably foreseeable consequences of
the target offense of simple assault. (Id. at p. 919.) On review the
prosecutor to proceed on the theory the attempted murder was a
natural and probable consequence of the target offense of assault
with a deadly weapon. (Id. at pp. 271-272.) The court of appeal
affirmed the right of the trial court to direct the prosecutor to
change the target offense (id. at pp. 273-274), but did not address
whether disturbing the peace was an appropriate target offense,
the issue before us.

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Supreme Court rejected the decision of the court of appeal and
affirmed the convictions in a closely divided decision. (Id. at
pp. 916, 928.)
The Medina majority observed that a gang member’s
question “‘where are you from?’” must be understood as “‘what
gang are you from?’” and is “a verbal challenge, which (depending
on the response) could lead to a physical altercation and even
death.” (Medina, supra, 46 Cal.4th at p. 922.) When attacked for
showing disrespect, Barba exhibited strength against the three
aggressors, who were thus prevented from avenging themselves.
(Ibid.) The Court concluded, “[T]he jury could reasonably have
found that a person in defendants’ position ([that is], a gang
member) would have or should have known that retaliation was
likely to occur and that escalation of the confrontation to a deadly
level was reasonably foreseeable as Barba was retreating from the
scene.” (Id. at pp. 922-923.) According to the majority, it was not
necessary for the assailants to have used weapons during the
fistfight, for the gangs involved to have been rivals or for the
aiders and abettors to have known that Medina was armed. (Id.
at pp. 922-924, 927.)
Responding to Justice Moreno’s dissenting opinion (joined
by Justices Kennard and Werdegar), Justice Chin writing for the
Court dismissed the distinction made here by Ramirez between
possible and probable consequences, stating, “the ultimate factual
question is one of reasonable foreseeability, to be evaluated under
all the factual circumstances of the case. [Citations.] The precise
consequence need not have been foreseen.” (Medina, supra,
46 Cal.4th at pp. 926-927.) The doctrine applied because it was
foreseeable “the verbal confrontation . . . would likely escalate into
some type of physical violence.” (Id. at p. 927; see People v. Lara

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(2017) 9 Cal.App.5th 296, 315 [“‘[A]lthough variations in phrasing
are found in decisions addressing the doctrine—“probable and
natural,” “natural and reasonable,” and “reasonably
foreseeable”—the ultimate factual question is one of
foreseeability.’ . . . But ‘to be reasonably foreseeable ‘[t]he
consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is
enough . . . .’ [Citation.]” [Citation.] A reasonably foreseeable
consequence is to be evaluated under all the factual circumstances
of the individual case [citation] and is a factual issue to be
resolved by the jury.’”].)
c. The jury could reasonably conclude Ramirez did not
act alone in committing the target offense
As discussed, the jury was instructed that to find Ramirez
guilty of aiding and abetting the charged offenses it had to first
decide whether he was guilty of the target offense (disturbing the
peace) and find that “[d]uring the commission of disturbing the
peace a coparticipant in that disturbing the peace committed the
crime of attempted murder and/or assault with a firearm and/or
shooting at an inhabited dwelling.” (CALCRIM No. 403.)
Ramirez does not question the accuracy of the court’s instruction
but contends, even assuming he challenged Gilbert and Gandara
to fight, according to the evidence he was the sole perpetrator of
the target offense. That is, “there was insufficient evidence the
shooter and his companions participated in any challenge to fight
issued by [Ramirez].”13
13 As Ramirez explains in his opening brief, “Without the
gunman and appellant co-perpetrating the challenge to fight,
appellant cannot be convicted of an attempted murder and other

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24
Viewing the evidence in the light most favorable to the
verdict, as we must, there is sufficient evidence to support the
jury’s conclusion Ramirez committed the crime of disturbing the
peace as a coparticipant in a common plan with the shooter to
start a fight. Ramirez first rode his bike by Gilbert and Gandara,
evaluating them, before returning to the apartment complex
where the other gang members awaited. He reemerged and hit up
Gilbert and Gandara, asking “Where are you from?” before
announcing his own affiliation with Lynwood Young Crowd. He
then returned to the complex only to emerge again with the other
gang members who commenced the assault. The jury could
reasonably infer from Ramirez’s actions, as well as the shooter’s
shouted gang slur, that Ramirez was acting at the instigation or
with the encouragement of the shooter and his associates when he
approached Gilbert and his friends the second time and attempted
to provoke a fight and that he had thereafter identified Gilbert as
a member of Grape Street Watts to his coparticipants, who
proceeded to commit the nontarget offenses.
d. The target crime was not too trivial to support the
convictions on the charged crimes
Ramirez also contends the People may not rely on the
natural and probable consequences doctrine to obtain convictions
for serious crimes, such as attempted murder and shooting at an
inhabited dwelling, when the defendant has only committed a
“trivial” misdemeanor, here, disturbing the peace. In advancing
this argument Ramirez relies on language from Montes, supra,
74 Cal.App.4th 1050, in which the court of appeal affirmed the
crimes by the gunman as a natural and probable consequence of
the challenge to fight.”

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25
defendant’s conviction for attempted murder during a gang fight
that originated with a gang challenge and ended in a shooting.
(Id. at p. 1053.) Reviewing Prettyman, supra, 14 Cal.4th 248 and
its progeny, the Montes court first observed that “decisions
applying [the natural and probable consequences doctrine] ‘most
commonly involved situations in which a defendant assisted or
encouraged a confederate to commit an assault with a deadly
weapon or with potentially deadly force, and the confederate not
only assaulted but also murdered the victim. In those instances,
the courts generally had no difficulty in upholding a murder
conviction, reasoning that the jury could reasonably conclude that
the killing of the victim was a “natural and probable consequence”
of the assault that the defendant aided and abetted.’” (Montes, at
p. 1055.) Continuing, the court stated: “On the other hand, it is
rarely, if ever, true that ‘an aider and abettor can “become liable
for the commission of a very serious crime” committed by the aider
and abettor’s confederate [where] “the target offense contemplated
by his aiding and abetting [was] trivial.”’ [Citation.] ‘Murder, for
instance, is not the natural and probable consequence of trivial
activities. To trigger application of the “natural and probable
consequences” doctrine, there must be a close connection between
the target crime aided and abetted and the offense actually
committed.’” (Ibid.) The Montes court concluded the threats and
initial fighting between the rival gangs in the case before it were
not trivial in nature and were closely connected to the escalation
of the fight by the gang member who pulled a gun, a “textbook
example of how a gang confrontation can easily escalate from
mere shouting and shoving to gunfire.” (Ibid.)
The extended discussion in Montes clarifies that a gang
challenge that precipitates a gang fight can be considered a

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26
nontrivial instigator of more serious crimes resulting from that
fight. There simply is no per se rule that precludes use of the
natural and probable consequence doctrine when the target
offense is disturbing the peace through a gang challenge. The
question in each case is whether substantial evidence supports the
jury’s findings.
Attempting to distinguish Montes on its facts, Ramirez
argues the People failed to show the shooting here arose from
Ramirez’s confrontation of Gilbert and Gandara, which did not
immediately escalate into a fight. As we have explained, however,
the jury had evidence before it to support its conclusion the gang
challenge was issued by Ramirez as a coparticipant in a common
plan to start a fight, which led to the attempted murder and
aggravated assault by Ramirez’s confederates.
e. Under People v. Favor the People were not required to
prove premeditation by the shooter was a reasonably
foreseeable consequence of the target offense
In People v. Favor (2012) 54 Cal.4th 868, the Supreme Court
held, “[u]nder the natural and probable consequences doctrine,
there is no requirement that an aider and abettor reasonably
foresee an attempted premeditated murder as the natural and
probable consequence of the target offense. It is sufficient that
attempted murder is a reasonably foreseeable consequence of the
crime aided and abetted, and the attempted murder itself was
committed willfully, deliberately and with premeditation.” (Id. at
p. 880.) Two years later in Chiu the Court held “the connection
between the defendant’s culpability and the perpetrator’s
premeditative state is too attenuated to impose aider and abettor
liability for first degree murder under the natural and probable
consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 166; see also

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People v. Rivera (2015) 234 Cal.App.4th 1350 [Chiu analysis
applies to a conviction for murder based on the natural and
probable consequence of a conspiracy].) Nonetheless, the Court did
not question the continued viability of Favor, and instead simply
distinguished it. (Chiu, at p. 163.)
Ramirez contends we should extend the ruling in Chiu to
convictions for attempted murder under the natural and probable
consequences doctrine. We decline this request, as we remain
bound by the holding in Favor. (People v. Johnson (2012)
53 Cal.4th 519, 527-528.)14
Ramirez also argues Favor violates the rule established in
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435], as extended in Alleyne v. United States (Jan. 14,
2013, No. 11-9335) ___ U.S. ___ [133 S.Ct. 2151, 186 L.Ed.2d 314]
[2013 U.S. Lexis 4543], that every fact that increases a defendant’s
punishment must be determined by the jury beyond a reasonable
doubt. Under Favor the premeditation finding, which is based on
the direct perpetrator’s mens rea and results in an enhanced
punishment, is determined after the jury decides that the
nontarget offense of attempted murder was foreseeable. (Favor,
supra, 54 Cal.4th at pp. 879-880.) The jury was so instructed in
this case and found the shooter had acted with the requisite intent
and premeditation. Again, we decline to revisit this aspect of
Favor.15
14 The continuing viability of Favor is currently before the
Supreme Court. (People v. Mateo (Feb. 10, 2016, B258333), review
granted May 11, 2016, S232674.)
15 This aspect of Favor is also implicated by the Court’s grant
of review in People v. Mateo (May 11, 2016, S232674). The
informal description of the question before the Court in Mateo

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2. The Criminal Street Gang Enhancement Was Properly
Imposed
Section 186.22, subdivision (b)(1), provides for a sentence
enhancement for any person convicted of a felony that was
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.
(People v. Livingston (2012) 53 Cal.4th 1145, 1170; see People v.
Albillar (2010) 51 Cal.4th 47, 60 (Albillar) [“the Legislature
included the requirement that the crime to be enhanced be
committed for the benefit of, at the direction of, or in association
with a criminal street gang to make it ‘clear that a criminal
offense is subject to increased punishment under the [gang
enhancement statute] only if the crime is “gang related”’”].) A
“criminal street gang” is defined as “any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of
one or more of [certain enumerated] criminal acts[,] . . . having a
common name or common identifying sign or symbol, and whose
members individually or collectively engage in or have engaged in
a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A
“pattern of criminal gang activity” means “the commission of . . .
reads, “In order to convict an aider and abettor of attempted
willful, deliberate and premeditated murder under the natural
and probable consequences doctrine, must a premeditated attempt
to murder have been a natural and probable consequence of the
target offense? In other words, should People v. Favor (2012)
54 Cal.4th 868 be reconsidered in light of Alleyne v. United States
(2013) ___ U.S. ___ [113 S.Ct. 2151] and People v. Chiu (2014)
59 Cal.4th 155?”

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or conviction of two or more of [certain enumerated offenses]” that
“were committed on separate occasions, or by two or more
persons.” (§ 186.22, subd. (e).)
Ramirez attacks the jury’s true finding on the criminal
street gang enhancement on two grounds: First, he claims
Detective Boisvert’s opinion identifying the pattern of gang
activity by Lynwood Young Crowd was based on inadmissible
testimonial hearsay. Second, he contends there was insufficient
evidence to support the jury’s gang-benefit finding. Neither claim
has merit.
a. Detective Boisvert’s testimony on the pattern of gang
activity was admissible
“In order to prove the elements of the criminal street gang
enhancement, the prosecution may, as in this case, present expert
testimony on criminal street gangs.” (People v. Hernandez (2004)
33 Cal.4th 1040, 1047-1048.) At the time of Ramirez’s trial
Supreme Court authority conferred broad latitude on gang experts
to rely upon statements by fellow officers and gang members in
opining that the crime charged involved gang-related activity.
(See People v. Gardeley (1996) 14 Cal.4th 605, 611-613, 619;
People v. Stamps (2016) 3 Cal.App.5th 988, 993.) Trial courts, in
turn, possessed “broad discretion to determine whether particular
facts to which an expert was prepared to testify were sufficiently
‘reliable’ to come before the jury.” (Stamps, at p. 994, citing
Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 753.)
The Supreme Court’s decision in People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez), which considered the extent to which
Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354,

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30
158 L.Ed.2d 177] (Crawford)16 and California hearsay rules
preclude an expert witness from relating case-specific hearsay in
explaining the basis for an opinion, altered this deferential
approach to expert testimony. (Sanchez, at p. 670.) Sanchez held,
“When any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and
accurate to support the expert's opinion, the statements are
hearsay. It cannot logically be maintained that the statements
are not being admitted for their truth. If the case is one in which
a prosecution expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Id. at
p. 686.)
Ramirez misperceives the scope of Sanchez in arguing
certain statements made by Detective Boisvert failed to conform
to these new guidelines. As discussed, Detective Boisvert opined
the charged crimes were committed for the benefit of Ramirez’s
gang, Lynwood Young Crowd. To prove the necessary pattern of
criminal gang activity by Lynwood Young Crowd, the People
introduced certified abstracts of judgment reflecting the separate
murder convictions of Juan Diego Valencia and Gavino Cirilo
Ramos who, Boisvert further opined, were members of the gang.
In identifying the basis for the latter opinion, Boisvert stated he
16 In Crawford the United States Supreme Court held
testimonial hearsay statements are admissible without violating
the confrontation clause only if (1) the declarant testifies at trial
or (2) the defendant had a prior opportunity to cross-examine the
declarant and the declarant is unavailable. (Crawford, supra,
541 U.S. at pp. 53-54; see Sanchez, supra, 63 Cal.4th at p. 680.)

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31
had participated in the investigation of Valencia’s crime, had
spoken with the pertinent gang officer and had conducted
database research. Because Boisvert had not been personally
involved with the Ramos investigation, he based his opinion of
Ramos’s gang affiliation on his conversation with the gang officer
and his review of Ramos’s tattoos.
Ramirez’s contention Detective Boisvert’s statements
constituted inadmissible testimonial hearsay founders on the
Sanchez Court’s recognition of the still broad latitude gang
experts have in formulating and discussing their opinions. As the
Court explained, “[A]n expert has traditionally been precluded
from relating case-specific facts about which the expert has no
independent knowledge. Case-specific facts are those relating to
the particular events and participants alleged to have been
involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at
p. 676.) However, the Court emphasized, “Any expert may still
rely on hearsay in forming an opinion, and may tell the jury in
general terms that he did so. Because the jury must
independently evaluate the probative value of an expert’s
testimony, Evidence Code section 802 properly allows an expert to
relate generally the kind and source of the ‘matter’ upon which his
opinion rests. . . . There is a distinction to be made between
allowing an expert to describe the type or source of the matter
relied upon as opposed to presenting, as fact, case-specific hearsay
that does not otherwise fall under a statutory exception. [¶]
What an expert cannot do is relate as true case-specific facts
asserted in hearsay statements, unless they are independently
proven by competent evidence or are covered by a hearsay
exception.” (Sanchez, at pp. 685-686.)

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Detective Boisvert’s identification of Valencia and Ramos as
Lynwood Young Crowd members falls within the scope of proper
expert testimony described by Sanchez. The statements
supported Boisvert’s description of the pattern of criminal activity
engaged in by members of Lynwood Young Crowd within the
meaning of section 186.22, subdivision (f), plainly an appropriate
subject for expert testimony. Boisvert generally described the
sources for his opinions, which, in Valencia’s case, included his
personal involvement, as well as conversations with the
investigating gang officer and database research. Although not
involved in the investigation of Ramos’s case, Boisvert cited the
same general sources, including his review of Ramos’s gang-
related tattoos. (See Sanchez, supra, 63 Cal.4th at p. 677 [expert
may testify that a particular tattoo is “a symbol adopted by a
given street gang”; the presence of the tattoo signifies the person
belongs to the gang].) Boisvert offered no case-specific facts as
true in support of his opinions. Thus, his testimony was well
within the limitations established in Sanchez.
b. Substantial evidence supported the jury’s gang-benefit
finding
Detective Boisvert also testified the charged felonies were
committed for the benefit of the Lynwood Young Crowd gang, an
opinion Ramirez challenges as unsupported by the facts,
especially in light of the lack of involvement of any other Lynwood
Young Crowd gang member. This argument also relies on a
mistaken interpretation of the elements required for the gang
enhancement to be found true.17
17 “In considering a challenge to the sufficiency of the evidence
to support an enhancement, we review the entire record in the

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Contrary to Ramirez’s contention, the People need not
establish “that the defendant act[ed] 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.” (Albillar, supra, 51 Cal.4th at p. 67; accord,
People v. Garcia (2017) 9 Cal.App.5th 364, 379-380; People v.
Gonzales (2015) 232 Cal.App.4th 1449, 1464-1465.) That this was
a gang-related shooting is beyond cavil. While the shooter’s gang
identification is unknown, Ramirez, by claiming the territory
(“This is Lynwood Young Crowd”) and initiating the challenge to
fight, branded the shooting as a crime committed at a minimum
for Lynwood Young Crowd. That it may also have benefitted
another gang is not relevant to the finding the crimes were
committed for the benefit of members of Ramirez’s gang. (See,
e.g., People v. Rios (2013) 222 Cal.App.4th 542, 574 [reversing
gang enhancement where defendant did not call out a gang name,
display gang signs or otherwise state his gang affiliation]; People
v. Ochoa (2009) 179 Cal.App.4th 650, 662 [reversing gang
enhancement finding where defendant did not call out a gang
name, display gang signs or bear gang tattoos to identify his gang
affiliation].)
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.” (Albillar, supra, 51 Cal.4th at pp. 59-60.) We draw all
reasonable inferences in favor of the verdict, and presume the
existence of every fact the jury could reasonably deduce from the
evidence that supports its findings. (People v. Maciel (2013)
57 Cal.4th 482, 515; People v. Kraft (2000) 23 Cal.4th 978, 1053;
People v. Franklin (2016) 248 Cal.App.4th 938, 947-948.)

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3. The Prosecutor’s Misstatement of the Evidence Was
Rendered Harmless by the Trial Court
“‘“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332.)
“‘A defendant’s conviction will not be reversed for
prosecutorial misconduct’ that violates state law, however, ‘unless
it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct.’”
(People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071; accord,
People v. Lloyd (2015) 236 Cal.App.4th 49, 60-61.) Bad faith on
the prosecutor’s part is not a prerequisite to finding prosecutorial
misconduct under state law. (People v. Hill (1998) 17 Cal.4th 800,
821; accord, Lloyd, at p. 61.) As the Supreme Court has
explained, “‘[T]he term prosecutorial “misconduct” is somewhat of
a misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the
transgression is prosecutorial error.’” (People v. Centeno (2014)
60 Cal.4th 659, 666-667; accord, Lloyd, at p. 61.)
“‘To prevail on a claim of prosecutorial misconduct based on
remarks to the jury, the defendant must show a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.’” (People v.
Gurule (2002) 28 Cal.4th 557, 657; accord, People v. Morales
(2001) 25 Cal.4th 34, 44.) In addressing such a claim, the

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arguments must be “read as a whole and in light of the evidence
before the jury.” (Morales, at p. 47.) We review a trial court’s
ruling regarding prosecutorial misconduct for abuse of discretion.
(People v. Alvarez (1996) 14 Cal.4th 155, 213.)
Ramirez contends the judgment should be reversed because
the trial court erred in denying his motion for mistrial after the
prosecutor misstated in his closing argument that someone had
yelled “Hey, fuck Fake Street!” when the shooter and Ramirez
were standing together at the corner and that it could have been
Ramirez. In fact, during his testimony Gandara corrected his
preliminary hearing testimony and stated the shooter had yelled
the slur while running down the street toward Gandara’s
apartment. The trial court denied the motion, which was made
outside the jury’s presence after the conclusion of the People’s
initial closing argument, noting it had already instructed the jury
that counsel’s arguments were not evidence. The court also stated
Ramirez’s counsel was free to discuss the clarification of
Gandara’s testimony in his closing argument and to tell the jury
the prosecutor had misstated the evidence.
The court also offered to again admonish the jury; Ramirez’s
counsel accepted the offer. Back in the jury’s presence, the court
stated: “[B]efore [Ramirez’s counsel] begins his closing argument,
there was an issue regarding [the prosecutor’s] closing argument
regarding the evidence of what Joe Gandara . . . testified . . . as to
when the person, the shooter, said “Fuck Fake Street. . . . So
when you hear [counsel’s] arguments, . . . they are just arguments.
As part of the instructions that I gave you I told you what they
say is not evidence. . . . These are their arguments as to how you
should look at the facts and the evidence in relation to the law;
however, it is your recollection, your memory, the court reporter’s

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record, the exhibits, that is the evidence that you shall base [the
verdict] on. . . . So [Ramirez’s counsel] will be addressing that, but
just keep that in mind. If . . . you feel that your memory of what
the evidence is conflicts with what they’re saying, you are the
judges of the facts and you are to determine what is true or not.”
After this admonition Ramirez’s counsel commenced his closing
argument and specifically addressed the discrepancy in the
evidence and the prosecutor’s misstatement of that evidence and
reminded the jury they could ask for the pertinent testimony to be
read to them. In his rebuttal argument the prosecutor
acknowledged his error and stated he in “no way” intended to
mislead the jury.
Because of this interchange between the court, counsel and
jury, jurors were properly advised of the prosecutor’s
unintentional misstatement of the facts, the inconsistencies in
Gandara’s preliminary hearing and trial testimony and their own
obligation to decide the case based on the evidence and not the
arguments of counsel. The trial court, therefore, ensured Ramirez
suffered no harm because of any misstatements by the prosecutor
during closing argument. (See People v. Martinez (2010)
47 Cal.4th 911, 957 [“[e]ven if the the prosecutor’s argument could
be interpreted as . . . improper . . . , it is not reasonably probable
that the verdict would have been more favorable to defendant
without the misconduct”].)

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37
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
MENETREZ, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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