Filed 8/7/24 P. v. Maldonado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAUS MALDONADO,

Defendant and Appellant.

F085569

(Super. Ct. No. 19CR-04148B)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, 

Judge.

Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant 

and Appellant. 

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

Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and John W. Powell, 

Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-
2.

INTRODUCTION

Appellant Nicholaus Maldonado was convicted of first degree robbery committed 

by two or more people (Pen. Code,1 § 213, subd. (a)(1)(A), count 1) and active 

participation in a criminal street gang (§ 186.22, subd. (a), count 3.)2 As to count 1, the 

jury found that Maldonado personally used a firearm in the commission of the offense 

(§ 12022.53, subds. (b), (e)(1)), and that he committed the crimes for the benefit of, at the 

direction of, or in association with a criminal street gang, with the specific intent to 

promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1), 

(b)(4)). The trial court struck the firearm enhancement and sentenced Maldonado to a 

prison term of 15 years to life. 

Maldonado raises the following claims on appeal: (1) The trial court abused its 

discretion by declining to declare a mistrial when some of the prospective jurors 

articulated fears of criminal street gangs during voir dire. Maldonado further contends 

the trial court erred by denying trial counsel’s request to empanel a new jury for the gang 

phase of his trial following an instance of juror misconduct. (2) There is insufficient 

evidence to support the criminal street gang enhancement and the substantive gang 

offense because the gang for which Maldonado had acted to benefit derived only a 

reputational benefit from the crime. (3) The trial court prejudicially erred by admitting 

evidence of Maldonado’s tattoos, all of which were acquired after his arrest for the 

instant offense. (4) The trial court prejudicially erred by excluding evidence of a drug 

trafficking case pending against the victim of the home invasion, A.K. (5) The matter 

must be remanded back to the lower court for reconsideration of the base term under the 

1

 All undefined statutory citations are to the Penal Code unless otherwise 

indicated.

2

 We refer to count 1 as a home invasion throughout the remainder of this opinion.
3.

current language of section 654. Finding Maldonado’s claims meritless, we affirm the 

judgment of conviction. 

PROCEDURAL AND FACTUAL HISTORY

On September 1, 2020, the Merced County District Attorney filed an information 

charging Maldonado and codefendant Daiquan Labari Kelly with robbery committed by 

two or more people (§ 213, subd. (a)(1)(A), count 1), home invasion robbery (§ 211, 

count 2), and active participation in a criminal street gang (§ 186.22, subd. (a), count 3). 

The information further alleged that counts 1 and 2 were committed for the benefit of, at 

the direction of, or in association with a criminal street gang with the specific intent to 

promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. 

(b)(1)(C), (b)(4)(B)), and that Maldonado personally used a firearm in the commission of 

the offense (§ 12022.53, subds. (b), (e)(1)). 

On August 25, 2022, the trial court granted Maldonado’s motion to bifurcate the 

substantive gang offense and the gang enhancements from the remaining charges 

pursuant to section 1109. 

On September 1, 2022, the jury was sworn in. 

On September 9, 2022, hours after deliberations began, the jury found Maldonado 

and Kelly guilty on count 1. No verdict was rendered on count 2, and that count was 

subsequently dismissed. 

On September 22, 2022, following the conclusion of the gang phase of the trial, 

the jury convicted Maldonado and Kelly on count 3 and found true the gang enhancement 

and firearm use enhancement allegations.3 

On December 16, 2022, the trial court sentenced Maldonado to a prison term of 15 

years to life on count 1, and a concurrent term of 16 months on count 3. The court 

exercised its discretion to strike the firearm use enhancement. 

3

 Kelly is not a party to this appeal. 
4.

A timely notice of appeal followed. 

The Home Invasion (Phase I)

In 2019, A.K. lived in a two-story house in Merced. The lower level of the house 

included a kitchen, living room, two bedrooms, and a large sliding glass door leading to 

the backyard, while the upper level housed three or four bedrooms. A.K.’s roommates,

who were college students, were away for the summer. 

On July 30, 2019, while A.K. was asleep in his upstairs bedroom, he was 

awakened sometime between 5:00 a.m. and 6:00 a.m. by loud banging sounds 

downstairs. Peering out of his bedroom window, he observed four to six individuals in 

his backyard, some of whom were carrying guns. One of the men was wearing a red shirt 

and tan bottoms, but he could not see this man’s face. A.K. described the men as lightskinned, but he could not determine whether they were Black or Hispanic. 

The men were whispering to each other as they attempted to break through A.K.’s 

sliding glass door. Following two bangs, an object broke through the door. A.K. dialed 

911 and placed his phone on the bed, keeping the line open to a 911 operator. He secured 

his puppy in his bedroom closet and waited for the intruders to reach his room. Moments 

later, one of the intruders kicked in A.K.’s bedroom door and entered the room. A.K.

overheard one of the men ask where “ ‘the weed [was] at.’ ” An unmasked man told 

A.K. to turn around and pressed a gun against A.K.’s spine. 

While A.K. was facing the wall, he could hear the house being ransacked. The 

intruders took a laptop, a PlayStation gaming console, a Nintendo Switch, and some 

jewelry. They fled through the front door of the home. 

Within five minutes of A.K.’s call to 911, Merced police officers arrived on scene, 

finding A.K. visibly shaken. Simultaneously, Merced Police Officer Brandon Wilkins 

pursued a brown Chevrolet Impala fleeing the area at a high rate of speed, eventually 

stopping the vehicle. Four men were inside: Kelly, who was driving, Daevon 
5.

Motshwane, who was sitting in the front passenger’s seat, Maldonado, who was sitting 

behind Kelly, and Marcelino Lorenzo, who was sitting behind Motshwane. 

Following a search of the vehicle, officers located items taken from A.K.’s house. 

A gun with an extended magazine was found underneath Kelly’s seat. 

A.K. informed responding officers that the man who had pressed a gun to his back 

resembled an individual who had robbed him at a nearby park just a few days prior to the 

home invasion. A.K. explained that the man who had robbed him at the park had a black

semi-automatic pistol with an extended magazine, the same type of gun that was pressed 

against him during the home invasion. However, A.K. was unable to identify anyone 

involved in the home invasion following an in-field show up. 

Despite evidence showing that there were at least five people involved in the home 

invasion, Kelly’s vehicle and the occupants therein were the only individuals 

apprehended. 

At trial, A.K. identified Maldonado from a photograph as an individual that had 

previously visited his (A.K.’s) home as a guest. A.K. explained that Maldonado had 

smoked marijuana at his home on at least five prior occasions. Although A.K. could not 

identify Maldonado as one of the intruders, he had strong suspicions that A.K. had 

participated in the home invasion. A.K. explained that he had only a handful of people 

over to his house in the short time he had been living there. 

Surveillance footage from the inside of A.K.’s home depicted aspects of the home 

invasion. Sergeant Jeremy Salyers with the Merced Police Department recognized Kelly, 

who was unmasked, from the surveillance video and identified him as one of the 

intruders. Sergeant Salyers further observed that Maldonado and Motshwane had dried 
6.

mud around the bottom of their shoes, suggesting that they had acted as lookouts during 

the invasion.4 

During a recorded jail phone call, Kelly initially admitted to “hitting a lick for 

some weed,” which referred to committing a robbery or a home invasion. 

The Gang Allegations (Phase II)

1. The Norteño Criminal Street Gang 

Officer Justin Saldivar with the Merced Police Department testified as a gang 

expert on behalf of the prosecution. Through his training and experience, including 

conversations with active Norteño gang members, he learned the following: the Norteño 

street gang operates through various subsets within the city of Merced, including Rebels 

Before Locs (RBL), Dead End Locs (DEL), Loughborough Locs, Merced Ghetto Boys, 

and Norteños For Life. There are also Norteño subsets specific to the county of Merced.

The Norteño gang operates in a paramilitary framework, characterized by a 

structured hierarchy. Members in prison, known as the Nuestra Familia, give orders to 

the Norteños on the street. Proceeds from criminal activities committed by Norteños on 

the street, otherwise known as “taxes,” are funneled back to the Nuestra Familia. All of 

the Norteño subsets within the city and county of Merced pay taxes to the Nuestra 

Familia. Norteño gang members adhere to the 14 bonds, which are a set of 14 rules that 

govern their conduct. The payment of taxes is incorporated within those rules. 

There are approximately 1,200 documented Norteño gang members in Merced 

County. Norteños signify their membership in the gang by wearing red and using 

common symbols, including: the Huelga bird; one and four dots, denoting the 14th letter 

of the alphabet; “XIV”; “X4”; and the Washington Nationals’ cursive “W.” 

4

 Photographs of the shoes were taken a year after the home invasion occurred. 

These photographs did not depict mud around the bottom of the shoes. 
7.

Rivals of the Norteños include the Northern Riders, a dropout gang; the Sureños; 

the Crips; and the Go Bad Bloods. 

Officer Saldivar opined that the primary activities of the Norteños include: the 

possession of weapons, the possession of weapons for sale, the possession of narcotics 

for sale, robbery, assault, and vehicle theft. To prove that the Norteños have committed a 

pattern of criminal gang activity, the prosecutor adduced evidence of two predicate 

offenses:

On July 8, 2017, Livingston Police Detective Taylor Kollmann conducted a traffic 

stop of a vehicle driven by Irving Castrejon-Gomez. Javier Guardado was seated in the 

front passenger’s seat. Detective Kollmann had contacted Guardado on prior occasions 

and knew him to be an active Livas Norteño gang member. He had previously observed 

Guardado associating with other known gang members. 

Detective Kollmann searched the vehicle and located marijuana and three small 

bindles of cocaine. Both Guardado and Castrejon-Gomez were arrested. As a result of 

this encounter, police officers obtained a search warrant for Guardado’s and CastrejonGomez’s residences. 

In Guardado’s residence, Merced Police Detective Steven Odom located two 

rifles, one of which had been stolen; a bag of ammunition; and some gang indicia, 

including a Norteño drawing that read “three block,” the facility where active Norteños 

are housed at the Merced County Jail. Inside Castrejon-Gomez’s residence, officers 

found ammunition and some red Norteño-related clothing. Guardado was convicted of 

the unlawful possession of a firearm. 

With respect to the second predicate offense, Detective Odom testified that on 

November 11, 2017, he attempted to initiate a traffic stop of a vehicle in Merced. A 

police pursuit ensued. At some point, both the driver, Ari Gonzalez-Cardenas, and the 

front passenger, Christian Palomares, exited the vehicle and attempted to run through an 

orchard before they were apprehended by police. 
8.

At the time of his arrest, Gonzalez-Cardenas was carrying a loaded Glock 22 in his 

waistband and wearing a red belt with a “P” on the buckle. Officer Odom explained that 

the “P” referenced Planet Varrio X, a Norteño subset in the city of Planada, a city within 

Merced County. At the time of their arrest, Officer Odom documented both GonzalezCardenas and Palomares as active Norteño gang members. Gonzalez-Cardenas was 

subsequently convicted of unlawful possession of a firearm with a gang enhancement. 

Officer Saldivar opined that Guardado and Castrejon-Gomez were active Varrio 

Livas Norteño gang members, citing the circumstances of their offense, the firearms 

found in their residences, and their self-admissions. As to Cardenas and Palomares, 

Officer Saldivar opined that they were active Norteño gang members based upon the

circumstances of their offense and a self-admission by Gonzales-Cardenas. 

2. Maldonado and His Accomplices

With respect to Maldonado and his accomplices, the prosecutor adduced the 

following evidence demonstrating their individual membership in the Norteño criminal 

street gang:

Maldonado

Between his arrest and his trial, Maldonado had acquired multiple gang-related 

tattoos, including: the St. Louis Cardinals “ ‘LS’ ” on his left forearm; “ ‘LST’ ” on his 

left arm; “ ‘Stone City’ ” on his forehead, a teardrop underneath his left eye, four separate 

letter “ ‘L’s’ ” on his body, including one L on his right hand and one on his left hand; 

the Louis Vuitton “LV” logo tattooed in an unspecified location; and a Huelga bird on his 

left hand. 

Officer Saldivar explained that the St. Louis Cardinals tattoos were references to 

Livingston, as were the “ ‘L’ ”s across Maldonado’s body. “ ‘Stone City’ ” represented 

the fact that Maldonado had done time in jail. According to Officer Saldivar, there are 

different theories as to the gang significance of Maldonado’s teardrop, which was not 

filled in. One of those theories is that the tattoo may signify an unfulfilled goal for the 
9.

gang. Officer Saldivar opined that Maldonado got these tattoos after he went to jail 

because he had earned the right to get them. He explained that only a Norteño gang 

member would be permitted to acquire the tattoos that Maldonado had acquired. 

During a recorded jail phone call, Maldonado gave his brother the password to his 

Snapchat social media account: “LN.” Maldonado stated that his password was “VLN” 

with the V omitted, remarking, “you know what the VLN stands for.” He asked an 

unidentified male participating in the call to post the message, “Free me.” Officer 

Saldivar explained that this message would publicly communicate that Maldonado had 

put in work for the gang and that going to jail was a significant accomplishment for gang 

members, analogizing it to going to college. 

Immediately after the home invasion, Maldonado was detained wearing a red 

Cincinnati Reds baseball logo T-shirt and red and black shoes. Norteño gang members 

within Livingston often use the Cincinnati Reds to denote their gang affiliation. Because 

Maldonado later acquired a St. Louis Cardinal tattoo on his forearm, a rival baseball 

team, Officer Saldivar surmised that Maldonado’s Cincinnati Reds t-shirt symbolized his 

association with the Norteño gang rather than the baseball team. 

Motshwane

Sergeant Salyers had contacted Motshwane between five and seven times prior to 

Motshwane’s arrest for the home invasion. One of those prior contacts occurred in late 

August 2017, when Sergeant Salyers responded to a report of a domestic disturbance at 

Motshwane’s home. Motshwane’s parents reported that they suspected him of being 

involved in a gang. During one of Sergeant Salyer’s subsequent contacts with 

Motshwane, Motshwane admitted that he was a Norteño. 

On March 10, 2019, Merced Police Officer Arturo DeHoyos testified that he was 

on patrol when he received a call about a group of juveniles hanging out in a laundry 

room in an apartment complex. Inside the laundry room, Officer DeHoyos found a gun 
10.

with its serial number scratched off. During this encounter, Motshwane admitted that 

they were Dead End Locs gang members. 

Detective Odom worked in the Gang Violence Suppression Unit for four and a

half years. He had between five to 10 prior contacts with Motshwane, one of which 

occurred just one month before the instant offense. 

During a traffic stop in June of 2019, in the city of Merced, Detective Odom 

observed Motshwane in a vehicle with other known gang members who were wearing 

clothing commonly associated with members of the Norteños For Life and the Merced 

Ghetto Boys criminal street gangs. The vehicle was in a predominately Norteño gang 

territory. 

After obtaining a search warrant for two of the vehicle’s occupants’ SnapChat 

accounts, Detective Odom discovered pictures of Motshwane displaying hand signs 

representing the Dead End Locs. One photograph depicted Motshwane with a 

documented Rebels Before Locs gang member. The photograph was captioned “ ‘RBL X 

DEL,’ ” which stands for Rebels Before Locs and the Dead End Locs, both Norteño 

subsets in the city of Merced. 

Another photograph depicted Motshwane with three known RBL gang members, 

all of whom were displaying gang signs. Motshwane was displaying a double pistol with 

his hands, representing the Dead End Locs. Three other photographs depicted 

Motshwane displaying the same Dead End Locs gang sign. These photographs also 

depicted Motshwane with individuals displaying gang signs for the Merced Ghetto Boys, 

the Norteños For Life, and the overarching Norteño gang. 

Detective Odom also described prior contacts with Motshwane during which he 

observed Motshwane in the company of other Norteño gang members, as well as 

members of the Bloods. 

In May of 2018, Detective Odom documented a contact with Motshwane wherein 

Motshwane was wearing a black sweater with a red shirt underneath it. Motshwane was 
11.

in the company of two other documented Norteño gang members and a member of the 

Players Nation Wide Blood gang. Detective Odom opined that Motshwane is an active 

Dead End Locs Norteño gang member. 

Lorenzo

Lorenzo lived within a half-mile radius of Maldonado in the city of Livingston. 

In August or September of 2015, Detective Kollman contacted Lorenzo at a park. 

The park is a known Varrio Livas Norteño hangout. In 2019 or 2020, Detective Kollman 

observed Lorenzo associating with other known Varrio Livas Norteño gang members. 

In January of 2018, Detective Kollman participated in the execution of a search 

warrant of Lorenzo’s residence. At the head of Lorenzo’s bed, Detective Kollman found 

a drawing of a Huelga Bird with the word “Livingston” above it with the S crossed out, 

signifying disrespect to Sureños. 

Lorenzo had a Mongolian style haircut, with a ponytail in the back and his head 

otherwise shaved. This hairstyle is commonly worn by Norteño gang members. 

Kelly

Kelly had no prior documented gang contacts with police. The record does not 

show that he had any prior convictions, known gang monikers, or prior associations with 

known gang members. 

The jury heard evidence of only one of Kelly’s tattoos, the letters “OTM.” 

Merced Police Sergeant Jose Barajas explained that this tattoo may be related to a gang 

on the East Coast, but he could not be certain that it was gang related. Sergeant Barajas 

stated that Kelly could be associated with the Norteños, but he did not have enough 

information to conclude that Kelly was an active Norteño. 

On July 30, 2019, the day of the incident, Sergeant Salyers questioned Kelly about 

the home invasion. Kelly claimed that he was hanging out at a residence nearby when a 

group of individuals were discussing a plan to rob A.K.’s home. The group was planning 

to steal narcotics from A.K.’s home and claimed they had previously robbed A.K. Kelly 
12.

told Sergeant Salyers that the other individuals with whom he had been detained had 

heard this conversation as well. 

3. The Gang Expert’s Opinion About the Gang Aspect of the Crime

Based on Maldonado’s participation in the home invasion, his attire, and his gang 

tattoos, Officer Saldivar opined that Maldonado was an active member of the Varrio 

Livas Norteños. 

Regarding Kelly, Officer Saldivar explained that Kelly’s use of gang terminology, 

his refusal to cooperate with law enforcement, and his active participation in the robbery 

with other known gang members, suggested that Kelly was an active Norteño street gang 

member.5 Kelly had only been in Merced for a few months, but he was already 

associating with known gang members, and he took a leadership role in the home 

invasion by driving one of the getaway vehicles. According to Officer Saldivar, 

Norteños only commit crimes with other members of the gang. 

With respect to Motshwane, Officer Saldivar asserted that Motshwane was an 

active Dead End Locs Norteño gang member, citing photographs of Motshwane 

displaying gang signs, his association with other active gang members, and his prior selfadmissions. 

Finally, as to Lorenzo, Officer Saldivar maintained that he was an active Varrio 

Livas Norteño, citing the Huelga Bird drawing in Lorenzo’s bedroom with the S 

scratched out and Lorenzo’s Mongolian-style haircut.6 

In response to a hypothetical mirroring the facts of the instant case, Officer 

Saldivar asserted that the home invasion was executed for the benefit of and in 

association with the Norteño criminal street gang. Officer Saldivar explained that the 

5

 Kelly referred to his accomplices as “his little homies,” and referred to the 

robbery as “hitting a lick.” 

6 Motshwane and Lorenzo, both minors at the time of the offense, entered pleas to

robbery for their participation in the instant offense. 
13.

proceeds from any valuables obtained during the robbery could be used to pay taxes to 

the gang, which would benefit the gang. Further, the fact that all the perpetrators that 

were apprehended had acted together in the planning and execution of the home invasion 

demonstrated that they were acting in association with the Norteño gang. 

DISCUSSION

I. Maldonado’s Motions for a Mistrial

Maldonado asserts that the trial court erred by denying his motions for a mistrial. 

According to Maldonado, the trial court should have empaneled a new jury for the gang 

phase of his trial so that he could fully voir dire the potential jurors about their biases 

regarding criminal street gangs. Maldonado further contends that the entire venire was 

tainted by some of the prospective comments regarding gangs during voir dire, and that a 

new jury should have been impaneled following an incident of juror misconduct 

occurring after the first phase of Maldonado’s trial. We find his assertion meritless. 

A. Background

The trial court granted the parties’ motions to bifurcate the non-gang offenses 

from the gang offenses, observing that bifurcation was required under the law. During 

voir dire, the prosecutor requested permission from the court to question the jury about 

their biases concerning criminal street gangs. The prosecutor explained that the jury 

would ultimately hear and decide both cases, and thus, any potential biases or sympathies 

by potential jurors about criminal street gangs would be relevant. Trial counsel opposed 

the prosecutor’s request, arguing that section 1109 requires the exclusion of all gang 

evidence under the circumstances. 

In addition, trial counsel represented that he would object to the admission of any 

gang evidence during the non-gang phase of the trial. With respect to the prosecutor’s 

request to voir dire the jury venire about biases toward gangs, trial counsel represented 

that 99 percent of prospective jurors would have biases against gang members, thus 

implying that such questioning would be unnecessary. 
14.

As to the admission of gang evidence in the non-gang phase of the bifurcated 

proceeding, the trial court ruled that an offer of proof would be required before the 

prosecutor could introduce any such evidence. And, as to the prosecutor’s request to voir 

dire the jury about gang biases, the court proposed that it could advise the jury that the 

charges against the defendants did not relate to gang activity, but that the jurors may hear 

some mention of gangs in the witness’s testimony. The court would ask, “ ‘Anyone have 

any familiarity, knowledge or expertise with gangs,’ and if so, “ ‘Could you be fair if you 

hear testimony a witness was associated with a gang?’ ” Thereafter, if the parties wanted 

to question the jurors about gangs, they would need to make a showing as to the 

relevancy of any such questions. 

Consistent with its proposed questions, the court questioned the jury venire about 

their bias related to gangs as follows: 

“[The Court]: Now, the charges I read to you 

do not contain any reference to gang activity or any 

mention of gangs, but you may hear some mention of 

gangs in the testimony, um, or hear that a witness 

might be associated with a gang. Um, does anyone 

have any special familiarity, knowledge, experience or 

expertise when it comes to gangs?” 

In response, the prospective jurors volunteered the following information:

• Juror No. 0392 (Seat No. 7) articulated fears of gang retaliation, adding that 

they have a young child. The trial court emphasized that the charges were 

not gang related, but Juror No. 0392 stated that they would subconsciously 

exercise caution, not knowing what they were getting themselves into. 

• Juror No. 2183 (Seat No. 8) commented, “I do have a young child. I do 

have a wife and we do live on a street where it is a little populated with 

gang violence, so I would be a little afraid that word would get out, so 

something of that nature.” When the court asked whether this would 

prevent them from being impartial and keeping an open mind, Juror No. 

2183 replied that it would not. 
15.

• Juror No. 9870 (Seat No. 17) expressed a bias against gangs based upon the 

fact that he had recently lost a cousin due to gang violence. 

None of the other prospective jurors indicated an issue in response to the trial 

court’s inquiry. However, two other prospective jurors subsequently volunteered the 

following information:

• Juror No. 5894 (Seat No. 15) volunteered that they had been a probation 

officer for 16 years and had received some basic training related to gangs. 

Juror No. 5894 was also the father-in-law of one of the prosecution’s 

witnesses in the case, Detective Kollman. 

• Juror No. 8567 (Seat No. 10) stated that they had negative feelings about 

people with tattoos and stated that they would be a poor fit for the jury. At 

the time of his trial, Maldonado had visible face and hand tattoos. 

During a break, trial counsel observed that five of the 18 prospective jurors had 

expressed negative responses about gangs, with two claiming that they had extreme fears. 

Trial counsel moved for a mistrial arguing that the jury panel had been tainted by the 

prospective jurors articulated fears about gangs. 

Following the lunch recess, the trial court denied trial counsel’s motion, 

explaining: 

“[The Court]: I’m going to deny the motion. I 

think it was appropriate for the Court to go into that 

subject matter. Obviously, depending on the outcome 

of this portion of the case, I can’t imagine, ... either 

side would want jurors like juror in seat No. 7 ... [or] 8 

as far as sitting on the bifurcated portion. 

“I don’t see how else to have a fair jury for both 

sides in this case without mentioning some topics that 

will come up; plus, in this case, they’re at least going 

to hear testimony about certain colors and whatever, 

which is kind of common knowledge to most people,

so I don’t think a mistrial would be justified, so I’ll 

deny the motion.” 

Subsequently, the following exchange occurred between trial counsel and Juror 

No. 0392 (Seat No. 7):
16.

“[Trial Counsel]: ... this whole idea about retaliation 

or trying to find you or remembering where you live or what 

you do, ages of your kids, I mean, is any of that going to 

come into your thought process over the next two weeks as I 

defend [Mr. Maldonado]?

“[Juror No. 0392]: Um, I mean, I think the judge 

reassured me enough where I’m, like, that’s not a worry 

anymore. 

“[Trial Counsel]: Okay. The judge [did] or I did?

“[Juror No. 0392]: The judge.” 

The trial court excused Jurors Nos. 8567 (Seat No. 10) and 9870 (Seat No. 17). 

Juror No. 0392 (Seat No. 7) was excused following a preemptory challenge by the 

prosecutor, and Juror No. 5894 (Seat No. 15) was excused by a preemptory challenge by 

trial counsel. The trial court later excused Juror No. 2183 (Seat No. 8) for financial 

hardship. 

Trial counsel asked the remaining prospective jurors about biases related to 

tattoos. The following exchanges occurred:

• Trial counsel asked Juror No. 5482 (Replacement Seat No. 17) whether he 

could determine Maldonado’s guilt beyond a reasonable doubt based solely 

upon the evidence, and not any personal feelings he may have about 

Maldonado. Juror No. 5482 commented on one of Maldonado’s tattoos, 

remarking that it appeared to be a gang tattoo, and stated that his cousin had 

been killed by a gang member in a drive-by shooting. Based upon this 

experience, Juror No. 5482 represented that he would have a difficult time 

finding Maldonado not guilty. The trial court excused Juror No. 5482. 

• Juror No. 2261 (Replacement Seat No. 14) expressed a dislike for tattoos 

and stated that they associated Maldonado’s teardrop tattoo with murder or 

gang membership. Juror No. 2261 was excused by the court. 

On September 1, 2022, the jury was sworn in. 

On September 9, 2022, Maldonado was convicted on count 1.
17.

On September 13, 2022, prior to the commencement of the gang portion of the 

bifurcated trial, trial counsel moved to empanel a new jury to fully voir dire prospective 

jurors about their gang biases. The prosecutor opposed the motion, arguing that there 

was no lawful basis to empanel a new jury. She further observed that the trial court had 

taken appropriate measures to ensure that the jury panel selected had not been prejudiced 

by any of the gang evidence, consistent with section 1109. The trial court denied trial 

counsel’s motion, explaining:

“[The Court]: First, I don’t think the case 

against Mr. Maldonado was that weak[.] It’s a 

circumstantial case; but it wasn’t a weak case. 

Secondly, under 1109, there was a bifurcation. The 

defense counsel objected to me even addressing jurors 

about the topic of gangs. But I did ask about 

familiarity. And we did root out – one juror mentioned 

that made her fearful. So I don’t think they would be 

unduly biased. 

“I have advised jurors to follow the law. And I 

see no grounds for granting the request. And it would 

take up a lot of time. It took a while for us to pick this 

jury. So I would think it would take just as long to 

empanel a new jury. So, at this time, I don’t think 

there’s grounds to grant the motion. So, I’ll deny it.” 

The following afternoon, outside of the presence of the jury, the trial court stated 

that a court bailiff had “overhead [the] jurors discussing gangs.” The courtroom bailiff, 

Deputy Alfred Vasquez, was called to testify. Deputy Vasquez testified that he was 

walking across the lobby when he heard someone, later identified as the juror in Seat No. 

8, “talking about gangs, different gangs, southern gangs, northern gangs, [B]lack gangs, 

[A]sian gangs.” Though he could not be sure, Deputy Vasquez thought that there may 

have been four or five jurors in the area at the time. 

Juror No. 6999 (Seat No. 8) was brought into the courtroom and asked whether he 

recalled having any conversations with other jurors about gangs. Juror No. 6999 claimed 
18.

that he could not remember anything specific. He admitted that there “might have been” 

some general discussion of gangs including some discussion of there being “six major 

gangs at Golden Valley High School.” 

All of the jurors were questioned about the gang conversation. Juror No. 4399 

(Seat No. 9), admitted having contributed to a discussion about gangs, stating, “I just 

remember somebody mentioning, like something about a gang somewhere. ... I made a 

comment, ... ‘Well, I didn’t know gangs were so prevalent like that.’ I can’t even 

remember which [juror] mentioned a gang.” Juror No. 4399 explained that his only 

contribution to the discussion was stating that he had been naïve about gangs. 

Juror No. 8535 (Seat No. 12) heard some discussion of a gang known as “Levi.” 

Juror No. 1475 (Seat No. 13) reported hearing a discussion in the lobby involving the 

jurors in seat Nos. 1, 8, 9, and 12, and one of those jurors had remarked that “he didn’t 

know that so many towns have local gangs.” None of the other jurors remembered 

hearing anyone discussing gangs. 

The trial court concluded that the gang discussion mainly involved Juror Nos. 

6999 (Seat No. 8) and 4399 (Seat No. 9). The court stated, “Maybe some of the other 

ones were listening. So I don’t know how Counsel wants to proceed. It doesn’t sound 

like it was directly on the case, but they were talking about a subject that was involved in 

this case. And I do feel like perhaps Juror No. 8 was not totally forthcoming.” 

Trial counsel argued that the jury had been tainted by the jurors’ discussion of 

gangs and moved for a mistrial as to the bifurcated proceeding. The trial court denied 

trial counsel’s motion, excused Juror No. 6999 (Seat No. 8), and replaced them with an 

alternate juror identified as Juror No. 1475. 

B. Standard of Review

“In general, ‘a motion for mistrial should be granted only when “ ‘a party’s 

chances of receiving a fair trial have been irreparably damaged.’ ” ’ ” (People v. Bell

(2019) 7 Cal.5th 70, 121.) “ ‘A trial court should declare a mistrial only “ ‘if the court is 
19.

apprised of prejudice that it judges incurable by admonition or instruction.’ ” ’ ” (Ibid.; 

accord, People v. Ramirez (2022) 13 Cal.5th at 997, 1126.) 

“ ‘[W]e use the deferential abuse of discretion standard to review a trial court[’s]

ruling denying a mistrial.’ ” (People v. Clark (2011) 52 Cal.4th 856, 990; accord, People 

v. Ramirez, supra, 13 Cal.5th at p. 1126.) “[T]he trial court possesses broad discretion to 

determine whether or not possible bias or prejudice against the defendant has 

contaminated the entire venire to such an extreme that its discharge is required.” (People 

v. Medina (1990) 51 Cal.3d 870, 889.) We will find an abuse of discretion only where 

“ ‘ “[the court’s] ruling ‘falls outside the bounds of reason’ ” ’ ” (People v. Thomas

(2011) 52 Cal.4th 336, 354-355.)

C. Legal Principles

Under the federal and state constitutions, criminal defendants have the right to a 

fair trial before an impartial jury. (Cal. Const., art. I, § 16; see People v. Mataele (2022) 

13 Cal.5th 372, 402-403.) “ ‘The Sixth Amendment right to an impartial jury and the due 

process right to a fundamentally fair trial guarantee to criminal defendants a trial in which 

jurors set aside preconceptions, disregard extrajudicial influences, and decide guilt or 

innocence “based on the evidence presented in court.” ’ ” (People v. Mataele, at pp. 402-

403, citing Skilling v. United States (2010) 561 U.S. 358, 438.) 

“ ‘[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate 

voir dire to identify unqualified jurors. [Citations.] “Voir dire plays a critical function in 

assuring the criminal defendant that his [constitutional] right to an impartial jury will be 

honored. Without an adequate voir dire the trial judge’s responsibility to remove 

prospective jurors who will not be able impartially to follow the court’s instructions and 

evaluate the evidence cannot be fulfilled.” ’ ” (People v. Mataele, supra, 13 Cal.5th at 

pp. 403, quoting Morgan v. Illinois (1992) 504 U.S. 719, 729-730.)

“[T]he trial court possesses broad discretion to determine whether or not possible 

bias or prejudice against the defendant has contaminated the entire venire to such an 
20.

extreme that its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889.) 

“[D]ischarging the entire venire is a remedy that should be reserved for the most serious 

occasions of demonstrated bias or prejudice, where interrogation and removal of the 

offending venirepersons would be insufficient protection for the defendant.” (Ibid.) 

“[S]uch a drastic remedy is [not] appropriate as a matter of course merely because a few 

prospective jurors have made inflammatory remarks.” (Ibid.)

D. Analysis

The trial court granted Maldonado’s motion to bifurcate the gang charge and gang 

allegation from the non-gang offense pursuant to section 1109. Maldonado submits that 

because the trial court conducted voir dire of the jury with respect to gang biases, “the 

guilt phase jury was polluted with gang information over defense objection, and yet gangbiased jurors were allowed to serve in the gang phase of the trial.” According to 

Maldonado, empaneling two separate juries was the only way to guarantee his right to a 

fair trial. We find his assertion unpersuasive. 

To begin, subdivision (b) of section 1109 requires the charge of active 

participation in a criminal street gang to “be tried separately from all other counts that do 

not otherwise require gang evidence as an element of the crime.” (§ 1109, subd. (b).) 

Although the circumstances of each individual case may dictate whether severance over 

bifurcation is necessary, there is no universal requirement for severance when the 

substantive gang offense is charged.7

7

 “ ‘ “Bifurcation” of a jury trial, ...means that different issues in a case will be 

tried seriatim by the same jury with the jury returning separate verdicts as to the issues 

bifurcated.’ There is but one trial. “Severance,” on the other hand, means that different 

issues or different defendants in one case have been split off to be tried separately by 

different juries.’ ” (People v. Givan (1992) 4 Cal.App.4th 1107, 1114.) Prior to the 

commencement of his trial, Maldonado specifically requested bifurcation rather than 

severance of the gang offenses from the non-gang offenses. It was not until a jury had 

already been impaneled and he was found guilty during the first phase of his trial did he 

seek to empanel a second jury. 
21.

We recognize that bifurcation may present challenges in its execution, particularly 

during voir dire, where the prospective jurors’ biases about gangs would need to be tested 

without influencing their perspective on the crime. However, complying with section 

1109 while protecting the defendant’s right to a fair trial is not the insurmountable task 

that Maldonado asserts that it is. 

The trial court here utilized what we consider to be a suitable approach to assess 

any biases the prospective jurors may have had concerning criminal street gangs, without 

revealing the gang aspect of the case. The court clarified that the charges did not

reference gang activity, but that jurors may hear some mention of gangs during trial. The 

court followed this admonition by asking the prospective jurors whether they had any 

special familiarity, knowledge, experience, or expertise with respect to criminal street 

gangs, casting a broad net to identify potential biases without tipping its cards. 

According to Maldonado, the jury should not have been advised that it may hear 

gang evidence because such evidence was inadmissible during the first phase of his trial. 

As the trial court observed however the jury would inevitably hear some evidence from 

which it could conclude there was a gang element to the case, thus reinforcing the need to 

assess any potential biases during voir dire. For example, even excluding evidence of the 

fact that Maldonado was wearing a red shirt and red shoes at the time of his arrest, a 

known gang color, and that a firearm concealed by a red cloth was found underneath 

Kelly’s seat, Maldonado was covered in visible tattoos on his face and hands, effectively 

advertising his gang affiliation. Testing the jury’s biases about criminal street gangs 

would serve to protect Maldonado’s right to a fair trial during both phases. 

Insofar as Maldonado suggests that some of the jurors’ articulated fears of gangs 

tainted the entire jury venire, the record does not support his assertion. Nor does the 

record contain any evidence to support Maldonado’s contention that gang biased jurors

were permitted to serve during the second phase of his trial. From the record, none of the 

prospective jurors who had articulated concerns or negative feelings about gangs or 
22.

tattoos were sworn into the jury. These prospective jurors were either dismissed for 

cause or following preemptory challenges.8 

Finally, there is no support for Maldonado’s assertion that following an isolated 

instance of juror misconduct a new jury should have been empaneled. When some of the 

sworn jurors were overheard discussing gangs by the court bailiff, the trial court dutifully 

questioned the jurors about the alleged misconduct. Juror No. 6999 (Seat No. 8), who 

had been discussing gangs during a lunch recess, was dismissed as a result. Maldonado 

fails to persuade us this remedy was insufficient, and that empaneling a new jury was 

required. 

Even assuming error from the denial of Maldonado’s motions for a mistrial we 

find no prejudice upon this record. Because Maldonado’s trial was not “fundamentally 

unfair,” the test for prejudice articulated in People v. Watson (1956) 46 Cal.2d 818 

(Watson) applies. (See generally, People v. Partida (2005) 37 Cal.4th 428, 439.)

Under Watson, reversal is required only if “it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the absence of the 

error.” (Watson, supra, 46 Cal.2d at p. 836.) While evidence of Maldonado’s guilt may 

have been circumstantial, it was not insufficient to support his conviction. The mud on 

Maldonado’s shoes and his presence in the getaway vehicle support the conclusion that 

he participated in the home invasion as a lookout. Further, as discussed in part II, post, 

there was also ample evidence showing that he, an active Varrio Livas Norteño gang 

member, committed the crime with other active Norteño gang members. 

8

 Maldonado contends that Juror No. 2261, who expressed a dislike of tattoos and 

opined that Maldonado’s teardrop tattoo meant murder, became an alternate juror. 

However, the trial court excused Juror No. 2261. The record does not show that any of 

the other jurors shared Juror No. 2261’s opinion about tattoos generally or about 

Maldonado’s tattoos specifically. 
23.

Maldonado’s claim of prejudicial error appears to be premised on the broader 

proposition that the mere mention of gang charges or questions about views on gangs 

deprived him of a fair trial. However, while gang evidence may have a highly 

inflammatory effect on the jury (People v. Tran (2022) 13 Cal.5th 1169, 1208), the trial 

court’s inquiry about the jurors’ views on criminal street gangs served to protect rather 

than undermine Maldonado’s right to a fair trial. We find Maldonado’s assertion to the 

contrary meritless.

II. Sufficiency of the Evidence Supporting the Gang Enhancement and the 

Substantive Gang Offense

Maldonado contends that the evidence was insufficient to support the jury’s true 

findings on the gang enhancement and the substantive gang offense. According to 

Maldonado, the gang expert testified that the gang garnered a reputational benefit from 

the home invasion, which is insufficient to prove the gang enhancement under section 

186.22, subdivision (b). Although he acknowledges that the expert opined that the gang 

received a financial benefit from the home invasion, he asserts that the expert’s testimony 

on this point was speculative to aid the jury’s determination. Maldonado further asserts 

that he and his accomplices were convicted solely due to their association with 

Motshwane. We reject these contentions and conclude that substantial evidence 

substantiates the jury’s findings regarding the gang enhancement and substantive gang 

offense.

A. Background 

Assuming a hypothetical mirroring the facts of the instant case, Officer Saldivar 

opined that the home invasion was committed for the benefit of and in association with 

the Norteño criminal street gang. He explained that the crime was committed by a welldocumented Norteño gang member (Motshwane) with two other Varrio Livas Norteños 

from Livingston (Maldonado and Lorenzo), and an undocumented Norteño (Kelly). 

Officer Saldivar maintained that because proceeds from the home invasion would be 
24.

funneled back to the gang, the crime would benefit the gang financially. He further 

opined that the crime was committed in association with the Norteño street gang because 

different documented members of the gang had conspired and then worked together to 

commit the offense. 

B. Standard of Review

On review for sufficiency of the evidence supporting a conviction, we must 

“ ‘examine the entire record in the light most favorable to the judgment to determine 

whether it contains substantial evidence—that is, evidence that is reasonable, credible, 

and of solid value that would support a rational trier of fact in finding [the defendant 

guilty] beyond a reasonable doubt.’ ” (People v. San Nicolas (2004) 34 Cal.4th 614, 657-

658.) 

We must “presume in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 

314.) “The same standard applies when the conviction rests primarily on circumstantial 

evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must 

accept logical inferences that the jury might have drawn from the circumstantial 

evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Given this deferential 

standard of review, a ‘defendant bears an enormous burden in claiming there is 

insufficient evidence’ to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 

1007, 1020.) 

Before the judgment of the trial court can be set aside for insufficiency of the 

evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis 

whatever is there sufficient substantial evidence to support it.” (People v. Redmond

(1969) 71 Cal.2d 745, 755; People v. Daugherty (1953) 40 Cal.2d 876, 885; People v. 

Hicks (1982) 128 Cal.App.3d 423, 429.) Thus, the reviewing court must affirm if any 

reasonable jury could have found sufficient evidence to sustain the conviction, even if the 

court might have reached a different conclusion if it had been the initial factfinder. 
25.

(People v. Latham (2012) 203 Cal.App.4th 319, 334.) “The existence of a mere conflict 

in the evidence provides no basis for reversal” and is resolved in favor of the judgment. 

(Ibid.)

C. Legal Principles

Section 186.22 provides for a gang enhancement when a defendant is convicted of 

an enumerated felony committed “for the benefit of, at the direction of, or in association 

with a criminal street gang, with the specific intent to promote, further, or assist in 

criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) 

“The evidence must establish both of the two prongs to the gang enhancement 

under section 186.22, subdivision (b)(1).” (People v. Perez (2017) 18 Cal.App.5th 598, 

606.) “ ‘First, the prosecution is required to prove that the underlying felonies were 

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

street gang.” (§ 186.22[, subd. ](b)(1).) Second, there must be evidence that the crimes 

were committed “with the specific intent to promote, further, or assist in any criminal 

conduct by gang members.” ’ ” (People v. Perez, at pp. 606-607, citing People v. Rios

(2013) 222 Cal.App.4th 542, 561.)

In contrast, the substantive gang offense under section 186.22, subdivision (a) 

“does not require that the underlying felony be gang related, but does require that the 

defendant ‘act with another gang member.’ [Citation.] And unlike the gang 

enhancement (§ 186.22(b)(1)), the gang participation offense (§ 186.22(a)) ‘does not 

require a specific intent to further or promote the gang (only knowledge of the gang’s 

pattern of criminal activity).’ ” (People v. Rios, supra, 222 Cal.App.4th at p. 561.)

Following the enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.) 

(Assembly Bill No. 333), section 186.22 established new requirements for establishing 

liability under subdivisions (a), (b), and (d). (Stats. 2021, ch. 699, § 3.) As of January 1, 

2022, predicate offenses must be shown to have “commonly benefited” the alleged gang, 

and the common benefit must have been “more than reputational.” (§ 186.22, subd. 
26.

(e)(1).) Currently charged offenses no longer qualify (id., subd. (e)(2)), and at least one 

predicate offense must have been committed “within three years of the date the current 

offense is alleged to have been committed” (id., subd. (e)(1)). 

Among other changes, the terms “benefit,” “promote,” “further,” and “assist” are 

now defined to mean providing “a common benefit to members of a gang where the 

common benefit is more than reputational.” (§ 186.22, subd. (g).) “Examples of a 

common benefit that are more than reputational may include, but are not limited to, 

financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous witness or informant.” (Ibid.)

D. Analysis

1. The Criminal Street Gang Enhancement (§ 186.22, subd. (b))

a. Evidence Showing that Maldonado Committed the Home Invasion 

“for the Benefit of” the Norteños

During the first phase of Maldonado’s trial, the prosecutor adduced evidence 

showing that Maldonado and his accomplices sought to steal marijuana from A.K. They 

also stole other valuables from A.K.’s home, including a laptop, a PlayStation gaming 

console, a Nintendo Switch, and some jewelry. Officer Saldivar opined that the home 

invasion would benefit the Norteño street gang because the gang would receive proceeds 

from the robbery, which was committed by members of various Norteño subsets. 

According to Officer Saldivar, all Norteño subsets in the city and county of Merced are 

required to pay taxes to the gang. 

With respect to the perpetrators’ intent to steal marijuana, Officer Saldivar 

explained that the gang’s primary source of income is derived from drug trafficking. 

Despite marijuana being a legal substance, it is still sold on the black market by gangs. It 

can also be used for trade, or it can be funneled into jail. 

“ ‘Expert opinion that particular criminal conduct benefited a gang’ is not only 

permissible but can be sufficient to support [a gang enhancement under] section 186.22,
27.

subdivision (b)(1).” (People v. Vang (2011) 52 Cal.4th 1038, 1048.) Based upon the 

evidence discussed, we conclude that the prosecutor adduced sufficient evidence showing 

that the home invasion was “ ‘committed for the benefit of, at the direction of, or in 

association with any criminal street gang.’ ” (§ 186.22, subd. (b)(1).) Specifically, the 

overarching Norteño street gang. 

Evidence of Maldonado’s intent “to promote, further, or assist in any criminal 

conduct by gang members” (§ 186.22, subd. (b)) is even more straightforward. This 

prong can be met with evidence that the defendant “intended to help [a fellow gang 

member] commit a crime.” (People v. Romero (2006) 140 Cal.App.4th 15, 20, 43.) 

Here, the evidence showed that Maldonado and at least two of his accomplices 

were active gang members who had preplanned the home invasion. Maldonado had been 

a guest at A.K.’s home on at least five prior occasions and had smoked marijuana with 

him. During the course of the home invasion, one of the perpetrators demanded to know 

the location where A.K. stored his marijuana, implying prior knowledge that A.K. kept 

marijuana within his home. Further, Kelly was identified as one of the perpetrators that 

had been inside of A.K.’s home, whereas, Maldonado and Motshwane purportedly acted 

as lookouts based upon the mud on their shoes. They also fled from the home invasion in 

the same vehicle. From this evidence, the jury could reasonably infer that Maldonado 

and his accomplices relied upon each other as fellow gang members to facilitate the 

robbery, and thus, that Maldonado intended to help fellow gang members commit the 

crime. (See People v. Romero, supra, 140 Cal.App.4th at pp. 20, 43.)

Maldonado contends that the prosecutor erred by allowing Officer Saldivar to 

testify that Maldonado would benefit reputationally from the home invasion. Officer 

Saldivar testified, in relevant part, that “[r]espect is everything to the gang members,” 

that a gang member generally wants to be respected by his peers and the community, and 

that if that individual is feared, such fear would enable that gang member to accomplish 

other crimes. While a reputational benefit is no longer sufficient to support the criminal 
28.

street gang enhancement under subdivision (g) of section 186.22, the prosecutor never 

argued as much, nor did the jury instructions endorse this now invalid theory. 

The prosecutor made the following statements during her closing argument: 

“Another benefit that Officer Saldivar talked about was the intimidation here. And you, 

as the finder of fact, will have to determine if the home-invasion robbery benefited the 

gang. If you think that ... as fact finder, find that the video surveillance, five men armed 

with guns, rifles, extended magazine clips is intimidating, you find if [A.K.] was 

intimidated.” Although her comments lack clarity, the prosecutor referenced Officer 

Saldivar’s testimony about gang intimidation for purposes of arguing that aspects of the 

home invasion were intended to intimidate a “potential current ... witness.” (§ 186.22, 

subd. (g).)9 We reject Maldonado’s attempt to recast the prosecutor’s statements as an 

improper argument that a reputational benefit could support the gang enhancement. 

During closing argument, the prosecutor stated that “[t]he common benefit ... is 

more than reputational, and Officer Saldivar talked about that a lot.” Further, the jury 

was explicitly instructed pursuant to CALCRIM No. 401, which incorporated Assembly 

Bill No. 333’s amendments to section 186.22.10 This instruction provides: “To benefit, 

promote, further, or assist [a criminal street gang] means to provide a common benefit to 

the members of a gang where the common benefit is more than reputational.” (Italics 

9

 Maldonado asserts that there was no evidence showing that the home invasion 

had the intended effect of intimidating or silencing a witness. While we agree that the 

evidence fails to show the home invasion was intended to silence a potential witness, we 

find no prejudice as a result of the prosecutor’s advancement of this theory. An 

instruction on a factually unsupported theory of guilt is prejudicial only where “a review 

of the entire record affirmatively demonstrates a reasonable probability that the jury in 

fact found the defendant guilty solely on the unsupported theory.” (People v. Guiton

(1993) 4 Cal.4th 1116, 1130.) The record here does not demonstrate a reasonable 

probability that the jury relied upon the prosecutor’s theory that the crime was intended to 

or actually intimidated a witness. 

10

 Maldonado was tried in September of 2022, more than nine months after 

Assembly Bill No. 333 went into effect. 
29.

added.) Thus, even if the jury interpreted the prosecutor’s comments in the manner 

Maldonado suggests they must have, we presume that the jury followed the trial court’s 

instructions, and not the prosecutor’s comments in closing argument. (People v. Centeno

(2014) 60 Cal.4th 659, 676 [it is “ ‘ “presum[ed] that jurors treat the court’s instructions 

as a statement of the law by a judge, and the prosecutor’s comments as words spoken by 

an advocate ... attempt[ing] to persuade,” ’ ” if a prosecutor’s “ ‘argument runs counter to 

instructions given a jury, [appellate courts] will ordinarily conclude that the jury followed 

the latter and disregarded the former’ ”].)

In a single sentence, Maldonado further contends that “There was no effort to 

demonstrate a financial benefit from the predicate gang offenses.” Not so. The 

prosecutor proffered two different theories as to how the crimes committed by the 

subjects of the predicate offenses benefited the Norteño street gang. 

First, Officer Saldivar opined that the sale of drugs would benefit the Norteño 

gang by generating income for the gang and that drug sales are one of the primary 

money-making activities of the gang. As Varrio Livas Norteño gang members, 

Castrejon-Gomez and Guardado would be required to pay taxes to the Nuestra Familia, 

the prison arm of the Norteño gang, from the proceeds of their drug sales. From this 

evidence, the jury could conclude that their crime would financially benefit the Norteño 

street gang. 

Second, Officer Saldivar posited that a Norteño gang member armed with a 

firearm could benefit the gang because the firearm could be used against rival gang 

members. He explained that firearms are essentially tools that gang members use to 

commit other crimes, such as a robberies, or for self-defense against rival gang members. 

While we concede that the possession of a firearm by a gang member may not provide as 

direct a benefit as drug sales that generate revenue for the gang, it nonetheless holds 

potential utility. Gonzales-Cardenas was shown to be an active Norteño, and he admitted 

to a criminal street gang enhancement in the commission of the unlawful possession of a 
30.

firearm, a crime which was opined to be one of the primary activities of the Norteños, we 

do not consider Maldonado’s claim further, particularly considering Maldonado’s failure 

to develop his argument. 

b. Evidence Showing that Maldonado Committed the Home Invasion 

“In Association With” the Norteño Criminal Street Gang 

(§ 186.22, subd. (b))

“A crime is committed in association with a gang if the ‘defendants relied on their 

common gang membership and the apparatus of the gang in committing’ the charged 

felonies.” (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367, quoting People v. 

Albillar (2010) 51 Cal.4th 47, 60.) This conclusion can be demonstrated by the “fact that 

[a] defendant committed the charged crimes in association with fellow gang members.” 

(People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) However, neither the gang 

enhancement nor the substantive gang offense require proof that the defendant is an 

active gang member. (See People v. Villa-Gomez (2017) 9 Cal.App.5th 527, 541 [“Like 

the gang enhancement, a defendant need not be a member of the gang to be convicted of 

active participation in a criminal street gang under section 186.22, subdivision (a)”].) 

We conclude that the record contains substantial evidence demonstrating that 

Maldonado was an active Varrio Livas Norteño who came together with other Norteño 

gang members to commit the home invasion. Officer Saldivar opined that Motshwane 

was an active member of the Dead End Locs, and that he regularly associated with 

members of other Norteño subsets. The prosecutor adduced evidence of Motshwane 

displaying gang signs in videos and photographs, and prior police contacts wherein 

Motshwane was associating with other gang members. 

While the evidence showing that Lorenzo was an active gang member was not as 

compelling, it was nonetheless sufficient. Detective Kollman, who was personally 

familiar with Lorenzo, testified that during a search of Lorenzo’s home, a drawing 

depicting a Huelga bird with the word “Livingston” was found in Lorenzo’s room. 
31.

Detective Kollman also observed Lorenzo associating with other Varrio Livas Norteño 

gang members sometime between 2019 and 2020. Finally, Lorenzo wore a Mongolianstyle haircut, which is commonly worn by Norteño gang members. 

With respect to Maldonado, his post-arrest jail phone call, tattoos, and association 

with other known gang members provided substantial evidence of the fact that he was an 

active Varrio Livas Norteño gang member. One week after the robbery, Maldonado 

made a recorded jail call asking an acquaintance to log into his Snapchat account using 

the password “LN,” to post about his (Maldonado’s) incarceration. As Officer Saldivar 

explained, Norteño gang members often publicize their incarceration as an achievement. 

Although Maldonado had no tattoos prior to his arrest, he acquired at least six 

gang tattoos following his incarceration for the home invasion. Officer Saldivar opined 

that Maldonado was permitted to obtain gang tattoos because he had put in work for the 

gang. Officer Saldivar explained that if Maldonado had not earned the right to acquire 

the tattoos that he had acquired, he would have been assaulted or killed by other Norteño 

gang members. The jury could conclude that Maldonado was permitted to obtain his 

tattoos as an achievement for committing the home invasion. 

Drawing all reasonable inferences in favor of the judgment (see People v. 

Rodriguez (1999) 20 Cal.4th 1, 11), we further conclude that the evidence demonstrated 

that Maldonado and his accomplices worked together to execute the home invasion, 

relying upon their common gang membership. To clarify, “ ‘[s]ubstantial evidence is 

evidence sufficient to “deserve consideration by the jury,” that is, evidence that a 

reasonable jury could find persuasive.’ ” (People v. Landry (2016) 2 Cal.5th 52, 120, 

quoting People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) It is “evidence which, when 

viewed in light of the entire record, is of solid probative value, maintains its credibility 

and inspires confidence that the ultimate fact it addresses has been justly determined.” 

(People v. Conner (1983) 34 Cal.3d 141, 149.) 
32.

As discussed, there was evidence that the robbery had been planned. Maldonado 

had visited A.K.’s house on at least five prior occasions to smoke marijuana. When one 

of the perpetrators of the home invasion confronted A.K. at gunpoint, he demanded to 

know where A.K. kept his marijuana. Some of the perpetrators also showed up armed, 

masked, and wearing gloves, further suggesting planning and coordination.

There was also evidence that perpetrators had predefined roles in the home 

invasion. Some of the men, including Kelly, went inside the home to look for valuables, 

while others, including Motshwane and Maldonado, stayed outside to act as lookouts. 

Further evidence of the fact that the perpetrators acted together was that they were 

apprehended fleeing the scene of the crime while traveling in the same vehicle. 

Despite this evidence, Maldonado argues that he was found guilty of the gang 

allegation and substantive gang offense based solely upon his association with 

Motshwane. Based upon the evidence discussed above, the likelihood that Maldonado 

was convicted based solely upon a “guilt by association” theory versus his actual 

participation in the home invasion as an active gang member himself, are infinitesimal. 

Because Maldonado’s assertions to the contrary rest upon inferences from the evidence 

that are contrary to the jury’s findings, we summarily reject his argument. (People v. 

Hicks (1959) 175 Cal.App.2d 556, 557 [“The well-established rule requires an appellate 

court to resolve all conflicts in the evidence, and to draw all reasonable inferences, in 

favor of the judgment. It is only when the evidence, so viewed, is insufficient to sustain 

the finding of the trier of the facts that reversal upon this ground is warranted”].)

Finally, relying upon our Supreme Court’s decision in People v. Prunty (2015) 62 

Cal.4th 59 (Prunty) and Assembly Bill No. 333’s amendments to section 186.22, 

Maldonado submits there was insufficient evidence to support the conclusion that the 
33.

home invasion was committed to benefit the overarching Norteño street gang. However, 

neither Prunty nor Assembly Bill No. 333 assist Maldonado.11

“[T]he criminal street gang that is shown to exist under section 186.22, 

subdivision (f) must be the same criminal street gang with which the defendant acted in 

association or sought to benefit in the commission of his crimes.” (People v. 

Franklin (2016) 248 Cal.App.4th 938, 950, citing Prunty, supra, 62 Cal.4th at pp. 72-76 

& fn. 3.) Here, the gang for which Maldonado and his accomplices acted to benefit was 

the Norteño criminal street gang within the county of Merced. Maldonado and Lorenzo 

were shown to be active Varrio Livas Norteños, while Motshwane was shown to be a 

member of the Dead End Locs. Although there was minimal evidence supporting the 

conclusion that Kelly was an active Norteño gang member, there was sufficient evidence 

showing that he was associated with the Norteños. As Officer Saldivar testified, gang 

members only commit a crime with members of their same gang. 

Officer Saldivar stated that all Norteño subsets within the city and the county of 

Merced are required to pay taxes. These taxes, which come from criminal activities, such 

as robberies, are subsequently funneled back to the Nuestra Familia. Norteño subsets 

also follow the “14 bonds,” a set of rules, which incorporates the requirement that 

members must pay taxes to the Norteño gang. The fact that the Norteño subsets within 

11

 Although Maldonado relies upon Prunty to support his claim, he does not raise 

a claim of error specifically under Prunty. In Prunty, our Supreme Court held that 

“where the prosecution’s case positing the existence of a single ‘criminal street gang’ for 

purposes of section 186.22(f) turns on the existence and conduct of one or more gang 

subsets, then the prosecution must show some associational or organizational connection 

uniting those subsets.” (Prunty, supra, 62 Cal.4th at p. 71.) 

Maldonado and Lorenzo were shown to be Varrio Livas Norteño gang members, 

and the subjects of the predicate offenses were shown to be either Varrio Livas Norteño 

gang members or members of the overarching Norteño street gang. The evidence 

adduced at trial showed that Varrio Livas Norteño was organizationally connected to the 

overarching Norteño street. Because Maldonado did not raise a “classic” Prunty claim, 

we do not address its application to this case further. 
34.

Merced County conform to the same rules and are expected to pay taxes to the Nuestra 

Familia demonstrates that they are part of the same hierarchical organization. (See 

Prunty, supra, 62 Cal.4th at p. 77.)

Maldonado observes that Officer Saldivar was unable to explain how money from 

criminal activities are funneled back to the Nuestra Familia. That is not a correct 

representation of the record. At trial, counsel asked Officer Saldivar whether he had seen 

any bank accounts through which the Nuestra Familia could access funds from criminal 

endeavors. Officer Saldivar began to explain that funds from criminal activities would 

not be deposited in a bank account, but trial counsel interrupted before he could finish his 

explanation. Nonetheless, the fact that Officer Saldivar did not explain precisely how 

money is funneled back to the Nuestra Familia did not foreclose the jury from concluding 

that Norteño gang members in fact pay taxes to the gang. 

Officer Saldivar’s testimony that all Norteño subsets in Merced County pay taxes 

from the commission of crimes allowed the jury to conclude, without speculating, that the 

subset to which Maldonado claimed membership to, Varrio Livas Norteño, was also 

required to pay taxes. After all, these subsets “all align together as Norteños,” their 

members identify themselves as Norteños, and they follow the Norteño code of conduct. 

Maldonado further contends that following the enactment of AB 333, evidence of 

his friends and neighbors, as well as his physical proximity to his accomplices, was 

insufficient to establish a gang association. We agree that standing alone, evidence of 

Maldonado’s contacts as well as the fact that he lived within close proximity to Lorenzo 

would be insufficient to show that he acted in association with the Norteños. But as 

discussed, that was not the sum total of the evidence showing that the defendants were 

active gang members. 
35.

2. Evidence Supporting the Substantive Gang Offense (§ 186.22, 

subd. (a))

Maldonado’s challenge to the substantive gang offense appears to be identical to 

his challenge to the jury’s true finding on the gang enhancement (§ 186.22, subd. (a)). As 

discussed in part II.1 ante, we conclude that his claims are without merit. We do not 

repeat our analysis here.

III. Evidence of Maldonado’s Post-Arrest Tattoos

Maldonado further contends that the trial court abused its discretion by ruling that 

evidence of his tattoos, acquired after he was arrested for the home invasion, was 

admissible. We disagree. 

A. Background

Maldonado acquired multiple tattoos in the three years following his arrest. 

Because of the gang implications of these tattoos, the prosecutor sought to introduce 

photographs of Maldonado’s tattoos into evidence to demonstrate that Maldonado was an 

active gang member. The trial court granted the prosecutor’s request to have 

Maldonado’s tattoos photographed but reserved ruling whether evidence of the tattoos 

were admissible. 

During an in limine hearing, the prosecutor made an offer of proof explaining that 

the gang expert would testify that not just anyone would be permitted to acquire the type 

of tattoos that Maldonado had acquired. During an Evidence Code section 402 hearing, 

Officer Saldivar testified that Maldonado’s tattoos were gang related. He further 

explained that not just anyone would be permitted to get the type of tattoos that 

Maldonado had acquired. Rather, that individual would have to earn the right to do so by 

putting in work for the gang. According to Officer Saldivar, if a person housed in the 

Norteño wing of the county jail had not earned the right to acquire similar tattoos, they 

may be assaulted or killed by other Norteño gang members. 
36.

Trial counsel argued that evidence of Maldonado’s tattoos bore little relevance to 

the instant crimes because Maldonado had acquired his tattoos after the home invasion. 

Trial counsel further asserted that Maldonado had acquired his tattoos while he was in 

survival mode, opining that he had likely done so to assimilate into the gang lifestyle in 

jail. 

Following further argument by the parties, the trial court overruled counsel’s 

objection to the admission of evidence of Maldonado’s tattoos. The court found that 

evidence of Maldonado’s tattoos was probative because acquiring those tattoos indicated 

that he had earned the privilege to get them while in jail. This privilege would not have 

been granted had Maldonado not put in work for the gang. 

B. Legal Principles

All relevant evidence is admissible (see Evid. Code, § 351), subject to exclusion 

“if its probative value is substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; People 

v. Cardenas (1982) 31 Cal.3d 897, 904-905.) Evidence is relevant if it has “[A]ny 

tendency in reason to prove or disprove any disputed fact that is of consequence to the 

determination of the action.” (Evid. Code, § 210.)

“ ‘ “In applying [Evidence Code] section 352, ‘prejudicial’ is not synonymous 

with ‘damaging.’ ” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 905.) Rather, 

prejudice under the statute refers to “ ‘ “ ‘evidence which uniquely tends to evoke an 

emotional bias against the defendant as an individual and which has very little effect on 

the issues.’ ” ’ ” (Ibid.) “ ‘In such a circumstance, the evidence is unduly prejudicial 

because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” 

(People v. Branch (2001) 91 Cal.App.4th 274, 286.)

A trial court’s decision to admit or exclude evidence is reviewed for an abuse of 

discretion. (People v. Brooks (2017) 3 Cal.5th 1, 43.) “An appellate court cannot reverse 
37.

a judgment based on the erroneous admission of evidence unless the admitted evidence 

‘resulted in a miscarriage of justice.’ [Citation] ... [A] miscarriage of justice can only be 

found when the reviewing court determines it is reasonably probable that a result more 

favorable to the defendant would have been reached had the trial court excluded the 

erroneously admitted evidence.” (People v. Lapenias (2021) 67 Cal.App.5th 162, 170, 

fn. omitted; see Watson, supra, 46 Cal.2d at p. 836.) The appellant carries the burden of 

affirmatively demonstrating both error and prejudice. (See People v. Garza (2005) 35 

Cal.4th 866, 881.)

C. Analysis

Neither the gang enhancement (§ 186.22, subd. (b)) nor the substantive gang 

offense (id., subd. (a)), require the prosecutor to prove that the defendant was an active 

gang member. (See People v. Ware (2022) 14 Cal.5th 151, 165, quoting People v. 

Rodriguez (2012) 55 Cal.4th 1125, 1130 [under the gang statutes, “ ‘[m]ere active and 

knowing participation in a criminal street gang is not a crime’ ”].) However, evidence 

showing that Maldonado was an active Norteño gang member at the time of the home 

invasion was nonetheless relevant for two reasons. 

First, evidence showing that Maldonado was an active gang member supported the 

prosecutor’s assertion that the home invasion benefited the gang, because Maldonado 

would be expected to pay taxes from any proceeds from that crime. Second, such 

evidence also supported the prosecutor’s theory that Maldonado had acted in association 

with the gang, having committed the crime with at least one other Norteño gang member. 

(See People v. Rodriguez, supra, 55 Cal.4th at p. 1132 [“section 186.22(a) requires that 

felonious criminal conduct be committed by at least two gang members, one of whom 

can include the defendant if he is a gang member”].)

As Officer Saldivar explained, a Norteño would have to earn the right to acquire 

tattoos like those acquired by Maldonado. The jury could reasonably conclude that 

Maldonado had earned that right after he committed the home invasion. Although the 
38.

jury could alternatively conclude that Maldonado’s tattoos, all acquired sometime within 

the three years after he was arrested for the instant offense, had little relevance to his 

status as a gang member on the day of the robbery, that does not demonstrate that the trial 

court abused its discretion by admitting this evidence. 

Maldonado argues that evidence of his tattoos also violated his Fifth Amendment 

right against self-incrimination. His entire claim is premised upon his assertion that 

“[his] tattoos were entirely the product of state action.” He provides no proof to support 

this assertion. Notwithstanding, we conclude that the record fails to demonstrate that 

Maldonado’s Fifth Amendment right was violated by the admission of evidence showing 

his gang tattoos. 

The Fifth Amendment provides that no person “shall be compelled in any criminal 

case to be a witness against himself.” (U.S. Const. Fifth Amend.) In general, the Fifth 

Amendment protects the accused from compelled verbal statements but can also apply to 

compelled physical acts which constitute communications. The key distinction as to 

whether the Fifth Amendment applies is whether the incriminating communications, 

verbal or physical, are “testimonial” in nature, incriminating, and compelled. (People v.

Ramirez (2023) 98 Cal.App.5th 175, 197.)

“[I]n order to be testimonial, an accused’s communication must itself, explicitly or 

implicitly, relate a factual assertion or disclose information. Only then is a person 

compelled to be a ‘witness’ against himself.” (Doe v. United States (1988) 487 U.S. 201, 

fn. omitted.) “It has long been held that the compelled display of identifiable physical 

characteristics infringes no interest protected by the privilege against compulsory selfincrimination.” (United States v. Dionisio (1973) 410 U.S. 1, 5-6.) “The Fifth 

Amendment protects communicative or testimonial evidence, but does not embrace the 

use of the suspect’s body as a source of physical evidence.” (People v. Roberts (1975) 51 

Cal.App.3d 125, 140, see e.g., State v. Tiner (2006) 340 Ore. 551, 561-562 [the 

compelled display of the defendant’s tattoos not testimonial].)
39.

Here, evidence of Maldonado’s tattoos were not elicited for purposes of 

identification. Rather, this evidence was used to prove that Maldonado was an active 

gang member. Assuming evidence of Maldonado’s tattoos, which are undoubtedly 

incriminating, are testimonial under the circumstances, the evidence of his tattoos was not 

acquired through government compulsion. 

Maldonado was covered with gang-related tattoos, and many of them were visible 

to the jury. He had a teardrop underneath his left eye, “ ‘Stone City’ ” across his 

forehead, a Huelga bird on his left hand, and an “ ‘L’ ” on his right hand. The existence 

and authenticity of Maldonado’s tattoos was a foregone conclusion.

From the record, it appears that the only tattoos which were not overtly displayed 

were the “ ‘L’ ” on Maldonado’s chest, the Louis Vuitton Logo tattoos in an unspecified 

location, and the St. Louis Cardinals on his forearm. Assuming the admission of this 

evidence violated Maldonado’s Fifth Amendment privilege against self-incrimination, we 

are convinced that any presumed error is harmless beyond a reasonable doubt. (See 

Chapman v. California (1967) 386 U.S. 18, 24 [“before a federal constitutional error can 

be held harmless, the court must be able to declare a belief that it was harmless beyond a 

reasonable doubt”]; People v. Henderson (2020) 9 Cal.5th 1013, 1029, citing People v. 

Bradford (1997) 15 Cal.4th 1229, 1314 [“The standard is satisfied only if ‘[t]here is no 

reasonable possibility that the verdict would have been more favorable to defendant had 

[the] statements not been admitted’ ”].) There is no reasonable possibility that 

Maldonado would have received a more favorable verdict had evidence of these tattoos, 

which were presumably not visible to the jury, not been admitted at his trial. 

IV. The Exclusion of Evidence Showing that A.K. Was Facing Drug Charges

Maldonado further contends that the trial court abused its discretion by declining 

trial counsel’s request to admit evidence of the fact that A.K., the victim of the home 

invasion, had a drug case pending against him. We find Maldonado’s claim meritless. 
40.

A. Background

Prior to the commence of trial, the prosecutor requested that evidence of A.K.’s 

pending misdemeanor and felony cases, as well as any mention of A.K.’s alleged 

criminal activities be excluded, because A.K. had not yet been convicted of these crimes. 

She also sought to exclude questions about A.K.’s involvement in selling marijuana, the 

possession of firearms, or the possession of firearms registered under his name. 

In his motions in limine, trial counsel posited that A.K. was a “well-known drug 

dealer” and that he was facing felony charges for drug trafficking in Merced County. 

During a hearing, Maldonado’s trial counsel asserted that despite A.K.’s lack of 

convictions, the pending charges against him could still be pertinent for impeachment. 

The prosecutor replied that since A.K.’s drug charges remained unresolved, they were not 

relevant. 

The trial court concluded that A.K.’s pending charges should be excluded and 

deemed irrelevant for impeachment purposes in the initial phase of the trial. However, 

the court commented that the issue could be revisited if A.K.’s pending charges became 

pertinent for impeachment. The court reserved a ruling as to whether A.K.’s charges 

should also be excluded during the trial’s gang-related phase. 

B. Legal Principles

All relevant evidence is admissible (Evid. Code, § 350), subject to the balancing 

test in section 352. Evidence Code section 210 defines relevant evidence as evidence 

“having any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action.” Relevant evidence includes evidence 

“relevant to the credibility of a witness.” (Ibid.) Conversely, evidence is “collateral” if it 

“ ‘has no relevancy to prove or disprove any issue in the action.’ ” (People v. Rodriguez, 

supra, 20 Cal.4th at p. 9.) 

A fact may bear on a witness’s credibility and still be collateral to the case. 

(People v. Contreras (2013) 58 Cal.4th 123, 152; see, e.g., People v. Dement (2011) 53 
41.

Cal.4th 1, 50-52 [inmate who testified for the prosecution about witnessing a prison 

murder could not be impeached with collateral evidence that he had lied in court about 

his prior murder conviction], disapproved on other grounds in People v. Rangel (2016) 62 

Cal.4th 1192, 1216.)

The trial court has “wide latitude” under state law to exclude impeachment 

evidence that is collateral and otherwise has no relevance to the action. (People v. 

Contreras, supra, 58 Cal.4th at p. 152; People v. Ayala (2000) 23 Cal.4th 225, 

301 [“ ‘[T]he latitude section 352 allows for exclusion of impeachment evidence in 

individual cases is broad. The statute empowers courts to prevent criminal trials from 

degenerating into nitpicking wars of attrition over collateral credibility issues’ ”].) “This 

exercise of discretion necessarily encompasses a determination that the probative value of 

such evidence is ‘substantially outweighed’ by its prejudicial, ‘confusing,’ or timeconsuming nature.” (People v. Contreras, at p. 152; Evid. Code, § 352.) 

We review the trial court’s evidentiary rulings for abuse of discretion. (People v. 

Lewis (2001) 26 Cal.4th 334, 374-375.)

C. Analysis

Whether A.K. had pending drug charges against him was collateral to the criminal 

charges pending against Maldonado. The decision of whether to admit evidence of 

A.K.’s pending charges was therefore committed to the sound discretion of the trial court. 

(People v. Contreras, supra, 58 Cal.4th at p. 152.) To that end, we conclude that 

Maldonado has failed to demonstrate that the trial court abused its discretion by ruling 

this evidence was inadmissible. 

The Attorney General asserts that the instant case in analogous to our Supreme 

Court’s decision in People v. Lavergne (1971) 4 Cal.3d 735, 742 (Lavergne).) In 

Lavergne, a robbery case, trial counsel asked Oliver, an accomplice to the robbery who 

was testifying as a witness for the prosecution, where he got the vehicle used in the 

commission of the offense. Over the prosecutor’s objection, Oliver replied that he had 
42.

bought it. Trial counsel asked Oliver if the car was stolen. Oliver replied that it was not. 

Trial counsel then sought to impeach Oliver’s credibility with testimony from the owner 

of the vehicle. The prosecutor objected, and the trial court sustained the objection under 

Evidence Code section 352. (Lavergne, supra, 4 Cal.3d at pp. 739-741.) 

The Supreme Court affirmed the trial court’s exclusion of evidence showing that 

the vehicle was stolen—a crime with which the witness had neither been charged nor 

convicted. (Lavergne, supra, 4 Cal.3d at p. 743.) The court recognized that “collateral 

matters are admissible for impeachment purposes,” but that “the collateral character of 

the evidence reduces its probative value and increases the possibility that it may prejudice 

or confuse the jury.” (Id. at p. 742.) The court further observed that “it appears that the 

defendant, on cross-examination, purposely elicited the testimony for the very purpose of 

impeaching the witness.” (Id. at p. 743.) Recognizing that “[i]t seems apparent that the 

defense knew the origin of the [car] in advance,” the court observed that trial counsel’s 

questioning left Oliver in a bind. If he answered truthfully, “the defendant would have 

had the benefit of the admission of an irrelevant fact which would affect [his] credibility. 

But the witness denied it was stolen and defendant now wishes to bring otherwise 

inadmissible testimony in to impeach him.” (Id. at pp. 743-744.) 

The court concluded: “A party may not cross-examine a witness upon collateral 

matters for the purpose of eliciting something to be contradicted. [Citations.] This is 

especially so where the matter the party seeks to elicit would be inadmissible were it not 

for the fortuitous circumstance that the witness lied in response to the party’s questions.” 

(Lavergne, supra, 4 Cal.3d at p. 744.) The court recognized that “[a] witness may have a 

strong reason to lie about the collateral fact which reason would furnish no motive to lie 

in his other testimony. Where such a situation exists, the possible inference that a witness 

false in part of his testimony is not to be trusted as to other parts is weakened.” (Id. at p. 

743.) In People v. Lavergne, Oliver had not been charged with the theft of the car used in 
43.

the robbery, thus, he had a motive to lie about his ownership of the car that did not exist 

with respect to the remainder of his testimony. (Ibid.)

We agree with the Attorney General that evidence pertaining to A.K.’s pending 

cases was a collateral issue. “[A] matter is ‘collateral’ if it has no logical bearing on any 

material, disputed issue. [Citation.] A fact may bear on the credibility of a witness and 

still be collateral to the case.” (People v. Contreras, supra, 58 Cal.4th at p. 152.) The 

collateral nature of evidence is not evaluated in relation to whether it proves the existence 

or nonexistence of any fact attested to by a witness, i.e., its impeachment value, it is 

tested by its ability to prove or disprove any issue pertaining to the criminal case itself, 

specifically, the guilt or innocence of the defendant. (People v. Rodriguez, supra, 20 

Cal.4th at p. 9.) 

Here, the issue of whether A.K. had a pending drug case against him bore minimal 

relevance “ ‘to prove or disprove any issue in the action’ ” (People v. Rodriguez, supra,

20 Cal.4th at p. 9) and was therefore, collateral. Whether this evidence was admissible 

was committed to the sound discretion of the trial court, subject to the balancing test 

under Evidence Code section 352. (People v. Clark, supra, 52 Cal.4th at p. 931 [“A 

witness may be impeached with any prior conduct involving moral turpitude whether or 

not it resulted in a felony conviction, subject to the trial court’s exercise of discretion

under Evidence Code section 352.”].) To that end, Maldonado has failed to demonstrate 

that the trial court erred by concluding that the probative value of this evidence was 

substantially outweighed by the probability that its admission would necessitate an undue 

consumption of time, create substantial danger of undue prejudice, confuse the issues, or 

mislead the jury. 

We further observe trial counsel never offered any evidence of the conduct 

underlying A.K.’s arrest to show it involved moral turpitude. An arrest standing alone is 

generally not admissible to impeach a witness. (See People v. Medina (1995) 11 Cal.4th 

694, 769 [“mere arrests are usually inadmissible, whether as proof of guilt or 
44.

impeachment”]; People v. Williams (2009) 170 Cal.App.4th 587, 609 [“Generally, 

evidence of mere arrests that do not result in convictions is inadmissible because such 

evidence invariably suggests the defendant has a bad character.”]; People v. Lopez (2005) 

129 Cal.App.4th 1508, 1523 [“it is established that evidence of mere arrests is 

inadmissible because it is more prejudicial than probative”].)

Even assuming error however, the record does not support Maldonado’s assertion 

that he was prejudiced by the exclusion of A.K.’s pending drug charges. The exclusion 

of collateral impeachment evidence does not implicate federal constitutional rights so 

long “as the excluded evidence would not have produced a ‘ “ ‘significantly different 

impression’ ” ’ of the witness’s credibility.” (People v. Contreras, supra, 58 Cal.4th at p. 

152.) Applying Watson, we conclude that Maldonado would not have received a more 

favorable outcome at trial had this evidence been admitted.

V. Maldonado’s Claim of Sentencing Error

In his final claim on appeal, Maldonado contends that the instant case must be 

remanded back to the lower court for resentencing following the enactment of Assembly 

Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518) to consider whether to stay 

his sentence on count 1 rather that his sentence on count 2. Effective January 1, 2022, 

“Assembly Bill No. 518 amended ... section 654 to remove the requirement that a court 

impose the longest sentence when a defendant is convicted of more than one offense 

arising from the same conduct, such that a court now has discretion to select a longer or 

shorter sentence when ... section 654 applies.” (People v. Lopez (2022) 78 Cal.App.5th 

459, 468.) Because the jury failed to return a verdict on count 2, and this count was 

struck by the trial court, remand for resentencing under Assembly Bill No. 518 is not 

required.
45.

A. Background

As relevant here, the information charged Maldonado and Kelly with robbery 

committed by two or more people (§ 213, subd. (a)(1)(A), count 1) and home invasion 

robbery (§ 211, count 2). These crimes were based upon the same acts. 

The jury instructions state that “[t]he defendants are charged in Counts 1 and 2 

with robbery.” The jury was further instructed on the elements of “robbery in concert” 

the crime “charged in Count 1,” and degrees of robbery, which was also relevant to count 

1. The jury instructions clarified that home invasion robbery, as charged in count 2, was 

a lesser crime of robbery in concert, as charged in count 1. The instructions state that the 

court “can accept a verdict of guilty of the lesser crime only if you have found the 

defendant not guilty of the greater crime.” The jury ultimately returned a verdict of 

guilty on count 1, robbery in concert. 

The reporter’s transcript from Maldonado’s sentencing hearing shows that the trial 

court erroneously imposed the midterm sentence of four years on count 2, which the 

court stayed pursuant to section 654. The section 186.22, subdivision (b) enhancement 

that was originally attached to count 2 was stricken. 

However, the minute order for the sentencing hearing, dated December 16, 2022, 

clarifies that “Subsequent to the hearing and off [of] the record, the Court dismisses 

Count 2 and strikes the fines as to this count.” The abstract of judgment does not reflect 

that a sentence was imposed on count 2. 

B. Analysis

The record shows that the jury did not return a verdict on count 2 because it was a 

lesser included offense of count 1, and Maldonado was convicted of the greater offense. 

Thus, the court erred when it sentenced Maldonado on count 2. The minute order dated 

December 16, 2022, reflects that the court recognized its error and subsequently 

dismissed count 2. 
46.

Generally, the oral pronouncements of the trial court are presumed correct. (See 

People v. Thompson (2009) 180 Cal.App.4th 974, 978.) Under certain circumstances,

however, the minute order and abstract of judgment may prevail over contrary statements 

in the reporter’s transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; People

v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216 

[“ ‘whether the recitals in the clerk’s minutes should prevail as against contrary 

statements in the reporter’s transcript, must depend upon the circumstances of each 

particular case’ ”].) Such circumstances are present here, where the minute order 

demonstrates that the court clearly intended to correct the fact that it had erroneously 

imposed a sentence on count 2. Based upon the foregoing, we conclude that there is no 

need to remand this matter back to the lower court for a resentencing hearing. 

DISPOSITION

The judgment of conviction is affirmed. 

SMITH, J.

WE CONCUR:

LEVY, Acting P. J.

DETJEN, J.