Filed 9/20/16 P. v. Cortez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

STEVEN CORTEZ,

 Defendant and Appellant.

2d Crim. No. B267299

(Super. Ct. No. 2014039136)

(Ventura County)

A jury convicted Steven Cortez of two counts of attempted murder

(Pen. Code, §§ 187, subd. (a), 664),

1

one count of street terrorism (§ 186.22, subd. 

(a)), and two counts of assault with a firearm (§ 245, subd. (a)(2)), and found true 

gang and firearm allegations (§§ 186.22, subd. (b)(1), 12022.5, subd. (a), 12022.53, 

subd. (c)). The trial court sentenced him to prison for an aggregate determinate 

term of 39 years; it also imposed victim restitution (§ 1202.4), in the sum of $4,000 

payable to the Fillmore Fire Department.

Cortez contends that the trial court erred by admitting cumulative 

evidence of his juvenile robbery adjudication to prove that his gang engaged in a 

pattern of criminal activity and by imposing restitution to the Fillmore Fire 

 

1 All further statutory references are to the Penal Code unless otherwise 

stated.
2

Department. We strike the restitution award to the Fillmore Fire Department and 

otherwise affirm.

FACTS

Cortez, Ricardo Magaña, and Christian Castaneda were members of 

the 12th Street Locos, a violent Santa Paula Street gang. One evening, Cortez and 

Magaña “were hanging out in [a] friend’s backyard” around a bonfire. Castaneda 

came over. He said “he had a stolen car” and asked Magaña if he “wanted to go 

ride around with him.” Since Magaña “was [Cortez’s] ride home” and the gang has 

a rule—“don’t leave a homey on the hang”—Magaña “asked Cortez if he wanted to 

roll with [them].” Cortez said, “Yeah.”

They drove to Steckel Park where Magaña tagged a utility box with 

their gang monikers and “X3LS”—an abbreviation for 12th Street Locos. Next 

they drove to Cortez’s house, where Cortez changed into jeans and a hooded 

sweater and picked up his .38 revolver. Cortez once told Magaña that he liked that 

type of gun because “it doesn’t leave shell casings,” which “makes it more difficult 

for a crime to be solved.”

Cortez said, “Let’s go to Fillmore.” He said that members of Little 

Boys, a rival gang, “hang out” in front of a liquor store there. Cortez thought that 

the three of them “might catch [the Little Boys] slipping,” meaning that they “could 

find [the Little Boys] off guard, maybe get in a fight with them,” or shoot and kill 

one of them.

They drove to Fillmore and stopped near the Green Valley Market. 

Magaña tagged the market with graffiti indicating “Santa Paula 12th Street Locos 

13,” which was a form of disrespect to the Little Boys by letting them know the 

12th Street Locos were present there. Afterwards, Cortez, Magaña, and Castaneda 

drove around Fillmore looking for Little Boys.

After a few minutes they headed back to the market to see if anyone 

was there or if their graffiti had been crossed out. Victor Vargas (Victor) and his 

brother Guillermo Vargas (Guillermo) were walking past the market on their way to 
3

a birthday party.2 Cortez said, “‘Look at those fools,’” and got out of the car. He 

asked Victor and Guillermo, “‘Where are you from?’” They kept walking. Cortez 

repeated his question. Victor stopped and looked at Cortez. Guillermo told Victor 

to keep walking. They turned away from Cortez and continued down the street.

Cortez pulled out his gun and shot at them five or six times. 

Guillermo tried to protect Victor by pushing him away. Victor was shot in the 

shoulder. Guillermo stumbled and fell to the ground next to a parked car. A bullet 

hit the tire in front of him.

Cortez got back in the car and said, “‘Let’s bounce.’” Castaneda 

drove “[f]ast” back towards Santa Paula. Cortez said, “Did you hear him yell?” He 

sounded proud to have shot someone. At a sharp turn Castaneda lost control of the 

car and crashed into a dirt hill. Magaña and Castaneda tried to get the car unstuck. 

Cortez, who had wandered off, reappeared without his sweater. They were arrested 

while trying to move the car onto the street.

DISCUSSION

Admission of Juvenile Robbery Adjudication

Cortez contends that the trial court erred under Evidence Code section 

352 (section 352) by admitting highly prejudicial and cumulative evidence of his 

juvenile adjudication for attempted robbery to prove the street terrorism count and

gang enhancements. “[S]ection 352 requires the exclusion of evidence only when 

its probative value is substantially outweighed by its prejudicial effect. ‘Evidence 

is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses 

an intolerable “risk to the fairness of the proceedings or the reliability of the 

outcome” [citation].’ [Citation.]” (People v. Quang Minh Tran (2011) 51 Cal.4th 

1040, 1047 (Tran).) We review the trial court’s ruling for abuse of discretion. 

(People v. Carey (2007) 41 Cal.4th 109, 128.)

 

2 We refer to the Vargas brothers by their first names to avoid confusion. No 

disrespect is intended.
4

The street terrorism count and the gang enhancements both 

required proof that 12th Street Locos members “engage in or have engaged in a 

pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “pattern of criminal 

gang activity” is defined as “the commission of, attempted commission of, 

conspiracy to commit, or solicitation of, sustained juvenile petition for, or 

conviction of two or more of [certain enumerated] offenses” (predicate offenses) 

during the period defined by statute. (§ 186.22, subd. (e); People v. Gardeley

(1996) 14 Cal.4th 605, 610, disapproved on another point by People v. Sanchez 

(2016) 63 Cal.4th 665, 686-687.) “[A] predicate offense [may] be established by 

proof of an offense the defendant committed on a separate occasion . . . .” (Tran, 

supra, 51 Cal.4th at p. 1046.)

The trial court allowed the prosecution to present evidence of three 

predicate offenses: convictions of gang members Frank Anaya and Ivan Lemus 

and, over Cortez’s objections, his sustained juvenile petition for attempted robbery. 

The gang expert testified about the facts of the attempted robbery adjudication: 

Cortez and another individual were in a vehicle. They pulled up to the victim, who 

was walking on the sidewalk wearing headphones. Cortez started a conversation 

with him and eventually asked, “‘Do you have anything on you? I like those 

headphones . . . .’” The victim observed Cortez reach for his waistband and 

believed he had a firearm or weapon. He stepped back, fearing for his safety.

Cortez stepped out of the vehicle and stood in a “bladed[] stance.” He 

asked the victim, “‘What else do you have inside your pockets?’” The victim told 

him, “‘I have a lighter,’” and gave it to him. Cortez then said, “‘That’s a nice cell 

phone. I want it.’” The victim stated, “‘It’s mine.’” The victim dialed 911, 

pretending to call his mother. Cortez asked him, “‘Would you rather be hit up or 

beat,’” meaning would he prefer to cooperate or be assaulted. Cortez and his 

companion then fled the area without taking the headphones or the phone.

Cortez argues that the trial court erred by admitting his juvenile 

adjudication because it was “so cumulative, and its relevance limited to issues that 
5

[were] not reasonably in dispute, that it [should have been] excluded.” We 

disagree.

The juvenile adjudication was not unduly cumulative. The 

prosecution was required to show two predicate offenses; it presented evidence of 

three. The trial court “need not limit the prosecution’s evidence to one or two 

separate offenses lest the jury find a failure of proof as to at least one of them . . . .” 

(Tran, supra, 51 Cal.4th at p. 1049.) Although “the probative value of the evidence 

inevitably decreases with each additional offense, while its prejudicial effect 

increases” (ibid.), this was not a case where “the prosecutor introduced evidence of 

at least eight” offenses (People v. Williams (2009) 170 Cal.App.4th 587, 609

(Williams)) or “the prosecutor had ample evidence apart from [the defendant’s] 

juvenile offense to establish both [the existence of] a criminal gang and [his being] 

a gang member” (People v. Leon (2008) 161 Cal.App.4th 149, 169 (Leon)).

3

 More 

recent cases have found evidence of six or even eight predicate offenses not unduly 

prejudicial. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436 [six]; People v. 

Hill (2011) 191 Cal.App.4th 1104, 1139 [eight].)

Cortez points out that the prosecution initially planned to use another 

gang member’s conviction as the third predicate offense but, after the trial court 

ruled his own juvenile adjudication admissible, used that instead. In addition, he 

notes, the charged offenses in this case could have served as predicates. (See

People v. Loeun (1997) 17 Cal.4th 1, 10.) He argues that his “juvenile adjudication 

was thus plainly cumulative to predicates already available to the prosecution.” 

Tran squarely rejected this argument. The Supreme Court held that “the 

 

3

It is unclear what Leon meant by the prosecution having “ample [other] 

evidence.” If the prosecution presented evidence of several other offenses 

committed by gang members, then Leon, like Williams, simply concluded that the 

defendant’s prior offense was cumulative. If the Court of Appeal meant that there 

was ample evidence of other gang offenses available to the prosecution that should 

have been presented instead of the defendant’s juvenile adjudication, then its 

holding is no longer good law in light of Tran, as discussed below.
6

prosecution[’s] . . . ability to develop evidence of predicate offenses committed by 

other gang members does not require exclusion of evidence of a defendant’s own 

separate offense to show a pattern of criminal gang activity.” (Tran, supra, 51 

Cal.4th at p. 1046.)

Nor was there excessive prejudice from the admission of Cortez’s 

juvenile adjudication. Because the juvenile petition was sustained, “there was little 

danger of confusing the issues by requiring the jury to determine if [he] was guilty 

of both the charged offenses and the [attempted robbery], and no risk the jury might 

convict [him] to prevent him from escaping punishment for the [attempted 

robbery].” (Tran, supra, 51 Cal.4th at p. 1050.)

Moreover, “[t]he evidence of [his attempted robbery] was less 

inflammatory than the testimony about the charged offenses [citation] . . . .” (Tran, 

supra, 51 Cal.4th at p. 1050.) As Cortez acknowledges, it “was never firmly 

established” that he had a gun during the attempted robbery—the victim merely 

feared that he did. He did not physically injure the victim at all. Here, in contrast, 

he shot at two victims without provocation and nearly killed them. The trial court 

did not abuse its discretion in admitting evidence of Cortez’s juvenile adjudication 

for attempted robbery.

Restitution

Cortez contends that the trial court erred by imposing $4,000 in 

restitution to the Fillmore Fire Department, which was not a direct victim but 

merely responded to the scene of the shooting. The People concede that restitution 

to the fire department was unauthorized by section 1202.4, subdivision (f). We 

agree. (See People v. Martinez (2005) 36 Cal.4th 384, 394 [disapproving of case 

“hold[ing] that a fire department that has incurred labor costs in fighting a fire on a 

vacant lot not owned by the department is a direct victim of the crime of unlawfully 

causing a fire”].) Accordingly, we will strike that portion of the trial court’s 

restitution award.
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DISPOSITION

The restitution order is modified to strike $4,000 in restitution to the 

Fillmore Fire Department. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Mark R. Feeser, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for 

Plaintiff and Respondent.