1

Filed 10/6/14 P. v. Rodriguez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

PAUL RODRIGUEZ,

Defendant and Appellant.

C072561

(Super. Ct. No. 09F03130)

A jury found defendant Paul Rodriguez guilty of discharging a firearm at an 

inhabited dwelling and two counts of assault with a firearm, and further found the crimes 

were committed in furtherance of criminal street gang activities and that defendant 

personally used a firearm. (Pen. Code, §§ 186.22, subd. (b)(1), 245, subd. (a)(2), 246, 

12022.5, subds. (a) & (d).)1 The trial court found true that defendant was 16 years of age 

 

1

 Further undesignated statutory references are to the Penal Code.
2

or older when he committed the offenses. (See Welf. & Inst. Code, § 707, subds. (b) & 

(d).) The court sentenced defendant to prison for life, with a minimum parole period of 

15 years. (§ 186.22, subd. (b)(4)(B).) Defendant timely filed this appeal. On appeal, 

defendant challenges the gang enhancement, a parole revocation fine, and the custody 

credit award. We agree with the People that substantial evidence supports the gang 

enhancement, accept their concessions that defendant’s other contentions have merit, 

modify the judgment, and affirm. 

BACKGROUND

For purposes of this appeal, defendant does not dispute that on April 22, 2009, he 

fired multiple gunshots at an occupied house. Defendant, Richard Cooper, and Dejwonn 

Hightower were members of the gang North Highland Gangster Crips. These three Crips 

obtained two pistols and went looking for Blood members. When they saw their targets 

in a driveway, defendant and Hightower fired several shots towards them, hitting the 

house.2

The evidence in dispute concerns the gang testimony, which we now describe.

Detective Nick Goncalves, a peace officer for 17 years, had experience and 

training in gang suppression, particularly relating to Black street gangs. The defense did 

not challenge Goncalves’s expert qualifications. Goncalves had examined defendant’s 

cell phone, as well as Cooper’s. Both phones utilized North Highlands Gangster Crip 

screen savers, and defendant’s phone contained several gang-related pictures. The parties 

stipulated there were numerous calls between these two phones. 

The Bloods were the dominant Black street gang, associating themselves with the 

color red, and whose primary rivals were the Crips including “G Mob and their subsets” 

 

2

 Both codefendants were convicted of various counts. Cooper--who testified against 

defendant--did not appeal, and Hightower’s separate appeal is still pending in this court. 

(See People v. Hightower, case No. C071682.)
3

which include the North Highlands area. Respect is highly important for gang members, 

and is earned by “putting in work” for a gang, that is, committing violent crimes. 

Goncalves described two particular incidents of Crip members using firearms to shoot 

people. In one case, a Blood member was killed, resulting in a murder conviction for the 

Crip shooter; another involved a family dispute leading to a shooting, resulting in assault 

with a deadly weapon convictions for two Crip members. 

Defendant was a validated gang member and had gang tattoos. Cooper and 

Hightower, too, were validated gang members. Defendant had been involved in prior 

gang activity. On one occasion he and another gang member planned to burgle 

residences by knocking on doors to see if anyone was home, and when they were 

arrested, defendant admitted “burglarizing the house.”3 On another occasion, defendant 

and a fellow gang member had been shot, and although defendant would not cooperate 

with the police, one witness reported it was “probably” a result of a rival gang. After a 

letter and picture were found on defendant after a court appearance with Hightower, 

defendant said he was a North Highlands Gangster Crip. The picture and letter were 

gang related, and the letter included references to snitching and putting in work towards 

the gang, as well as arranging to get into protective custody, so defendant could talk to 

Cooper. 

Hightower had been with other gang members when the group surrounded two 

persons and asked if they “banged” and then took property from them. One of 

Hightower’s companions “yelled out Beast Mob killer” when arrested, which showed that 

incident was gang related. On another occasion, Hightower and his brother used guns to 

rob two men, one of whom was a validated Blood member, and pistol-whipped one of 

 

3

 On appeal, defendant describes this incident as an attempted burglary, which is not an 

enumerated gang crime, unlike a completed burglary. (See § 186.22, subd. (e)(11).) But 

the testimony that defendant admitted “burglarizing” the house was unrebutted.
4

their victims and said: “You just got robbed by Monk Mob.” The victims in this case 

were “Beast Mob” members or associates, rivals to the Crips. 

After reviewing the records of this case, Goncalves formed the opinion that this 

crime was gang related, because the violence bolstered the reputations of defendant and 

his fellow gang members, as well as their gang’s reputation. A known active gang 

member is less likely to be challenged in the streets as far as making money or 

controlling territory, and “[o]verall the individual in the gang is absolutely bolstered.” 

When shot at by a rival gang member, retaliation is essential to erase the disrespect that 

act represents. His opinion was “100 percent” sure.

Cooper’s testimony dovetailed with Goncalves’s testimony. He and defendant 

were members of the North Highlands Gangster Crips and in April 2009 they associated 

with subsets such as “TNA” and “Monk Mob.” Hightower, with whom they associated 

frequently, was a Monk Mob member. It was important for gang members to claim 

territory and to engender respect from others, including rival gangs. To gain respect, they 

“rob people, shoot at people, [who are] rival gang members, things like that, things of 

that nature.” Fighting with rival gang members would also generate respect. A few 

months before the instant crimes, there had been an incident at a party Cooper attended 

with several gang members, at defendant’s invitation. When they arrived, they saw many 

Mexican Norteño gang members. The Norteños made offensive Blood gang comments 

to defendant, who replied in kind, to counter their disrespect. Eventually one of Cooper’s 

group named “Doe Boy”--not defendant--punched one of the Norteños, and the rest of the 

group ran to join the fight, to show gang solidarity. When Cooper saw that he was 

bleeding from a knife cut, he and the others left so that Cooper could get his gun. Instead 

they went to Hightower’s house, where Hightower’s mother attended to Cooper’s wound, 

and they spent the night there.

On the day of the instant shooting, Cooper had been using cocaine and marijuana 

with a friend, and later defendant called to ask if Cooper had his firearm: “I told him, 
5

yes, I did. He asked me where I was. Told him Oak Hollow Apartments. And he said, 

good, because he had to go there any way to grab Lexiano’s gun, and he would come 

pick me up.” Lexiano was Alex Tolliver, a now-deceased TNA gang member who was a 

good friend of Cooper’s. Defendant said that St. Clair, an enemy Beast Mob blood 

member, had been seen, along with “some suckas.” A “sucka” is anybody the gang does 

not get along with. Defendant soon arrived with Hightower driving. 

Cooper had bought his gun--a .22-caliber revolver--and testified: 

“Anybody and everybody, any time I feel disrespected or unsafe, us, as gang members, 

carry guns all the time.” Cooper got in the back seat of the car, as defendant went to 

Tolliver’s apartment and came back with a .357 revolver. Cooper asked where they were 

going and what they were doing, and was told Tolliver had seen “St. Clair [and] some 

suckas” outside of a fellow Crip’s house (named Matthew Martinez, a.k.a. Crip Face). 

This was all Cooper needed to know to understand they were going to shoot at the enemy 

gang members. After discussing the idea of walking to the target, they decided to drive, 

parked and walked toward the house, with Cooper and defendant carrying their guns. At 

some point defendant said he would shoot four times “and save two in case they chased 

him.” They passed “a lot of people” in front of their houses, and Cooper said “It’s kind 

of hot out here,” meaning there were a lot of witnesses around. They returned to the car 

and drove past St. Clair and two others and could see two of the men were holding guns. 

Hightower parked the car past the house. Hightower asked Cooper to let him “get 

active,” and “put in work,” meaning benefit the gang, so Cooper gave Hightower his 

loaded and cocked revolver and Hightower walked off with defendant, after giving 

Cooper the car keys. 

After a minute or two, Cooper heard multiple shots and drove toward them, but 

after being signaled by Hightower, saw defendant holding his gun toward the house. 

Eventually Cooper stopped the car and Hightower arrived; Cooper gave him his keys 

back, and Hightower tossed Cooper’s gun in the car, where it was later found. Because 
6

the police were in the area, the two men quickly left and hid in some bushes. While they 

were hiding, with a police helicopter searching, Hightower told Cooper he had put 

Cooper’s gun in the car, which annoyed Cooper, because he thought his fingerprints 

would be on the gun. He threw his extra bullets over a fence, and eventually left 

Hightower, but was soon captured. Later the police put him in a car with defendant. 

Defendant told Cooper he had “tucked it,” which meant he had hidden his gun, and had 

either urinated on or put bleach on his hand, or both, and that he had been arrested on a 

warrant. Cooper lied to the police, but after a night in jail, he told them the truth, and 

admitted charges leading to a 20-year sentence in exchange for his truthful testimony. As 

a “snitch,” he could be killed for his testimony.

DISCUSSION

I

Gang Enhancement

Defendant contends no substantial evidence shows defendant’s gang qualifies as a 

criminal street gang under the relevant statutes, because the People “failed to establish 

that statutorily enumerated crimes of the gang constitute one of its ‘primary activities.’ ” 

We disagree.

“In determining whether the evidence is sufficient to support a conviction or an 

enhancement, ‘the relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’ ” (People v. Vy (2004) 

122 Cal.App.4th 1209, 1224.)

The relevant statute provides that a “ ‘criminal street gang’ means 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 the criminal acts 

enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision 

(e), having a common name or common identifying sign or symbol, and whose members 
7

individually or collectively engage in or have engaged in a pattern of criminal gang 

activity.” (§ 186.22, subd. (f), emphasis added; see People v. Sengpadychith (2001) 

26 Cal.4th 316, 322 (Sengpadychith) [“the trier of fact must find that one of the alleged 

criminal street gang’s primary activities is the commission of one or more of certain 

crimes listed in the gang statute”].) The referenced crimes include assault with a deadly 

weapon or by means likely to cause great bodily harm, robbery, unlawful homicide, 

burglary and unlawfully carrying a loaded firearm. (§ 186.22, subd. (e)(1), (2), (3), (11), 

(33).) “The phrase ‘primary activities,’ as used in the gang statute, implies that the 

commission of one or more of the statutorily enumerated crimes be one of the group’s 

‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude 

the occasional commission of those crimes by the group’s members.” (Sengpadychith, 

supra, 26 Cal.4th at p. 323.) “Sufficient proof of the gang’s primary activities might 

consist of evidence that the group’s members consistently and repeatedly have committed 

criminal activity listed in the gang statute.” (Id. at p. 324; cf. In re Alexander L. (2007) 

149 Cal.App.4th 605, 611 [isolated conduct insufficient]; People v. Perez (2004) 

118 Cal.App.4th 151, 160 [scant and remote conduct insufficient].)

The fact, emphasized by defendant on appeal, that Goncalves did not explicitly 

and directly list the “primary” activities of the gang is not dispositive. (See People v. 

Margarejo (2008) 162 Cal.App.4th 102, 106-108.) He testified violent acts constituted 

“putting in work” for the gang, and described two specific incidents involving gang 

members shooting at people, resulting in murder and assault with a deadly weapon 

convictions. Such incidents bolster respect both for the gang members perpetrating the 

crimes and respect for the gang as a whole. They qualify as gang activities. (§ 186.22, 

subd. (e)(1) & (3).) He also described two robberies, and the burglary defendant 

admitted. (See fn. 3, ante.) They, too, qualify as gang activities. (§ 186.22, subd. (e)(2) 
8

& (11).)4 Contrary to defendant’s evident view, these crimes were based on his review of 

reports, not “non-specific hearsay,” and no hearsay objections were lodged.

Defendant also ignores Cooper’s testimony, who described the activities of the 

gang as including robbing and shooting at people, which qualify as gang activities under 

section 186.22, subdivision (e)(1) and (2). Cooper then vividly described the reason for 

the shooting in this case, as an attack on enemy gang members, to garner respect, and in 

particular testified that Hightower wanted to “put in work” for the gang and asked to use 

Cooper’s gun to do so. Finally, he described the trio driving with loaded guns, and then 

Hightower and defendant walking down the streets while armed, which qualify as gang 

activities under section 186.22, subdivision (e)(33). (See § 25850, subd. (a), former 

§ 12031, subd. (a)(1).)

Defendant may be correct that the better practice may have been for the prosecutor 

to directly ask the expert to list the gang’s principal activities. This was not done. But 

the absence of such a direct question was not fatal to showing the North Highlands 

Gangster Crips was a criminal street gang. The expert was first asked to describe the 

definition of a criminal street gang, and listed several enumerated activities, such as 

murder, assault with a deadly weapon, robbery, burglary and unlawful possession of 

firearms, and then was asked if he could provide “two examples of the primary activities” 

of the gang. He then described a murder, an assault with a deadly weapon case, and the 

burglary case involving defendant. That sufficed. 

From all of this evidence, a rational jury could conclude that commission of 

statutorily enumerated crimes was a primary purpose of the gang.5

 

4

 In a cryptic reply to one question, Goncalves also referenced gang members talking 

about selling drugs, another enumerated crime. (§ 186.22, subd. (e)(4).) 

5

 To the extent defendant recasts his claim as a federal due process violation, it fails 

because substantial evidence supports the enhancement. And to the extent his briefing 
9

II

Parole Revocation Restitution Fine

Defendant contends, and the People concede, that the $8,000 parole revocation 

fine should instead be $3,000, because that fine must be equal to the $3,000 restitution 

fine imposed. (§ 1202.45; see People v. Villalobos (2012) 54 Cal.4th 177, 181.) 

Accordingly, we shall modify the judgment to reflect a stayed parole revocation 

restitution fine of $3,000.6

III

Custody Credits

Defendant contends, and the People concede, that he is entitled to 1281 days of 

actual conduct credit, not 1280 days as awarded. We agree, and modify the judgment 

accordingly.

 

may be read to claim his right to associate with others has been breached, we disagree. 

(See People v. Loeun (1997) 17 Cal.4th 1, 11.)

6

 The $8,000 listing may merely be a typographical error in the reporter’s transcript. The 

probation report recommended that the two fines be equal, and the abstract of judgment 

lists both fines as $3,000. 
10

DISPOSITION

The judgment is affirmed as modified. The trial court is directed to prepare an 

amended abstract of judgment and forward a certified copy to the Department of 

Corrections and Rehabilitation.

 DUARTE , J.

We concur:

 BLEASE , Acting P. J.

 ROBIE , J.