Filed 8/26/24 P. v. Vasquez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MAURICE VASQUEZ,

Defendant and Appellant.

B315843

(Los Angeles County

Super. Ct. No. MA077627)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Daviann L. Mitchell, Judge. Affirmed in 

part and reversed in part.

Johanna Pirko, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan S. Pithey, Assistant Attorney 

General, Idan Ivri, Theresa A. Patterson, and Gabriel Bradley,

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

INTRODUCTION

Maurice Vasquez appeals from his judgment of conviction 

for count 1, conspiracy to commit murder (Pen. Code,1 §§ 187, 

subd. (a), 182), and count 2, first degree attempted murder 

(§§ 187, subd. (a), 664). The jury also found true each count was 

committed to benefit, promote, further, and assist a criminal 

street gang (§ 186.22, subd. (b)(1)(C)) and the offenses were 

committed within a state prison (§ 1170.1, subd. (c)). 

Vasquez makes various challenges to his conviction, 

claiming evidentiary error and prosecutorial misconduct. 

However, many of Vasquez’s claims are forfeited as his trial 

counsel failed to object on the grounds he raises on appeal. 

Nevertheless, we consider the merits of Vasquez’s claims as he

also argues his trial counsel was ineffective for failing to object to 

the purported evidentiary errors and instances of prosecutorial 

misconduct, as well as cumulative error. In reaching the merits 

of his claims, we conclude Vasquez’s arguments are either not 

persuasive or constitute harmless error. Accordingly, we also 

reject Vasquez’s claims of ineffective assistance of counsel and 

cumulative error. 

Additionally, Vasquez argues the gang enhancement must 

be reversed because the evidence was insufficient to meet the 

new requirements under Assembly Bill No. 333 (2021–2022 Reg. 

Sess.) (AB 333). While we agree with Vasquez the enhancement 

must be reversed, the prosecution must be given the opportunity 

to retry those allegations on remand.

1 All further undesignated statutory references are to the 

Penal Code.
3

For these reasons, we affirm in part and reverse in part the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution evidence

A. The Northern Riders

Vasquez is the founder and leader of the Northern Riders, a 

street gang that primarily operates within the California 

Department of Corrections and Rehabilitation’s (CDCR) sensitive 

needs yards (SNY’s). “Northern” has since been dropped from the 

gang’s name, and they are now known as “Riders.” Vasquez

founded the Riders in an effort to break off from the Nuestra 

Familia, a prison gang that controls all Hispanic street gangs in 

Northern California. Vasquez no longer wanted to abide by the 

Nuestra Familia’s rules and regulations, and “went to war” with 

Nuestra Familia in December 2000.

As a result of this defection, CDCR placed Vasquez and the 

Riders in protective custody on CDCR’s SNY’s. While SNY’s are 

intended for inmates who request protective custody and are no 

longer gang members, SNY gangs, like the Riders, eventually 

form on the SNY’s. 

At the time of trial, there were approximately 300 to 400 

Riders in custody, and approximately 1,000 to 2,000 Riders in the 

streets. The Riders’ primary activities include pimping, burglary, 

robbery, extortion, assault, and battery. They have adopted the 

Playboy bunny as their symbol, and identify themselves using the 

terms “Compa,” “Compadre,” “Riders,” and “Rider.’’ They refer to 

the gang as the “Company.” 

The Riders have a system of progressive discipline, 

meaning “depending on the infraction the discipline could be 

lesser or worse.” For example, “if a member of the . . . Riders 
4

incurred a drug debt, he could just potential[ly] be talked to by 

one of the older members o[f] the gang or senior members of the 

gang and be told to repay that debt. If he fails to do so, he can 

[be] ordered to pay double. If he fails to do that, he could have 

his property sold to pay his debt. If he continues to incur the 

debt[,] he could be assaulted by one or more members of the gang. 

[¶] And if the infraction was something . . . completely worse than 

that—for instance, a disrespect towards gang leadership—you 

can be potentially assaulted with weapons.”

Vasquez is known as the “Playboy President,” “Mac,” and 

“Bad Ass Snoop.” If Riders on a particular facility cannot come to

a decision between themselves with respect to important gangrelated businesses, they will send a message to Vasquez, who has 

“the ultimate say” in that decision. 

B. Alexander Diaz

Alexander “Scrappy” Diaz is a former Rider who had a 

falling out with Vasquez after he led an unauthorized attack on a 

rival gang without Vasquez’s consent. Diaz then formed the 

Nuestra Cosas, a splinter faction made up of former Riders. 

The Nuestra Cosas have since become one of the Riders’ primary 

rivals. 

C. Investigator Luis Chavez

Investigator Luis Chavez testified as the prosecution’s 

primary gang expert. He investigated the Riders for five years 

and interviewed numerous active and inactive members of the 

gang. 

Chavez explained the Riders’ system of progressive 

discipline. He explained how a gang benefits from using a violent 

disciplinary system because it conveys to other inmates and 

members that anyone who “cross[es] this gang” will face violent 
5

repercussions. He opined that forming a splinter faction was one 

of the most serious violations of the gang’s rules, and would 

warrant the most serious punishment from the gang, such as an 

assault with weapons or murder. Chavez further opined that 

murder would be the only way to conclusively deal with a splinter 

faction. Chavez explained that merely assaulting a member of a 

splinter faction would result in that individual being moved to 

another facility where he could potentially continue to recruit 

members of the original gang. In other words, “the only way to 

completely remove them . . . would be to kill them.” 

Chavez testified regarding a document found in Vasquez’s 

cell, titled the “Compadre Concepts and Objectives” (CCO’s). 

Chavez explained that the CCO’s are considered the Riders’ 

bylaws. The CCO’s state that if a member’s “contrary actions 

persist, a vote will be made [by] . . . committee to serve this 

individual with an eviction notice out of [the Rider] movement by 

whatever means the committee deems necessary.” Chavez 

opined this meant Riders may expel a member by any means 

necessary, including murder. 

D. Terry Gonzales, Jr.

Terry Gonzales, Jr., was a former Rider and testified as a 

gang expert for the prosecution. Gonzales became a Rider in 

2003, and trained other members about the gang’s ideology. 

He also taught members how to attack other inmates, including 

how to kill someone quickly by targeting the vital areas of the 

body, such as the heart, jugular, and carotid artery. 

Gonzales knew Diaz started the Nuestra Cosas after a 

falling out with Vasquez related to an unauthorized attack Diaz 

carried out against rival gang members. In 2014, Diaz’s name 

appeared on lists published by Vasquez that contained the names 
6

of the Riders’ enemies. Gonzales admitted he twice targeted Diaz 

for murder. 

Gonzales left the Riders in 2017. In 2020, two inmates 

attacked Gonzales, stabbing him 25 times on nearly every part of 

his body. Gonzales suspected Vasquez ordered the attack 

because one of the attackers yelled out, “ ‘Riders, Mother Fucker. 

Riders, Mother Fucker.’ ” Gonzales later heard the two inmates 

discussing how they carried out the attack on behalf of Vasquez. 

Approximately a week or two after the attack, Gonzales and 

Vasquez were housed in nearby cells. Vasquez told Gonzales that 

he wanted Gonzales killed because Gonzales was “disloyal in [his] 

failure to kill Alexander Diaz,” and because Gonzales was a 

“snitch.”

E. Documentary evidence

In August 2018, an investigator found various documents 

related to the Riders in Vasquez’s cell. 

1. The Missive

One document was titled, “A Missive Concerning Current 

[E]xisting Issues On The Compounds,” and signed “[L]oyally 

Committed To The Prosperity Of The Rider Movement, ‘The 

Playboy President.’ ” It contained the following excerpts: 

“There will never be a divide within the RIDER movement. 

We have a zero tolerance policy towards actions concerning 

subsets, subgroups or offsets of our movement. Recently in 

K.S.V.P. there was some nonsense transpiring where compas 

were identifying themselves as FAS, going as far as tattooing it 

on them. I sent a personal emphasis to them to cease such 

controversial behavior and provide one warning for them to cover 

any tattoos of that crap or it would be fucken cut off of them. 

The compas delivering the warning were committed to executing 
7

extreme violence upon any individual who chose to disregard the 

compadre[’]s commands to terminate such contradictory 

behavior. The compas who were involved in the shenanigans all 

immediately obliged. We shall never condone, tolerate, accept, 

nor support contrary behavior.” 

“If any entity puts us in a position where we feel 

challenged, we declare war, plan, prepare and execute the attack 

wherein we will slaughter our target. That’s the Rider way of 

warfare.” 

2. The Epistle 

Another document dated December 31, 2016, was titled 

“An Epistle Pertaining To The Prosperity of The R.I.D.E.R. 

Movement.” The document was signed by Vasquez as “ ‘The 

Playboy President.’ ” It contained the following excerpts:

“The infestation of imposters running around like a bunch 

of lowlife, lawless hooligans were practicing and promoting false 

propaganda. They were convincing the imposters to believe—to 

believe we’re the Northern Riders. Yet, [were] just some made-up 

gibberish that was falsely fabricated and filtered by [the] lawless 

little homosexual snitch named Alexander Diaz. . . . [¶] . . . [¶] —

who also goes by the several aliases such as Scrappy Diaz, Tiny, 

Shorty, and Midget. The little jailhouse schmuck first came to 

CDC in 2011 from CYA and was in Tehachapi in IYP . . . until he 

turned 18 and was sent to CDC’s first SNY in Mule Creek in 

2001. [¶] He paroled in 2003, and shortly after was charged with 

murder of a 15-year-old kid wherein he testified against all his 

co-defendants from Varrio Meadow Fair in San Jose. [¶] The little 

faggot has never stepped foot on the mainline and has absolutely 

nothing to do with founding the Rider movement. What he is 

responsible for, however, is promoting contradictory behavior 
8

under the shield . . . [¶] . . . [¶] —of the glorious Rider movement. 

He is responsible for all the contrary conduct that was occurring 

in the PC yards from 2001–2003. While the certified compadres 

were on the mainlines of [Pleasant Valley State Prison] . . .

a yard, Susanville-Lassen yard, Corcoran 3B, and HDSP . . .

D yard. [¶] . . . [¶] Guarding and protecting our territory at the 

time.” 

“Now mind you, the reason for CDCR’s attempt to validate 

the Rider movement as a prison gang was not . . . as a result of 

what [Vasquez] and his playboys were doing in 2004, but due to 

the secret code word . . . . [¶] . . . [¶] Malicious malarkey that 

faggot Scrappy and her homosexual homegirls were doing on the 

PC yards. Safe out of . . . harm’s way. The first and only time 

[Vasquez] ever encountered this little prison punk was in Ad Seg 

law library wherein he instructed . . . [Diaz] to sign off his SNY 

chrono so he could transfer to High Desert.”

“Also, there is no such thing as Team Snoop, Team 

S[c]rappy. That’s some childish nonsense that little faggot snitch 

[Sc]rappy made up cause he thinks it sounds cute. There is 

nothing cute nor funny about THE RIDER MOVEMENT! 

Anyone who arrives to any Playboy Compound via S.V.S.P. DYard claiming to be a Compa yet did not leave that yard by way 

of acts of loyalty, must be dealt with in accordance with RIDER 

Protocol immediately. There are no exceptions, no explanations, 

no benefit of the doubt for any of those lames. They all know 

they are lawless fugitives with warrants for their arrest. There 

have been executions of justice at extreme capacity performed by 

righteous RIDERS who have landed there, thus those coward 

infiltrators know that they are not being victimized for no 

apparent reason.” 
9

“That little queer Scrappy went to Tehachapi where he 

infiltrated as a buster and got his dumb-ass validated as a 

structure associate which is why he had to debrief in the THU in 

KVSP. [¶] . . . [¶] Unbeknownst to [Vasquez], he was never going 

to finally pulverize this little pussy as he has been eagerly 

anticipating due to Scrappy having his 812. [¶] . . . [¶] [Vasquez] 

was made aware of this while in KVSP Ad Seg for demolishing 

some pcs on D yard with some of his compadres. The reason I’m 

even elaborating on this . . . is due it to being essentially to 

defining a . . . line of clarification by emphasizing that anyone 

who has been . . . deceived to believe this little rat was in any way 

whatsoever involved in any of what transpired during the 

tremendous tenacity it took to conquer and surmount the 

arduous obstacles that were constantly encountered during the 

introduction of the Rider movement to the prison system. 

You have your calculation profoundly miscalculated.” 

3. The “hit list”

A list containing names of individuals and their CDCR 

identification numbers was also found in Vasquez’s cell in August 

2018. Next to each name there was a notation “NC,” which 

Chavez opined was short for Nuestra Cosas. As such, Chavez

opined that the document was a “a list of inmates who are 

targeted for assault or murder at the direction of the . . . Rider 

leadership.” Gonzales recognized many of the names on the list 

and agreed with Chavez’s testimony that the list was a Riders’

“hit list.” He added that the list was formatted in a manner

approved by Vasquez.

F. The conspiracy to murder Diaz

On January 17, 2019, Vasquez and Diaz were housed in 

adjacent cells in the Lancaster prison. 
10

On April 2, 2019, Diaz was moved to Facility 3B of 

California State Prison, Corcoran (Corcoran). Christopher 

“Blanco” Potter, a Rider with a close “father-son” relationship 

with Vasquez was also housed at Corcoran at the time. 

On April 10, 2019, Potter called Michelle Bravo, who was 

Vasquez’s “secretary.” In gang culture, a secretary is someone 

who aids gang members communicate with each other when they 

are unable to communicate directly. The conversation proceeded 

as follows: 

“Potter: Alright. I’m good. Have you talked to Maurice?

“Bravo: I’m waiting on his call . . . it should be kinda [sic] 

between now and the week.

“Potter: Ok. And you got everything that I told you last 

time down?

“Bravo: Yeah. Yeah I did. S[o] um, do you have any word 

on [Diaz]?

“Potter: He’s right here.

“Bravo: Okay, so what’s goin [sic] on with that? 

“Potter: That’s what I need to know. Ok. Listen, I got a 

one-time and that’s how I got your number so all that got 

squashed. It’s all good for him from what I know. That’s why 

I’ve been waiting. You know what I’m saying? [¶] . . . [¶] So, 

whoever, so, but it’s, that’s all squashed. It’s a stand down. And 

uh, he’s right here. He’s on orientation. He came with a couple 

things for me. That’s, you know what I’m saying?

“Bravo: Yeah. So it’s proved then?

“Potter: Huh?

“Bravo: It’s been proven? It’s been proven then that he’s

. . . .
11

“Potter: Absolutely. I know, I know, I know his writing. 

Right? Maurice? I know his writing. And it’s his. It even had 

something in there for me. Had this number. Every other, every 

other thing that I had. Yeah, and it’s . . . . And, a lot of other 

people were like ‘Ok’ but I had to tell them that’s it. That he did 

that. That’s it. There’s no . . . you can’t, you can’t, there’s 

nothing else you can do about it, you know what I’m saying?

“Bravo: Ok. So is everybody getting on board with that? 

Because I spoke to . . . .

“Potter: It doesn’t matter. That doesn’t matter though. 

That doesn’t matter. He did that.

“Bravo: No, I mean, do they know? Do they know? 

Because he’s asking if they know?

“Potter: Right here? Right here?

“Bravo: Yeah.

“Potter: Everybody, a couple of people at first like ehhh . . .

but everybody’s on board, and uh, it’s alright. Everything’s good. 

You know what I’m saying? There isn’t really, there isn’t really 

nothing that nobody can say. Because when he said he had 

something for . . . when he said . . . from him. I said let me see it? 

And I already knew the writing. And it’s like . . . and then it had 

something for me in there. And that’s . . . you know what I’m 

saying?” 

Chavez interpreted the recorded call. He opined Potter was 

telling Bravo that Diaz had been “no good” at some point, but was 

now okay to be on the Corcoran SNY with other Riders because 

Diaz possessed an inmate-authored note, which identified him to 

Potter as being in good standing with the Riders. In a recorded 

interview, Vasquez explained that, when a Rider is “no good,” the 
12

gang will issue a “warrant for his arrest,” which meant that 

individual would be beaten “or worse.” 

On April 16, 2019, Joshua “Primo” Simmons sent Bravo a 

text message stating, “Good afternoon. This is Primo. At your 

earliest convenience, can get at me. Thank you.” At the time, 

Simmons was a member of the Riders and was on parole.

On April 17, 2019, Simmons sent Bravo a text message 

stating, “Hey. I just talked to Charlie. There’s no way Scrappy is 

good. Look, don’t give any input to Blanco until you talk to Mac. 

Something is not right.” Bravo replied, “Okay. I understand. 

I think I know what’s going on. Everything will work out fine.” 

On May 8, 2019, Vasquez called Bravo from Lancaster 

State Prison. During the call, Bravo informed Vasquez she had 

spoken to Simmons and Potter. She told Vasquez that Simmons 

had told her he was “really upset about saying like Alex is good.” 

Bravo also said she had spoken to Potter, who confirmed he had 

received a note from Diaz. Bravo told Vasquez, “Everybody is 

kinda upset because I’m like [Diaz] is good, [Diaz] is saying he is 

good. [¶] . . . [¶] And so is [Potter]. [Potter] is saying yeah, he 

said I’m here on the yard with him right now, he’s with me, it’s 

good.” Vasquez responded, “No, not at all. [¶] . . . [¶] Tell them 

that they need to understand to disregard that, disregard that. 

Tell them if it’s not coming from me directly, disregard that. Tell 

them what the fuck are they thinking?” 

Vasquez then asked Bravo to call Potter’s secretary, Abigail 

“Chula” Valencia while he remained on the phone. Vasquez told 

Valencia to tell Potter that Diaz would never be “ok,” that Diaz 

had a “stay away order,” and that Diaz could not be on the same 

property as the other Riders at Corcoran. 
13

Vasquez then asked Bravo to call Simmons, who was added 

to the call. Vasquez relayed a similar message to Simmons that 

Diaz was not “allowed to be stepping on the . . . property . . . .” 

Simmons replied, “I already know that ok but I was told 

something different ok.” The following exchange then took place.

“Vasquez: I know but listen to me.

“Simmons: Wait a second.

“Vasquez: Ok listen never, never, never, never. Listen you 

know Blanco’s dad right?

“Simmons: Right.

“Vasquez: Blanco’s pops, you know Blanco’s pops? Blanco’s 

pops?

“Simmons: Yeah.

“Vasquez: Ok Blanco’s pops said to disregard everything 

that that [h]o is talking about. That bitch can’t be over there 

working at the club bruh. Aren’t mother fuckers smarter than 

that? That bitch can’t go over there with no recommendation to 

work at the club nigga. That’s all game that was all game 

playboy. Mother fuckers are out of their minds. Don’t they 

realize that that was all game nigga? You got to be kidding me. 

That bitch can’t work there. Every nigga, listen to me that club 

will, listen to me this is very important that club will lose their 

license if that bitch is anywhere on that property bruh.

“Simmons: I’m already knowing. I’m already knowing. I’ll 

take care of it.

“Vasquez: You know what’s crazy?

“Simmons: I’ll make sure it’s taken care of by the end of.

“Vasquez: Ok look it.

“Bravo: It’ll be taken care of.
14

“Vasquez: In the thing, in that book listen to me nigga in 

that book it says that her circumstances are still the same. Her 

circumstances have not changed nigga. Mother fuckers got to get 

their shit together, niggas are out of their fuckin mind playboy,

[they’re] out of their mind.”

On May 9, 2019, there was a three-way phone call between 

Vasquez, Bravo, and Simmons. During the call Vasquez 

recognized Simmons as a certified Rider and told him, “I know 

exactly who you are Playboy. You certified. You’re reputable. 

These niggas had to step up their fucking game up, man. What 

are they thinking? What are they thinking? They’re allowing 

that bitch to work at the club on the same property. Them niggas 

going to all get their license revoked. Are they serious? Are they 

serious?” Bravo then said, “The son was shining really bright 

with a note.” 

That same day, Potter called Valencia. Valencia told Potter 

she had spoken to Vasquez, who said that Diaz could not “be on 

the same property” as Potter.

On May 9, 2019, Bravo sent a text message to Simmons 

stating: “This book is a real thriller, but it looks like what I 

predicted about the next chapter was right on. That girl is in the 

perfect place to get a hug and finally be at peace.” Simmons 

replied, “Off top, the question is does someone have the balls to 

give her a hug?” Bravo then wrote, “We shall see.” Simmons 

replied, “Yes, ma’am.”

Chavez opined Bravo and Simmons were speaking in code,

and that “finally be at peace” meant someone who was dead.

G. The attack on Diaz

On the morning of May 10, 2019, Correctional Officer Jose 

Garcia, Jr., witnessed two inmates fighting on the yard at 
15

Corcoran. He radioed and advised officers “to put the yard down 

due to the fight.” The two combatants complied with the orders 

and got down on the ground. 

As Officer Garcia approached the two combatants, he saw 

Diaz fighting with Guillermo Cordero, a Rider. He saw the men 

strike each other with closed fists, but could not see whether

either man had a weapon. Another Rider, Andres Cordova, ran 

toward Cordero and Diaz and began striking Diaz with clenched 

fists. Then, another Rider, Michael Kons, ran toward the fight 

and struck Diaz. Officer Garcia broke up the fight by throwing 

multiple pepper spray grenades. Diaz, Cordero, Cordova, and 

Kons were handcuffed after assuming the prone position. 

Officer Anthony Arisco responded to the fight. He observed 

Diaz was covered in blood and receiving medical attention. 

Cordova, Kons, and Cordero were prone on the ground and 

restrained in handcuffs. Officer Arisco observed a wooden knife 

beneath Cordova. No other weapons were found.

A nurse treated each of the men for injuries. Diaz suffered 

four puncture wounds on his back, his shoulder blades, and at the 

base of his skull. Cordero suffered three puncture wounds at the 

top of his spine, below one shoulder blade, and above his 

waistline. Kons suffered a puncture wound on his left temple. 

Cordova suffered wounds to his neck, chin, and clavicle. Cordova 

and Diaz were treated at the hospital in Corcoran.

H. Postattack communications 

On June 3, 2019, inmate Michael Maniscalco called 

Valencia. Maniscalco told Valencia he was friends with Cordero 

and Potter, who were “in the hole” because of Diaz. He told 

Valencia, “So I don’t know if you know who the fuck that is but 

uh but their um they, he told me to tell you to put some fucking 
16

money on his books, put some money on the phone, and then uh 

he told me to tell you that that job that you asked him or 

something is done. You asked him and [Potter] I guess.” 

Maniscalco also stated, “I mean like they fucking got at somebody 

and uh fucked him off pretty good so [they’re] going to be back 

here, not [Potter] but [Cordero], he’s going to be back here a 

while.” 

On June 8, 2019, inmate Decko Bojorquez called Bravo. 

Bojorquez introduced himself as Potter’s cell mate and Vasquez’s 

“little homie.” Bojorquez explained that Potter “went to the hole” 

and that Potter wanted to relay to Vasquez the following 

message. “That hello it’s his son. I can’t call myself due to loss of 

phone, but I got a very important message for him, and others 

who are part of the Company. . . . He got the message from 

Chula. Everything went absolutely perfect. Alexis got a ride out 

of here in a helicopter. [¶] . . . [¶] Ok, tell him I love him, and I’ll 

always make him proud. And he’ll call when he gets out [of] the 

hole.” 

Chavez opined that Bojorquez’s reference to a “helicopter

ride” out of Corcoran meant the victim was transported off the 

facility via helicopter due to suffering life threatening injuries.

On June 8, 2019, Bojorquez called Valencia. Bojorquez said 

he had just spoken to Bravo and had let her know “what 

happened to that fool Alexis and shit. That fool had a helicopter 

ride out of here and shit.” 

On June 11, 2019, Bravo sent a text message, stating, 

“Alexa has been moved with extreme V.” Chavez opined that 

“extreme V” meant extreme violence.

On June 26, 2019, Vasquez called Bravo. The following 

exchange took place: 
17

“[Vasquez]: Ok so look it, where’s where’s, did old girl, does 

old girl still work at the club or no?

“[Bravo]: No, ok so for him supposedly having a contact or 

whatever, in the movie nothing happened in that scene. It wasn’t 

until Alice contacted somebody to get it going and then literally 

the next day, she was gone.

“[Vasquez]: Oh ok. On her own?

“[Bravo]: Um no, no.

“[Vasquez]: Ok, ok.

“[Bravo]: Um the son, the son told Alice like hey I’m 

always, just tell my dad I’m always going to make him proud, and 

it was with uh you know extreme, extreme V.

“[Vasquez]: Ok absolutely, absolutely.

“[Bravo]: Yeah, Yeah.

“[Vasquez]: That’s awesome, ok that’s awesome.”

On August 17, 2019, Potter called Valencia and asked if she 

spoke with Vasquez. When Valencia indicated she had not, 

Potter said, “[J]ust let him know that guy is taken care of. That 

old boy got flighted out in [a] helicopter ok.” 

II. Defense evidence

Vasquez’s alleged coconspirator Kons testified for the 

defense. Kons joined the Riders in 2015 and was housed at 

Corcoran at the time Diaz was attacked. 

Kons explained that he was Vasquez’s codefendant and 

awaiting trial. 

Kons testified that he did not intend to kill Diaz or do 

anything else to Diaz when he arrived at Corcoran. On the date 

of the attack, Kons saw Cordero fighting with Diaz from across 

the yard. He ran towards the fight to assist Cordero, who 

appeared to be losing and had blood on his shirt. He did not see 
18

any weapons, however, it looked like Diaz was stabbing Cordero. 

Kons joined the fight to save Cordero’s life and punched Diaz, 

dropping Diaz to the ground. Kons hit Diaz as Diaz fell to the 

ground and then kicked him in the leg. Kons backed away from 

Diaz and laid on the ground after correctional officers threw 

pepper spray grenades to break up the fight. After the fight, 

Kons realized that Diaz stabbed him three times. 

He explained that a “Playboy Committee” is a meeting 

where Riders discuss business. Each member has a right to vote 

at the meeting. He said the Riders never discussed Diaz at a 

meeting. However, he testified that the Riders do not like 

splinter groups, and an inmate who tattoos himself with a 

splinter faction’s tattoo could be met with extreme violence. 

III. Jury verdict and sentencing

A jury convicted Vasquez of both counts and found the gang 

and prison allegations true. In a bifurcated proceeding, the trial 

court found the prior conviction allegations true. 

The trial court sentenced Vasquez to a total term of 

15 years plus 50 years to life. On count 1, the trial court 

sentenced Vasquez to 15 years plus 50 years to life, imposing 

25 years to life on the conviction, doubled for a prior strike, plus

10 years for the gang enhancement and an additional 5 years for 

a prior conviction. On count 2, the trial court sentenced Vasquez 

to 30 years to life, which was stayed.

Vasquez appealed. 

DISCUSSION

I. Evidentiary objections

Vasquez raises numerous challenges to the testimony 

offered by Chavez and Gonzales. While most of these challenges 

are forfeited as Vasquez’s trial counsel did not object below, we 
19

address the merits of each claim as Vasquez has also asserted an 

ineffective assistance of counsel claim based on the failure to 

object. We address each challenge in turn. 

A. Chavez

1. Chavez’s testimony about progressive 

gang discipline and the need to kill a 

founder of a splinter faction 

Vasquez argues Chavez’s testimony about the Riders’

system of progressive discipline should have been excluded under 

Evidence Code section 352 as its probative value was 

substantially outweighed by undue prejudice. 

We review a trial court’s rulings under Evidence Code 

sections 352 for abuse of discretion. (People v. Parker (2022) 

13 Cal.5th 1, 39 (Parker).) 

Vasquez’s trial counsel did not object on Evidence Code 

section 352 grounds. Rather, he objected on hearsay grounds and 

argued that the hypothetical posed by the prosecutor too closely 

resembled the facts of this case. Therefore, his Evidence Code 

section 352 objection is forfeited. (People v. Boyette (2002) 

29 Cal.4th 381, 424 (Boyette); Evid. Code, § 353, subd. (a).)

However, even if the argument was preserved, the 

testimony was admissible under Evidence Code section 352.

Chavez’s testimony was relevant to the prosecution’s theory of 

motive and intent, as it supported the inference that Vasquez 

targeted Diaz for murder and not merely assault. Chavez 

explained that forming a splinter faction was the most serious 

violation of the gang’s rules, and therefore would warrant the 

most serious punishment the gang could impose, murder. 

Nor was the evidence’s probative value substantially 

outweighed by undue prejudice. Vasquez argues the evidence 
20

was prejudicial as it conveyed the message that the Riders are an 

extremely violent gang, whose members routinely resort to 

murder. This was not Chavez’s testimony. Rather, Chavez 

explained the Riders use a system of progressive discipline, 

reserving assault with weapons and murder only for the most 

serious offenses, such as forming a splinter faction that 

challenged the gang’s leadership. Thus, the relevance of his 

testimony was not outweighed by any purported prejudice. 

Relatedly, Vasquez argues the trial court should have 

excluded Chavez’s testimony about internal gang discipline as 

speculative, specifically, his opinion the formation of a splinter 

faction threatens the gang as the leader of the splinter faction 

could potentially recruit the gang’s members. Vasquez argues 

this testimony was speculative because there was no evidence 

Diaz was recruiting from the Riders. 

Again, Vasquez’s trial counsel did not object on these 

grounds. Therefore, the argument is forfeited. (Boyette, supra,

29 Cal.4th at p. 424; Evid. Code, § 353, subd. (a).)

However, even if the objection was preserved, the 

testimony was not speculative. Chavez’s opinion was based on 

his experience and training in working with prison gangs, and his 

knowledge of the Riders. He was therefore qualified to offer an 

opinion on the potential consequences of forming a splinter 

faction and how it could weaken the gang. Further, there was 

evidence that Diaz formed the Nuestra Cosas by joining with

other Riders. There was also evidence that Diaz created a split 

within the Riders and Vasquez was concerned Diaz could 

undermine the Riders. For example, in the Epistle, Vasquez 

stated: “The infestation of imposters running around like a 

bunch of lowlife, lawless hooligans were practicing and promoting 
21

false propaganda. They were convincing the imposters to 

believe—to believe we’re the Northern Riders. Yet, [were] just 

some made-up gibberish that was falsely fabricated and filtered 

by [the] lawless little homosexual snitch named Alexander Diaz.” 

The Epistle further states: “[T]here is no such thing as Team 

Snoop, Team Scrappy. That’s some childish nonsense that little 

faggot snitch Scrappy made up cause he thinks it’s cute. There is 

nothing cute nor funny about THE RIDER MOVEMENT!” 

Chavez’s experience and training and the evidence presented 

shows his testimony was not speculative. 

Vasquez also argues that Chavez’s opinion was not based 

on the evidence since the Riders were confined to the SNY at 

Corcoran; therefore, once Diaz was removed from the SNY, he 

could no longer recruit members away from the Riders. 

Vasquez’s argument is not well taken. The record shows that 

there were hundreds of Riders, who were housed in multiple 

facilities within the CDCR system, and that there were multiple 

SNY’s.

2. Chavez’s opinion on the phone call 

between Bravo and Vasquez

Vasquez argues the trial court should have excluded 

Chavez’s interpretation of the June 26, 2019 phone call between 

Vasquez and Bravo as unreliable or based on insupportable 

reasoning under People v. Stamps (2016) 3 Cal.App.5th 988 

(Stamps). 

We review the admission of expert testimony for abuse of 

discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45 

(Lindberg).) 
22

Vasquez did not object to Chavez’s testimony on the 

grounds he argues on appeal; therefore, his argument is forfeited. 

(Boyette, supra, 29 Cal.4th at p. 424; Evid. Code, § 353, subd. (a).) 

However, even if we were to consider the argument 

preserved, we disagree with Vasquez. In Stamps, the defendant 

was convicted of possession of drugs in pill form. At trial, the 

criminalist opined that the pills contained controlled substances 

by visually comparing their appearance to pills on the Internet. 

(Stamps, supra, 3 Cal.App.5th at p. 991.) Stamps explained trial 

courts have broad discretion to determine whether particular 

facts to which an expert was prepared to testify are sufficiently 

“ ‘reliable,’ ” and must act as gatekeepers in excluding “expert 

testimony when necessary to prevent unreliable evidence and 

insupportable reasoning from coming before the jury.” (Id. at 

p. 994.) The Stamps court concluded that, by admitting the 

criminalist’s testimony that the pills found on the Internet 

“ ‘match[ed]’ the pill found in Stamp’s possession, the [trial] court 

allowed [the expert] to place case-specific non-expert opinion 

before the jury, with the near certainty that the jury would rely 

on the underlying hearsay as direct proof of the chemical 

composition of the pills.” (Id. at p. 992, fn. 2.) 

We find Stamps inapposite. Chavez did not rely on any 

hearsay facts in interpreting the call between Vasquez and 

Bravo. Chavez explained, based on his background, training and 

experience as a gang investigator, and his investigation of the 

Riders in particular, that Bravo and Vasquez were speaking in 

code. He based his interpretation on the evidence presented, 

including the sequence of events before and after the attack on 

Diaz. Nor was Chavez’s opinion based on insupportable 

reasoning. Indeed, the content of the call itself only makes sense 
23

if Bravo and Vasquez were speaking in some kind of code. 

Therefore, Chavez’s opinion was reasoned and reliable. 

3. Chavez’s testimony characterizing the 

attack as an “attempted murder”

Vasquez argues the trial court should have prevented 

Chavez from describing the attack on Diaz as an “attempted 

murder” because it presented a legal conclusion and supplanted 

the role of the jury. We disagree. 

As stated above, we review an expert’s opinion for abuse of 

discretion. (Lindberg, supra, 45 Cal.4th at p. 45.) 

We find no abuse of discretion here. As the investigating 

officer, Chavez’s references to the attempted murder were in 

reference to the crime he was tasked with investigating and the 

charges in this case. The trial court correctly noted Chavez’s 

characterization of the crime he was investigating had no bearing 

on whether it was true or not. Nor was Chavez’s testimony likely 

to mislead the jury into believing Vasquez’s conviction for 

attempted murder was a foregone conclusion, eliminating the 

need for deliberation or relieving the prosecution of its burden to 

prove each element of the offense beyond a reasonable doubt. 

Indeed, the parties’ closing arguments demonstrate that whether 

Vasquez acted with an intent to kill Diaz rather than just assault 

him was vigorously contested based on the evidence.

4. Chavez’s interpretation of Bravo’s 

statement that Diaz could “finally be at 

peace” 

Vasquez argues the trial court should have excluded 

Chavez’s testimony interpreting a text message between Bravo 

and Simmons where Bravo states: “This book is a real thriller, 

but it looks like what I predicted about the next chapter was 
24

right on. That girl is in the perfect place to get a hug and finally 

be at peace.” Chavez opined the phrase “finally be at peace” was 

code for “someone who is dead or died.” Vasquez asserts that 

there was nothing in this message that related in any way to 

Chavez’s expertise as a gang investigator. 

Again, Vasquez’s counsel did not object to this testimony on 

the grounds he argues here. Therefore, the argument is forfeited. 

(Boyette, supra, 29 Cal.4th at p. 424; Evid. Code, § 353, subd. (a).)

However, even if we were to consider the objection 

preserved, there was no abuse of discretion. (Lindberg, supra, 

45 Cal.4th at p. 45.) Vasquez cites People v. Hernandez (1977) 

70 Cal.App.3d 271 (Hernandez) as support for his argument that 

Chavez’s testimony was unrelated to his expertise. 

In Hernandez, the court found an abuse of discretion in admitting 

a police officer’s opinion that defendant’s shaking his head from 

side to side meant he had been asked if he had any more 

narcotics and had responded that he did not. (Id. at pp. 274–

275.) The Hernandez court held the officer’s expertise did not add 

any probative value to the evidence, which the jury could 

interpret for itself. (Id. at p. 281.)

Hernandez is distinguishable. While the phrase “finally be 

at peace” could be understood by a layperson as referring to 

someone who has died, the phrase appeared in a text message 

where the participants were speaking in code. The full message 

read: “This book is a real thriller, but it looks like what I 

predicted about the next chapter was right on. That girl is in the 

perfect place to get a hug and finally be at peace.” Chavez’s 

testimony assisted the jury in interpreting the coded message

and was based on his background, training, and experience as a 

gang investigator, which included interpreting messages between 
25

gang members and their facilitators. Thus, Chavez’s 

interpretation related to his expertise as a gang investigator. 

B. Terry Gonzales

1. Whether Gonzales’s testimony regarding 

the attack on Diaz was speculative 

Vasquez argues Gonzales’s testimony regarding the attack 

on Diaz in 2019 was speculative since Gonzales left the Riders in 

2017. Vasquez challenges Gonzales’s testimony that, “I’m 

testifying today because it’s the right thing to do. My life was 

attempted to be taken from me, and it’s my belief that 

Mr. Vasquez is out of control . . . . [¶] . . . [¶] with his attempt at 

murder and mayhem and extortion. [¶] So I feel that I have 

evidence and information as a fellow member—a ranking 

member of the gang and a close partner of his to stop that 

mayhem, attempted murder, and assault.” Vasquez also 

challenges Gonzales’s testimony that Vasquez had put out a “kill 

order” for Diaz that was still in effect in 2019. 

Vasquez did not object on the grounds that Gonzales’s 

testimony was speculative; therefore, his argument is forfeited. 

(Boyette, supra, 29 Cal.4th at p. 424; Evid. Code, § 353, subd. (a).)

However, even if we were to consider the objection 

preserved, Gonzales’s testimony was not speculative. Gonzales 

knew why he was testifying and the trial court explained to the 

jury that Gonzales’s testimony could be considered for the 

purpose of showing Gonzales’s state of mind. Second, with 

respect to Gonzales’s knowledge of the “kill order,” there was 

evidence that Vasquez ordered Gonzales to kill Diaz while 

Gonzales was still a member of the Riders. Whether the kill 

order was still in place after Gonzales left the gang went to the 

weight of the testimony, as Gonzales indicated that he still 
26

communicated with Vasquez even after he left the gang. 

Therefore, Gonzales’s testimony was not speculative.

2. Gonzales’s testimony regarding how he 

was the victim of an attack ordered by

Vasquez

Vasquez argues the trial court should have excluded 

Gonzales’s testimony that he was stabbed 25 times by two 

assailants on Vasquez’s orders under Evidence Code section 352. 

We disagree. 

As stated above, we review the trial court’s rulings under 

Evidence Code sections 352 for abuse of discretion. (Parker, 

supra, 13 Cal.5th at p. 39.) 

We find no abuse of discretion as the testimony’s probative 

value was not outweighed by undue prejudice. As the trial court 

correctly recognized, Gonzales’s testimony was relevant to his 

credibility and reasons for testifying. “Evidence that a witness is 

afraid to testify or fears retaliation for testifying is relevant to 

the credibility of that witness and is therefore admissible.” 

(People v. Burgener (2003) 29 Cal.4th 833, 869.) The fact that he 

had been attacked by the Riders was also relevant to his

motivation to testify against Vasquez. (See People v. Olguin

(1994) 31 Cal.App.4th 1355, 1368–1369.) “A witness who testifies 

despite fear of recrimination of any kind by anyone is more 

credible because of his or her personal stake in the testimony.” 

(Ibid.)

Further, the evidence was relevant to how the gang worked 

and its system of progressive discipline, specifically, to show how 

a serious violation of the gang’s rules would result in violent 

retribution, including murder. Gonzales testified that Vasquez 

told him he was attacked because he was disloyal and was a 
27

snitch. This evidence was highly relevant to prove Vasquez’s 

intent to kill Diaz under Evidence Code 1101, subdivision (b), 

which permits evidence of prior wrongdoing if relevant to prove 

motive or intent. Additionally, some of the details of the attack, 

including Gonzales’s injuries, were relevant to show that 

Gonzales’s transgressions were serious enough to warrant a 

violent assault with weapons. Thus, although the evidence was 

prejudicial, it was relevant and highly probative of Vasquez’s 

intent, which was a central issue at trial. (People v. Zapien

(1993) 4 Cal.4th 929, 958.) 

3. Evidence that Gonzales tried to stab Diaz 

while acting under Vasquez’s orders

Vasquez argues the trial court should have excluded 

Gonzales’s testimony that Vasquez ordered him to kill Diaz via 

kites and letters. Specifically, Vasquez argues the trial court 

abused its discretion in purportedly issuing contradictory rulings 

that precluded such testimony, but then allowed Gonzales to 

testify about two purported attempts on Diaz’s life on Vasquez’s 

orders. We find no abuse of discretion. 

When Gonzales’s testimony regarding the orders to kill 

Diaz was first discussed, defense counsel objected on grounds of 

relevance and prejudice. The trial court noted that it was

admissible under Evidence Code section 1101, subdivision (b). 

The prosecutor stated the evidence was not being offered under 

Evidence Code section 1101, subdivision (b), but to show how the 

gang conducts its business. When the testimony was discussed 

again, the trial court again stated the evidence was admissible 

under Evidence Code section 1101, subdivision (b). The trial 

court later confirmed that Vasquez’s motion to exclude Gonzales’s 

testimony had been denied.
28

We note to the extent the trial court’s rulings were 

ambiguous, Vasquez’s trial counsel was obligated to ask for 

clarification after the trial court ruled Gonzales’s testimony was 

admissible. (People v. Ramirez (2006) 39 Cal.4th 398, 472–473.) 

Further, as the trial court correctly ruled, the evidence was 

relevant and admissible under Evidence Code section 1101, 

subdivision (b) to show Vasquez’s motive and intent. Evidence 

that Vasquez had previously ordered Diaz’s murder was highly 

relevant to prove that Vasquez wanted Diaz killed as opposed to 

just assaulted.

C. Chavez’s and Gonzales’s testimonies regarding 

the “hit list”

Vasquez argues the trial court erred when it allowed

Chavez and Gonzales to testify regarding the Riders “hit list.” 

Specifically, Vasquez argues the admission of the list violated the 

trial court’s order granting his motion to exclude any evidence 

that Vasquez conspired to murder any other person. Further, 

Vasquez argues Chavez and Gonzales improperly relied on casespecific hearsay in violation of People v. Sanchez (2016) 

63 Cal.4th 665 (Sanchez).

Before opening statements, Vasquez requested that the 

prosecutor not refer to the list of names found in Vasquez’s cell as 

a “hit list” before establishing a proper foundation. The trial 

court granted that request. Later, when the trial court was 

discussing juror exhibit binders, it reiterated its ruling that the 

prosecutor could not call the list of names a “hit list” until laying 

a foundation. 

During trial, Chavez was asked about the list. He testified 

that the list contained the names of Nuestra Cosas members, 

including their monikers, inmate identification numbers, street 
29

gang membership, and the area of California where each member 

was from. Chavez then opined the list contained the names of 

inmates who had been targeted for assault or murder at the 

direction of the Riders’ leadership. Chavez further testified that 

generally gangs will maintain lists of rival gang members in 

order to pass that information to other members of the gang. 

When Gonzales was asked about the list, he testified that it 

was a Riders “hit list” and that it was formatted in a manner 

approved by Vasquez. Gonzales explained that sometimes 

similar lists will be labeled a “hit list” although the one presented 

was not labeled as such. 

Again, Vasquez did not object that the testimony regarding 

the list violated the trial court’s ruling excluding evidence that he 

conspired to murder any other person or on Sanchez grounds. 

Therefore, his arguments are forfeited. (Boyette, supra, 

29 Cal.4th at p. 424; Evid. Code, § 353, subd. (a).)

However, even if the objections had been preserved, there 

was no abuse of discretion. Under Sanchez, “If an expert testifies 

to case-specific out-of-court statements to explain the bases for 

his opinion, those statements are necessarily considered by the 

jury for their truth, thus rendering them hearsay. Like any other 

hearsay evidence, it must be properly admitted through an 

applicable hearsay exception. Alternatively, the evidence can be 

admitted through an appropriate witness and the expert may 

assume its truth in a properly worded hypothetical question in 

the traditional manner.” (Sanchez, supra, 63 Cal.4th at p. 684.)

Here, the list was offered for the nonhearsay purpose to 

show Vasquez’s state of mind. The relevance of the list was that 

Vasquez possessed a list of names of members of a rival gang. 

It was not offered for the purpose of its truth, i.e., that Vasquez 
30

had targeted the individuals for murder. Thus, because the list 

was relevant to Vasquez’s state of mind, it did not constitute 

hearsay. Moreover, the list was admitted into evidence and the 

jury was able to evaluate it on its own. (See Sanchez, supra, 

63 Cal.4th at p. 684.) 

We are also not persuaded that the admission of the list

violated the trial court’s order generally excluding any evidence 

that Vasquez conspired to kill any other person. When the trial 

court first addressed whether evidence of other murder 

conspiracies would be permitted, it had already ruled that the list

was admissible, and that it could be called a “hit list” after the 

prosecution laid a proper foundation. Thus, it appears the trial 

court’s more general order precluding any evidence Vasquez 

conspired to murder others did not apply to the prosecutor’s 

specific request to admit the list for a nonhearsay purpose to 

show Vasquez’s state of mind. 

II. Prosecutorial misconduct

Vasquez also argues his convictions should be reversed on 

the grounds of numerous instances of prosecutorial misconduct. 

Like Vasquez’s evidentiary challenges, his trial counsel did not 

object on the grounds he now asserts on appeal. Therefore, his 

arguments are mostly forfeited. To the extent his arguments are 

preserved, we find them unpersuasive or the errors harmless.

A. The prosecutor eliciting testimony that 

Vasquez ordered Gonzales to kill X-Raided

Vasquez argues the prosecutor committed misconduct by 

eliciting testimony from Gonzales that Vasquez ordered him to

kill the inmate X-Raided. Vasquez asserts the prosecutor 

intentionally asked Gonzales questions regarding the attack on 

X-Raided despite the trial court’s order granting Vasquez’s 
31

motion to exclude any evidence or testimony that Vasquez 

conspired to murder any other person. 

1. Additional background

Vasquez filed a motion in limine containing multiple 

requests to both preclude and introduce evidence. As previously 

stated, Vasquez sought to exclude any “evidence or testimony”

that he “conspired to murder any other person.” The trial court 

granted this request after the prosecutor stated there would be 

no evidence offered under Evidence Code section 1101, 

subdivision (b). Nevertheless, Vasquez sought to introduce 

evidence that Gonzales “received a ‘kite’ from [Vasquez] who 

ordered him to kill a rapper inmate named ‘X-Raided.’ ” The trial 

court granted Vasquez’s motion to introduce this evidence. 

During Gonzales’s testimony, the prosecutor asked him, “In 

the course of your work with the Northern Riders, one of the 

plans you carried out was actually against a rapper . . . X-Raided; 

is that correct?” Vasquez’s trial counsel objected to the question 

as leading, which was sustained. The prosecutor asked, “Did you 

carry out an attack against a rapper that went by the name of XRaided?” Again, Vasquez objected the question was leading, 

which the trial court overruled. Gonzales answered that he did 

carry out the attack at the direction of Vasquez. After the 

prosecutor asked several more questions, Vasquez’s trial counsel 

objected under Evidence Code 1101, subdivision (b). The trial 

court held a sidebar conference and sustained the objection, 

relying on the prosecutor’s representation that this evidence 

would not be offered under Evidence Code section 1101, 

subdivision (b). Although the trial court noted the testimony 

would have been properly admitted under Evidence Code 

section 1101, subdivision (b), it sustained the objection because 
32

the prosecutor’s prior representation deprived Vasquez’s trial 

counsel of adequate time to prepare. “Had you asked to do that, 

I probably would have let you do it because it’s very on point. 

But you agreed not to; so I didn’t have to make a ruling, and you 

just have to abide by your position unless you want to change it. 

If you don’t, that’s fine. I’ll just strike anything regarding the 

stabbing of X-Raided.” The trial court then admonished the jury 

“to disregard all the testimony regarding the attack of X-Raided

. . . . You are to strike that and disregard it for the purposes of 

this trial.”

2. Standard of review and governing law

“It is misconduct for a prosecutor to violate a court ruling 

by eliciting or attempting to elicit inadmissible evidence in 

violation of a court order.” (People v. Crew (2003) 31 Cal.4th 822, 

839.) “Because we consider the effect of the prosecutor’s action on 

the defendant, a determination of bad faith or wrongful intent by 

the prosecutor is not required for a finding of prosecutorial 

misconduct. [Citation.] A defendant’s conviction will not be 

reversed for prosecutorial misconduct, however, unless it is

reasonably probable that a result more favorable to the defendant 

would have been reached without the misconduct.” (Ibid.)

3. Analysis

We find no misconduct here. Although the trial court 

granted Vasquez’s motion in limine to exclude any evidence that 

Vasquez conspired to murder any other person, it also granted 

his motion to introduce evidence that Gonzales received a 

message from Vasquez with an order to kill X-Raided. Under 

these circumstances, it was reasonable for the prosecutor to 

assume the more specific ruling, that allowed Gonzales’s 

testimony that he received a note from Vasquez to attack X-
33

Raided, controlled over the more general ruling that excluded any 

evidence or testimony that Vasquez conspired to murder any 

other person. Moreover, the trial court promptly admonished the 

jury and struck the testimony. “[W]e may presume that jurors 

can follow such an admonition.” (People v. Miller (2009) 

175 Cal.App.4th 1109, 1117.) 

Further, while bad faith is not required to find instances of 

prosecutorial misconduct, a defendant must still show he suffered 

prejudice. “Error with respect to prosecutorial misconduct is 

evaluated under Chapman v. California (1967) 386 U.S. 18 . . . to 

the extent federal constitutional rights are implicated and People 

v. Watson (1956) 46 Cal.2d 818 . . . if only state law issues were 

involved.” (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)

Under Chapman, prosecutorial misconduct that violates federal 

law is not prejudicial if the misconduct was harmless beyond a 

reasonable doubt. (People v. Katzenberger (2009) 178 Cal.App.4th 

1260, 1268–1269.) Under Watson, prosecutorial misconduct that 

violates state law is not prejudicial “ ‘unless it is reasonably 

probable that a result more favorable to the defendant would 

have been reached without the misconduct.’ ” (People v. Flores

(2020) 9 Cal.5th 371, 403.) 

Here, even under the more rigorous Chapman standard, 

any misconduct was harmless beyond a reasonable doubt. 

The testimony regarding X-Raided was brief and the trial court 

immediately sustained Vasquez’s trial counsel’s objection, 

admonished the jury, and struck the testimony. Further, the 

evidence that Vasquez conspired to murder Diaz was 

overwhelming given the numerous recorded phone calls, the text 

message exchanges, the documents found in Vasquez’s cell, the 
34

experts’ testimony, and the nature of the attack. Therefore, any 

error was harmless.

B. The prosecution’s failure to accurately describe 

the attack on Gonzales

Vasquez argues the prosecutor committed misconduct by 

failing to fully and accurately describe the attack on Gonzales 

during the discussions with the trial court regarding the 

testimony’s admissibility. We disagree. 

1. Additional background

In its initial discussion with the prosecutor regarding the 

admissibility of Gonzales’s anticipated testimony that he had 

been attacked by the Riders, the prosecutor relayed to the trial 

court that he expected Gonzales to testify that “he was a victim of 

an attack—he was stabbed several times—and that at least one 

of the attackers yelled out ‘Northern Riders’ afterwards.” 

In relation to that testimony, Vasquez’s trial counsel sought to 

exclude any evidence that Vasquez ordered the attack on 

Gonzales. The trial court granted Vasquez’s request, and the 

prosecutor agreed not to elicit any testimony from Gonzales that 

Vasquez ordered the attack. 

Later, in discussing Gonzales’s anticipated testimony 

regarding the attack, the prosecutor relayed to the trial court 

that Gonzales told him during a recent interview that Vasquez 

wanted Gonzales killed. The trial court revisited its prior ruling 

and agreed with the prosecutor that Gonzales’s testimony was 

relevant to his credibility in addition to how the gang worked. 

In discussing the details of the attack, the prosecutor sought to 

admit the nature of the attack, specifically, that Gonzales 

“suffered several slash and stab wounds to his face and to his 

eyes.” The trial court noted that it had previously ruled the 
35

details of the attack would be excluded, but stated the prosecutor 

could elicit testimony that when “they effectuate these attacks, 

they can be extremely violent, and then he can say, ‘In my case, 

I had these injuries,’ ” but not that “ ‘they wanted to kill me.’ ” 

The trial court stated, “[Y]ou can ask him . . . when there’s a 

power struggle like that, are there various levels . . . of discipline. 

It can go from a very low level at a talking-to to murder. And in 

his case, it was a power struggle not within but with the 

president. So in his case, he can say, ‘I had cut and slashes and 

cuts all over my face, around my eyes, and stab wounds.’ ” 

Gonzales testified he was stabbed 25 times all over his 

body. 

3. Analysis

Vasquez’s trial counsel did not object or alert the trial court 

to any material representations made by the prosecutor 

regarding the nature of the attack on Gonzales. Failure to raise 

the issue of prosecutorial misconduct at trial forfeits the right to 

appellate review of that issue. (People v. Thomas (2011) 

51 Cal.4th 449, 491–492; People v. Lopez (2008) 42 Cal.4th 960, 

966). Therefore, the argument is forfeited. 

However, even if the argument had been preserved, we 

would not find the prosecutor made any misrepresentation here. 

We note it is unclear whether the prosecutor had the opportunity 

to interview Gonzales before representing to the trial court that 

Gonzales was stabbed several times. Rather, it appears the 

investigators were relaying to the prosecutor what Gonzales had 

told them. However, it is clear that, after the prosecutor had the 

opportunity to speak to Gonzales directly, he made the trial court

and Vasquez’s trial counsel aware of the violent nature of the 

attack. This is reflected in the additional discussions about the 
36

attack before Gonzales testified. During those discussions, the 

trial court specified that Gonzales was permitted to testify that 

he had “ ‘slashes and cuts all over [his] face, around [his] eyes, 

and stab wounds,’ or whatever he had.” Further, in that same 

discussion, the prosecutor described the attack in detail, and it is 

apparent that Vasquez’s trial counsel was concerned about the 

details of the violent nature of the attack. Given the state of the 

record, we conclude the prosecutor did not misrepresent the 

nature of the attack on Gonzales.

C. Whether the prosecutor argued facts not in 

evidence

Vasquez argues the prosecution committed multiple acts of 

misconduct by arguing facts not in evidence. These include the 

prosecution’s statement that “nobody got charged out in 

Corcoran,” that Diaz was stabbed in the “kill spot,” that Diaz was 

attacked because he was recruiting members of the Riders, and 

that Gonzales was attacked because he left the Riders. We

conclude the prosecutor’s arguments were fair comments on the 

evidence and, to the extent the prosecutor argued facts not in 

evidence, any error was harmless.

A prosecutor has wide latitude in his closing argument, and 

is allowed to make fair comments on the evidence, including 

reasonable inferences or deductions. (People v. Jackson (2016) 

1 Cal.5th 269, 349.) A prosecutor may “argue all reasonable 

inferences from the record, and has a broad range within which 

to argue the facts and the law.” (People v. Daggett (1990) 

225 Cal.App.3d 751, 757.)
37

1. Whether other individuals were charged 

in Corcoran

In closing argument, Vasquez’s counsel challenged 

Gonzales’s credibility by noting that Gonzales committed 

numerous crimes while in prison and had never been prosecuted. 

During rebuttal argument, the prosecutor argued: “There’s no 

question that [Gonzales] . . . has gotten away with a lot of crime, 

a lot of attacks. That’s not what you’re here for, though. You’re 

here for Maurice Vasquez. What we’re asking you to do is to hold 

Maurice Vasquez accountable. [¶] We have the evidence in this 

case through good investigation. Even though the crime 

happened out of Corcoran, even though nobody got charged out in 

Corcoran, we have the evidence . . . and that’s why we’re asking 

you to convict.” 

In reviewing the record, it appears the prosecutor’s 

comments were purely geographical in describing Vasquez to the 

jury as the only individual to be charged outside of Corcoran. 

Indeed, the jury was well aware that Kons participated in the 

attack while at Corcoran and had also been charged with the 

conspiracy to murder Diaz. Indeed, during his testimony, Kons 

stated he had been charged similarly in this case, was Vasquez’s 

codefendant, and was awaiting trial. Further, in addressing 

Kons’s testimony regarding the attack, the prosecutor argued to

the jury it did not have to decide what Kons did or did not do as 

Kons would have “his own trial,” “his own evidence,” and “his 

own jury.” Thus, the prosecutor’s comments were not likely to be 

interpreted in an impermissible manner or that the jury should 

hold Vasquez accountable because Diaz’s direct attackers had not 

been charged.
38

2. Whether Diaz was attacked because he 

was recruiting Riders to his splinter 

faction

During closing argument, the prosecutor argued Vasquez 

was motivated to kill Diaz because he was recruiting Riders to 

the Nuestra Cosas. The prosecutor stated: “I want to look at the 

[timeline] for a second. Vasquez found[ed] the gang in 1999. 

Diaz joins in the early 2000’s. He’s there for a while. After about 

2015, he decides to break off. He forms the Nuestra Compas, 

which becomes Nuestra Cosas, and he starts recruiting. That is 

what got him his death sentence right there because Vasquez 

hates leadership challenges.” 

Vasquez has forfeited his claim that the prosecutor argued 

facts not in evidence as his trial counsel did not object or request 

an admonition that would have cured any prejudice. (People v.

Bennett (2009) 45 Cal.4th 577, 616 (Bennett).)

However, even if Vasquez’s argument was not forfeited, the 

prosecutor’s argument was a fair comment on the evidence. 

There was evidence that Diaz founded the Nuestra Cosas with 

other Riders. There was also evidence that Diaz created a split 

within the Riders, and that Vasquez was concerned over Diaz’s 

influence over other Riders as shown by Vasquez’s statements in 

the Epistle, where he describes Diaz as a “lawless little 

homosexual snitch” who was convincing other Riders to “believe” 

they were in the gang and “promoting false propaganda.” 

The Epistle further states: “[T]here is no such thing as Team 

Snoop, Team Scrappy. That’s some childish nonsense that little 

faggot snitch Scrappy made up cause he thinks it sounds cute. 

There is nothing cute nor funny about THE RIDER 

MOVEMENT!”
39

Given the record, the prosecutor’s argument that Vasquez 

wanted Diaz killed because he was recruiting Riders to the 

Nuestra Cosas was a fair comment on the evidence.

3. Whether Diaz was stabbed in the

“kill spot”

Vasquez asserts that the prosecutor relied on facts not in 

evidence when he argued that Vasquez acted with an intent to 

kill because Diaz was stabbed in the “kill spot.” 

During closing argument, when arguing Diaz’s attackers 

acted with an intent to kill, the prosecutor stated: “[R]emember 

what Terry Gonzale[s] told us about Vasquez’s training. You 

have to look at vital parts around the head, under the arms, the 

lungs. . . . [¶] This is the medical report that shows Mr. Diaz was 

stabbed in the back of the neck just below the skull, just like 

Terry Gonzale[s] explained to us; in the center of the spine; on 

the right[ ] side of the back—it looks like kind of near the 

shoulder blade—and on top of the left shoulder; puncture 

wounds; active bleeding.” In arguing Vasquez was guilty of 

attempted murder rather than assault, the prosecutor later 

argued, “I put together some examples of how we know what 

intent is. Sometimes people think we can’t know what’s in 

someone’s mind unless they scream out ‘I’m going to kill you’ at 

the moment they swing the knife. That’s not necessary. Intent 

we typically infer from other things, from other evidence. Here, 

they stabbed Diaz in the kill spot: Beneath the skull. Beneath 

the skull, in the spine.” 

Vasquez has forfeited his claim that the prosecutor argued 

facts not in evidence as his trial counsel did not object or request 

an admonition that would have cured any prejudice. (Bennett, 

supra, 45 Cal.4th at p. 616.)
40

However, even if Vasquez preserved the argument, the 

prosecutor’s argument was a fair comment on the evidence. 

Gonzales testified that he trained other Riders at Vasquez’s 

direction to stab targeted inmates in the vital areas of the body, 

including the jugular and carotid artery, i.e., the neck. Further, 

the nurse who treated Diaz’s injuries testified that Diaz suffered 

stab wounds to his spine and base of his skull. It was therefore a 

reasonable inference that the location of Diaz’s wounds evidenced 

an intent to kill, i.e., that Diaz was stabbed in an area of his body 

that could have resulted in his death or the “kill spot.”

4. The prosecutor’s suggestion that Gonzales 

was attacked because he left the gang

Vasquez contends the prosecutor argued facts not in 

evidence when he stated Gonzales was stabbed because he tried 

to leave the Riders. We agree this statement was unsupported by 

the record; however, we conclude any error was harmless. 

During closing argument, the prosecutor stated Gonzales 

was attacked because he left the gang. This statement provided 

support for the prosecutor’s argument that Vasquez acted with 

the intent to kill in this case because Gonzales was subject to 

similar violent retribution for going against the gang. The 

prosecutor argued: “Also, think about [Gonzales]. He definitely 

did not seem like a good person, but he seemed credible. It 

seemed like he was actually answering questions and not trying 

to avoid them from both the prosecution and the defense. This 

guy was stabbed 25 times for trying to leave the gang. 25 times.

He was just trying to leave. That’s not even close to as bad as 

what Diaz did. Diaz tried to break somebody off. Diaz tried to 

recruit people away. [Gonzales] was just taking himself away, 

and he got stabbed 25 times for that. He didn’t even form a 
41

faction. [¶] In one of those documents—I think it was the 

handwritten Missive—there’s this example from KVSP where 

some guy got tattoos of their little subgroups, and they were 

given an order to take them off or they would be cut off. That’s 

just a tattoo. Diaz is recruiting Northern Riders away from 

Vasquez, the worst thing you can do. That’s why he gets the 

worst order you can get.”

In contrast, when Gonzales testified regarding the reasons 

for the attack, he said that Vasquez told him the attack was 

carried out because Gonzales was “disloyal in [his] failure to kill 

Alexander Diaz, and that [he] was a snitch.” Thus, we agree with 

Vasquez that the prosecutor argued facts not in evidence. 

Nevertheless, we find any error harmless. “When the issue 

‘focuses on comments made by the prosecutor before the jury, the 

question is whether there is a reasonable likelihood that the jury 

construed or applied any of the complained-of remarks in an 

objectionable fashion.’ ” (People v. Harrison (2005) 35 Cal.4th 

208, 244.) “ ‘A defendant’s conviction will not be reversed for 

prosecutorial misconduct . . . unless it is reasonably probable that 

a result more favorable to the defendant would have been 

reached without the misconduct.’ ” (Ibid.) 

Here, the record shows the prosecutor was using Gonzales’s 

testimony regarding the attack to illustrate how the gang’s 

system of progressive discipline worked, and to show that 

Vasquez’s intent was to kill Diaz rather than merely assault him 

due to the gravity of Diaz’s offense against the gang in forming a 

splinter faction. However, rather than arguing Gonzales was 

attacked because he was disloyal and because he was a snitch, 

which was Gonzales’s testimony, the prosecutor argued Gonzales 

was the victim of an attempted murder because he left the gang. 
42

While the prosecutor incorrectly described the facts, the record 

provided that Gonzales was violently attacked for being disloyal 

to the gang and for cooperating with law enforcement—both of 

which the jury could reasonably infer were violations serious 

enough to warrant a comparable punishment to Diaz. Because 

the evidence was sufficiently analogous and the jury was not 

asked to consider the evidence for an improper purpose, it is not 

reasonably probable a result more favorable to Vasquez would 

have been reached had the prosecutor argued Gonzales was 

attacked because he was disloyal and a snitch. 

D. Whether the prosecutor urged the jury to 

consider evidence of the attack on Gonzales for 

an improper purpose

Vasquez argues the prosecutor asked the jury to consider 

evidence of Gonzales’s attack for an improper purpose. 

Specifically, Vasquez asserts that the prosecutor urged the jury 

to consider the attack as evidence of Vasquez’s character or his 

propensity for violence in violation of Evidence Code section 1101, 

subdivision (a). 

Vasquez did not object to this argument or request a 

curative admonition. Therefore, the argument is forfeited. 

(People v. Powell (2018) 6 Cal.5th 136, 171.)

However, even if the argument was preserved, it lacks 

merit. As explained by both the prosecutor and the trial court,

the evidence was admissible under Evidence Code section 1101, 

subdivision (b). Evidence of the attack on Gonzales was relevant 

to prove Vasquez’s intent. The prosecution’s theory was that 

Vasquez targeted individual members of the gang for discipline, 

and that more serious violations of the gang’s rules warranted 

violent retribution, including murder. Gonzales’s testimony 
43

regarding the attack was therefore highly relevant to show the 

gang’s response to perceived transgressions of the gang’s rules. 

Thus, the prosecutor argued to the jury that evidence of the 

attack should be considered for a proper purpose to show 

Vasquez’s motive and intent, not merely as propensity evidence 

to prove Vasquez’s bad character. Accordingly, there was no 

error. 

E. Improper vouching

Vasquez argues the prosecution engaged in misconduct by 

improperly vouching for witnesses. However, Vasquez has not 

cited to any specific examples of vouching. Therefore, his 

argument fails. 

“Improper vouching occurs when the prosecutor either 

(1) suggests that evidence not available to the jury supports the 

argument, or (2) invokes his or her personal prestige or depth of 

experience, or the prestige or reputation of the office, in support 

of the argument.” (People v. Anderson (2018) 5 Cal.5th 372, 415.)

“ ‘A prosecutor is prohibited from vouching for the credibility of 

witnesses or otherwise bolstering the veracity of their testimony 

by referring to evidence outside the record.’ [Citation.] ‘However, 

so long as a prosecutor’s assurances regarding the apparent 

honesty or reliability of prosecution witnesses are based on the 

“facts of [the] record and the inferences reasonably drawn 

therefrom, rather than any purported personal knowledge or 

belief,” [his] comments cannot be characterized as improper 

vouching.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 39.)

Here, Vasquez has not directed us to any specific examples 

of vouching; therefore, he has failed to carry his burden on appeal 

to show error. To the extent Vasquez’s brief contains citations to 

the record, it directs us to the trial court’s timely admonishment 
44

of the jury, during which the trial court interrupts the 

prosecutor’s closing argument and instructs the jury that the 

attorneys could not vouch for witnesses, and instructed the jurors 

to make their own determinations based on the evidence. To the 

extent there was improper vouching, the error was harmless as 

evidence of Vasquez’s guilt was strong. This included the 

numerous recordings, text messages, documentary evidence 

related to the Riders, and the experts’ testimony. 

III. Ineffective assistance of counsel

Vasquez argued he received ineffective assistance of 

counsel based on his counsel’s failure to object to the various 

claims he argues on appeal. 

“Generally, to prevail on a claim of ineffective assistance of 

counsel, a defendant must show both that his counsel’s 

performance fell below an objective standard of reasonableness 

and there is a reasonable probability of a more favorable outcome 

in the absence of the deficient performance. [Citation.] We 

always start with a presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” 

(People v. Ruiz (2023) 89 Cal.App.5th 324, 329, citing Strickland 

v. Washington (1984) 466 U.S. 668, 688.) “If the record on appeal 

fails to show why counsel acted or failed to act in the instance 

asserted to be ineffective, unless counsel was asked for an 

explanation and failed to provide one, or unless there simply 

could be no satisfactory explanation, the claim must be rejected 

on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068–1069.)

As discussed at length above, Vasquez’s claims of 

evidentiary error and prosecutorial misconduct were not 

persuasive. Therefore, Vasquez has not demonstrated deficient

performance, and his claims of error lack merit. Moreover, 
45

Vasquez’s counsel could have had valid tactical reasons for not 

objecting on the grounds Vasquez now argues on appeal, most 

likely, because he believed the objections would have been 

overruled. Accordingly, we reject Vasquez’s ineffective assistance

claim.

IV. Cumulative Error 

Vasquez argues cumulative error undermined the 

fundamental fairness of his trial and requires reversal of his 

conviction. As explained above, to the extent there were any 

errors, they were harmless. 

V. AB 333 

The parties agree that the jury’s true finding on the gang 

enhancement must be remanded as the predicate offenses no 

longer satisfy the amended requirements under AB 333. 

To prove a section 186.22 enhancement, the prosecution 

must show: (1) the underlying felony must be committed for the 

benefit of, at the direction of, or in association with any criminal 

street gang; and (2) the felony must be committed with the 

specific intent to promote, further, or assist in criminal conduct 

by gang members. (§ 186.22, subd. (b)(1); People v. Perez (2017) 

18 Cal.App.5th 598, 606–607.)

Effective January 1, 2022, AB 333 amended the elements 

for establishing the existence of a “criminal street gang” and 

“a pattern of criminal gang activity.” (Stats. 2021, ch. 699.) 

It modified the definition of “criminal street gang” to “an ongoing, 

organized association or group of three or more persons, whether 

formal or informal,” whose members “collectively engage in, or 

have engaged in, a pattern of criminal gang activity.” (§ 186.22, 

subd. (f), as amended by Stats. 2021, ch. 699, § 3.) Under AB 333, 

a “pattern of criminal gang activity” means “the commission of, 
46

attempted commission of, conspiracy to commit, or solicitation of, 

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

following offenses, provided at least one of these offenses occurred 

after the effective date of this chapter, and the last of those 

offenses occurred within three years of the prior offense and 

within three years of the date the current offense is alleged to 

have been committed, the offenses were committed on separate 

occasions or by two or more members, the offenses commonly 

benefited a criminal street gang, and the common benefit from 

the offenses is more than reputational.” (§ 186.22, subd. (e)(1).)

Vasquez’s judgment was not final when AB 333 went into 

effect on January 1, 2022; therefore, its amendments apply to 

this case. (People v. Perez (2022) 78 Cal.App.5th 192, 206.)

Here, both sides agree there was no evidence that the 

predicate offenses used to establish a pattern of criminal activity 

were committed for a nonreputational benefit to the Riders. 

Therefore, the predicate offenses do not meet the requirement 

that common benefit to the gang was more than reputational 

under section 186.22, subdivision. (e)(1). Accordingly, the gang 

enhancement must be vacated. The prosecution may elect to 

retry the gang enhancement allegations on remand. “When a 

statutory amendment adds an additional element to an offense, 

the prosecution must be afforded the opportunity to establish the 

additional element upon remand.” (People v. Eagle (2016) 

246 Cal.App.4th 275, 280.) 
47

DISPOSITION

The judgment is affirmed in part and reversed in part. 

The gang enhancement is reversed and the matter is remanded 

to the trial court to afford the prosecution an opportunity to retry 

the gang allegations. 

VIRAMONTES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.