Filed 1/26/21 P. v. Medina CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX

THE PEOPLE OF THE STATE 

OF CALIFORNIA,

Plaintiff and Respondent,

v.

DANIEL MEDINA,

 Defendant and Appellant.

2d Crim. No. B300830

(Super. Ct. No. 18CR01185)

(Santa Barbara County)

Daniel Medina appeals the judgment entered after a jury 

convicted him of assault with a deadly weapon (Pen. Code,1

(§ 245, subd. (a)(1); count 2) and found true the allegation that 

the crime was committed for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)(B)). Appellant admitted suffering a prior 

strike and serious felony conviction (§§ 667, subd. (a)(1), 1170.12, 

subd. (b)(1), 1192.7, subd. (c)(28)). The trial court sentenced him 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

to 18 years in state prison, consisting of the high term of four 

years, doubled for the strike prior, plus five years each for the 

gang and prior serious felony enhancement allegations.2 

Appellant contends the evidence is insufficient to support the 

true finding on the gang enhancement allegation. He also claims 

the enhancement was improperly imposed under subdivision 

(b)(1)(B) of section 186.22. We affirm.

STATEMENT OF FACTS

On the night of February 3, 2018, Carlos Flores-Escamilla 

and his niece Jasmine Flores went to a bar in Santa Barbara. 

Carlos3 saw Mario Hernandez, a local rapper known as “Sad Boy” 

who is a member of the Eastside criminal street gang. Carlos 

approached Hernandez, who was sitting among a group of people, 

2 Appellant and codefendant Juan Rios were charged with 

the attempted premeditated murder of Carlos Flores-Escamilla 

(§§ 187, subd. (a), 664; count 1), assault with a deadly weapon 

upon Callisto Caldwell (count 2), assault with a deadly weapon 

upon Thomas Martinez (count 3), and participation in a criminal 

street gang (§ 186.22, subd. (a); count 4). Prior strike and serious 

felony conviction allegations were alleged as to all four counts. It 

was further alleged as to counts 1 through 3 that the crimes were 

committed for the benefit of a gang, and that appellant and Rios 

both personally inflicted great bodily injury upon the victims of 

those crimes (§ 12022.7, subd. (a)). Count 1 also included a 

personal weapon use allegation (§ 12022, subd. (b)(1)). The jury 

convicted appellant on count 2 and found the attendant gang and 

prior conviction allegations true, but found the great bodily injury 

allegation not true. The jury acquitted appellant on counts 1 and 

3 and was unable to reach a verdict on count 4. 

 

3 For ease of reference, we refer to Carlos Flores-Escamilla 

and Jasmine Flores by their first names.
3

and told him he liked his music. Carlos took offense when 

Hernandez looked at Jasmine in a “sexual way” and told him 

“that’s my niece.” After Hernandez and Carlos engaged in a 

“stare down,” Carlos left the bar with Jasmine. 

After Carlos and Jasmine left the bar they noticed that 

they were being followed by two men, later identified as appellant 

and codefendant Juan Rios. Appellant and Rios approached 

Carlos and Jasmine while Rios flashed Eastside gang signs. 

Appellant punched Jasmine in the face, causing her to fall to the 

ground, then joined Rios in assaulting Carlos. Appellant 

repeatedly yelled “Traviesos” before and after he hit Jasmine. 

Calisto Caldwell, Thomas Martinez, and Trina Garcia 

witnessed the attack as they were returning to their car after a 

concert. Caldwell grabbed appellant and pulled him away from 

Carlos, while Martinez punched Rios. 

After appellant and Rios ran away, Caldwell noticed that 

he had a three-and-a-half inch gash on his thigh and a puncture 

wound on his stomach. Caldwell subsequently received staples 

and stitches for his wounds. Martinez suffered knife wounds to 

his right hand that also required stitches. Carlos suffered a large 

gash wound to his chest and wounds to his leg and arm, all of 

which required staples or stitches. He also had to undergo 

surgery for a wound to his left hand. 

Jonathan Reddinger witnessed the assault from a distance. 

After appellant and Rios ran away, Reddinger observed one of 

them throw what appeared to be a knife or box cutter into the 

gutter near the intersection of State Street and Cota Street. The 

police subsequently recovered a box cutter from that location. 

The box cutter was open and had blood on the blade that matched 

Carlos’s DNA profile. 
4

Detective Michael Claytor testified as the prosecution’s 

gang expert. Appellant and Rios are members of the Traviesos 

clique of the Eastside criminal street gang. Both men have 

Eastside gang tattoos and were in possession of Traviesos 

paraphernalia when they were arrested. The gang’s primary 

activities include assault with a deadly weapon and attempted 

murder. Respect for the gang is of paramount importance, and 

its members often respond with violence to any acts or behavior 

perceived as disrespectful. It is also common for gang members 

to shout their gang’s name or flash gang signs while committing a 

crime. “Claiming” the gang in this manner provides more stature 

for the gang. 

In response to a hypothetical tracking the facts of the case, 

Detective Claytor opined that all of the charged offenses were 

committed for the benefit of the Eastside gang. Appellant and 

Rios are both members of the gang and acted in association with 

each other in committing the crimes. Appellant flashed the 

gang’s hand signs and repeatedly shouted “Traviesos” before and 

during the attack. Doing so enhanced the fear and intimidation 

that any eyewitnesses to the attack would experience. Moreover, 

the gang benefitted from the attack because witnesses would be 

less willing to cooperate with law enforcement, which enhanced 

the gang’s ability to commit additional crimes in the future. 

Martin Flores testified as a gang expert on behalf of the 

defense. According to Flores, gang members do not need to 

respond to disrespect from others because they experience 

disrespect on an “ongoing basis” as “part of their reality.” 

Although some gang members may respond to perceived 

disrespect, it is not due to any rules imposed by the gang. In 

response to a hypothetical based on the facts of the case, Flores 
5

opined that the charged offenses were not committed for the 

benefit of the Eastside gang. The crimes were not gang-related 

because they did not involve rival gang members and Rios 

apparently fled the scene after being repeatedly punched by 

Martinez. Flores also opined that Rios was no longer an active 

member of the gang when the crimes were committed. 

DISCUSSION

Sufficiency of the Evidence

Appellant contends the evidence is insufficient to support 

the jury’s true finding on the gang enhancement. We disagree. 

“In reviewing a challenge to the sufficiency of the evidence 

under the due process clause of the Fourteenth Amendment to 

the United States Constitution and/or the due process clause of

article I section 15 of the California Constitution, we review the 

entire record in the light most favorable to the judgment to 

determine whether it discloses substantial evidence—that is, 

evidence that is reasonable, credible, and of solid value—from 

which a reasonable trier of fact could have found the 

[enhancement true] beyond a reasonable doubt.” (People v. Cole

(2004) 33 Cal.4th 1158, 1212; accord, People v. Albillar (2010) 51

Cal.4th 47, 59-60 (Albillar) [reviewing gang enhancement for 

sufficient evidence].) “We presume every fact in support of the 

judgment the trier of fact could have reasonably deduced from 

the evidence. [Citation.] If the circumstances reasonably justify 

the trier of fact’s findings, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.” (Albillar, at 

p. 60.) It is well settled that “‘[a] reversal for insufficient 

evidence “is unwarranted unless it appears ‘that upon no 

hypothesis whatever is there sufficient substantial evidence to 
6

support’” the jury's verdict.’” (People v. Penunuri (2018) 5 Cal.5th 

126, 142.)

Section 186.22, subdivision (b)(1) punishes gang-related 

crimes that are committed with the specific intent to aid crimes 

by gang members. (People v. Rodriguez (2012) 55 Cal.4th 1125, 

1138.) Among other things, a prosecutor must prove beyond a 

reasonable doubt (1) that the underlying crime was “gangrelated” because the defendant committed it “for the benefit of, at 

the direction of, or in association with any criminal street gang,” 

and (2) that the defendant committed the crime “with the specific 

intent to promote, further, or assist in any criminal conduct by 

gang members.” (§ 186.22, subd. (b)(1); Albillar, supra, 51 

Cal.4th at p. 59.) The specific intent prong may be satisfied with 

proof “that the defendant intended to and did commit the charged 

felony with known members of a gang,” because from such proof 

“the jury may fairly infer that the defendant had the specific 

intent to promote, further, or assist criminal conduct by those 

gang members.” (Albillar, supra, at p. 68; see also People v. 

Villalobos (2006) 145 Cal.App.4th 310, 322 [“[c]ommission of a 

crime in concert with known gang members . . . supports the 

inference that the defendant acted with the specific intent to 

promote, further or assist gang members in the commission of the 

crime”].

Expert opinion testimony can be sufficient to support a 

gang enhancement. (Albillar, supra, 51 Cal.4th at p. 63.) 

Because “[n]ot every crime committed by gang members is 

related to a gang” (id. at p. 60), an expert’s opinion that a crime 

was committed to benefit a gang must rest upon more than the 

assumed occurrence of the charged offense, evidence that a 

defendant is a gang member, and generalizations about gang
7

culture or habits (People v. Perez (2017) 18 Cal.App.5th 598, 612-

613; People v. Rios (2013) 222 Cal.App.4th 542, 573-574 (Rios); 

People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa)). The

specific circumstances of the offense must support the expert’s

inferences that the conduct was committed to benefit the gang.

For example, an expert opinion is sufficient to support a gang 

enhancement where there is evidence the defendant committed a 

charged crime with known gang members while displaying gang 

paraphernalia and tattoos. (Albillar, at pp. 62, 68.) Conversely, 

an expert’s opinion that a charged crime by a gang member 

acting alone was for the benefit of the gang because the 

defendant is a gang member and any violent crime enhances the 

gang’s reputation is insufficient to support a gang enhancement.

(See, e.g., Perez, at pp. 612-613 [expert testimony insufficient to 

support gang enhancement where defendant acted alone and 

there was no evidence that gang signs were used or gang 

affiliations declared, that the offense occurred in gang territory, 

or that the victims were rival gang members or saw gang tattoos 

or clothing]; Rios, at p. 574 [same]; Ochoa, at pp. 662–663 

[same].)

In challenging the gang enhancement, appellant does not 

dispute that the evidence is sufficient to establish that both he 

and Rios were members of the Eastside gang. He also effectively 

concedes that the evidence is sufficient to support Detective 

Claytor’s opinion that appellant and Rios acted in association in 

attacking Carlos and Jasmine, and “that the gang signs appellant 

threw before the fight with the Flores’ was perhaps sufficient to 

buttress Claytor’s opinion that had appellant been convicted on 

count one, a true finding on a gang enhancement would be based 

on sufficient evidence.” He nevertheless claims that as to the 
8

assault upon Caldwell (count 2), “appellant and Rios were not 

acting to assist each other, nor was the crime alleged in that 

count in any way anticipated when they confronted the Flores’. 

Rather, the crime in count two occurred when Mr. Caldwell 

crossed the street with the intent of breaking up the fight 

between appellant and Rios and the Flores’.” He claims the 

evidence is thus insufficient to support Detective Claytor’s 

opinion that appellant and Rios acted in association in 

committing the assault on Caldwell with the specific intent to 

assist each other’s criminal conduct.

We are not persuaded. Appellant and Rios were both 

convicted of assaulting Caldwell with a deadly weapon. They 

committed the assault when Caldwell intervened in their attack 

on Carlos and Jasmine. Just prior to that attack, both appellant 

and Rios flashed their gang’s hand signs; before and during the 

attack, appellant repeatedly yelled “Traviesos.” This evidence 

supports an inference appellant and Rios assaulted Caldwell with 

the intent to prevent him from interfering with their gang-related 

attack on Carlos and Jasmine. Appellant and Rios “not only 

actively assisted each other in committing [the assault on 

Caldwell], but their common gang membership ensured that they 

could rely on each other’s cooperation in committing the[] crime[] 

and they would benefit from committing [it] together.” (Albillar, 

supra, 51 Cal.4th at pp. 61-62.) Appellant’s claim that the 

evidence is insufficient to support the gang enhancement thus 

fails.

Sentencing on Gang Enhancement

Appellant contends the court erroneously sentenced him 

under subdivision (b)(1)(B) of section 186.22, which provides for a 

five-year gang enhancement when the substantive offense 
9

constitutes a serious felony as defined in section 1192.7, 

subdivision (c). He claims the matter must be remanded for him 

to be resentenced under subdivision (b)(1)(A) of section 186.22—

which provides for an enhancement of two, three or four years—

because the crime of assault with a deadly weapon is not defined 

as a serious felony in subdivision (c) of section 1192.7. Appellant 

is mistaken. Assault with a deadly weapon is clearly defined as a 

serious felony in section 1192.7, subdivision (c)(31). (See People 

v. Gallardo (2017) 4 Cal.5th 120, 125 [recognizing that “[t]he 

term ‘serious felony’ is defined to include ‘assault with a deadly 

weapon’”].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Thomas R. Adams, Jr., Judge

Superior Court County of Santa Barbara

______________________________

Leonard L. Klaif, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael C. Keller, Wyatt E. 

Bloomfield, Deputy Attorneys General, for Plaintiff and 

Respondent.