1

Filed 2/23/21 P. v. Vidales CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON RYAN VIDALES,

Defendant and Appellant.

C088685

(Super. Ct. No. CRF153593)

In a trial to the court, defendant Brandon Ryan Vidales was found guilty of several 

weapon and drug offenses related to his gang membership. On appeal, he requests we 

review the sealed affidavit supporting the search warrant, which includes the evidence 

giving rise to his convictions, for discoverable material that would assist him in a motion 

to suppress. He further argues he did not knowingly waive his right to a jury trial and 

that insufficient evidence established he offered to sell a machine gun and three largecapacity magazines, and that he committed all the offenses for the benefit of a criminal 

street gang. 
2

We agree in part. The evidence did not establish defendant acted to benefit his 

gang when possessing methamphetamine for sale while also possessing a loaded firearm 

in public. We reverse the judgment accordingly and otherwise affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2015, Woodland Police Officers executed a search warrant of 

defendant’s parents’ home, his own home, and his car, finding several incriminating 

items. At his parents’ home, in a gun safe, officers found a black AR-15 rifle with an 

eight-inch barrel and an after-market device in the triggering mechanism allowing the 

rifle to fire as a fully automatic weapon. The firearm did not have any manufacturing 

marks or a serial number. Because the weapon lacked markings, a gun expert with the 

Yolo County District Attorney’s Office believed the weapon was purchased 80 percent 

complete, basically consisting of only the lower portion of the weapon. A person then 

manufactured the remainder of the weapon by mounting an eight-inch barrel on the lower 

portion and drilling a space for a trigger mechanism the person also installed. There was 

no evidence in defendant’s parents’ home indicating the AR-15 rifle was manufactured 

there. Also in the safe, and capable of fitting into the AR-15 rifle, was a loaded largecapacity magazine holding 100 rounds. There was also a black canister containing 250

rounds of “steel core ammunition” for the AR-15 rifle. 

Officers also seized from the safe a semiautomatic .45-caliber handgun. This gun 

was not registered to defendant or his father. Attached to the top of the handgun’s barrel 

was a sighting device, while attached to the bottom was a flashlight. Officers recovered

50 rounds of .45-caliber ammunition compatible with this handgun. 

Officers further seized from the safe a semiautomatic .40-caliber handgun with the 

serial number removed. A serial number is commonly removed to hide the identity of a

weapon. Thirteen rounds of loose ammunition as well as a loaded 29-round magazine

compatible with the .40-caliber handgun were also found in the safe. 
3

Additionally, officers found a loaded large-capacity magazine for a ninemillimeter handgun with 20 rounds of live ammunition in the safe, as well as three “speed 

loaders,” which are designed to assist in rapidly reloading revolver-style handguns, each 

containing six rounds of live ammunition. Finally, as it pertains to weapons and 

ammunition, there were 260 rounds of .38-caliber ammunition capable of fitting into a

revolver. 

Also in the safe, was a red folder appearing to belong to defendant that contained 

drawings, news articles, and various other documents from over the years. The drawings 

included gang indicia, while the news articles pertained to crimes committed by local 

Norteño gang members. Defendant’s mother testified she collected these items over the 

course of the last 16 years to remind defendant of the path she did not want him to take. 

Officers also recovered a large quantity of money and what mother testified was 

defendant’s tax return. This money was given back to defendant following the civil 

forfeiture process. 

At defendant’s home, officers found a digital scale on the refrigerator with 

remnants of a white substance. In the closet near the front door, officers also found a bag 

containing marijuana and numerous empty bags commonly used to package drugs. In 

what appeared to be a child’s room, there were envelopes with the names of known

former gang members. In the master bedroom, officers found a red hat with the letter W 

and a red jacket with the letter B, both appearing to be gang related. 

In defendant’s car, officers found a loaded .357-caliber revolver and just over 21 

grams of methamphetamine, as well as defendant’s cell phone. Upon a later search of 

defendant’s cell phone, officers found several photos and videos indicating defendant 

belonged to the largest criminal street gang in Woodland -- the Varrio Bosque Norteño 
4

subset of the Norteño criminal street gang.

1

 In the photos and videos, defendant can be 

seen with several known Varrio Bosque members, all wearing gang clothing and 

displaying gang signs and tattoos. His phone contained several other photos of known 

Varrio Bosque members. Defendant also had two gang-related tattoos, including “Nor” 

and “Cal” on the back of each calf, and a pair of dice inside of one calf -- one die with

one dot and the other with four to signify the number 14, a number associated with the 

Norteño criminal street gang. 

Defendant also communicated with several known gang members on his phone 

through text messages and social media. For example, defendant took a screenshot of a 

conversation he had with a known Varrio Bosque member, in which the known member 

explained he cheated the legal system to get probation instead of prison and any 

statements to the contrary were gossip because he was loyal to the gang “till the day I 

die.” In another screenshot of a social media conversation with known Varrio Bosque 

members, defendant described himself as “#WARREADY” and stated, “Me and my three 

brothers will tear this town down and anybody who wants it. #fullys with 100 round 

drums, #Glock with 30 sticks, 45 with extended clips, tre pounds that knock your whole 

family down on #God . . . , yall don’t want to pistol play.”

In yet another conversation, this time with an unknown individual, defendant

appeared to be discussing an investigation the Varrio Bosque were conducting into an 

affiliated member who testified against active gang members in another jurisdiction. The 

conversation appeared to pertain to collecting evidence to justify an assault against the 

affiliate; however, the “paperwork” had not come through the appropriate channels to 

justify the hit. 

1 The parties stipulated the Varrio Bosque Norteño gang was a subset of the 

Norteño criminal street gang and constituted a criminal street gang for the purposes of 

Penal Code section 186.22. 
5

The gang expert testified the primary criminal activities of the Varrio Bosque were

crimes of violence, drug sales, assaults, and possession and sale of illegal firearms. It is 

common in gangs, as well as this one, for guns to be passed around from one gang 

member to another. With some exception, gang members who are allowed to possess 

firearms will commonly hold them for the gang and then relinquish possession to other 

members upon request. 

There were several photos and videos of guns found on defendant’s phone, many 

of which appeared to be of weapons seized during the search. One such photo showed 

two known Varrio Bosque gang members, one of whom was holding the revolver 

recovered from defendant’s car with the sighting device recovered from the safe attached 

to it. Another photo depicted three short-barrel, AR-15 rifles, similar to one found in the 

safe, with 40-round magazines and foregrips positioned near a placard stating “City of 

Trees,” which is sometimes used by the Varrio Bosque to signify their gang and local 

affiliation. Also, on a video taken from defendant’s cell phone showing a weapon and 

ammunition later seized by police, defendant can be seen with several jars of marijuana 

and packages of methamphetamine prepared for sale.2 

During a September 3, 2014, conversation on Facebook with an unknown 

individual, defendant said, “I got a plug on something better, but it is pricey.” Then

continued, “Mini AR-15s, fully auto with stock that pulls straight out, four grip laser, and 

hundred round drums[3] with all American parts, no serial numbers. Everything illegal. 

It’s pricey, though. $1,800 to two grand.” When the individual expressed hesitation, 

2 Further evidence of defendant’s drug sale activity was found in a Facebook 

conversation with an unknown individual who greeted defendant with language 

commonly used among gang members and asked “how much for 4oz.” A photo was also 

recovered from defendant’s phone showing a large quantity of pills and a bottle of 

codeine syrup with the words “Who need there FIX $$$” typed across it. 

3 A “drum” is a type of magazine for a firearm. 
6

defendant justified the price because “the guy who builds them takes a risk putting them 

together, and they are fully auto.” Further, “there are no serial numbers.” The unknown 

individual appeared to want to purchase a legal weapon, to which defendant responded “I 

don’t do the legal stuff, but do your thing my dude.” 

On March 14, 2015, defendant texted with multiple individuals, some of whom 

were known Varrio Bosque members. The messages appeared to be attempts at rallying

Varrio Bosque members to fight at a park or at someone’s home about a conflict within 

the gang. Defendant could not participate because he was watching his children, and 

nothing seemed to have come of the conversation. During the conversation, however, 

defendant texted he would “bring the toy,” referring to a gun and there were other 

references to weapons and attack strategy. 

On April 1, 2015, defendant took a screenshot with his cell phone of a photograph 

of an AR-15 rifle with a 100-round magazine attached to it. Also, in the photo were a 

subcompact handgun with a magazine sticking out of it, along with other magazines, two 

of which held over 20 rounds, and a separate 50 round magazine. Two other firearms and 

other ammunition appeared in the photo as well. Written over the photograph in a 

typewritten banner appear the words “Everything goin[,] hit me.” The cell phone expert 

testified he was able to find the photo on defendant’s phone without the added banner of 

text. It appeared as a thumbnail, meaning the image was downloaded from an external 

source or the product of a screenshot from that source. When an image appears as a 

thumbnail, however, it does not mean the image was not also taken on that phone. It is 

possible to download or take an image, add graphics and text, and then take a screenshot 

of the resulting image. While the cell phone download provided a lot of information, it 

did not recover everything, leaving some doubt about where some of the images came 

from or from where the images were sent. No testimony established defendant sent the 

image in either of its forms to others. The pistols in the photo were not recovered, but a 
7

similar AR-15 rifle, the extended magazines, and other ammunition were recovered from 

the safe at defendant’s parents’ home. 

On June 16, 2015, a known Varrio Bosque gang member texted defendant asking 

what guns he possessed. Defendant responded, “H.k. 45 two tone with a sleeve that goes 

over the barrel its got a green beam with flash light and like a x target thing u look into. 

[¶] That glock 40 with the 30 and a beam . . . [¶] . . . And two 357s.” Also around this 

time, which was also when officers searched defendant’s property, three other validated 

Varrio Bosque gang members in the Woodland area were caught selling short-barrel,

fully automatic AR-15 rifles to different police agencies. 

The gang expert testified that possession of fully automatic weapons and largecapacity magazines would benefit a criminal street gang because it contributed to the 

intimidation the gang exerted to accomplish its crimes. Weapons, especially illegal 

weapons, add to the intimidation targeted toward rival gangs and the community, 

accomplishing fear. Guns also garner respect for individuals within the gang by elevating 

that individual to a higher status. 

Based on this evidence, the court found defendant guilty of “selling or 

manufacturing or converting a firearm into a machine gun,” possessing a controlled 

substance for sale, four counts of being a felon in possession of a firearm, three counts of 

selling large-capacity magazines, possessing a controlled substance while armed, and 

carrying a loaded firearm in public. The court also found the gang enhancements 

attached to each count true and the firearm enhancement attached to defendant’s 

possession of a controlled substance for sale conviction true. The court also found 

defendant had previously been convicted of a felony within the meaning of the three 

strikes law but struck the prior serious felony conviction enhancement based on the same 

conviction. The court sentenced defendant to an aggregate term of 18 years 4 months on 

this case. 

Defendant appeals. 
8

DISCUSSION

I

There Is No Discoverable Material Contained In The Warrant Affidavit

Defendant requests we independently review the search warrant and 

accompanying sealed affidavit for discoverable evidence that may support a motion to 

suppress. The People concede defendant is entitled to this review. 

“When a defendant seeks to quash or traverse a warrant where a portion of the 

supporting affidavit has been sealed, the relevant materials are to be made available for in 

camera review by the trial court.” (People v. Gulland (2008) 45 Cal.4th 354, 364; 

accord, People v. Hobbs (1994) 7 Cal.4th 948, 963; see Evid. Code, § 915, subd. (b) 

[providing for in camera review of confidential information].) “The court should 

determine first whether there are sufficient grounds for maintaining the confidentiality of 

the informant’s identity. If so, the court should then determine whether the sealing of the 

affidavit (or any portion thereof) ‘is necessary to avoid revealing the informant’s 

identity.’ ” (Galland, at p. 364; accord, Hobbs, at p. 972.)

Once the trial court determines the affidavit was properly sealed, it “should 

proceed to determine ‘whether, under the “totality of the circumstances” presented in the 

search warrant affidavit and the oral testimony, if any, presented to the magistrate, there 

was “a fair probability” that contraband or evidence of a crime would be found in the 

place searched pursuant to the warrant’ (if the defendant has moved to quash the warrant) 

or ‘whether the defendant’s general allegations of material misrepresentations or 

omissions are supported by the public and sealed portions of the search warrant affidavit, 

including any testimony offered at the in camera hearing’ (if the defendant has moved to 

traverse the warrant).” (People v. Galland, supra, 45 Cal.4th at p. 364, quoting People v. 

Hobbs, supra, 7 Cal.4th at pp. 975, 974.) We independently review the record and sealed 

portion of the affidavit to determine whether there was a “reasonable probability” 
9

defendant could prevail on his motion to traverse or quash the search warrant. (Hobbs, at 

p. 975.)

We have reviewed the entire record, including the sealed search warrant affidavit 

presented to the trial court in camera. We conclude the trial court did not err in refusing 

to unseal the sealed affidavit providing probable cause for issuance of the search warrant 

because disclosure of its contents would reveal the identity of the confidential informant. 

(People v. Hobbs, supra, 7 Cal.4th at p. 971; People v. Camel (2017) 8 Cal.App.5th 989, 

1009 [trial court did not err in refusing to unseal entire search warrant affidavit or in 

determining which portions had to remain under seal to protect confidentiality of 

confidential informants].)

Additionally, there is nothing in the sealed search warrant affidavit to suggest the 

affiant made any misrepresentations or omissions in applying for the search warrant. 

(People v. Hobbs, supra, 7 Cal.4th at p. 977.) The sealed affidavit further provided an 

adequate basis to establish the informant’s reliability, and the information provided by 

the confidential informant supported the magistrate’s finding of probable cause for 

issuance of the search warrant. (Id. at p. 975.) The trial court properly denied the 

motions to unseal the search warrant affidavit.

II

Defendant Intelligently Waived His Jury Trial Right

Defendant contends the record lacks any showing he intelligently waived his right 

to a jury trial, requiring reversal. We disagree. 

A

Background

At the start of the trial readiness conference, both the prosecution and defense

indicated they had decided to waive a jury trial. The court asked defendant whether he 

understood that the court would try his case and defendant answered in the affirmative. 

The court then accepted defendant’s waiver of his trial right. 
10

At sentencing, defendant asked to be heard regarding his counsel’s ineffectiveness. 

He explained he “never wanted to have a bench trial, but [his attorney] pressured, 

conned, and persuaded [him] into doing so by falsely advising [him] that it is [his only] 

option of beating some of [his] charges, and that [counsel and the court] have a great 

rapport and relationship, so that will play a huge part in [his] trial. [¶] He also explained 

to [defendant] and informed [him] that the difference between a bench trial and jury trial 

is that when you have a jury trial, the jury can convict [him] on their feelings and 

emotions while a bench trial with the judge has to uphold the law and can only convict 

[him] on evidence and facts. This is all propaganda, and [he] was misled into believing 

that [counsel] had [his] best interest at hand.” Defendant listed several other problems he 

had with his attorney’s representation not pertinent to his jury trial waiver. 

Given defendant’s statements, the court scheduled a Marsden4 hearing. At the 

Marsden hearing, defense counsel responded to defendant’s concerns. As it pertained to 

defendant’s jury trial waiver, trial counsel stated, “I did not feel I pressured [defendant], 

though, I could see how he would feel pressure. I did advise him on that. Interestingly 

enough, prior counsel, according to his mother, had also advised him to waive jury in 

this. The reason was that the sheer number of guns and the connection, however tenuous, 

to gangs I felt was going to make such an impression on the jury that [it] would be --

have a tendency to lose focus and be very, very prejudic[ial]. I felt that that was going to 

be lessened with a court trial. May have been wrong, but that was my thinking on it and 

that’s why we did it. [¶] As far as his statement that I told him I had a special 

relationship with you, I never said that. And one of the interesting things that you may 

remember, but we did this at sidebar, both [the prosecutor] and I indicated we would only 

waive a jury if you handled it. Both sides wanted you to handle it.” 

4 People v. Marsden (1970) 2 Cal.3d 118.
11

The court denied defendant’s Marsden motion and motion for a new trial based on 

ineffective assistance of counsel, to the extent defendant moved for such relief.5 

B

The Record Demonstrates Defendant Was Informed Of The Meaning Of A Jury Trial

A criminal defendant has the constitutional right to a jury trial. (U.S. Const., 6th 

Amend.; Cal. Const., art. I, § 16; People v. Sivongxxay (2017) 3 Cal.5th 151, 166.) The 

defendant may waive his constitutional right to a jury trial, provided the waiver is 

“ ‘knowing and intelligent, that is, “ ‘ “made with a full awareness both of the nature of 

the right being abandoned and the consequences of the decision to abandon it,” ’ ” as well 

as voluntary “ ‘ “in the sense that it was the product of a free and deliberate choice rather 

than intimidation, coercion, or deception.” ’ ” ’ [Citation.] ‘[W]hether or not there is an 

intelligent, competent, self-protecting waiver of jury trial by an accused must depend 

upon the unique circumstances of each case.’ ” (Sivongxxay, at p. 166.) Our Supreme 

Court has “persistently declined to mandate any specific admonitions describing aspects 

of the jury trial right.” (People v. Daniels (2017) 3 Cal.5th 961, 992; Sivongxxay, 3 at 

p. 167 [“Our precedent has not mandated any specific method for determining whether a 

defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench 

trial”].) 

In Sivongxxay, our Supreme Court provided guidance for trial courts taking jury 

trial waivers. The guidance included “that trial courts advise a defendant of the basic 

mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the 

facts that (1) a jury is made up of 12 members of the community; (2) a defendant through 

5 Defendant does not argue on appeal his waiver was involuntary, as his trial court 

argument implied. Indeed, the trial court accepted counsel’s version of events. What 

remains from defendant’s allegations is that defendant discussed with his counsel the pros 

and cons of a court trial compared to a jury trial, and he failed to see how the reasons 

underpinning those discussions benefited him at trial. 
12

his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously 

agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a 

judge alone will decide his or her guilt or innocence.” (People v. Sivongxxay, supra, 3 

Cal.5th at p. 169.)

Our Supreme Court also recommended “the trial judge take additional steps as 

appropriate to ensure, on the record, that the defendant comprehends what the jury trial 

right entails. A trial judge may do so in any number of ways -- among them, by asking 

whether the defendant had an adequate opportunity to discuss the decision with his or her 

attorney, by asking whether counsel explained to the defendant the fundamental 

differences between a jury trial and a bench trial, or by asking the defendant directly if he 

or she understands or has any questions about the right being waived. Ultimately, a court 

must consider the defendant’s individual circumstances and exercise judgment in 

deciding how best to ensure that a particular defendant who purports to waive a jury trial 

does so knowingly and intelligently.” (People v. Sivongxxay, supra, 3 Cal.5th at pp. 169-

170.) The court was careful to emphasize that this “guidance is not intended to limit trial 

courts to a narrow or rigid colloquy.” (Id. at p. 170.)

The test of a valid waiver turns on whether the record affirmatively shows that the 

waiver is voluntary and intelligent under the totality of the circumstances. (People v. 

Sivongxxay, supra, 3 Cal.5th at p. 167.) We independently examine the record to 

determine whether this standard has been met. (People v. Burgener (2009) 46 Cal.4th 

231, 241.)

Defendant relies on Jones and Blanchett. (People v. Jones (2018) 26 Cal.App.5th 

420; People v. Blancett (2017) 15 Cal.App.5th 1200.) In these cases, the records did not 

affirmatively show the defendants’ jury waivers were intelligent and voluntary. (Jones, 

at pp. 435-437; Blancett, at pp. 1204-1207.) In both cases: (1) the waiver colloquies 

were limited to asking the defendants whether they agreed to have, or were “okay” with 

having, their cases decided by the court rather than a jury; (2) the defendants were not 
13

advised of any of the other “significant attributes” or basic “mechanics” of a jury trial; 

and (3) the trial courts did not ask the defendants whether they had had sufficient 

opportunities to discuss their jury waivers with their counsel. (Jones, at pp. 428, 434, 

437; see Blancett, at pp. 1203, 1205-1206.) Additionally, the defendant in Jones had no 

prior experience with the criminal justice system. (People v. Jones, supra, 26 

Cal.App.5th at p. 437.) Similarly, the record in Blancett did not show the defendant, a 

mentally disordered offender facing his first civil commitment proceeding, was “legally 

sophisticated” or knew he was entitled to a jury trial. (People v. Blancett, supra, 15 

Cal.App.5th at p. 1206.)

We agree with defendant to the extent he argues the trial court’s colloquy was 

sparse and did not inform him of the mechanics of a jury trial. The record as a whole, 

however, demonstrates defendant voluntarily and knowingly waived his right to a jury 

trial. When describing to the court his counsel’s inadequacies, defendant indicated he 

had discussed the pros and cons of choosing a court trial with a judge, over a jury trial. 

Specifically, he explained he understood the judge would likely view the evidence in the 

context of the law, while a jury would likely view it with bias and emotion. We can 

understand this to mean defendant discussed with his attorney what a jury trial consisted 

of and why his case would be better suited for a court trial, having his case heard by a

judge alone. Thus, while the waiver colloquy may not have informed defendant of the 

basic mechanisms of a jury trial and what that entailed, the record demonstrates his 

attorney did. 

Defendant disagrees, arguing we cannot infer he was adequately informed of his 

jury trial right simply because he was represented by counsel. We do not infer defendant 

was adequately informed because he was represented, we infer he was adequately 

informed because defendant said he spoke to his attorney about the tactical implications 

of choosing a court trial over a jury trial. This provides the evidence lacking in Jones and 

Blancett. (See People v. Jones, supra, 26 Cal.App.5th at pp. 435-437; see also People v. 
14

Blancett, supra, 15 Cal.App.5th at pp. 1204-1207.) While counsel did not state on the 

record he explained the basic mechanics of a jury trial to defendant, we can infer a 

tactical discussion as described by defendant would also include those topics. 

Further, while arguing to the court his counsel was inadequate, defendant 

displayed a relatively high level of knowledge regarding the legal system. He cited 

specific code sections to the court as well as long-standing legal principles of due process 

and the right to effective counsel. Defendant also indicated he was heavily involved in 

the strategy of his case by suggesting witnesses, including expert witnesses, and motions. 

This was also not defendant’s first encounter with the legal system, having been 

convicted of a prior strike-qualifying felony conviction. The whole of the evidence 

suggests defendant had a level of legal sophistication such that he knew what the jury 

right entailed. Accordingly, the record reflects defendant voluntarily and intelligently 

waived his right to a jury trial.

III

Sufficiency Of The Evidence

Defendant contends the evidence was insufficient to establish he offered to sell a 

machine gun and three large-capacity magazines, and did so for the benefit of a criminal 

street gang. We agree in part. 

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to 

review the whole 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 -- such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of 

review is the same where the prosecution relies primarily on circumstantial evidence. (In 

re Alexander L. (2007) 149 Cal.App.4th 605, 610.) “ ‘An appellate court must accept 

logical inferences that the [trier of fact] might have drawn from the evidence even if the 

court would have concluded otherwise.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 
15

419.) Before a verdict may be set aside for insufficiency of the evidence, a party must 

demonstrate “ ‘that upon no hypothesis whatever is there sufficient substantial evidence 

to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The 

sufficiency of the evidence to support an enhancement is reviewed using the same 

standard applied to a conviction. (People v. Wilson (2008) 44 Cal.4th 758, 806.)

A

Sufficient Evidence Established Defendant Offered To 

Sell A Machine Gun And Its Compatible Large-Capacity Magazine

Defendant was convicted of offering to sell a machine gun (Pen. Code, § 32625, 

subd. (b)), as well as three violations of Penal Code section 32310, which includes among 

its prohibitions the offering for sale of a large-capacity magazine. He argues the 

evidence does not support the theory he offered to sell the prohibited items. We agree in 

part. 

The parties agree the only evidence potentially showing defendant offered to sell a 

machine gun and three large-capacity magazines was the image from his cell phone with 

the phrase “Everything goin[,] hit me” and the Facebook conversation with an unknown 

individual in which defendant indicated he had a “plug” on where to buy a machine gun

with a 100-round magazine. 

We agree with defendant that the photo of multiple firearms and three largecapacity magazines with the phrase “Everything goin[,] hit me” is insufficient to show he

offered these items for sale. The evidence showed defendant downloaded the unedited 

image from an external source and took a screenshot of the image as edited. The expert 

explained that although the unedited image appeared on defendant’s phone through an 

external source, it could have also been taken on defendant’s phone. It is also possible to 

edit an image on a cell phone and take a screenshot of the result. Further, a similar 

machine gun and high-capacity magazines to those appearing in the photo were seized 

from the safe at defendant’s parents’ home. From this evidence, we can infer that
16

defendant took the photo and composed an advertisement to sell these items, but not that 

he sent the advertisement as an offer to sell them. 

The People disagree and argue the evidence is sufficient because it is a more 

reasonable inference that defendant sent the edited image to at least one person than 

“keeping it hidden on his phone.” Not so. While the expert testified the results of the 

cell phone download were incomplete, we cannot infer the existence of an entry that may

not exist without some evidence supporting it. No evidence was introduced showing

another person received the advertisement from defendant or saw it posted on a social 

media platform. The fact that some of the weapons appearing in the advertisement were 

not recovered from the search, does not necessarily mean defendant relinquished these 

items through sale, thus implying the advertisement was sent. The evidence 

overwhelmingly suggested defendant kept an arsenal of weapons for ready use by fellow 

gang members. Indeed, around the time the advertisement appeared on defendant’s cell

phone, he had two conversations wherein he implied to fellow gang members they could 

have access to his arsenal. Because no evidence tends to corroborate the People’s 

conclusion defendant sent or posted the advertisement, we believe that conclusion equally 

true to its counter -- that defendant kept the advertisement on his phone. Thus, the 

finding defendant offered to sell the items in the screenshot on his cell phone was 

unsupported by the evidence. (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 

1416-1417[“ ‘ “ ‘[a] finding of fact must be an inference drawn from evidence rather than 

. . . a mere speculation as to probabilities without evidence’ ” ’ ”], disapproved on other 

grounds in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6.) 

As to the Facebook conversation between defendant and an unknown individual in 

which defendant indicated he knew where to purchase a machine gun and “hundred 

round drums,” we believe that sufficient to establish he offered to sell a machine gun and 

a 100-round magazine. During the conversation, defendant showed his extensive 

knowledge of the machine gun by listing its characteristics and price, indicating his 
17

knowledge extended beyond knowing of a potential source for the machine gun. When 

the unknown individual expressed hesitation at purchasing such an expensive weapon, 

defendant became a salesman by justifying the price by pointing to the gun’s illegal but 

desirable characteristics and the risk involved in its manufacturing. The evidence also 

showed defendant possessed a machine gun and large-capacity magazine similar to the 

one he described in the conversation and that he was a member of a gang whose primary 

criminal activity was the sale of this assault weapon. Taken together, it was reasonable to 

infer the “fully auto” weapon and “hundred round drum” defendant offered to the 

unknown individual was the machine gun and the 100- round magazine he possessed or 

could be sourced from the criminal enterprise in which he participated. Accordingly, 

sufficient evidence supports defendant’s convictions for offering to sell a machine gun 

(count 1) and the 100-round, large-capacity magazine (count 7). 

B

Sufficient Evidence Supports Defendant’s Convictions Regarding 

The Large-Capacity Magazines Compatible With The Handguns

Former Penal Code section 32310 provided at the time of defendant’s arrest in 

June 2015 that “any person . . . who manufactures or causes to be manufactured, imports 

into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or 

receives any large-capacity magazine is” guilty of either a misdemeanor or a felony. 

(Stats. 2013, ch. 728, § 1.) Other than the conviction for the 100-round magazine, we 

concluded defendant offered to sell, he was also convicted of two other offenses under 

this section based on the large-capacity magazines found in the safe. 

The People argue those convictions are supported by the evidence because the 

statute prohibits the receiving of a large-capacity magazine, in addition to its sale, and the 

evidence, at a minimum, established defendant received the large-capacity magazines 

before putting them in the safe. Defendant counters the evidence was insufficient under 

this theory because receiving and purchasing large-capacity magazines became illegal in 
18

January 2014 (compare Stats. 2013, ch. 728, §1 to Stats. 2012, ch. 43 § 107), and the 

prosecution did not establish he received or purchased the large-capacity magazines after 

the prohibition was enacted. We agree with defendant. The evidence established 

defendant was a long-time member of the Varrio Bosque gang and often possessed 

firearms and large-capacity magazines. Given this evidence, it is not clear he received or 

purchased the large-capacity magazines after 2014 when the statute prohibited such 

conduct. 

The evidence, however, does show defendant kept the two large-capacity 

magazines for sale. During defendant’s Facebook conversation where he offered to sell 

an automatic assault weapon and its compatible large-capacity magazine, defendant

indicated he had access to other illegal weapons to sell. Defendant further manifested an 

intent to sell these particular large-capacity magazines by composing an advertisement to 

sell them. Considered with defendant’s participation in the illegal weapons trade, the 

evidence sufficiently established defendant kept the large-capacity magazines for the 

purposes of selling them. Thus, the evidence shows a violation of former Penal Code 

section 32310 as it pertains to the large-capacity magazine compatible with the .40-

caliber handgun (count 8) and the large-capacity magazine compatible with a ninemillimeter handgun (count 9).

C

Sufficient Evidence Supports Most Of Defendant’s Gang Enhancements

Defendant contends insufficient evidence established he committed all the 

offenses for the benefit of a criminal street gang. We agree sufficient evidence did not 

establish defendant acted for the benefit of a criminal street gang when he possessed 

methamphetamine for sale or when he possessed a loaded firearm in public and while in 

possession of drugs. We disagree as to defendant’s other contentions. 
19

1

Applicable Law

The “enhancement set forth in [Penal Code] section 186.22[, subdivision ](b)(1) 

does not . . . depend on membership in a gang at all. Rather, it applies when a defendant 

has personally committed a gang-related felony with the specific intent to aid members of 

that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 67-68.) To prove the crime was 

“gang related,” the prosecution need only prove one of three alternatives: the crime was 

committed “(1) for the benefit of, (2) at the direction of, or (3) in association with a 

gang.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198, italics omitted.)

“Second, there must be evidence that the crimes were committed ‘with the specific intent 

to promote, further, or assist in any criminal conduct by gang members.’ ” (People v. 

Rios (2013) 222 Cal.App.4th 542, 561.)

The prosecution may rely on expert testimony regarding criminal street gangs to 

establish a gang enhancement. (People v. Vang (2011) 52 Cal.4th 1038, 1048.) “A gang 

expert’s testimony alone[, however,] is insufficient to find an offense gang related. 

[Citation.] ‘[T]he record must provide some evidentiary support, other than merely the 

defendant’s record of prior offenses and past gang activities or personal affiliations, for a 

finding that the crime was committed for the benefit of, at the direction of, or in 

association with a criminal street gang.’ ” (People v. Ochoa (2009) 179 Cal.App.4th 650, 

657; accord, People v. Albillar, supra, 51 Cal.4th at p. 63.) “[P]urely conclusory and 

factually unsupported opinions” that the charged crimes are for the benefit of the gang 

because committing crimes enhances the gang’s reputation are insufficient to support a 

gang allegation. (People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820.)

Defendant relies on four cases to illustrate this point. First, in Rios, a jury found

the defendant guilty of carrying a loaded firearm in a vehicle and unlawful taking of a 

vehicle, finding the gang enhancement allegations attached to those crimes true. (People 

v. Rios, supra, 222 Cal.App.4th at p. 545.) An officer saw the defendant driving a car, 
20

which was later determined to have been stolen, and pulled the vehicle over based on a 

cracked windshield. (Id. at pp. 547-548.) Because the defendant, the vehicle’s sole 

occupant, did not have a driver’s license, the officer decided to impound the car. (Ibid.) 

During an inventory search, the officer found gang-related paraphernalia and a loaded, 

unregistered gun wrapped in a T-shirt under the front passenger seat. (Id. at p. 548.) 

Defendant admitted to gang membership and association during the booking process but 

denied membership at trial. (Id. at p. 549-550, 554.) “[T]here was no evidence that any 

victim in this case or anyone in the local community knew defendant was a gang 

member, was affiliated with a gang, or was acting with a gang purpose.” (Id. at p. 573.) 

The gang expert in Rios testified as to the value and uses of a gun, especially an 

unregistered gun that “cannot be traced back to the gang member.” (Id. at pp. 550, 553.) 

It was his opinion that “a gang member with a firearm promotes, furthers and assists 

felonious conduct by other gang members.” (Id. at p. 553.) The appellate court held this 

testimony and the evidence presented insufficient because “in a case such as this, where 

the defendant acts alone, the combination of the charged offense and gang membership 

alone is insufficient to support an inference on the specific intent prong of the gang 

enhancement” because “[o]therwise, the gang enhancement would be used merely to 

punish gang membership.” (Id. at pp. 573-574.) 

Also pertaining to the specific intent element, defendant points to Ramon. (People 

v. Ramon (2009) 175 Cal.App.4th 843.) In Ramon, the defendant, a gang member, was 

stopped by police in his gang’s territory while driving a stolen truck. A fellow gang 

member was his passenger, and an unregistered firearm was found under the driver’s 

seat. (Id. at pp. 846-847, 849.) The prosecution’s gang expert testified at trial that the 

stolen truck and the unregistered firearm could be used to commit gang crimes. (Id. at 

pp. 847-848.) He offered an opinion that possession of a gun and driving of a stolen 

truck in gang territory therefore benefited the gang and that the perpetrators of these 

offenses would intend to promote the gang. (Id. at p. 848.) The expert testified stolen 
21

trucks and firearms were “tools” the gang needed to commit other crimes. (Ibid.) The 

appellate court concluded this insufficient to prove the defendant had the specific intent 

to promote, further, or assist criminal conduct by gang members because no facts beyond 

the defendant’s gang membership, association, and location informed the expert’s 

opinion as to the crimes charged. (Id. at p. 852.) “While the People’s expert’s opinion 

certainly was one possibility, it was not the only possibility. And, as stated ante, a mere 

possibility is not sufficient to support a verdict.” (Id. at p. 853.)

Ochoa, on the other hand, pertains to the sufficiency of the evidence to support the 

gang benefit element of the gang enhancement. (People v. Ochoa, supra, 179 

Cal.App.4th at p. 652.) There, the defendant, a gang member, acted alone in committing 

a carjacking with a shotgun. (Id. at p. 653.) The offense had not occurred in the 

defendant’s gang’s territory. (Id. at p. 662.) A divided Fourth District found the 

evidence insufficient to sustain the benefit element of the gang enhancements attached to 

defendant’s carjacking and felon in possession of a firearm convictions. “[N]othing in 

the circumstances of the instant offenses sustain[s] the expert witness’s inference that 

they were gang related.” (Id. at pp. 661-662.) “[The gang expert’s testimony] was based 

solely on speculation, not evidence. An appellate court cannot affirm a conviction based 

on speculation, conjecture, guesswork, or supposition.” (Id. at p. 663.) 

In Perez, we concluded the evidence supporting both prongs was lacking. (People 

v. Perez (2017) 18 Cal.App.5th 598, 610.) There, the defendant, a “validated and heavily 

tattooed [Norteño] gang member,” shot four students at a college party. (Id. at pp. 601-

603.) There was no evidence, however, he was accompanied by a fellow gang member 

or the shooting took place in gang territory. (Id. at pp. 601, 609.) In response to the 

prosecutor’s hypothetical question (id. at p. 609), the gang expert testified the shooting 

benefited the Norteños because “ ‘[the shooting]’s going to instill fear in anybody who 

knows about that shooting occurring’ ” and “ ‘[t]hat fear is going to be now attributed to 

the reputation of the Norteños’ ” (id. at p. 610). The evidence, though, undermined his 
22

opinion: the defendant did not wear gang clothing, did not yell gang epithets, and did not 

throw gang signs; the defendant’s tattoos were not visible; and the partygoers did not 

know about the defendant’s gang affiliation. (Id. at pp. 609, 613-614.)

2

Sufficient Evidence Supports The Gang Enhancements, Except For 

Those Attached To The Convictions Concerning Items Seized From Defendant’s Car 

Defendant argues his case is similar to the above examples because no evidence 

linked his conduct with his gang, except the expert’s speculation and assumptions. 

Starting with defendant’s offer to sell the machine gun and its compatible large-capacity 

magazine, defendant argues the evidence is insufficient to show the offenses were gang 

related or that his specific intent was to assist any specific criminal conduct. Not so. 

In addition to defendant’s offer to sell and his gang membership, the evidence 

corroborated the gang expert’s testimony gun sales were a primary criminal activity of 

the Varrio Bosque and defendant’s engagement in that activity was gang related. At the 

time of defendant’s arrest, three other Varrio Bosque members were arrested for offering 

to sell short-barrel machine guns similar to the one defendant owned. One of them was 

Javier Moreno, a person featured in multiple videos on defendant’s cell phone

proclaiming his loyalty to defendant’s gang. 

Further, defendant possessed the same type of weapon those members possessed 

and offered to sell the weapon nine months before his fellow gang members were arrested

for similar conduct. This leads to the reasonable inference defendant and his fellow gang 

members sourced multiple weapons to sell as a gang. Indeed, a photo from defendant’s 

cell phone confirms this inference. The photo of three short-barrel assault weapons 

(similar in appearance to the machine gun seized from the safe) next to gang 

paraphernalia (the “City of Trees” placard) suggested defendant had access to multiple 
23

machine guns through his gang membership. Thus, evidence beyond defendant’s gang 

membership and the crime itself established the offer to sell was associated with the

Varrio Bosque’s criminal activity of illegally selling machine guns and that defendant 

intended his conduct to assist in that criminal venture. Because the evidence links 

defendant’s offer to sell the machine gun and compatible large-capacity magazine to the 

Varrio Bosque in this way, we need not address whether the evidence established the 

Varrio Bosque’s reputation for violence was benefited through this conduct as well. 

Unlike the offer to sell the machine gun and its compatible magazine, the evidence 

did not corroborate the gang expert’s testimony the Varrio Bosque also sold drugs as a

primary criminal activity. No evidence established other members were engaged in drug 

sales, nor did the videos or photos from defendant’s cell phone link defendant’s drug 

sales to his gang. True, his possession of drugs was heavily linked to his possession of 

guns, but these videos do not show defendant flashing gang signs or calling out gang 

names. The only evidence indicating defendant’s drug sales were gang related was a 

single communication where an unidentified individual asks defendant for drugs while 

referring to him by a commonly used gang term. This evidence reasonably established 

that one of defendant’s clients was a gang member, but not that defendant sold drugs as 

part of the larger Varrio Bosque criminal network and benefited the gang through his 

conduct. Because no evidence corroborated the expert’s opinion defendant’s sale of 

methamphetamine was gang related, let alone that he sold drugs with the specific intent 

to benefit the Varrio Bosque, insufficient evidence supports the gang enhancement 

attached to that conviction. 

The evidence is also insufficient to support the enhancements attached to 

defendant’s convictions for possessing a loaded firearm in public and while possessing 

methamphetamine. These convictions, as well as the possession of methamphetamine 
24

with intent to sell, were based on the search of defendant’s car after he arrived at work. 

While the expert testified gun possession benefits a gang’s reputation for violence and 

strikes fear in the community, we share the concerns of the cases cited by defendant in 

that there is no evidence specific to defendant showing his possession of this loaded 

firearm in public and while in possession of methamphetamine benefited his gang. (See 

People v. Perez, supra, 18 Cal.App.5th at pp. 613-614; People v. Rios, supra, 222 

Cal.App.4th at pp. 573-574; People v. Ramon, supra, 175 Cal.App.4th at pp. 852-853; 

People v. Ochoa, supra, Cal.App.4th at p. 663.) No evidence showed defendant shared 

his gang affiliation in the workplace, let alone that anybody actually knew of his 

membership or possession of guns and methamphetamine. Thus, no evidence 

corroborates the expert’s testimony the Varrio Bosque’s reputation was enhanced by 

defendant’s possession of a loaded firearm at the time of his arrest. Further, we have 

already concluded the evidence was insufficient to establish defendant’s possession of 

methamphetamine for purposes of sale was gang related, thus we cannot conclude his 

possession of a loaded firearm would benefit the gang by protecting the product sold as 

its criminal activity. Accordingly, insufficient evidence supports the gang enhancements 

attached to defendant’s convictions for possessing a loaded firearm in public and while in 

possession of methamphetamine. 

Outside of the primary criminal activities of the Varrio Bosque, the gang expert 

testified it was common among gang members to share weapons for use in criminal 

activities. Usually, the member with the shortest criminal record or risk of being caught 

would store the guns for shared use. Ample evidence established this was true for 

defendant. Defendant’s father testified defendant stored defendant’s weapons at his

(defendant’s father’s) home because defendant was not allowed to own them. Despite 

not keeping the weapons in his home, defendant had unfettered access to them, which the 

evidence established he then offered to his fellow gang members. When promoting his 

gang’s reputation for violence on social media, defendant indicated the handguns in the 
25

safe, along with their compatible large-capacity magazines, were available to his 

“brothers” to wage war. During a text message conversation with multiple gang 

members, defendant offered other weapons for use while planning a potential assault to 

solve an internal gang conflict.

6

 Similarly, during a text conversation, defendant listed 

his weapons when a fellow Varrio Bosque member inquired what “toys” he owned, as if 

taking inventory of available firearms. Further, photos on defendant’s cell phone show 

he allowed his fellow gang members to possess the weapons at least for photos. Taken 

together, the evidence established defendant was willing to share possession of his guns 

with his fellow Varrio Bosque members for the purpose of committing criminal activities, 

like the assault to resolve a gang conflict or for purposes of intimidating the community 

as shown in defendant’s Facebook posts and various photos on his cell phone. Thus, 

evidence beyond defendant’s gang membership and the expert’s testimony linked his 

possession of the firearms in the safe and his car to the Varrio Bosque. Accordingly, 

sufficient evidence supports the gang enhancements attached to those convictions. 

DISPOSITION

The gang enhancements attached to defendant’s conviction for possessing 

methamphetamine for sale (count 2) and possessing a loaded firearm while in possession 

of methamphetamine (count 10) and while in public (count 11) are stricken. The 

judgment is otherwise affirmed. The trial court shall prepare a modified abstract of 

6 Defendant argues this conversation should not stand for the proposition he was 

willing to loan his guns to fellow gang members because no evidence confirms his offer 

was genuine given nothing came of the conversation. He contends his excuse he could 

not participate in an assault because he was watching his children could have been cover 

for his true intent to not get involved. Defendant’s interpretation is but one interpretation. 

Another, and more reasonable interpretation, is exactly what defendant said -- he wanted 

to bring his weapons to assist his gang in the assault but could not because he was 

watching his children. 
26

judgment and forward a certified copy of it to the Department of Corrections and 

Rehabilitation. 

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Murray, J.

/s/ 

Krause, J.