Filed 9/11/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL SAUCEDO VENEGAS,

Defendant and Appellant.

 B250678

 (Los Angeles County

 Super. Ct. No. TA120194)

APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick 

Connolly, Judge. Reversed and remanded with directions. 

Stephen B. Bedrick, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang, 

Deputy Attorneys General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of Sections 2 through 5. 
2

Appellant Daniel Saucedo Venegas was convicted, following a jury trial, of one 

count of shooting at an inhabited dwelling in violation of Penal Code1section 246, one 

count of shooting from a motor vehicle in violation of section 12034, subdivision (c), one 

count of assault on a peace officer in violation of section 245, subdivision (c), and one 

count of being an accessory after the fact in violation of section 32. The jury found true 

the allegations that the shootings and assault were committed for the benefit of a criminal 

street gang within the meaning of section 186.22, subdivision (b)(1)(B) and (b)(4) and 

that a principal was armed with a handgun in the commission of the shootings within the 

meaning of section 12022, subdivision (a)(1). The trial court sentenced appellant to a 

total term of 15 years to life in state prison for the section 246 conviction, pursuant to 

section 186.22, subdivision (b)(4)(B). The trial court also imposed concurrent terms of 

seven years for the section 12034 conviction, five years for the section 245 conviction, 

and three years for the section 32 conviction.

Appellant appeals from the judgment of conviction, contending the trial court 

erred in ruling it lacked jurisdiction to dismiss any part of count 1 and further contending 

the prosecutor committed misconduct in offering only a “package deal” plea bargain 

offer. Appellant also contends the court erred in refusing to reappoint counsel for codefendant Michael Estrada2

and further contends there is insufficient evidence to support 

the gang allegation. We hold that the trial court did have the authority to strike or dismiss 

the section 186.22, subdivision (b)(4), allegation in count 1, but affirm the judgment in all 

other respects. We reverse appellant’s conviction, however, and remand the matter for 

the trial court to consider appellant’s motion to enter an open plea. If the trial court 

denies that motion, appellant’s conviction is ordered reinstated.

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

2

Estrada is not a party to this appeal. Appellant and Estrada were tried together, 

but their appeals are separate. We have previously considered Estrada’s appeal. 

(People v. Estrada (Jan. 29, 2014, B247424) [nonpub. opn.].)
3

Facts

On September 27, 2011, about 10:30 a.m., Sylvia Lozano heard approximately 

three gunshots. Patricia Torres, who lived two houses away from Lozano on Indigo 

Street in Compton, heard five or six gunshots. Torres looked out her front window and 

saw a bald male who appeared to be “Latino” in front of Lozano’s gate. He ran away, 

toward Tamarind. Lozano discovered bullet holes in a wall of her house and called 911. 

Los Angeles County Sheriff’s Deputy John Orozco and his partner Deputy Robles 

were in the vicinity, heard gunshots, and saw two vehicles travelling on Indigo at a high 

rate of speed. One vehicle was gold, the other green. Both ran the stop sign at the 

intersection, narrowly missing a collision with the deputies’ car. Deputy Orozco saw that 

the driver of the gold car was appellant and the driver of the green car was co-defendant

Estrada. Neither car had any passengers. 

The deputies followed Estrada in the green car, which accelerated, ran a stop sign 

and turned onto Tamarind. There, the car stopped and Estrada threw an object out of the 

car. Luis Madera and Erika Contreras observed the object being thrown. Madera alerted 

Sheriff’s Deputy Alfonso Rodriguez to the object. Deputy Rodriguez discovered that the 

object was a gun, a Glock. 

Estrada turned onto Cocoa, and the deputies followed. Appellant re-appeared, 

driving the gold car toward the green car and the patrol car. After appellant passed the 

green car, he swerved toward the patrol car. Deputy Robles also swerved, and was able 

to avoid a collision. The deputies continued to follow Estrada in the green car as he 

drove through stop signs and traveled on the wrong side of the street. Estrada eventually 

returned to Tamarind with the deputies following. There, appellant reappeared in the 

gold car and drove head on into the patrol car, disabling it. The deputies were able to 

arrest appellant. 

Sheriff’s Deputies Jeff Lohmann and Saul Saucedo came to the crash scene, then 

drove down Caldwell following the last known direction of Estrada in the green car. The 

officers found the green car, a Mercury Sable, on East Caldwell. No one was inside. A 

bullet casing was visible on the windshield. A containment was set up around the area. 
4

Deputies learned that Estrada was located inside the home of Patsy Thomas. After 

the house was surrounded, Estrada surrendered. Martha Oviedo, who lived across the 

street from Thomas, confirmed that she had seen Estrada drive up in the green car earlier. 

Sheriff’s Criminalist Manuel Munoz test fired the gun recovered from Tamarind 

Street and compared casings from that firing with casings recovered from the sidewalk in 

front of Lozano’s home and the windshield of the green car. All of the recovered casings 

were fired from the recovered gun. A bullet recovered from Lozano’s home had the 

general rifling characteristics that would be produced by being fired from the Glock, but 

was too deformed to be matched to the Glock. 

A gunshot residue (“GSR”) test was performed on Estrada on the day of his arrest. 

Two particles in the sample collected were consistent with gunshot residue. 

At trial, the prosecution presented evidence that appellant and Estrada were 

members of the Compton Varrio, Born Krazy Minded, 13 gang (“BKM”). Sheriff’s 

Investigator Joseph Sumner testified as an expert on the BKM gang. The Lozano house 

on Indigo Street was in territory previously claimed by the BKM gang before they were 

pushed out. They were trying to reclaim the area. Given a hypothetical based on the 

facts of this case, Investigator Sumner opined that the activities were done for the benefit

of the BKM gang. Gangs often used two cars during a shooting, to facilitate the success 

of the shooting. 

Appellant offered the testimony of Head Deputy Alternate Public Defender 

Armando Wood that in his experience in the Compton courthouse, the majority of 

shooting cases do not involve two cars. 

Estrada testified on his own behalf. He admitted firing gunshots on Indigo Street, 

but claimed he was fired at first by two Hispanic men. He drove away. When he was 

stopped at a stop sign, Deputies Orozco and Robles pulled up next to him, got out of their 

car and pointed their guns at him. Estrada was afraid and drove away in fear. During his 

flight from deputies, he noticed his childhood friend appellant driving past in a gold car. 

Estrada parked his car and went into the backyard of the Thomas house. Rick Thomas, a 
5

childhood friend, invited him inside. At some point, the police surrounded the house and 

Estrada surrendered. 

Discussion

1. Authority to strike gang allegation

Appellant was charged in count 1 of the information with shooting at an occupied 

dwelling, and it was alleged that the shooting was committed for the benefit of a criminal 

street gang within the meaning of section 186.22, subdivision (b)(4). That subdivision 

provides that upon conviction of the underlying offense, the defendant will be sentenced 

to an indeterminate term of life in prison. From very early in this case, appellant sought a 

plea agreement which would provide a determinate sentence.

The prosecutor offered appellant and co-defendant Estrada a “package” plea 

agreement, which required both defendants to plead guilty in order for the offer to be 

effective. Under this agreement, appellant would have received a determinate term of 10 

years in state prison.3 Estrada did not want to enter into the plea agreement, so appellant 

moved that he be allowed to enter a guilty plea to count 1 in the “hope” that the trial court 

would strike the section 186.22, subdivision (b)(4)(B), provision requiring a 15 year to 

life term and sentence him to a determinate term. The prosecutor opposed the motion, 

contending the court had no discretion to strike the allegation. The prosecutor relied on 

People v. Campos (2011) 196 Cal.App.4th 438 (“Campos”) and People v. Jones (2009) 

47 Cal.4th 566 to support her contention.

The court responded as follows: “And the court did say that the court would 

consider it, if the court did have discretion in doing those things. And for reasons very 

similar to what [appellant’s trial counsel] has already stated, I think that without this 

being a reflection of what occurred, because, obviously, the court has not heard those 

3

The offer would have required appellant to plead guilty to two different charges, 

which would have resulted in two “strike” convictions. At one point, the prosecutor 

made an alternate offer of a determinate term of 15 years with only one “strike”

conviction.
6

facts and doesn’t know how egregious or if it is egregious at all, what the conduct was in 

this matter; but just out of a sense of fairness, the court said that it would consider it.” 

The reasons previously stated by appellant’s trial counsel were that appellant had wanted 

to enter into a plea agreement from the very beginning of the case, and was willing to 

take the sentence described by the prosecutor as part of the package plea. 

The court added: “The court has not read these cases though, and I will read the 

cases. I do know the Campos case. I do not know the Jones case at all. [¶] And it is my 

expectation that it is going to state precisely what [the prosecutor] has said. And if that is 

the case, the court would not have the authority to strike, and that that discretion has been 

taken away, and the court cannot do anything. But I will read the cases and see if that is 

exactly what it does state. [¶] And so with that pending, we’re going to be moving 

forward.”

4

The trial court correctly understood Campos, supra, 196 Cal.App.4th 438.

5

 In that 

case, Division One of the Fourth District Court of Appeal held that a trial court’s 

discretion to strike section 186.22 sentencing allegations is controlled by section 186.22, 

subdivision (g), which provides, “Notwithstanding any other law, the court may strike the 

additional punishment for the enhancements provided in this section or refuse to impose 

the minimum jail sentence where the interests of justice would best be served. . . .” The 

court found that section 186.22 allegations which impose an indeterminate life term are 

an alternate sentencing scheme, not an additional punishment for an enhancement. The 

4 We do not agree with respondent that appellant has forfeited this claim by failing 

to press the trial court for a ruling, thereby abandoning the claim. The court stated that it 

was familiar with Campos, supra, 196 Cal.App.4th 438 which holds that a trial court 

lacks authority to strike a gang allegation which provides an alternate sentencing scheme. 

The court’s comments clearly indicate that it was denying appellant’s motion, subject to 

reconsideration if the cases were not as described by the prosecutor.

5

The only relevance of People v. Jones, supra, 47 Cal.4th 566 to the issue before 

the trial court in this case was the Supreme Court’s confirmation that indeterminate life 

sentences under section 186.22, subdivision (b)(4), are alternate sentencing schemes (or 

penalty provisions) rather than enhancements. The Court did not consider the issue of a 

trial court’s authority to strike allegations under section 186.22.
7

court concluded that since subdivision (g) did not authorize trial courts to strike alternate 

sentencing schemes, trial courts had no authority to strike such schemes. (People v. 

Campos, supra, 196 Cal.App.4th at pp. 448-449.) 

The court recognized that trial courts have authority under section 1385, 

subdivision (a), to dismiss sentencing allegations, but held that section 186.22, 

subdivision (g), provided clear legislative direction that section 1385, subdivision (a), did 

not apply to section 186.22 allegations. (People v. Campos, supra, 196 Cal.App.4th at 

pp. 450-452.) The court based its holding in large part on the Legislature’s decision to 

begin subdivision (g) with the phrase “[n]otwithstanding any other law.” The court 

characterized this phrase as a “‘term of art” [which] expresses a legislative intent “to have 

the specific statute control despite the existence of other law which might otherwise 

govern”’ [citation] and ‘declares the legislative intent to override all contrary law.’

[Citation].” (Id. at p. 452.) The court also reasoned that subdivision (g) controlled over 

section 1385 because “the specific statute prevails over the general statute” and “the 

later-enacted statute prevails over the earlier-enacted statute.” (Id. at p. 453.) Finally the 

court believed that using section 1385 to dismiss or strike gang allegations would render 

section 186.22, subdivision (g), “‘redundant and unnecessary’” or mere ‘meaningless 

surplusage’ and courts “do [not] construe statutory provisions so as to render them 

superfluous.” (Id. at p. 454.)

Appellant does not attack the reasoning of Campos, supra, 196 Cal.App.4th 438 in 

this appeal, apparently believing that it was settled law and such an argument would be 

futile in an intermediate appellate court. Instead, he argues that even if the trial court 

lacked authority to strike the gang allegation, the court had the authority under section 

1385 to dismiss the entirety of count 1. We nevertheless exercise our discretion to 

consider appellant’s claim, made in the trial court, that a trial court does have authority to 

strike a section 186.22, subdivision (b)(4), gang allegation.

We review conclusions of law de novo. (Haraguchi v. Superior Court (2008) 43 

Cal.4th 706, 711-712.) A “disposition that rests on an error of law constitutes an abuse of 

discretion.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
8

We disagree with the holding of People v. Campos, supra, 196 Cal.App.4th 438. We 

hold that section 186.22, subdivision (g), does not contain “clear language” signaling the 

Legislature’s intent to eliminate a trial court’s authority under section 1385, subdivision (a), 

to strike factual sentencing allegations under section 186.22, subdivision (b), imposing an 

alternate sentencing scheme.

6

 That authority remains.

A trial court has authority under section 1385, subdivision (a), to strike factual 

allegations relevant to sentencing, including both enhancement allegations and 

allegations which support an alternate sentencing scheme. (People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497, 518, 527, 529-530 [trial court has power to strike or 

dismiss three strike allegations; three strikes law is an alternate sentencing scheme].) The 

Legislature may eliminate a court’s power to strike or dismiss under section 1385, but 

“we will not interpret a statute as eliminating courts’ power under section 1385 ‘absent a 

clear legislative direction to the contrary.’” (Ibid.) There is no such clear direction in 

section 186.22, subdivision (g).

Subdivision (g) begins with the phrase “[n]otwithstanding any other law.” This

phrase in a statute is a term of art which signals the legislative intent that the statute 

control, override or displace contrary, conflicting or inconsistent law. (In re Greg F.

(2012) 55 Cal.4th 393, 406 [contrary]; Arias v. Superior Court (2009) 46 Cal.4th 969,

983 [conflicting]; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 524

[inconsistent].) Generally, when the Legislature has intended to eliminate the trial court’s 

section 1385, subdivision (a), power to dismiss or strike a factual sentencing allegation, it 

has done so directly and by using the word “notwithstanding” to contrast inconsistent 

propositions. There are numerous examples of this direct limitation, including section 

667.61, subdivision (g), which provides: “Notwithstanding Section 1385 or any other 

provision of law, the court shall not strike any allegation, admission, or finding of any of 

the circumstances specified in subdivision (d) or (e) for any person who is subject to 

6 The issue of whether section 186.22, subdivision (g), restricts a trial court’s 

authority under section 1385 is now before the California Supreme Court in People v. 

Fuentes, review granted August 13, 2014, S219109.
9

punishment under this section.”

7

That is not the case with section 186.22, subdivision 

(g).

Section 186.22, subdivision (g), does not directly mention section 1385, and does 

not prohibit any action otherwise permitted by section 1385. Rather, section 186.22, 

subdivision (g), like section 1385, gives the trial court power to strike. Subdivision (g) 

gives the court the power to strike the additional punishment imposed once certain section 

186.22 enhancement allegations have been found true. Section 1385, subdivision (a), 

gives the trial court power to strike factual sentencing allegations (including enhancement 

allegations), or to dismiss them. Dismissing or striking a factual sentencing allegation and 

striking the additional or alternate punishment when the enhancement allegation is found 

to be true are two different things. (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1444 

[“Having decided to afford leniency in this case, the sentencing court had two options. It 

could either strike the enhancement allegation in its entirety or strike the additional threeyear punishment for the enhancement”].) Thus, the two options are compatible with each.

The trial court’s power to dismiss or strike factual sentencing allegations under 

section 1385 is not contrary to, in conflict with, or inconsistent with the court’s power to 

strike the additional punishment for the allegation under section 186.22, subdivision (g).

Thus, use of the phrase “[n]otwithstanding any other law” in section 186.22, 

subdivision (g), is not “clear language” (People v. Fritz (1985) 40 Cal.3d 227, 230)

signaling the Legislature’s intent to eliminate a trial court’s section 1385, subdivision (a),

authority to strike a factual sentencing allegation made pursuant to section 186.22, 

subdivision (b). 

We recognize that subdivision (c)(1) of section 1385 gives a trial court the power 

to strike the additional or alternate punishment for a factual sentencing allegation if the 

court has the power to dismiss or strike the allegation under section 1385, subdivision (a). 

As the court in Campos pointed out, we do not construe statutes in a manner to make 

them redundant. (People v. Campos, supra, 196 Cal.App.4th at pp. 454-455.) An 

7

Similar express references to section 1385 are found in section 667.71, 

subdivision (d), section 12022.5, subdivision (c), and section 12022.53, subdivision (h).
10

examination of legislative history shows, however, that section 186.22, subdivision (g),

was not redundant when it was enacted. 

Section 1385 was enacted in 1872. (People v. Bonnetta (2009) 46 Cal.4th 143, 

148.) Subdivision (c) of section 1385 was not enacted until 2000 and was added by 

Statutes 2000, chapter 689, section 3, enacting Assembly Bill No. 1808 (1999–2000 Reg. 

Sess.). (Historical and Statutory Notes, 51A pt. 1 West’s Ann. Pen.Code (2011 ed.) foll. 

§ 1385, p. 287.) Section 186.22, subdivision (g), was enacted as part of the original 

legislation in 1989 and initially was codified as section 186.22, subdivision (d). 

(Stats.1989, ch. 930, § 5.1, pp. 3253–3254; 47 West’s Ann. Pen. Code (1999 ed.) amend. 

history foll. § 186.22, p. 465.)

Thus, when section 186.22 was enacted, section 1385 did not include subdivision 

(c) and did not give the trial court authority to strike the additional or alternate

punishment for a factual sentencing allegation. Section 186.22. subdivision (g) (initially 

codified as section 186.22, subdivision (d)) complemented, rather than displaced, 

section 1385, subdivision (a), by granting the trial court such additional power.

The trial court in this matter understandably was unaware that it had the authority 

under section 1385 to strike the section 186.22, subdivision (b)(4), allegation in this 

matter. Nevertheless, a trial court’s failure to exercise discretion is an abuse of 

discretion, even when based on a mistaken belief it lacked discretion. (People v. 

Orabuena (2004) 116 Cal.App.4th 84, 99-100.) We cannot say the trial court’s mistaken 

belief was harmless.

The court indicated before trial that it would consider striking the allegation if it 

had the authority to do so. After trial, the court indicated that it still believed that a low

sentence was appropriate. The court stated: “Mr. Venegas, I have made representations 

in the past that based upon the fact that even prior to the preliminary hearing I believe 

that you wished to accept the People’s offer which was a determinate term of I believe it 

was 10 years . . . . And that based upon let’s call it the reluctance of Mr. Estrada to accept 

any deal in his matter, you were unable to accept that offer which was a package offer. 

[¶] And it is my intent still, but I will hear from you and I will hear from Ms. Hardiman 
11

also, to sentence you to the lowest amount of time that I can. That is still a life term 

unfortunately, but that is still my intent.” The court did in fact sentence appellant to what 

it believed was the lowest possible term. The court’s statement that “unfortunately” the 

lowest term was a life term is a strong indication that the court still believed a 

determinate term could be appropriate. The matter must be remanded to permit the trial 

court to exercise its discretion. 

Accordingly, we vacate appellant’s conviction and remand the matter to the trial 

court to consider appellant’s motion to enter an open plea. If the court denies this 

motion, the conviction is ordered reinstated. The trial court should then exercise it 

discretion and resentence appellant.

[Sections 2 through 5 are deleted from publication, see note at page 19 where publication 

is to resume]

2. Package plea agreement

Appellant contends the prosecutor’s offer of a package plea bargain offer 

constituted prosecutorial misconduct. Appellant further contends that if his claim is 

forfeited because he did not object on this specific ground in the trial court, he received 

ineffective assistance of counsel. 

As we discuss above, the prosecutor’s offer required both appellant and codefendant Estrada to plead guilty in order for the offer to be effective. Estrada made it 

clear on several occasions that he would not accept the offer. Appellant’s counsel made 

various attempts to obtain a plea bargain for appellant alone. However, at no point did 

appellant’s counsel claim that the package plea offer constituted prosecutorial 

misconduct. Accordingly, appellant has forfeited this claim. (People v. Lopez (2008) 42 

Cal.4th 960, 966.)

Appellant contends that if his claim has been forfeited, he received ineffective 

assistance of counsel. Appellant has the burden of proving ineffective assistance of 

counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, 
12

appellant must show that his counsel’s performance fell below an objective standard of 

reasonableness, and that, but for counsel’s error, a different result would have been 

reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; 

People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” (Strickland v. 

Washington, supra, 466 U.S. at p. 694.) “‘Because of the difficulties inherent in making 

the evaluation, a court must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’ [Citations.]” (People v. Thomas (1992) 2 Cal.4th 489, 

530-531.) 

“When a claim of ineffective assistance is made on direct appeal, and the record 

does not show the reason for the counsel’s challenged actions or omissions, the 

conviction must be affirmed unless there could be no satisfactory explanation.” (People

v. Anderson (2001) 25 Cal.4th 543, 569.)

Appellant contends his ineffective assistance of counsel claim is cognizable on 

direct appeal because his trial counsel could not possibly have had any valid trial strategy 

for refraining from arguing prosecutorial misconduct.

Package plea bargains are proper as long as their terms are not coercive. (Liang v. 

Superior Court (2002) 100 Cal.App.4th 1047, 1056.) The primary danger of coercive 

package plea bargains is that they will induce a false or involuntary guilty plea. (In re 

Ibarra (1983) 34 Cal.3d 277, 287-288.) An example of a coercive circumstance is a 

defendant who pleads guilty because he fears his co-defendant would attack him if he did 

not accept the plea offer. (Id. at p. 287.) There is nothing in the plea offer in this case 

which suggests coercion. 

A prosecutor’s offer of a package deal may constitute misconduct and thus violate 

due process when “the prosecutor did something entirely unnecessary to the proper 

performance of her duties to transform a willing witness into an unwilling one.” (People 

v. Conerly (2009) 176 Cal.App.4th 240, 248.) Here, there is nothing to suggest that a 
13

willing witness would be transformed into an unwilling one by the package plea bargain 

offer. 

As our Supreme Court has recognized, “the ‘package deal’ may be a valuable tool 

to the prosecutor, who has a need for all defendants, or none to plead guilty. The 

prosecutor may be properly interested in avoiding the time, delay and expense of trial of 

all the defendants.” (In re Ibarra, supra, 34 Cal.3d at p. 289, fn. 5.) Here, the prosecutor 

opposed appellant’s severance motion on the ground that the witnesses and other 

evidence would be the same for both defendants. Thus, a guilty plea from appellant 

alone would not have enabled the prosecutor to reduce the time, delay and expense of 

trial.

Since, on the record before us, a claim of prosecutorial misconduct would have 

lacked merit, appellant has not shown a reasonable probability that he would have 

received a more favorable outcome if his trial counsel had raised a claim of prosecutorial 

misconduct. Ineffective assistance of counsel claims are often more appropriately raised 

in a petition for writ of habeas corpus, where matters outside the trial record may be 

considered. That is particularly true in the case of plea agreements, which frequently 

involve matters outside the normal trial record.

3. Court’s refusal to re-appoint counsel

Appellant contends the trial erred in refusing to re-appoint counsel for codefendant Estrada, and that error violated appellant’s right to due process under the 5th

and 14th Amendments of the U.S. Constitution. Specifically, he contends that if counsel 

had been re-appointed, counsel might have been able to convince Estrada to accept the 

plea bargain, thereby giving appellant the opportunity to accept his part of the package 

plea offer. Appellant has forfeited this claim by failing to raise it in the trial court.8 

Further, appellant lacks standing to raise this claim.

8

People v. Partida (2005) 37 Cal.4th 428, 434; People v. Brown (1980) 110 

Cal.App.3d 24, 35-36.
14

Appellant contends that a defendant has standing under the due process clause to 

challenge the denial of a constitutional right belonging to a third party, if that denial 

affects the defendant’s own rights. Such standing is limited. Two of the three cases that

appellant cites to support his standing claim standing involve violations of the rights of 

witnesses. (People v. Williams (2010) 49 Cal.4th 405, 452; People v. Bunyard (2009) 45 

Cal.4th 836, 850.) The third case involves the right of a passenger to challenge an illegal 

search of the car in which he or she was riding. (Brendlin v. California (2007) 551 U.S. 

249.) Appellant has not cited, and we are not aware of, any case holding that a defendant 

has the right to assert a violation of his co-defendant’s right to counsel. 

Even if standing were theoretically possible, appellant has not shown that he was 

harmed by the trial court’s refusal to re-appoint counsel for Estrada. It is pure 

speculation on appellant’s part that counsel would have been able to persuade Estrada to 

accept the plea bargain. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1000 [no standing 

where prejudicial effect of alleged error is “merely speculative”].) Accordingly, we 

reject appellant’s standing claim.

Further, even if appellant had standing, his claim that Estrada’s rights were 

violated would lack merit. While appellant’s appeal was pending, we decided the appeal 

of co-defendant Estrada and held that the trial court did not err in refusing to re-appoint 

counsel for Estrada. 

4. Sufficiency of the evidence – primary activities of gang 

Appellant adopts by reference co-defendant Estrada’s contention that there is 

insufficient evidence of the primary activities element of the gang allegation and so 

insufficient evidence to support the jury’s true finding on that allegation. Appellant also

contends the trial court erred in failing to instruct the jury on the definition of vandalism, 

the expert’s testimony that “gun possession” was a primary activity of the gang was 

insufficient because gun possession is not per se illegal and there is no evidence to 

support the expert’s testimony that BKM gang members steal cars.
15

a. Estrada’s contentions

Estrada contended in his appeal that Detective Sumner never actually testified 

about the primary activities of the gang. In deciding Estrada’s appeal, we rejected this 

claim. We also reject it here.

The detective testified as follows: [¶] “Prosecutor: Now, CV BKM, once they 

went from becoming a tagging crew that, basically, just did graffiti, to becoming a full 

fledged criminal street gang, do they have some primary activities that they engaged in? 

[¶] Sumner: Yes. [¶] Prosecutor: And you stated before some guys are better at 

different types of crimes, correct? [¶] Sumner: Just like deputies are better at different

types of jobs. [¶] Prosecutor: Different specialties? [¶] Sumner: Different specialties. 

[¶] Prosecutor: Okay. What are the primary activities, let’s call it the specialties of CV 

BKM? [¶] Sumner: Common things for Compton Varrio Born Krazy Minded is they’re 

always caught with guns. They always have guns, whether they’re selling them, just 

carrying them, moving them around, they always have guns. They steal cars. Vandalism 

is very common. [¶] Prosecutor: Are those the primary activities that, in your 

experience, you have found are the types of crimes that members of CV BKM have most 

often engaged in? [¶] Sumner: That and shootings. [¶] Prosecutor: Have you 

personally investigated gun possession cases, vandalism cases, car theft cases, shootings 

committed by members of CV BKM? [¶] Sumner: Yes.” 

Estrada argued that the expert’s use of the word “common” somehow indicated

that the listed activities were not the primary activities of the gang. As we explained, the 

detective was directly answering a question about primary activities when he used the 

word “common.” Immediately after this response, the prosecutor asked “Are those the 

primary activities” that members of “CV BKM have most often engaged in?” The 

detective responded, “That and shootings.” Taken as a whole, the detective’s testimony 

did identify the primary activities of the gang as gun related crimes, car theft, vandalism 

and shootings. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 107 [“the jury has 

ample reason to infer that [the expert’s] answer implicitly incorporated the word 

‘primary’ from the question. Ordinary human communication often is flowing and 
16

contextual. [The defendant’s] objection here calls for an unreasonably restrictive 

interpretation of the [the expert’s] answer, which we respectfully decline.”].)

Estrada also contended that the detective’s testimony showed only that BKM 

committed misdemeanor vandalism, which is not a crime listed in section 186.22, 

subdivision (e). In his answer about primary activities, the detective referred only to 

“vandalism” without specifying whether it was misdemeanor or felony vandalism. When 

the detective offered proof of crimes committed by the gang, however, one of those 

crimes was specifically identified as felony vandalism. Thus, as we explained, the 

detective’s testimony as a whole is most reasonably understood as referring to felony 

vandalism.

Estrada also argued that Detective Sumner was not qualified as an expert and his 

testimony lacked foundation. He did not object on these grounds in the trial court and we 

held that he has forfeited these claims on appeal. (See People v. Bolin (1998) 18 Cal.4th

297, 321 [forfeiture of claim that witness was not qualified as an expert]; People v. 

Nelson (2012) 209 Cal.App.4th 698, 710-711 [forfeiture of foundational deficiency 

claim].) 

Assuming the issue were not waived, the detective had solid expert qualifications 

and there was ample foundation for the detective’s testimony. Detective Sumner had 

been a Compton police officer for 14 years, and had worked in the gang unit since 2007. 

Although BKM was not on his list of assigned gangs in the gang unit, he had broad 

experience with gangs. He had contact with over a hundred gang members a day when 

he worked in the county jail for a year, interviewed gang members for three years while 

working intake at the inmate reception center, patrolled Compton and learned about 

Compton in the process for about five years, investigated and interviewed gang members 

as an investigator since 2007, handled hundreds of Compton gang cases, taught and 

lectured about Black and Hispanic gangs and the Mexican Mafia, and was one of the first 

deputies to be interested in BKM. Further, he had personally investigated BKM crimes 

and spoken with BKM members. This is more than sufficient to qualify Detective 

Sumner as an expert and to provide a foundation for his opinion. (See, e.g., People v. 
17

Martinez (2008) 158 Cal.App.4th 1324, 1330.) Some of the detective’s knowledge did 

come from speaking with other detectives, but experts are permitted to rely on hearsay. 

(See People v. Campos (1995) 32 Cal.App.4th 304, 307-308 [expert witnesses may rely 

upon reliable hearsay in forming their opinions]; People v. Sisneros (2009) 174 

Cal.App.4th 142, 154 [“admission of expert testimony based on hearsay will not typically 

offend confrontation clause protections”]; see also People v. Sengpadychith (2001) 26 

Cal.4th 316, 324 [gang expert relied on information from colleagues].) 

b. Appellant’s additional contention – vandalism

Appellant contends the trial court erred in failing to instruct the jury on the 

definition of vandalism. This issue was raised by co-defendant Estrada in his appeal, 

under a separate heading.

Estrada contended that the trial court should have instructed the jury on the 

difference between felony and misdemeanor vandalism, and also instructed the jury that 

only felony vandalism could be a qualifying primary activity of the gang. We found no 

error.

There was no testimony or argument in this case about misdemeanor vandalism. 

As we discuss, supra, Detective Sumner’s testimony as a whole identified felony 

vandalism as a primary activity of the gang. One of the convictions offered to show a 

pattern of criminal activity by the gang was a conviction for felony vandalism. There is 

nothing to indicate that the jury was even aware that the crime of misdemeanor vandalism 

existed. The jury’s task was not to decide whether one of BKM’s primary activity was 

misdemeanor or felony vandalism; it was to decide whether to accept or reject Detective 

Sumner’s testimony that one of BKM’s primary activities was felony vandalism.

Appellant cites no authority for his claim that the court was required to instruct on 

the elements of vandalism. In his appeal, Estrada relied on a suggestion in the Bench 

Notes for the instruction. As respondent pointed out, the Bench Notes also say that the 

court need not instruct on the elements of a crime when it has been shown by a 

conviction. That was the case here.
18

c. Appellant’s additional contention – gun possession

Appellant contends Detective Sumner was wrong when he testified that “gun 

possession” was a primary activity within the meaning of section 186.22, because a 

primary activity must be a criminal act, and simply possessing a firearm is not a criminal 

act.

Detective Sumner testified that BKM gang members are “always caught with 

guns. They always have guns, whether they’re selling them, just carrying them, moving 

them around, they always have guns.” The prosecutor later referred to these activities as 

“gun possession” when asking the detective about the crimes he had investigated and this 

short-hand designation was used thereafter. The detective agreed that he had investigated 

the crimes listed by the prosecutor. The detective’s answer is most reasonably 

understood as referring to investigating those types of gun possession which he had 

previously described and which are illegal. It was alleged in this case that co-defendant 

Estrada was prohibited from possessing a firearm but possessed one in violation of 

section 12021. Further, Detective Sumner testified that BKM gang members possessed 

guns for, inter alia, the purposes of selling them. A violation of section 12021 is a 

criminal act and a primary activity under section 186.22, subdivision (e)(31) and the sale, 

delivery or transfer of a firearm is a criminal act and a primary activity under section 

186.22, subdivision (e)(22). 

d. Car theft

Appellant contends that is no evidence to support Detective Sumner’s testimony 

that a primary activity of the gang was stealing cars. Detective Sumner testified as an 

expert and was entitled to base his opinion on his experience and any out-of-court 

materials of the type generally relied upon by expert. (People v. Hill (2011) 191 

Cal.App.4th 1104, 1124.) The detective’s testimony that he had personally investigated 

car theft cases committed by members of BKM is sufficient evidence to support the 

detective’s opinion that a primary activity of the gang was car theft. 
19

5. Cumulative error

Appellant contends that even if the errors in this case were not prejudicial standing 

alone, their cumulative prejudice requires reversal. (See People v. Hill (1998) 17 Cal.4th 

800, 844.) He further contends the cumulative prejudice violate his due process rights 

under the U.S. Constitution. (See Chambers v. Mississippi (1973) 410 U.S. 284.) This 

matter is being remanded to the trial court for its consideration of sentencing issues. 

Appellant’s other claims lack merit, and so there is no prejudice to consider, singly or 

cumulatively. 

[The balance of the opinion is to be published]

Disposition

Appellant’s conviction is reversed and this matter is remanded to the trial court for 

consideration of appellant’s motion to enter an open plea. If the trial court denies that 

motion, appellant’s conviction is ordered reinstated. The trial court may then resentence 

appellant. The judgment is affirmed in all other respects.

CERTIFIED FOR PARTIAL PUBLICATION

MINK, J.*

I concur:

MOSK, J.

* Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
1

I concur except for the conditional reversal. I would affirm. In my view, the trial 

court had no authority to strike the Penal Code section 186.22, subdivision (b)(4) 

sentencing scheme. (People v. Briceno (2004) 34 Cal.4th 451, 460; People v. Campos 

(2011) 196 Cal.App.4th 438, 446-454.) Finally, it is unlikely the trial court would have 

taken such an unusual action. This case involves an aggravated gang shooting and efforts 

to injure deputy sheriffs during a high-speed pursuit. Defendant admitted he had been a 

gang member for eight years. Any error was harmless under any standard of reversible 

error. (Strickland v. Washington (1984) 466 U.S. 668, 687; Chapman v. California

(1968) 396 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.)

CERTIFIED FOR PUBLICATION

TURNER, P. J.