Filed 2/27/15 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCELO ANTONIO LOPEZ, JR.,

Defendant and Appellant.

F067244

(Super. Ct. No. VCF266987)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. 

Kalashian, Judge.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and 

Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

A jury found defendant Marcelo Antonio Lopez, Jr. guilty of two counts of 

attempted murder (Pen. Code,1 §§ 664, 187, subd. (a)), one count of shooting at an 

occupied vehicle (§ 246), and two counts of assault with a firearm (§ 245, subd. (a)(2)). 

The jury also found true special allegations that he committed the offenses for the benefit 

of a criminal street gang (§ 186.22, subd. (b)) and that he personally and intentionally 

discharged a firearm (§ 12022.53, subd. (c)).

On appeal, Lopez contends there was insufficient evidence to support the gang 

enhancement finding. He also contends he received ineffective assistance of counsel 

because defense counsel failed to object to two aspects of the gang expert’s testimony.

In addition, the parties agree that incorrect terms were imposed for counts 4 and 5, 

the two counts of assault with a firearm. We will strike the 20-year firearm 

enhancements and reduce the gang enhancements from 10 years to five years for counts 4 

and 5. We affirm the judgment in all other respects.

FACTS AND PROCEDURAL HISTORY

In the evening of April 23, 2012, Christian D. and his friend Juan D. drove to a gas 

station in Pixley to buy a blunt wrap.2 They were in Christian’s black car and Christian 

was driving. At the gas station, they parked at a gas pump, went into the store, made 

their purchase, and returned to their car. As Christian and Juan were leaving the gas 

station, Juan saw someone throw gang signs. Specifically, he noticed a vehicle pull up to 

the front of the store and a person in the backseat “threw up the four.” Christian left the 

gas station and then made a U-turn to go back to the gas station. After Christian made 

the U-turn, Juan heard gunshots, and he ducked and covered. At the same time, Christian 

 

1

 Subsequent statutory references are to the Penal Code unless otherwise specified.

2 Blunt wraps were described as “cigarette wrapping” and were also referred to as “papers 

to roll marijuana cigarettes.”
3.

saw someone run toward his car and start shooting. He pushed the gas pedal and drove 

away. Neither Christian nor Juan was injured.

Christian and Juan did not go to the police after the shooting. Instead, they went 

to a friend’s house. They looked at Christian’s car and saw five bullet holes. Christian 

told his brother about the shooting, and his brother reported the shooting to the police.

Tulare County Sheriff’s Deputy Charles Rooney responded to the report of a 

shooting. He met Christian and inspected his car. There was a bullet hole in the lower 

right bumper of the vehicle, two holes on the right rear passenger door, and a hole in the 

lower right rear of the vehicle. One projectile was found in the trunk. Rooney believed 

the projectile was from a .25-caliber firearm.

Rooney then went to the Pixley gas station where the shooting occurred. Five .25-

caliber shell casings were found at the scene. One shell casing was in the gas station 

parking lot, and four more casings were found on the street on Main Street. The gas

station had a video surveillance system, and Rooney was able to view surveillance video 

of the shooting and events preceding the shooting. He observed Juan and Christian in 

Christian’s black car and a green two-door Chevy truck entering the gas station. Rooney 

recognized the front passenger of the green truck as Roy Pulido, with whom Rooney had 

previous contact. It appeared that Pulido made “hand gestures or mov[ed] his arms.” 

Pulido could be seen exiting the truck and going in the store, and he remained in the store 

during the shooting. Sergeant Larry Camacho also watched the surveillance video. He 

recognized Lopez and Pulido from prior contacts. The video showed that after Pulido got 

out of the truck, Lopez exited the truck from behind the passenger seat; Lopez then began 

chasing Christian’s car and fired at it.

The next day, sheriff’s deputies searched Lopez’s residence in Earlimart. They 

located two live rounds of .25-caliber ammunition in a sports bag that also contained 

Lopez’s clothing. No firearm or clip was found.
4.

Detective Victor Bonilla conducted a recorded interview with Lopez. During the 

interview, Lopez admitted he associated with Northerners but denied he was an active 

gang member. At first, Lopez told Bonilla he did not shoot anyone and he did not have a 

gun. He also denied that he had been in Pixley the previous day. Later, when confronted 

with evidence, Lopez admitted that he committed the shooting. At some point, Lopez 

said it seemed like the passenger in the black car had a gun.

In December 2012, the Tulare County District Attorney filed a five-count 

information against Lopez, charging him with attempted murder of Christian D. (§§ 664, 

187, subd. (a); count 1) attempted murder of Juan D. (§§ 664, 187, subd. (a); count 2), 

shooting at an occupied vehicle (§ 246; count 3), and assault with a firearm on 

Christian D. and Juan D. (§ 245, subd. (a)(2); counts 4 and 5 respectively). As to counts 

1 and 2, the district attorney alleged that Lopez attempted murder with premeditation 

within the meaning of section 664, subdivision (a). For all counts, it was alleged that 

Lopez committed the offenses for the benefit of a criminal street gang (§ 186.22, 

subd. (b)) and that a principal to the crimes personally and intentionally discharged a 

firearm (§ 12022.53, subds. (c) & (e)(1)).

A jury trial began on March 4, 2013. Christian and Juan testified about the 

shooting, and both testified there were no weapons in Christian’s car. Juan testified that 

he was not a gang member, but his friends were Southerners. He was in high school at 

the time of trial, and there were no Northerners at his high school. His classmates who 

were gang members were all Southerners.

Christian admitted that he was a Southern gang member. He testified that after he 

and Juan returned to his car at the gas station, Juan told him, “Look, here comes some 

persons in red,” which Christian understood to mean Juan saw rival gang members.3 

Christian recognized Pulido and knew him to be a Northerner. Christian admitted that he

 

3 Christian testified through an interpreter.
5.

returned to the gas station to fight “hand to hand.” He testified, “[T]hey threw the four 

and I thought if they were men ... they would fight with us, hand-to-hand fight, but they 

pulled out the gun.” He thought throwing the four was a sign of disrespect. In crossexamination, Christian agreed that he was uncooperative with the police and that, in one 

statement to the police, he stated that Pulido shot at his car.

Surveillance video from the gas station and a recording of Lopez’s interview were 

played for the jury.

Pulido, testifying under a grant of use immunity, agreed that on April 23, 2012, he 

went to a gas station in Pixley in a green truck. However, he denied that Lopez, whom he 

called “Panda,” went to the store with him. Shown still photographs from the video 

surveillance system, Pulido identified himself as the front seat passenger, but he could 

not identify the other person who got out of the green truck.

Rooney testified, among other things, that he interviewed Pulido the day after the 

shooting. Pulido told Rooney that on the day of the shooting, his friends, including 

Lopez, pulled up to his house in a green Chevy S-10 and asked him if he wanted to “burn 

one,” meaning smoke a marijuana joint. They drove straight to the gas station, with 

Lopez sitting in the back seat of the truck. Pulido said that he and Lopez were the only 

ones to exit the truck at the gas station.

Crystal Darington, a detective in the South County Gang Suppression Unit of the 

Tulare County Sheriff’s Department, testified as a gang expert. She was familiar with the 

various street gangs of Tulare County. Darington testified that Norteño or Northern gang 

members are generally located in Northern California and Sureño or Southern gang 

members are in Southern California. Southerners and Northerners are rivals. In the past, 

the dividing line between the gangs was Bakersfield, but Southerners have been moving 

north. At the time of trial, Pixley was Southern territory and Earlimart was Northern 

territory, and there were at least 2,000 Northerners in Tulare County.
6.

Darington explained that Northerners are overseen by the prison gang Nuestra 

Familia. She testified that the gang has a hierarchy similar to organization of the 

military. Northerners identify with the color red, the number 14, and the letter N. Hand 

signs are also symbols, and “throwing a four” shows allegiance to the gang. Darington 

testified that throwing gang signs to a rival would be as sign of disrespect or a challenge 

inviting some sort of confrontation. She further testified that the primary activity of 

Northerners is “[c]ommitting crimes,” including the crimes “[r]obbery, burglary, assaults, 

witness intimidation, just to name a few.”

Darington described two predicate offenses committed by Northern gang 

members. In 2010, Jesus Minhares was upset with his girlfriend. He forced her in a car 

and had his sister drive her to a location in Earlimart. Then Minhares ordered his cousin 

to fight his girlfriend. As a result of this incident, Minhares was convicted of assault with 

a deadly weapon. Darington opined that Minhares was a Northern gang member based 

on the facts that he had admitted to being a Northerner, specifically with the subset 

Infamous Youngstas, he associated with other gang members, and he wore the color red.

Darington explained that the Infamous Youngstas was a group of young men out 

of the Earlimart area. The group started in mid-2000 as the “Small Town Pimps” and 

renamed itself Infamous Youngstas in 2007. Regarding the relationship between the 

Infamous Youngstas and the Northerners, Darington testified:

“Nuestra Familia ... oversees all Northerners .... Then there’s Nortenos 

which typically have put in work and they are a member of that gang, 

whether it’s a criminal street gang or it’s just under the umbrella of the 

Nortenos. They [Infamous Youngstas] fit under the umbrella because they 

are the criminal street gang in Earlimart. They’re all Northerners. They all 

identify with the color red, and they all have an alliance with the Nuestra 

Familia.”

In 2009, Daniel Nunez and other Northern gang members from Earlimart stopped 

in Pixley to get gas. Nunez recognized someone at the gas station as a Southern gang 

member who had made fun of him when he was a child. Nunez told his friend he needed 
7.

backup, and then he and Alex Garcia yelled gang slurs and assaulted the victim. 

Darington opined that Nunez was a member of Infamous Youngstas and was a Northern 

gang member at the time of the offense. He was convicted of assault with a deadly 

weapon with a gang enhancement.

Darington was familiar with Lopez from personal contacts. In addition, she talked 

to other law enforcement officers and reviewed law enforcement reports on Lopez. She 

knew his gang moniker was “Panda Locs.” In July 2008, Lopez had contact with law 

enforcement when he was found with another Northern gang member. In March 2009, 

Lopez was caught on video surveillance with another gang member, Eric Macias, tagging 

property at the Earlimart middle school. Lopez tagged “Panda” and some gang slurs. He 

was about 15 years old at the time. Also in 2009, officers contacted Lopez while he was 

in a vehicle in Earlimart with four other Northern gang members, including Juan Perez 

and Simian Cruz. The officers stopped the vehicle because it matched the description of 

the suspect vehicle in a nearby gang-related drive-by shooting. Darington testified that 

Perez was a shot caller for the Infamous Youngstas. She was also familiar with Pulido, 

and she opined that Pulido, Macias, and Cruz were all validated gang members in the 

subset Infamous Youngstas.

In June 2010, Lopez’s fingerprints were found at the location of a residential 

burglary in the Earlimart area. In January 2012, Lopez was involved in a stolen vehicle 

case in Visalia. This incident involved other gang associates, including Nunez. In June 

2010, Lopez admitted to a detective that he was a member of Infamous Youngstas and he 

was wearing gang attire. In July 2010, Lopez denied that he was involved with Infamous 

Youngstas, but claimed to be a Northerner. He also denied using the moniker Panda 

Locs.4 In February 2012, a detective contacted Lopez. He was wearing a red belt with 

 

4 Darington testified that it was a trend in Earlimart to minimize gang membership when 

dealing with law enforcement. She explained that gang enhancements were being imposed 

against members of Infamous Youngstas, and they were trying to avoid gang enhancements.
8.

the letter N on the buckle and was with another known gang associate. In October 2008, 

Lopez was in custody at the juvenile detention facility and an officer found graffiti carved 

in his cell, including “XIV,” “Norte,” and “SK.” Darington explained that “scrap” is a 

derogatory term for Southern gang members used by Northerners and “SK” stands for 

“scrap killer.” In June 2008, Lopez was arrested for vandalism. At that time, he admitted 

to a probation officer that he was a Northern gang member with the moniker Panda. In 

October 2008, Lopez was booked into the juvenile detention facility. He admitted to 

being a gang member with the Infamous Youngstas, and he was wearing a T-shirt that 

read “IY” and “Fuck a scrap.” He was found wearing the T-shirt in Visalia. Darington 

testified that the T-shirt communicated that Lopez was an Infamous Youngsta and invited 

confrontation with Southerners. In August 2009, Lopez was contacted by his probation 

officer at a known gang hangout.

In October 2010, Lopez was booked into the juvenile detention facility after he 

was arrested for driving a stolen vehicle and evading arrest. At booking, he admitted to 

being an active Northern gang member with the Infamous Youngstas. Darington 

explained that every time a person is arrested and placed in custody in Tulare County, he 

or she is required to fill out an inmate classification questionnaire that asks whether the 

person associates with prison or street gangs. On two occasions, Lopez answered “yes” 

to this question and identified as “North.” He also listed “South” as his enemies.

Darington also reviewed photographs and papers found in Lopez’s possession. 

She read from a piece of paper, “Now I’m claiming IY and I’ll put a 9 to fucking dome,” 

which she stated meant Lopez was “claiming to be Infamous Youngstas and he would put 

a nine millimeter bullet in your head.” Darington read from another page: “These 

muthafuckas trying to be like me Panda Locs with a capital P. The homies use[d] to be 

the S.T.P. Now you bitch ass scraps get on your knees. Like me Big Panda Locs with a 

capital P, all up in your face and let the trigger squeeze 4, you lil squeeze tryin to be like 

me.” “S.T.P.” referred to the previous name of the subset, Small Town Pimps. 
9.

Darington testified about the writing: “It uses the derogatory term ‘scraps,’ which shows 

in my opinion he’s a Northerner speaking derogator[il]y of Southern gang members; 

again identifying himself as Panda Locs and that he has a propensity [for] violence 

towards these people.” Photographs of Lopez with other gang associates were admitted 

into evidence.

Darington testified that Lopez had a tattoo of “TC,” which represents Tulare 

County. She explained that Northern gang members pride themselves on their turf, and a 

tattoo of “TC” would say to rival gang members that Tulare County is Northern territory. 

Darington opined that Lopez was a gang member, specifically of the subset Infamous 

Youngstas. Her opinion was based on his admission in custody that he was a Northern 

gang member, his association with gang members, his involvement in gang-related 

crimes, his tattoo, and the fact that he had been found wearing gang attire and in 

possession of gang writings and photographs.

The prosecutor presented Darington with the following hypothetical situation: In 

the Pixley area—an area known to have a small number of Northerners and a large 

number of Southerners—a black vehicle enters a gas station at around 7:00 p.m. The 

driver and passenger buy blunt wraps and return to their vehicle; the driver is a 

Southerner. A green truck with two to four individuals enters the gas station. The 

passenger of the black car tells the driver that someone from the green truck threw a four 

at them. The black car starts to leave the gas station, but the driver feels disrespected and 

decides to go back. Two individuals from the green truck—referred to by the prosecutor 

as “shooter” and “friend”—get out of the truck. Friend goes into the gas station store, 

and shooter leans into the truck. Shooter walks around the truck and then runs toward the 

black car. Shooter starts to fire at the black car, firing five shots and chasing the car. 

Five shots hit the black car. Shooter has numerous gang-related law enforcement 

contacts and has identified himself as a Northerner when booked into custody. Writings 

found in shooter’s possession describe shooting scraps.
10.

Darington gave her opinion that the acts of the shooter in the hypothetical would 

be for the benefit of a criminal street gang. She noted that the hypothetical involves rival 

gangs members, a firearm is used, and the incident occurs during the day, so it would 

instill fear within the community. She explained, “[I]t promotes the gang, because it 

shows their propensity for violence, and they won’t back down.” She opined that the 

shooter in the hypothetical would gain respect within his gang. Darington further 

testified that she would expect the friend in the hypothetical to lie about the incident 

because he would not want to be a snitch or rat.

In cross-examination, Darington agreed that Northerners and Southerners may go 

to the same school, play on the same football team, sit in the same classrooms, and 

associate with each other in some ways. She agreed that if a young person had an uncle 

who was a Southern gang member, he might want to be housed with Southerners if he 

were arrested.

The defense called Lopez’s mother, Rosa Lopez, as a witness. In 1997, the family 

moved to Southern California. Lopez’s grandmother, who lived in Earlimart, was 

diagnosed with lung cancer, and Lopez was sent to live with her so she would have 

company. Rosa gave Lopez the nickname Panda because he was chubby and he liked to 

wear white and black. She testified that Lopez never indicated to her that he was a gang 

member. He had artistic leanings and liked to draw. Rosa further testified that she had 

never known Lopez to have a propensity for violence.

Lopez testified on his own behalf. He moved to live with his grandmother in 

December 2011. Before that, he was in Camp Miniwa, which was a military camp. He 

was at the camp because he stole a car in 2011. Lopez testified that he was aware of 

people in Earlimart who were gang members, but he was not a gang member. He never 

considered himself a gang member. Macias was his friend from Delano High School.

Lopez admitted that he committed the shooting. On April 23, 2012, he was with 

three guys in a green truck. He knew Pulido, but he did not know the driver of the truck 
11.

or the other passenger. They went to the gas station in Pixley to get a cigarette wrap. 

When they pulled into the gas station, Lopez heard the driver say something to the back 

passenger, but he did not hear what was said. He heard the back passenger say, “They’re 

coming back.” The back passenger told Lopez there was a gun, and Lopez grabbed it 

from the floor of the truck. Asked why he was getting a gun, Lopez first responded, “I 

don’t know,” and then “Well, he said they were coming back.” Lopez went toward the 

black car. Defense counsel asked why he was going toward the car. Lopez replied, “I 

don’t know. I just thought I was protecting myself.” Asked what he was protecting 

himself from, Lopez said, “Well, I don’t know what their intentions were.” He admitted 

that he ran toward the car and was shooting. He testified that he was “[t]rying to scare 

them away.” Asked what made him want to scare them, Lopez responded, “I don’t 

know. I felt like my life was threatened or something by them coming back.” He 

thought he saw a gun. Lopez testified, “When I was [standing] in back of the truck, I 

thought they had it pointed.” He further testified that it was not his intention to kill 

anybody when he fired the gun. Lopez did not know what happened to the gun he used; 

he left it in the green truck.

Lopez denied that he had ever seen the ammunition found in his bag during the 

search of his house. He testified that he did not know the ammunition was in his bag. He 

got the tattoo of “TC” when he was 13 years old. He got a tattoo of his mother’s name 

the same day.

The jury reached a verdict on March 11, 2013. Lopez was found guilty of all five 

counts. The jury found not true the special allegation that Lopez committed attempted 

murder with deliberation and premeditation, but found true the remaining gang and 

firearm allegations.

The sentencing hearing took place on May 7, 2013. For count 3, the trial court 

ordered an indeterminate term of 15 years to life pursuant to section 186.22, 

subdivision (b)(4)(B), plus an additional consecutive term of 20 years pursuant to 
12.

section 12022.53, subdivision (c). For counts 1 and 2, the court imposed two identical 

terms consisting of a middle term of seven years plus a consecutive term of 20 years 

pursuant to section 12022.53, subdivision (c), and an additional consecutive term of 10 

years pursuant to section 186.22, subdivision (b)(1)(C). The terms for counts 1 and 2 

were stayed pursuant to section 654. For counts 4 and 5, the court imposed identical 

terms consisting of a middle term of three years plus an additional consecutive term of 

20 years pursuant to section 12022.53, subdivision (c), and an additional consecutive 

term of 10 years pursuant to section 186.22, subdivision (b)(1)(C). Again, the terms were 

stayed pursuant to section 654.

DISCUSSION

I. Sufficiency of evidence on primary activities

The jury found true the special allegation that Lopez committed the offenses for 

the benefit of, at the direction of, and in association with a criminal street gang with the 

specific intent to promote, further, and assist in criminal conduct by gang members. As a 

consequence, Lopez was sentenced to an indeterminate term of 15 years to life for his 

conviction for shooting at an occupied vehicle. (§ 186.22, subd. (b)(4)(B).) Lopez also 

received an additional determinate term of 20 years for the firearm enhancement.)

A “‘criminal street gang’” is defined in section 186.22, subdivision (f), 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 the 

criminal acts enumerated in ... subdivision (e), 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.” (Italics added.) The enumerated 

criminal acts of subdivision (e) include assault with a deadly weapon, robbery, burglary, 

witness intimidation, grand theft of a vehicle, and shooting at an occupied motor vehicle. 

(§ 186.22, subd. (e)(1), (2), (5), (8), (9), (11).)
13.

On appeal, Lopez contends there was insufficient evidence of the primary 

activities element to support the gang enhancement finding. He points out that the 

prosecutor asked Darington about the primary activities of Northerners but he did not 

specifically ask her about the primary activities of the subset Infamous Youngstas. Lopez 

argues the prosecution failed to prove that the primary activities of the Northerners could 

be characterized as the primary activities of the Infamous Youngstas and, therefore, it 

failed to prove the gang enhancement allegation. We reject the premise of this argument. 

We conclude there was sufficient evidence to support the gang enhancement because 

there was sufficient evidence for a reasonable jury to determine that the Northerners are a 

criminal street gang and that Lopez committed the offenses for the benefit of the 

Northerners with the requisite specific intent.

In deciding a challenge to the sufficiency of the evidence, we “examine the whole 

record in the light most favorable to the judgment to determine whether it discloses 

substantial evidence—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. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment 

the existence of every fact the jury reasonably could deduce from the evidence. (Ibid.)

Here, Darington was familiar with the criminal street gangs of Tulare County and 

qualified as gang expert. She testified that the Northerners or Norteños are organized in a 

military-type hierarchy and identify with the color red, the number 14, and the letter N. 

The gang’s rivals are Southerners or Sureños. The primary activities of Northerners 

include robbery, burglary, assaults, and witness intimidation. She further testified about 

assault crimes committed by Minhares and Nunez, both of whom Darington identified as 

Northerners. Darington’s testimony was sufficient to support a finding that the group 

known as Northerners is a criminal street gang within the meaning of section 186.22. 

Indeed, Lopez does not claim that the gang expert’s testimony was insufficient to support 

the primary activities element as to the Northerners. The prosecution was not required to 
14.

separately prove that the Infamous Youngstas also qualify as a criminal street gang. (See 

People v. Ortega (2006) 145 Cal.App.4th 1344, 1356–1357 [rejecting argument that 

prosecution was required to prove which particular subset of Norteños was involved in 

charged crimes to establish gang enhancement].)

The evidence was also sufficient to support a finding that Lopez committed the 

offenses for the benefit of the Northerners with the requisite specific intent. The 

evidence showed Lopez was in the green truck with at least one other Northern gang 

member, the victims in the black car were a rival Southern gang member and an associate 

of Southerners, someone in the green truck directed a Northern gang sign at the victims 

before the shooting occurred, and Lopez chased the black car as he shot at it. In addition, 

Darington testified at some length about Lopez’s contacts with law enforcement, his gang 

moniker, his identification with Northern symbols through clothing, graffiti and writings, 

and his association with other known Northern gang members. In June 2008, Lopez 

admitted to a probation officer that he was a Northern gang member with the moniker 

Panda. In July 2010, Darington contacted Lopez, and he claimed to be a Northerner.5 In 

February 2012, Lopez was found wearing a red belt with the letter N on the buckle. 

Lopez demonstrated his antipathy to rival Southerners by wearing a T-shirt that said, 

“Fuck a scrap.” His writings also showed he was “a Northerner speaking derogator[il]y 

of Southern gang members.” Discussing the hypothetical presented by the prosecutor, 

Darington gave her opinion that the shooting would benefit a criminal street gang: 

 

5 Lopez argues that evidence showing he self-identified as a Northerner on juvenile 

custody forms cannot be considered proof that he was acting on behalf of the Northerners 

because a person who merely has a relative who is a Northerner might request to be housed with 

Northerners rather than Southerners. Lopez’s argument goes to the weight of the inmate 

classification evidence, however, not its relevance. Further, this argument ignores the evidence 

that Lopez apparently identified himself as a Northerner to law enforcement on occasions 

unrelated to inmate classification. It also ignores all of the other evidence tending to show Lopez 

was a Northerner (or at least felt an allegiance to Northerners) such as his writings, graffiti, 

attire, and history of associating with other Northern gang members.
15.

“Passersby could have seen what was happening, which instills fear within the 

community. Again, it shows that this specific gang is a force to be reckoned with. 

They’ll not tolerate the disrespect and they’ll handle business if you disrespect them or 

their cause. Furthermore, it promotes the gang, because it shows their propensity for 

violence, and they won’t back down.” The evidence of the circumstances of the shooting 

together with Darington’s testimony was sufficient for the jury to find the gang 

enhancement allegation true. (See, e.g., People v. Livingston (2012) 53 Cal.4th 1145, 

1170–1171 [evidence that the defendant, a gang member, was with fellow gang members 

when he fired shots at a rival gang member was sufficient evidence to support gang 

enhancement allegation; “a driveby shooting by a gang member of a rival gang member 

is a prototypical example of a gang-related crime”].)

For his argument, Lopez relies on People v. Williams (2008) 167 Cal.App.4th 983 

(Williams). In that case, the defendant was convicted of murder with a gang-activity 

special circumstance and was separately convicted of active participation in a criminal 

street gang. (Id. at p. 985.) At trial, prosecution witness Dilbeck testified that the 

Peckerwoods were a criminal street gang and that smaller groups such as the Small Town 

Peckerwoods (STP) were all factions of the Peckerwood organization. (Id. at p. 988.) 

On appeal, the defendant did not dispute that he was an active participant of STP, but he 

argued there was no evidence that he was an active participant in any other group and 

there was insufficient evidence of a connection between members of STP and the larger 

criminal street gang known as the Peckerwoods. (Id. at p. 987.) This court agreed with 

the defendant. We observed that Dilbeck’s opinion that smaller groups such as STP were 

factions of the Peckerwoods “appear[ed] to have been based on commonality of name 

and ideology, rather than concerted activity or organizational structure.” (Id. at p. 988.) 

We explained, “In our view, something more than a shared ideology or philosophy, or a 

name that contains the same word, must be shown before multiple units can be treated as 

a whole when determining whether a group constitutes a criminal street gang.” (Ibid.) 
16.

Consequently, we held “only [STP] and not some larger Peckerwood group, may be 

considered in assessing [the defendant’s] claims of evidentiary insufficiency.” (Id. at 

p. 989.)

Williams does not assist Lopez. In Williams, the defendant was convicted of 

active participation in a criminal street gang, but there was insufficient evidence showing 

the defendant was an active participant in the larger criminal street gang known as the 

Peckerwoods. In contrast, as we have explained, there was sufficient evidence in this 

case to support the jury’s findings that the Northerners are a criminal street gang and that 

Lopez committed the offenses for the benefit of Northerners. Thus, there was sufficient 

evidence to support the gang enhancement.6

II. Claims of ineffective assistance of counsel

Lopez claims he received ineffective assistance of counsel when his attorney 

failed to object to the gang expert’s testimony on two occasions. Specifically, defense 

counsel allowed the gang expert to testify without objection on (1) a prior gang-related 

shooting and (2) Lopez’s asserted propensity for violence toward rival Southerners as 

demonstrated by his writings. We begin with a brief discussion of the law governing 

claims of ineffective assistance of counsel and then consider the two instances of alleged 

deficient representation.

A. Applicable law and standard of review

“To secure reversal of a conviction for ineffective assistance of counsel, a 

defendant must establish [1] that counsel’s performance fell below an objective standard 

of reasonableness and [2] that, to a reasonable probability, defendant would have 

 

6 We note that, unlike the defendant in Williams, Lopez was not convicted of being an 

active participant in a criminal street gang under section 186.22, subdivision (a). The gang 

enhancement of section 186.22, subdivision (b), does not require proof of participation in a gang. 

(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130, fn. 5.) Nonetheless, we observe that, also 

unlike Williams, there was sufficient evidence in this case that Lopez was a member of the larger 

criminal organization, the Northerners.
17.

obtained a more favorable result absent counsel’s shortcomings.” (People v. Kraft, 

supra, 23 Cal.4th at p. 1068.) “If the record on appeal fails to show why counsel acted or 

failed to act in the instance asserted to be ineffective, unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation, the claim must be rejected on appeal.” (Id. at pp. 1068–1069.)

“Our review is deferential; we make every effort to avoid the distorting effects of 

hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. 

[Citation.] A court must indulge a strong presumption that counsel’s acts were within the 

wide range of reasonable professional assistance. [Citation.]” (People v. Dennis (1998) 

17 Cal.4th 468, 541.) “In general, reviewing courts defer to trial counsel’s tactical 

decisions in assessing a claim of ineffective assistance, and the burden rests on the 

defendant to show that counsel’s conduct falls outside the wide range of competent 

representation. [Citations.] In order to prevail on such a claim on direct appeal, the 

record must affirmatively disclose the lack of a rational tactical purpose for the 

challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.) 

“The decision whether to object to the admission of evidence is ‘inherently tactical,’ and 

a failure to object will rarely reflect deficient performance by counsel.” (People v. 

Castaneda (2011) 51 Cal.4th 1292, 1335.)

B. Failing to object to testimony on prior gang shooting

Darington reviewed law enforcement reports and spoke to other officers about 

Lopez. The prosecutor stated that he intended to ask Darington about, in chronological 

order, “[e]ach piece of information that [Darington] discovered in [her] research of ... 

Lopez that [she believed was] relevant in [her] opinion whether or not ... Lopez [was] a 

gang member.” Darington described an incident in December 2009 during which officers 

stopped a vehicle in Earlimart and found Lopez with four other Northern gang members. 

The prosecutor asked why this incident was relevant, and Darington responded, “[G]ang 

members associate with other gang members. They were found in the vicinity of a 
18.

gang-related-type shooting, [a] drive-by shooting. The vehicle they were located in 

matched the description of the suspect vehicle.”

“Gang evidence is relevant and admissible when the very reason for the 

underlying crime, that is the motive, is gang related.” (People v. Samaniego (2009) 172 

Cal.App.4th 1148, 1167.) “‘“[B]ecause a motive is ordinarily the incentive for criminal 

behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is 

permitted in admitting evidence of its existence.” [Citations.]’ [Citations.]” (Id. at 

p. 1168.)

Here, the prosecution’s theory was that Lopez chased and shot at Christian’s car 

because he intended to kill rival gang members. In addition, to establish the gang 

enhancement allegation, the prosecution was required to prove that Lopez committed the 

offenses “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).) Darington’s testimony about the December 2009 

vehicle stop showed Lopez’s prior involvement with gang members and was, therefore, 

relevant both to establish the motive for the charged offenses and to support the gang 

enhancement allegation.7

Lopez does not dispute that Darington’s testimony was relevant. He argues only 

that defense counsel should have raised an objection under Evidence Code section 352 on 

the grounds that the testimony was more prejudicial than probative and was cumulative. 

As we have mentioned, however, “[t]he decision whether to object to the admission of 

evidence is ‘inherently tactical,’ and a failure to object will rarely reflect deficient 

performance by counsel.” (People v. Castaneda, supra, 51 Cal.4th at p. 1335.) Here, the 

 

7

In light of Lopez’s subsequent testimony that he was not a gang member and did not 

consider himself a gang member, this gang evidence was also relevant to his credibility. (See 

People v. Samaniego, supra, 172 Cal.App.4th at p. 1167.)
19.

record does not disclose why defense counsel did not object to Darington’s testimony 

about the December 2009 vehicle stop because he was not asked to explain himself. 

Consequently, we must reject Lopez’s claim “unless there simply could be no satisfactory 

explanation” for his attorney’s conduct. (People v. Kraft, supra, 23 Cal.4th at p. 1069.) 

We have reviewed the trial transcript and observe that, in a 10-page span of transcript 

within which Darington’s testimony appears, defense counsel raised five objections to 

testimony and the admission of evidence and was overruled on each occasion. It is 

possible defense counsel decided not to object to this particular testimony because he 

believed the objection was likely to be overruled. Alternatively, defense counsel may 

have determined that interposing too many objections risked alienating the jury, or he 

may have thought that objecting risked highlighting the evidence to the jury. Since we 

can conceive of possible satisfactory explanations for defense counsel’s failure to object 

to Darington’s testimony, we cannot say his performance fell below an objective standard 

of reasonableness.

Further, even assuming his attorney’s conduct was deficient, Lopez has not shown 

prejudice. Had defense counsel objected under Evidence Code section 352 to 

Darington’s testimony about the December 2009 vehicle stop, it would have been within 

the trial court’s discretion to overrule the objection and allow the testimony. (See People 

v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“‘admission of gang evidence over an 

Evidence Code section 352 objection will not be disturbed on appeal unless the trial 

court’s decision exceeds the bounds of reason’”].) In order to find prejudice, we would 

have to conclude that it was reasonably probable that the trial court would have sustained 

an objection if it had been raised. On the record before us, we cannot do so.

Finally, as the Attorney General argues, any risk of potential prejudice from 

Darington’s testimony was mitigated by the jury instructions. The trial court instructed 

the jury as follows:
20.

“You may consider evidence of gang activity only [for] the limited purpose 

of deciding, one, [Lopez] acted with the intent, purpose, and knowledge 

that are required to prove the gang-related enhancements charge or[, two,] 

[Lopez] had a motive to commit the crimes charged. You may not consider 

this evidence for any other purpose. You may not conclude from this 

evidence that [Lopez] is a person of bad character or that he has a

disposition to commit crime.”

Lopez argues that the jury, having heard about the December 2009 gang-related 

shooting, would have inferred that Lopez was never convicted for the prior shooting and 

“would therefore have been motivated to punish [him] for both offenses by convict[ing] 

in the current case.” However, absent evidence to the contrary, we will presume the jury 

followed the court’s instruction on the limited use of the gang evidence. (See People v. 

Talhelm (2000) 85 Cal.App.4th 400, 409.) For all of these reasons, we reject Lopez’s 

claim of ineffective assistance of counsel based on defense counsel’s failure to object to 

Darington’s testimony about the December 2009 vehicle stop.

C. Failing to object to testimony on propensity for violence

In describing one of the gang-related documents found in Lopez’s possession, 

Darington testified: “To me it’s identifying who he is .... It uses the derogatory term 

‘scraps,’ which shows in my opinion he’s a Northerner speaking derogator[il]y of 

Southern gang members; again identifying himself as Panda Locs and that he has a 

propensity [for] violence towards these people.” Later in direct examination, the 

following questioning occurred:

“[Prosecutor]. So how do you size it up, then, and how is it that a 

teenager has writings in his possession that’s articulating the murder of 

other individuals, including shooting them in the head just for being a 

member of another group?

“A. Again, through my training and experience and through my 

opinion, I believe that he’s associating with gang members from the 

Earlimart area that have the same mentality and the same belief system as 

you’ve seen [in the written documents offered as evidence]. So I believe 

that he’s showing and demonstrating that he wants to live that type of life 

through the gang.
21.

“[Prosecutor]. So he’s demonstrating ... through his writing and his 

behavior that there’s almost a comfort with the idea of violence. Is that a 

fair statement?

“A. I believe so.

“[Prosecutor]. And now, through what we discussed and through a 

lot of these incidents and the fact that he’s hanging out with these 

Northerners and the fact you describe a lot of the activities that he’s in, is 

there an indoctrination where violence, which is absurd to the rest of us, 

which is not normal to the rest of us, is there an indoctrination that is 

making him okay with the idea of violence, especially ... against rival gang 

members?

“A. Again, in my opinion, when you become a gang member you’re 

not looking to be a productive member of society. You’re electing to be 

part of a group that is based on fear, intimidation, not only towards the rival 

gang members, but toward the community. So the violence is almost 

second nature because you’re not going to gain the respect and the fear and 

intimidation of not only the rivals, but in the community if you don’t do it 

through violence or threats of violence.”

Lopez recognizes that an expert is permitted to testify on her opinion “[r]elated to 

a subject that is sufficiently beyond common experience that the opinion of an expert 

would assist the trier of fact” (Evid. Code, § 801) and that “the culture and habits of 

criminal street gangs ... meets this criterion” (People v. Gardeley (1996) 14 Cal.4th 605, 

617). He argues, however, that the testimony quoted above went beyond permissible 

gang expert testimony under the limitations set forth in People v. Killebrew (2002) 103 

Cal.App.4th 644 (Killebrew), disapproved of on another ground in People v. Vang (2011) 

52 Cal.4th 1038, 1047–1048, footnote 3 (Vang), and Vang. Therefore, Lopez contends, 

defense counsel’s failure to object to this testimony constituted ineffective assistance of 

counsel. To assess Lopez’s contention, we begin with an examination of Killebrew and 

Vang.

In Killebrew, this court held that a gang expert may not testify about the subjective 

knowledge and intent of a defendant with respect to the crime charged. (Killebrew, 

supra, 103 Cal.App.4th at p. 647.) Killebrew involved a charge of conspiracy to possess 
22.

a handgun. The prosecution theorized that several young Black men observed traveling 

in three cars in East Side Crip territory late at night were all members of the East Side 

Crips and had conspired to possess two handguns. One of the handguns was found in one 

of the three cars seen traveling together. The other handgun was discovered hidden near 

a taco stand where the other two cars and seven suspects were found. (Id. at p. 648.) The 

defendant, Killebrew, was not found in the car with the gun or with the seven suspects at 

the taco stand, but the prosecution theorized that he had been in one of the three cars 

earlier that night and he also participated in the conspiracy. (Id. at pp. 648–649.)

At Killebrew’s trial, a gang expert testified at length about local gangs and gang 

psychology. He testified that, at the time of the alleged conspiracy, the East Side Crips 

would have been expecting retaliation from a rival gang because of a recent gang-related 

shooting. The expert also opined that Killebrew and the other suspects were all members 

of the East Side Crips. Killebrew did not challenge this testimony on appeal. (Killebrew, 

supra, 103 Cal.App.4th at p. 652.) He took issue, however, with the expert’s opinions 

that everyone in the group that night would know there was a gun in the car and would 

mutually possess the gun and that even occupants of the car to which no gun was ever 

linked would know of the guns in the other two vehicles and would mutually possess 

those guns. (Ibid., fn. 7.) Killebrew argued that these opinions on the subjective 

knowledge and intent of each occupant of the cars were impermissible. (Ibid.)

This court agreed. Surveying cases on gang expert testimony, we observed that 

testimony on the “‘culture and habits’” of criminal street gangs generally covers the 

composition or existence of a gang, gang territory, gang colors, graffiti, tattoos and hand 

gestures, rivalries between gangs, an individual’s membership in or association with a 

gang, the primary activities of a gang, the motivation for particular crimes (such as 

retaliation or intimidation), and whether and how a crime was committed to benefit or 

promote a gang. (Killebrew, supra, 103 Cal.App.4th at pp. 656–657.) The gang expert in 
23.

Killebrew, however, went much further as he “testified to the subjective knowledge and 

intent of each occupant in each vehicle.” (Id. at p. 658.)

The court concluded:

“[The gang expert’s] testimony was the only evidence offered by the People 

to establish the elements of the crime. As such, it is the type of opinion that 

did nothing more than inform the jury how [the expert] believed the case 

should be decided. It was an improper opinion on the ultimate issue and 

should have been excluded.” (Killebrew, supra, 103 Cal.App.4th at 

p. 658.)

The holding of Killebrew was limited. In reaching our conclusion, we noted that 

all of the following expert testimony would be admissible: that a gang would expect 

retaliation as a result of a prior shooting; that gangs would travel in large groups if 

expecting trouble; that in a confrontation, more than one gang member may share a gun 

in some circumstances; and that oftentimes gang members traveling together may know if 

one of their group is armed. (Killebrew, supra, 103 Cal.App.4th at p. 658.)

In Vang, the California Supreme Court held it was permissible for a gang expert to 

give his opinion that an assault committed in the manner described in a hypothetical 

question would be gang related. (Vang, supra, 52 Cal.4th at p. 1049.) Considering the 

significance of our decision in Killebrew, the high court explained:

“To the extent that Killebrew, supra, 103 Cal.App.4th 644, was 

correct in prohibiting expert testimony regarding whether the specific

defendants acted for a gang reason, the reason for this rule is not that such 

testimony might embrace the ultimate issue in the case. ‘Testimony in the 

form of an opinion that is otherwise admissible is not objectionable because 

it embraces the ultimate issue to be decided by the trier of fact.’ 

[Citations.] Rather, the reason for the rule is similar to the reason expert 

testimony regarding the defendant’s guilt in general is improper. ‘A 

witness may not express an opinion on a defendant’s guilt. [Citations.] 

The reason for this rule is not because guilt is the ultimate issue of fact for 

the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 

“Rather, opinions on guilt or innocence are inadmissible because they are 

of no assistance to the trier of fact. To put it another way, the trier of fact is 

as competent as the witness to weigh the evidence and draw a conclusion 
24.

on the issue of guilt.”’ [Citations.]” (Vang, supra, 52 Cal.4th at p. 1048, 

fn. omitted.)

Returning to the current case, we conclude that Darington’s testimony did not 

violate the rules on gang expert testimony expressed in Killebrew and Vang. She did not 

testify about Lopez’s subjective knowledge or intent at the time of the shooting. She did 

not, for example, opine that Lopez intended to kill Christian and Juan or that Lopez shot 

at Christian’s car because he knew the occupants were rival Southern gang members and 

he wanted to intimidate Southerners and the community at large. Rather, she properly 

gave her opinion as to a hypothetical question based on the evidence presented in the 

case. (See Vang, supra, 52 Cal.4th at p. 1046.) The challenged testimony quoted above 

was relevant to Lopez’s knowledge of gang life—including the violent rivalry between 

Northerners and Southerners—and his acceptance of gang culture. Thus, it was the type 

of permissible “‘culture and habits’” testimony we described in Killebrew, supra, 103 

Cal.App.4th at pages 656–657.

In light of the foregoing, defense counsel was not deficient for not raising an 

objection to Darington’s testimony based on Killebrew and Vang. (See People v. Bradley

(2012) 208 Cal.App.4th 64, 90 [“Failure to raise a meritless objection is not ineffective 

assistance of counsel.”].)

Lopez’s ineffective-assistance-of-counsel claim is based on Killebrew and Vang. 

He does not claim Darington’s testimony was improper character evidence nor does he 

cite Evidence Code section 11018in his appellate briefs. Nonetheless, to the extent 

 

8 Evidence Code section 1101, subdivision (a) provides generally that “evidence of a 

person’s character or a trait of his or her character (whether in the form of an opinion, evidence 

of reputation, or evidence of specific instances of his or her conduct) is inadmissible when 

offered to prove his or her conduct on a specified occasion.” However, nothing in Evidence 

Code section 1101 “prohibits the admission of evidence that a person committed a crime, civil 

wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in 

a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and 
25.

Lopez may be arguing that defense counsel should have objected to Darington’s 

testimony as improper character evidence, this argument fails. Defense counsel made the 

tactical decision to present character evidence by eliciting testimony from Lopez’s 

mother that she had never known Lopez to have a propensity for violence. Given this 

tactical decision, defense counsel could not object to Darington’s testimony on the 

ground that it was improper character evidence. (See Evid. Code, § 1102 [character 

evidence is admissible if offered by the defendant to prove his conduct conforms to the 

character and when offered by the prosecution to rebut such defense evidence].) The 

tactical decision to present character evidence of Lopez’s lack of propensity for violence 

is not outside the wide range of competent representation. As a result, we reject any 

claim of ineffective assistance of counsel based on counsel’s failure to raise a characterevidence objection to the prosecution’s evidence.

III. Sentencing errors 

Lopez was convicted of two counts of assault with a firearm in violation of 

section 245, subdivision (a)(2). For each of these counts (counts 4 and 5), the trial court 

imposed a middle term of three years, plus an enhancement of 20 years pursuant to 

section 12022.53, subdivision (c), plus an enhancement of 10 years pursuant to 

section 186.22, subdivision (b)(1)(C). The parties agree that these enhancements are not 

authorized under the law.

A. Firearm enhancement

Section 12022.53, subdivision (c), provides for an additional term of 20 years for a 

person who personally and intentionally discharges a firearm in the commission of a 

felony specified in subdivision (a). However, assault with a firearm in violation of 

section 245, subdivision (a)(2), is not among the felonies listed in subdivision (a) of 

 

in good faith believe that the victim consented) other than his or her disposition to commit such 

an act.” (Id., subd. (b).)
26.

section 12022.53. Accordingly, the 20-year enhancements for counts 4 and 5 are 

unauthorized, and we order them stricken. (See People v. Smith (2012) 24 Cal.4th 849, 

854 [appellate court may correct unauthorized sentence without remand].)

B. Gang enhancement

Under section 186.22, subdivision (b)(1), a person convicted of committing a gangrelated felony is subject to an additional five-year term if the felony is a “serious felony” as

defined in subdivision (c) of section 1192.7 or an additional 10-year term if the felony is a 

“violent felony” as defined in subdivision (c) of section 667.5 (§ 186.22, subd. (b)(1)(B) & 

(C).) Assault with a firearm in violation of section 245, subdivision (a)(2), is not a “violent 

felony” under section 667.5. It is a “serious felony,” however. (§ 1192.7, subd. (c)(31).) 

Therefore, the correct enhancements for counts 4 and 5 pursuant to section 186.22, 

subdivision (b)(1)(B), are additional five-year terms. We order the unauthorized 10-year 

terms for counts 4 and 5 stricken and replaced with five-year terms.

DISPOSITION

The 20-year enhancements imposed by the trial court under section 12022.53, 

subdivision (c), for counts 4 and 5 are stricken. In addition, the 10-year enhancements 

imposed by the trial court under section 186.22, subdivision (b)(1)(C), for counts 4 and 5 

are stricken and replaced with five-year enhancements pursuant to section 186.22, 

subdivision (b)(1)(B). The trial court shall prepare an amended abstract of judgment and 

forward a copy to the appropriate correctional authorities. The judgment is affirmed in 

all other respects.

_________________________

Kane, J.

WE CONCUR:

_______________________________

Levy, Acting P.J.

_______________________________

Poochigian, J.