Filed 10/6/14 P. v. Lona CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY LONA,

Defendant and Appellant.

 B246123

 (Los Angeles County

 Super. Ct. No. BA357891)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Jose I. Sandoval, Judge. Affirmed.

Johanna R. Pirko, 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, Victoria B. Wilson and Mark E. 

Weber, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

A jury convicted defendant Henry Lona of the willful, deliberate, and 

premeditated attempted murder of David Diaz (Pen. Code, §§ 187, subd. (a), 664, subd. 

(a))1(count 1), and shooting at an occupied motor vehicle (§ 246) (count 4). With 

respect to both counts, the jury found true the allegation that defendant personally and 

intentionally discharged a firearm causing great bodily injury to Diaz within the meaning 

of section 12022.53, subdivision (d), and that the offenses were gang related within the 

meaning of section 186.22, subdivision (b). 

The trial court sentenced defendant in count 1 to serve 40 years to life in prison. 

The sentence consisted of 15 years to life for the attempted murder and 25 years to life 

for the enhancement under section 12022.53, subdivision (d). Pursuant to section 186.22, 

subdivision (b)(4), the trial court stayed the sentence for the gang enhancement, since it 

had imposed the longer 25-year sentence for the firearm use enhancement. The court 

imposed the identical sentence in count 4 and stayed the sentence under section 654. 

Defendant appeals on the grounds that: (1) the convictions must be reversed 

because the court abused its discretion and violated his constitutional right to present a 

complete defense by ruling that defendant could not call an expert on eyewitness 

identification; and (2) the gang enhancements must be vacated because the prosecutor 

failed to prove defendant was a member of a criminal street gang.

FACTS

Prosecution Evidence

In June 2009, at approximately 11:30 a.m., Manuel Sanchez was driving in 

Los Angeles with his friend, Jesse Hernandez. Hernandez sat in the back seat of the car 

with her six-month-old daughter. A beige Camry pulled out of a motel driveway and cut 

off Sanchez’s car. Hernandez saw four males inside the Camry, and they appeared to be 

gang members. Sanchez continued driving behind the Camry when both cars turned onto 

51st Street. The Camry suddenly slowed down, stopped, and went into reverse. Sanchez 

also backed up because he thought the Camry was going to hit his car. When the Camry 

 

1 Unless stated otherwise, all further statutory references are to the Penal Code.
3

stopped, Sanchez saw a man get out of the Camry’s front passenger seat, take out a gun, 

and start shooting at a car that was behind Sanchez and parked at the curb. David Diaz 

was seated in the driver’s seat of the parked car. When the shooter stopped firing, he got 

inside the Camry, which sped away. Sanchez memorized the Camry’s license plate 

number. Hernandez called 911 and gave the dispatcher the number. Diaz tried to drive 

away, but he crashed into some cars.

Sanchez later identified defendant in a photographic lineup. Hernandez identified 

a photograph of the Camry and also selected defendant’s photograph from a photographic 

lineup. She identified defendant at trial as well. Sanchez could not identify defendant at 

trial.

Vinicio Jaramillo suffered a conviction for his involvement in the shooting that 

day, and he was in custody when he took the stand to testify for the prosecution at 

defendant’s trial. Jaramillo was serving a sentence of 35 years to life. Jaramillo met 

defendant when Jaramillo was 25 years old and a Playboys gang member, as was 

defendant. Jaramillo thought defendant was about 20 years old. Jaramillo was in the 

51 Clique, and defendant was a member of the 56 Clique of the Playboys. Defendant’s 

moniker was “Lazy.” At trial, Jaramillo testified he met defendant about two weeks or a 

month before the shooting. Jaramillo knew Diaz was a Playboys gang member called 

“Wicked,” and he believed Diaz was from 51 Clique. Diaz was approximately 30 years 

old.2 Diaz was in a dispute with some other Playboys gang members in June 2009, 

apparently because he had “punked” or disrespected some young Playboys gang 

members. 

Jaramillo went to the Fiesta motel on the morning of the shooting and was 

surprised to see defendant there. Jaramillo was using his mother’s car, and defendant 

asked him for a ride to get some beer. Jamarillo agreed, and they left with two other gang 

members. When defendant spotted Diaz, he told Jaramillo to park the car. Jaramillo 

 

2

In June 2009, Diaz was 33 years old. 
4

knew defendant had a gun. Jaramillo put the car in reverse and stopped because he was 

unable to park. Defendant stepped out, and Jaramillo heard five or six shots. Defendant 

got back into the car and told Jaramillo “to step on it.” Jaramillo asked him why he had 

shot, and defendant told him not to get involved in his things and not to tell anyone. 

Diaz was shot in the chest, and he also suffered a laceration to his thumb and a 

grazing wound to his forehead. There were bullet holes in the windshield of Diaz’s car, 

the driver’s door, the hood, and the “front window.” Diaz refused to cooperate with 

police. When police officers attempted to serve Diaz with a subpoena, he ran inside his 

house and escaped through the back door.

Jaramillo was arrested five days after the shooting. Defendant was not a suspect at 

this time. Jaramillo told police the shooter had the moniker of “Little Lazy,” and he had 

the name “Blanca” tattooed on his neck. It was this information that led to the discovery 

of defendant’s identity and a photograph of him. Jaramillo then identified the 

photograph. Jaramillo wrote, “I identify No. 5. He shot for no reason another homeboy 

from the same hood. He was by my side, and I [did not] even know he was going to do 

that.” Jaramillo identified a photograph of Diaz as the shooting victim. 

Jaramillo testified that the tattoo of a Playboy bunny that defendant had on his 

neck at trial had not been there before. Defendant previously had the name Blanca 

tattooed in that spot. At his own trial, Jaramillo stated that he would testify against 

defendant whenever he was caught by the police. The prosecutor told him that if he 

testified she would write a letter to the parole board. He understood he would still have 

to serve the same sentence the judge gave him until he was eligible for parole. He 

understood that the parole board would decide whether he should be released. 

Jaramillo acknowledged that he lied to police at first and said he was not at the 

scene of the shooting and knew nothing. He also lied when he told police his mother’s 

car was not involved. He also admitted telling other lies to police and to the jury during 

his own trial. Jaramillo testified that he was “under protection” in county jail. He 

believed he would be separated and housed with others who are no longer gang members 

when he returned to prison.
5

Officer Jesse Drenckhahn of the Los Angeles Police Department testified as an 

expert on the Playboys gang. In June 2009, he served in the Newton Division gang 

enforcement detail, and the Playboys gang was one of the gangs he was assigned. Officer 

Drenckhahn testified that the Playboys gang is a Hispanic gang whose primary activities 

are vandalism, narcotics sales, gun possession, robberies, assault with deadly weapons, 

and attempted murders. The gang uses the bunny logo from Playboy magazine as one of 

its gang symbols. The gang contains several cliques, or subsections, that are affiliated 

with each other. The cliques formed around various streets in the gang’s territory, e.g., 

the 46th Street clique, 49th Street clique, 51st Street clique, and 56th Street clique. 

Members of different cliques in the gang hang out with each other. Officer Drenckhahn 

testified regarding the importance of respect for the gang and for the individual gang 

members within the gang culture in general and in the Playboys gang. The willingness to 

commit crimes, especially violent crimes, earns respect for an individual gang member 

from his gang. 

Officer Drenckhahn testified that defendant is a member of the 56 clique of the 

Playboys gang. In June 2009, defendant was 18 years old. He is five feet six inches tall, 

and his weight has varied from 140 pounds in 2006 to 160 pounds in 2009. In 2009, 

defendant had the name “Blanca” tattooed on his neck. At the time of trial, a Playboy 

bunny tattoo covered the Blanca tattoo. Defendant had more tattoos in general than he 

had in 2009. 

When asked a hypothetical question based on the facts of the instant case, Officer 

Drenckhahn testified that he was of the opinion the shooting was done in association with 

and for the benefit of the Playboys gang. The shooting would enhance the gang’s 

reputation and instill fear of the gang in the community, especially because it was an act 

of egregious violence in broad daylight and in front of a large portion of the community. 

Officer Drenckhahn also testified as a gang expert at Jaramillo’s trial. In that trial,

he stated that all of the Camry’s occupants knew what was going to occur and what their 

responsibilities were in association with that incident. Officer Drenckhahn explained that 

gangs have certain rules, and a code of discipline ensures the members follow those rules. 
6

It was common for gang members to discipline other gang members for a variety of 

things. Officer Drenckhahn did not know the nature of defendant’s dispute with Diaz, 

but he believed defendant felt disrespected by Diaz’s actions because of defendant’s ties 

to his fellow gang members. He drew this conclusion based upon defendant’s actions. 

Defense Evidence

The defense called Martin Flores as a gang expert. Flores works with youth 

offenders in South Los Angeles and Los Angeles County. He testified that the Playboys 

gang was a well-known gang in the Los Angeles area with various cliques and territories. 

In Flores’s opinion, defendant was a Playboys gang member in 2009 based on his tattoos,

as well as the fact he has been stopped and has associated with other gang members in the 

gang territory.

Flores testified that Hispanic gangs have hierarchies and there are protocols. They 

have to respect each other. There are sometimes “calentadas,” or warm-ups between 

gang members due to disrespect. This could be addressed with a “beat down” or a verbal 

warning. He had often witnessed internal disciplining in a gang. Being a “youngster” in 

a gang was largely a question of age. Flores believed it was very unlikely that a 

youngster in the Playboys gang would have disciplined an “OG” or older gang member. 

The “go-to” person in the gang must be aware that a gang member is going to take such 

action. A gang member would disrespect the neighborhood by acting on his own. 

When given a hypothetical based on the facts of the case, Flores stated that an act 

of discipline such as occurred in the hypothetical was very unlikely to occur. In Flores’s 

opinion, conducting internal gang disciplining in public would not benefit the gang at all. 

It actually would hurt the gang and make it easier for rival gangs to believe they can 

attack the gang. 

Flores stated that a lot of individuals who are in trouble present the best scenario 

for themselves to law enforcement rather than the “full scenario.” Speaking with law 

enforcement is against gang rules, and an individual who does so would have to deal with 

the consequences in jail or prison. 
7

DISCUSSION

I. Exclusion of Defense Expert on Eyewitness Identification

A. Defendant’s Argument

Defendant argues that, in light of Jaramillo’s pattern of dishonesty and the bias

shown by his potentially obtaining an early prison release in exchange for testifying, his 

testimony did not provide substantial corroboration for the eyewitness identifications. As 

a result, defendant argues, under People v. McDonald (1984) 37 Cal.3d 351 (McDonald), 

disapproved on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914, the trial 

court abused its discretion in excluding the proposed expert testimony on eyewitness 

identifications. According to defendant, the convictions must be reversed and the 

enhancements vacated. 

B. Proceedings Below

The defense planned to call Dr. Robert Shomer as a witness. Near the end of the 

prosecution case, the prosecutor informed the court that defense counsel had told her Dr. 

Shomer would not be available until the following Monday. The prosecutor had intended 

to rest the following day, which was Thursday, May 17, 2012, and the jury was told the 

trial would end on Friday. The prosecutor renewed a previous objection to Dr. Shomer’s 

testimony. She stated there was no basis for an eyewitness identification expert in the 

instant case because there was substantial corroborating evidence. Therefore, there was 

no need to extend the trial an extra day or to be dark for a day to enable Dr. Shomer to 

testify. 

The court responded that it had also questioned the need for an eyewitness expert. 

The court stated its intention to consult the Evidence Code sections related to the 

opinions of experts. 

The prosecutor asked the court to consider that the police were not aware 

defendant was a potential suspect until Jaramillo described the tattoo defendant had on 

the side of his neck, which read “Blanca,” and which appeared on a prior booking 

photograph. Also, defendant’s appearance had changed a great deal since the beginning 

of the case, and there was ample explanation for a witness not to recognize him in court. 
8

The prosecutor asserted that identification by an individual who knew the defendant, 

Jaramillo, was substantial corroboration for both eyewitness identifications. In addition, 

the jury instruction regarding eyewitness testimony explained the essence of Dr. 

Shomer’s proposed testimony. The court replied that it had considered these facts when 

it first raised the issue. The court invited the parties to provide supporting authority for 

their positions.

The following day, the trial court heard further argument from defense counsel 

and the prosecutor. The court stated it was a close call, but ruled that it would not allow 

Dr. Shomer to testify. Based on its research and consideration of the facts, the court 

believed there was substantial corroboration of the eyewitness identifications of 

defendant. Although defense counsel had “punched holes” in Jaramillo’s credibility, it 

was not sufficient to overcome the testimony of a “codefendant” who had already been 

convicted of the crime and who stated defendant was the other person involved. The 

court found such testimony to be substantial corroboration of the witness identifications, 

although counsel obviously was free to argue the contrary to the jury.

C. Relevant Authority

“‘As a general matter, the ordinary rules of evidence do not impermissibly infringe 

on the accused’s [constitutional] right to present a defense. Courts retain . . . a 

traditional and intrinsic power to exercise discretion to control the admission of evidence 

in the interests of orderly procedure and the avoidance of prejudice. [Citations.] . . . .’ 

[Citation.] [¶] It follows, for the most part, that the mere erroneous exercise of discretion 

under such ‘normal’ rules does not implicate the federal Constitution. . . . [W]e have 

consistently assumed that when a trial court misapplies Evidence Code section 352 to 

exclude defense evidence . . . the applicable standard of prejudice is that for state law 

error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (error harmless if it does 

not appear reasonably probable verdict was affected).” (People v. Cudjo (1993) 6 Cal.4th

585, 611.) Thus, we review the trial court’s ruling on the exclusion of expert testimony 

for abuse of discretion. (McDonald, supra, 37 Cal.3d at p. 373.)
9

“[A] trial court does not abuse its discretion unless its decision is so irrational or 

arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 

Cal.4th 367, 377.)

D. No Abuse of Discretion or Error

It is true that in McDonald, the court concluded that “although jurors may not be 

totally unaware of the [] psychological factors bearing on eyewitness identification, the 

body of information now available on these matters is ‘sufficiently beyond common 

experience’ that in appropriate cases expert opinion thereon could at least ‘assist the trier 

of fact’ (Evid. Code, § 801, subd. (a)).” (McDonald, supra, 37 Cal.3d at p. 369.) While 

recognizing that the trial court has broad, although not absolute, discretion in the 

admission of expert opinion evidence, the McDonald court held that the trial court had 

excluded the testimony of the expert (who happened to be Dr. Shomer) based on 

incorrect assumptions and conclusions. (Id. at pp. 371-373.) The court stated that the 

exclusion of Dr. Shomer’s testimony deprived the jurors of information that may have 

assisted them in resolving the crucial issue of the accuracy of the eyewitness 

identifications, which was the basis of the defense. (Id. at p. 376.) In that case, the error 

was not harmless because there was no other evidence connecting the defendant with the 

crime, and there was both eyewitness and alibi testimony favorable to the defendant, 

which made the issue of identification both “critical and closely balanced.” (Ibid.) Upon 

examination of the entire record, the court believed it was reasonably probable a result 

more favorable to the defendant would have been reached in the absence of the erroneous 

exclusion of Dr. Shomer’s expert opinion evidence. (Ibid.) 

The court believed that such expert testimony would not, however, be needed 

often, and the trial court’s discretionary rulings would be upheld on appeal. (McDonald, 

supra, 37 Cal.3d at p. 377.) The court stated, “When an eyewitness identification of the 

defendant is a key element of the prosecution’s case but is not substantially corroborated 

by evidence giving it independent reliability, and the defendant offers qualified expert 

testimony on specific psychological factors shown by the record that could have affected 
10

the accuracy of the identification but are not likely to be fully known to or understood by 

the jury, it will ordinarily be error to exclude that testimony.” (Ibid.)

In the instant case, we have no doubt regarding Dr. Shomer’s qualifications or that 

the record shows the eyewitness identifications were made under conditions Dr. Shomer 

would find adverse to accurate eyewitness identifications. Nor do we doubt that the 

eyewitness identifications by Sanchez and Hernandez were a key element of the 

prosecution case. We do conclude, however, that the eyewitness identifications in this 

case were substantially corroborated by evidence that afforded them independent 

reliability. Moreover, the factors to which Dr. Shomer would have testified were laid out 

in CALCRIM No. 315 in a manner not available to the jury in McDonald.

3

 (See 

McDonald, supra, 37 Cal.3d at pp. 363, 372, and CALJIC No. 2.21 (4th ed. 1979.).)4 It 

 

3 CALCRIM No. 315 was read to the jury as follows: “Now, you’ve heard 

eyewitness testimony identifying the defendant. As with any other witness, you must 

decide whether an eyewitness gave truthful and accurate testimony. In evaluating 

identification testimony, consider the following questions: Did the witness know or have 

contact with the defendant before the event? How well could the witness see the 

perpetrator? What were the circumstances affecting the witness’s ability to observe, such 

as lighting, weather conditions, obstructions, distance and duration of observation? How 

closely was the witness paying attention? Was the witness under stress when he or she 

made the observation? Did the witness give a description, and how does that description 

compare to the defendant? How much time passed between the event and the time when 

the witness identified the defendant? Was the witness asked to pick the perpetrator out of 

a group? Did the witness ever fail to identify the defendant? Did the witness ever 

change his or her mind about the identification? How certain was the witness when he or 

she made an identification? Are the witnesses and defendant of different races? Was the 

witness able to identify the defendant in a photographic or physical lineup? Were there 

any other circumstances affecting the witness’s ability to make an accurate identification? 

The People have the burden of proving beyond a reasonable doubt that it was the 

defendant who committed the crime. If the People have not met this burden, you must 

find the defendant not guilty.” 

4 The trial court in McDonald instructed the jury with the 1979 version of CALJIC 

No. 2.21, which read as follows: “A witness willfully false in one material part of his 

testimony is to be distrusted in others. You may reject the whole testimony of a witness 

who willfully has testified falsely as to a material point, unless, from all the evidence, you 

shall believe the probability of truth favors his testimony in other particulars. However, 
11

is presumed the jury followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 

852.) 

The corroboration for the eyewitness identifications was provided by Jaramillo, 

who was convicted of the same crime as defendant. Defendant attacks this corroboration 

on various grounds. Defendant provides a list of Jaramillo’s falsehoods to police and 

from his own trial and asserts that Jaramillo’s testimony was “marred by inconsistencies 

and admitted lies, and colored by a possible early release (once eligible for parole) in 

exchange for his testimony.” Defendant also characterizes the identifications by 

Hernandez and Sanchez as inconsistent, incomplete, and influenced by fear and stress. 

Defendant argues this was a close case, pointing to the lack of any evidence other than 

the witness identifications, defendant’s junior status in the gang, and the jury queries.5

We disagree with defendant. Although Jaramillo was shown to have lied when 

interviewed by police and at times in his own trial, the corroboration he provided was 

sufficient. In People v. Jones (3003) 30 Cal.4th 1084, for example, the court found that 

the testimony provided by individuals who may have been accomplices met the 

McDonald standard, even though they could be impeached by proof of bias or prior 

inconsistent statements. (Jones, at p. 1112.) Although there were five of those 

individuals in Jones, as opposed to one Jaramillo, the corroborative effect, given the solid 

identifications by Sanchez and Hernandez, is the same. Jaramillo identified defendant as 

the shooter to police before defendant was even a suspect. As the jury was shown, the 

only benefit Jaramillo was to receive for his testimony was a letter from the prosecutor 

 

discrepancies in a witness’ testimony or between his testimony and that of others, if there 

were any, do not necessarily mean that the witness should be discredited. Failure of 

recollection is a common experience; and innocent misrecollection is not uncommon. It 

is a fact, also, that two persons witnessing an incident or a transaction often will see or 

hear it differently. Whether a discrepancy pertains to a fact of importance or only to a 

trivial detail should be considered in weighing its significance.” 

5 The jury requested readback of Hernandez’s testimony, a transcript of Jaramillo’s 

police interview, a complete list of the evidence, a CD player, and a recording of the 

original 911 call. 
12

informing the parole board that Jaramillo had cooperated with the prosecution. Jaramillo 

was sentenced to 35 years to life and would not be eligible for parole for a very long 

time. The prosecutor’s letter hardly constitutes a pass to “early release.” Jaramillo knew 

the district attorney’s office has no control over any decision by the parole board, should 

a parole hearing ever come to pass. 

Although the identifications provided by Sanchez and Hernandez varied somewhat 

over time, overall they were “strong and unequivocal” identifications. (See People v. 

Sanders (1995) 11 Cal.4th 475, 509.) Sanchez and Hernandez chose defendant’s 

photograph from a photographic lineup after not identifying anyone in the lineups in 

which defendant’s photograph did not appear. The shooting occurred during daylight 

hours, and Sanchez testified he was only six to eight feet—a car length in fact—from the 

shooter. He had an unobstructed view.6 Police showed him and Hernandez the 

photographic lineup very soon after the shooting. When selecting defendant’s 

photograph, Sanchez wrote that defendant “was the one who shot.” Sanchez also 

identified defendant at the preliminary hearing. Although Sanchez testified he did not see 

the shooter in court at trial, there was substantial evidence that defendant’s appearance 

had changed a great deal in the three years between June 2009 and May 2012 when 

Sanchez testified. Defendant’s height in Sanchez’s initial description and at trial was 

different, but Sanchez was certain that defendant was “a little shorter” than Sanchez, who 

is five feet eleven. He estimated defendant’s age at 25. Sanchez “got a good look” at the 

front of defendant’s face, which may explain why he did not notice any tattoos.

Hernandez estimated she was about 15 feet away from the shooter, but she also 

estimated that the car right next to her, where the victim sat, was 15 feet away from her. 

She later amended her testimony to say the victim’s car was closer, but also indicated her 

car was more or less in “the middle of both cars.” She ducked slightly but watched the 

shooter because she was afraid she would be shot next, and her view was unobstructed. 

 

6 The front of Sanchez’s car was only two feet from the Camry from which 

defendant emerged.
13

Defendant was facing her, and she remembered his face and his eyes. She testified she 

“was looking at his face throughout the process.” Although Sanchez said Hernandez was 

“hysterical,” it was Hernandez who had the presence of mind to tell Sanchez to memorize 

the license plate number of the shooter’s car during the shooting.

Hernandez selected defendant’s photograph from the photographic lineup as “the 

man who started shooting,” and she identified him at trial and at the preliminary hearing. 

Hernandez testified that defendant looked different at trial than on the day of the 

shooting. He had more hair at the shooting, and at trial he wore glasses and was heavier. 

She estimated defendant’s height at five feet eight inches. Although Hernandez 

reportedly told the first officers at the scene that she was not sure she would be able to 

identify the shooter, she did not recall saying that. The fact is, she had no trouble 

identifying him. That defendant was actually five feet six inches in height and only 18 

years old are not details that discredit Sanchez’s or Hernandez’s identification of 

defendant’s photograph. Even Jaramillo thought defendant was around 20 years old. 

Hernandez stated it was primarily defendant’s face that she remembered.

Additionally, Officer Richard Medina, who responded to the shooting scene, 

reported that Sanchez described the suspect as 20 to 25 years of age, approximately five 

feet four to five feet five inches in height, and weighing approximately 165 pounds. 

Sanchez was sure he could identify the suspect if he saw him again. Officer Medina 

testified that Hernandez’s description was consistent with that of Sanchez. Both said the 

suspect looked like a gang member. Officer Medina interviewed two other witnesses 

who gave the same description. They all said it was a bald male Hispanic.

Thus, defendant’s case differs from McDonald in several ways. The witnesses 

who identified McDonald at his trial revealed varying degrees of certainty, whereas the 

photographic identifications by Hernandez and Sanchez were very strong. Here, 

defendant presented no alibi defense, whereas McDonald’s alibi was very strong. Also, 

there was no one who testified that defendant was definitely not the shooter, as occurred 

in McDonald. (McDonald, supra, 37 Cal.3d at pp. 355-360.) And in this case, as 

opposed to McDonald, there was no cross-racial identification to muddy the waters. 
14

Therefore, Dr. Shomer’s general testimony on cross-racial identifications simply would 

not have provided a basis for a different verdict. Defense counsel extensively crossexamined both eyewitnesses regarding their accuracy and reliability. He questioned them 

regarding the differences in their statements at various times, such as immediately after 

the incident, at the preliminary hearing, at Jaramillo’s trial, and at defendant’s trial. 

Moreover, in closing argument, defense counsel vigorously and at length argued the 

unreliability of the identifications and the lies told by Jaramillo.

Even if we were to conclude that the trial court had abused its discretion in not 

allowing defendant to present Dr. Shomer’s testimony, we would determine that any error 

was harmless. (See McDonald, supra, 37 Cal.3d at p. 376 [“[a]n error in excluding 

expert testimony may be found harmless”].) Here, by means of cross-examination, 

argument and the jury instructions, the jury was aware of the psychological factors and 

potential unreliability of eyewitness identifications. As in People v. Plasencia (1985) 

168 Cal.App.3d 546, “the various psychological factors affecting eyewitness 

identification about which Dr. Shomer proposed to testify were either not relevant, or 

only marginally relevant. The jury did not need edification on the obvious fact that an 

unprovoked gang attack is a stressful event or that the passage of time frequently affects 

one’s memory.” (Id. at p. 555.) Under the circumstances of this case, it is not reasonably 

probable a different result would have occurred had the expert witness been allowed to 

testify. 7 (See People v. Sanders, supra, 11 Cal.4th at p. 510; McDonald, supra, 37 

Cal.3d at p. 377; People v. Watson, supra, 46 Cal.2d at p. 836.)

 

7 We note that the type of expert testimony regarded favorably in McDonald has not 

been without its critics. As stated in People v. Johnson (1993) 19 Cal.App.4th 778, 788, 

“After McDonald, the Supreme Court determined, in 1988, that no ‘consistency’ of 

scientific view by experts on the principles governing the reliability of an eyewitness 

identification existed. Rather, the field is beset by dispute and uncertainty—as the 

Supreme Court recognized in People v. Wright (1988) 45 Cal.3d 1126, 1142, footnote 13, 

noting that most courts refuse to admit such testimony, since there is no consensus that it 

has scientific validity.”
15

II. Evidence of Defendant’s Membership in a Criminal Street Gang

A. Defendant’s Argument

Defendant contends the prosecution failed to prove he belonged to a “criminal 

street gang” as defined in section 186.22, subdivision (f). According to defendant, the 

various cliques of the Playboys gang did not have a collaborative organizational 

structure, and the predicate crimes of two Los Angeles members of the Playboys gang 

could not be imputed to every gang member in every one of the Playboys cliques. 

Moreover, the lack of a collaborative structure was shown by the fact that defendant was 

convicted of attempting to murder a Playboys gang member from another clique, 

demonstrating that the gang was internally fragmented. 

B. Relevant Authority

“In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses 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. [Citations.]” (People v. Bolin (1998) 18 

Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in 

favor of the verdict, and indulge every reasonable inference the jury could draw from the 

evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) “The same standard applies 

when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 

23 Cal.4th 978, 1053.) The standard of review that governs a claim of insufficient 

evidence in support of a conviction also applies to a challenge to gang enhancement 

findings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)

The credibility of witnesses and the weight to be accorded to the evidence lie 

exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 

Cal.App.4th 785, 790.) Reversal on this ground is unwarranted unless “‘upon no 

hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” 

(People v. Bolin, supra, 18 Cal.4th at p. 331.) 

To prove a gang enhancement allegation under section 186.22, subdivision (b)(1), 

the prosecution must prove that the crime for which the defendant was convicted had 
16

been “committed 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)(1).) In addition, the prosecution must prove that 

the gang is an “ongoing organization, association, or group of three or more persons, 

whether formal or informal, having as one of its primary activities the commission of one 

or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to 

(33), inclusive, of subdivision (e), having a common name or common identifying sign or 

symbol, and whose members individually or collectively engage in or have engaged in a 

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

activity’ means the commission of, attempted commission of, conspiracy to commit, or 

solicitation of, sustained juvenile petition for, or conviction of two or more” of the 

offenses listed in section 186.22, subdivision (e) when at least one of the offenses 

occurred “after the effective date of this chapter and the last of those offenses occurred 

within three years after a prior offense, and the offenses were committed on separate 

occasions, or by two or more persons.” (§ 186.22, subds. (e), (j); see People v. Gardeley

(1996) 14 Cal.4th 605, 616-617.) 

C. Evidence Sufficient 

Defendant relies on People v. Williams (2008) 167 Cal.App.4th 983 (Williams) for 

the proposition that some sort of “collaborative activities” or “collective organizational 

structure” must be inferable from the evidence in order to impute the activities of a larger 

gang to one of its multiple units. (Id. at p. 988.) Defendant’s claim rests on his assertion 

that there was no evidence from which the jury could infer that the Playboys gang, with 

its various cliques, engaged in such activities or had such a structure. He also complains 

that the gang expert did not specify the cliques to which the perpetrators of the two 

predicate offenses belonged, or even if they were from the gangs in the Newton Division 

or the Olympic Division. We disagree. 

In Williams, the defendant suffered a conviction for murder with an “active 

participant in a street gang” special circumstance (§ 190.2, subd. (a)(22)) and a 

conviction for being an active participant in a criminal street gang (§ 186.22, subd. (a)). 
17

(Williams, supra, 167 Cal.App.4th at p. 985.) The prosecution’s gang expert testified that 

the Peckerwoods gang was a criminal street gang and that smaller groups, such as the 

Small Town Peckerwoods, were all factions of the Peckerwood organization. (Id. at p. 

988.) On appeal, the defendant contended that there was no evidence showing he was an 

active participant in any group other than the Small Town Peckerwoods. Therefore, any 

gang finding had to be based on that group and not on the larger Peckerwoods gang. (Id. 

at p. 987.) 

The Court of Appeal agreed with the defendant and reversed the special 

circumstance finding and the gang-participation conviction. (Williams, 167 Cal.App.4th

at pp. 988-989.) In defining “the relationship that must exist before a smaller group can 

be considered part of a larger group for purposes of determining whether the smaller 

group constitutes a criminal street gang” (id. at p. 985), the Williams court reasoned that

“something more than a shared ideology [

8

] 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. Instead, some sort of 

collaborative activities or collective organizational structure must be inferable from the 

evidence, so that the various groups reasonably can be viewed as parts of the same 

overall organization.” (Id. at p. 988.) In Williams, the court held that the prosecution 

failed to make such a showing. (Ibid.)

Based on the facts presented in the instant case, Williams is distinguishable. In 

that case, the prosecution failed to present sufficient evidence of “collaborative activities” 

among the various Peckerwood factions. (Williams, supra, 167 Cal.app.4th at p. 988.) 

Indeed, the expert in Williams testified that “Peckerwoods are not typically organized like 

other criminal street gangs . . . : for the most part, they have no constitution, and are a 

looser organization with a less well-defined rank structure. Peckerwood groups get 

together more for bragging than for strategizing, and one group of Peckerwoods will not 

 

8 The gangs shared a White pride or White supremacist ideology. (Williams, at p. 

988.) 
18

necessarily know what another group is doing.” (Ibid.) Here, there was expert testimony 

attesting to collaboration among the various cliques within the Playboys gang. Defendant 

and Jaramillo, who were both found guilty of the attempted murder of Diaz, were 

themselves from different cliques. It is true that, when asked if the “51 Playboys,” to 

which Jaramillo belonged, affiliated with any other cliques, Jaramillo replied, “46, 56. 

That’s it.” We do not agree with defendant that this alone establishes that the various 

Playboys cliques did not have a collaborative organization structure. These may have 

been the only cliques that Jaramillo had constant contact with, but the accuracy of that 

statement was an issue for the jury to decide. 

Officer Drenckhahn testified that the Playboys have a common symbol: the 

Playboy bunny. He stated that the cliques did not behave as independent gangs. A clique 

is merely a geographic or generational subsection of the gang. Officer Drenckhahn was 

assigned to Newton Division in June 2009. He named the cliques in the Newton Division 

and delineated the territory of the cliques in that division, which he stated were all 

affiliated. Thus, the jury learned that the 49th Street, 51st Street, 56th Street, 46th Street, 

and Chico Locos cliques are all affiliated. Each clique simply has a more direct 

connection with the area in which they grew up. 

Officer Drenckhahn testified regarding two predicate offenses committed by two 

Playboys gang members. His testimony showed that one of the predicate crimes, an 

attempted murder, was committed by Marco Antonio Ramirez in 2008 while he was an 

active member of the Playboys gang. Officer Drenckhahn testified that the other 

predicate crime, illegal gun possession, was committed by Braulio Sandoval while he was 

an active member of the Playboys gang. Officer Drenckhahn was one of the officers who 

arrested Ramirez in 2008, indicating the arrest took place in the Newton Division. 

Sandoval’s offense was also committed in 2008, and Officer Drenckhahn had continuous 

contact with Sandoval both before and after his arrest and had arrested him on other 

offenses. Therefore, there was sufficient evidence that the predicate crimes were 

committed by Playboy gang members who were from cliques that were at least affiliated 

with defendant’s clique. 
19

Moreover, Officer Drenckhahn’s testimony established that defendant is an active 

member of the Playboys gang, not merely a clique. Defendant wore prominent Playboy 

bunny tattoos, and he was one of the 20 or 30 active gang members whom the officer saw 

on the streets daily while he was in the Newton Division. Jaramillo was also an active 

member of the Playboys gang, and Officer Drenckhahn arrested him for gun possession 

in the presence of at least two other documented Playboys gang members in territory 

claimed by the Playboys in the Newton Division. Jaramillo and defendant were part of 

the same group of 20 to 30 gang members. Diaz, on the other hand, was not active in that 

same neighborhood.

The fact that a gang member is subject to discipline from his own gang members 

is not probative of a rift in the gang structure, which, according to defendant, would 

indicate a lack of collaboration. Officer Drenckhahn testified that it enhances a gang’s 

reputation if the gang is willing to discipline “their own” for stepping out of line. He 

stated it is common for gang members to discipline other gang members under the gang’s 

code of discipline, and what occurred in this case was not unusual. Even the defense 

gang expert, Flores, acknowledged that “there can be consequences” if gang members 

“disrespect” each other, although he believed it to be unlikely that a younger member 

would have the right to discipline an older one. He had encountered many instances of 

internal discipline, and stated that there were varying levels of consequences. He 

testified that taking out a fellow gang member does occur, although Flores believed it 

showed weakness. Officer Drenckhahn did not agree that such discipline made a gang 

look weak, since it was common knowledge that discipline occurs and is part of doing 

business in a gang. 

This case is unlike that of Williams, a case where the gang expert’s opinion about 

two criminal street gangs appeared to have been influenced by the fact the gangs had a 

name containing the same word. The evidence unequivocally showed that the various 

cliques were affiliated and were part of the Playboys gang, and the jury could readily 

infer the cliques engaged in collaborative activities and had a collective organizational 
20

structure from the evidence presented. (See Williams, supra, 167 Cal.App.4th at p. 988.) 

Defendant’s argument is without merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.