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Filed 2/9/24 P. v. Nevarez CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. ERICK NEVAREZ,

Defendant and Appellant. C097543
(Super. Ct. No. 19FE020709)

Defendant Erick Nevarez was convicted of premeditated attempted murder for the benefit of a criminal street gang

. On appeal, he contends (1) insufficient evidence supports the predicate offenses used to prove the gang enhancement and (2) his counsel was ineffective for failing to object to hearsay testimony given by the gang expert. We
affirm.2 FACTUAL AND PROCEDURAL BACKGROUND Defendant’s appeal pertains to the evidence regarding the predicate offenses supporting the gang enhancement. We thus do not recite facts relevant only to the attempted murder conviction and nongang

- related allegations

. During trial on defendant’s atte mpted murder offense and nongang

- related allegations, defendant admitted to being a member of the Varrio Gardenland gang, a subset of the Norteño criminal street gang , at the time of the offense . Subsequently, the jury found defendant guilty of attempted murder and found true allegations that he acted
with premeditat ion , used a deadly weapon , and inflicted great bodily injury . D efendant contemplated admitting the remaining gang allegation ; specifically, that he committed the attempted murder fo r the benefit of the Varrio Gardenland Norteño criminal street gang

. D efendant decided , however, to proceed with a court trial on the gang allegation to preserve future appellate rights regarding potential legislative changes

. In light of proceeding with a court trial, defense counsel waived the applicability of hearsay
restrictions to the gang expert’s testimony , such as those announced in People v. Sanchez (2016) 63 Cal. 4th 665 , including to the expert’s testimony that was relevant to “the history of the gang, including the predicate offenses.” Counsel indicated he knew the prosecution was capable of calling qualified w itnesses to testify about the predicate offenses and that he was the attorney on one of the cases. The p rosecution called Sacramento Police Detective John Sample as its gang expert. Detective Sample testified about the Norte ñ o criminal street gang ; specifically,
that all subsets of the Norte ñ o gang share similar objectives and phil osophies, includ ing
mainta ining their neighborhoods free of rival gang members. Further, “[r]espect is very important,” as is loyalty and family. Typically, Norte ñ o gang members arm themselves
with firearms , but Detective Sample has seen them use baseball bats, sticks, knives, brass knuckles, and vehicles as weapons. Primary activities of the Norteño gang are drug s ales , illegal weapons possession , and the commi ssion of robberies, shootings, and murders.3

Norte ño gang members identify themselves as members of the gang by wear ing red clothing and exhibiting tattoos demonstrating allegiance to the gang . In some cases,
members also wear a Mongolian style ha i r cut

. It is common to see Norteño gang members use hand signs and graffiti to demonstrate allegiance to the gang , and also showcase their allegiance on social media.
The Norteño gang , and its rival the Sureño gang , originated in the California prison system. The structure for the gang is dictated by the members serving time in prison while younger members “put in work” through gang subsets in various neighborhoods , which is the case in Sacramento

. One Sacramento Norteño subset is
Va r rio Gardenland

. Var r io Gardenland membe rs , like Norteño gang members, identif y with the color red . Varrio Gardenland members exhibit hand signs and tattoos specific to
their subset and also specific to the lar g er Norteño gang. Another Norteño subset is the
Varrio Diamond Sacramento.
Varrio Gardenland and Varrio Diamond Sacramento are allies and commit crimes together

. Both subsets have a “primary allegiance” to the Norteño umbrella gang , which is why members of both subsets wear red clothing and exhibit the lett er “ N ” and number
14 in tattoos or hand signs

. Detective Sample testified to the first predicate offense as occurring on May 18, 2016, and i nvolv ing Justin J

. and Terry E. as the perpetrators of a robbery. At the time, Terry was a Varrio Gardenland gang member and Justin was a Varrio Diamond
Sacramento gang member

. Terry had a Norteño gang tattoo on his face and a Varrio
Gardenland tattoo on his chest. He admitted to being a Varrio Gardenland gang member
and had been known to associat e with other Varrio Gardenland gang members

. Justin
ha d multiple tattoos showing his allegiance to the Varrio Diamond Sacramento subset , as well as the Norteño umbrella gang. Before the robbery, Justin spoke to the victim, a known Norteño dru g dealer who
had moved to Varrio Gardenland territory , about paying “ taxes ” on his drug dealings to4

the Norteño gang structure

. Following the conversation , Justin and Terry beat him and
robbed him of $15,000

. In Detective Sample’s opinion, J ustin and Terry robbed the victim for the financial benefit of the gang , even though evidence also suggested that Justin may have robbed the victim because he was dealing drugs outside Justin’s young daughter’s home

. The second predicate offense Detective Sam ple testified to o ccurred on May 14, 2018, and involved Esteban R

. and Mario G ., who both had previously admitted to being
Varrio Gardenland gang members

. Est e ban and Mario also had tattoos demonstrating loyalty to Varrio Gardenland , and Mario had tattoos on his neck and wrist signifying loyalty to the Norteño umbrella gang. Est e ban wore the Mongolian hairstyle typical of
Norteño gang members and was known to associate with other Varrio Gardenland gang members. Mario had been previously contacted by police officers while wearing red clothing and had admitted membership in the Varrio Gardenland subset. In May of 2018, Est e ban, Mario, and an other Varrio Gardenland gang member beat up a victim and took his belongings , including his wallet, while ask ing the victim if
he knew where he was located

. In Detective Sample’s opinion , the offense occurred for the benefit of a criminal street gang because of the group nature of the assault and the language used during the assault. Detective Sample further believed the robbery was committed to financially benefit the gang because the members who committed the offense were likely to keep the money and property they took from the victim

. Detective Sample then extensively testified to defendant’s gang ties and the crime he committed, ultimately testifying to his opinion that defendant committed the attempted
murder of a perceived rival gang member for the benefit of a criminal street gang. Following Detective Sample’s testimony, the parties rested and submitted the matter to the trial court without argument. The trial court found that the prosecution met its burden in proving defendant committed the attempted murder for the benefit of a5

c riminal street gang , namely the Varrio Gardenland Norteños as alleged in the
information

. At defendant’s sentencing hearing, the trial court struck the great bodily injury enhancement and the weapons enhancement, leaving only the gang enhanc e ment. The
trial court sentenced defendant to a total of 15 years to life in prison

. Defendant appeals.
DISCUSSION
I Sufficient Evidence Supports The Trial Court’s
True Finding On The Gang Enhancement “In assessing a claim of insufficiency of evidenc e, the reviewing court ’ s task is to review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence

— that is, evidence that is reasonable, credible, and of
solid value

— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Rodriguez (1999) 20 Cal. 4th 1, 11.) “ ‘An appellate court must accept logical inferences that the [trier of fact] might have drawn from the eviden ce even if the court would have concluded otherwise.’ ” ( People v. Halvorsen (2007)
42 Cal. 4th 379, 419.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “ ‘that upon no hypothesis whatever is there sufficien t substantial evidence to support [the conviction].’ ” ( People v. Bolin (1998) 18 Cal. 4th 297, 331 .) Reviewing courts must consider all the evidence admitted at trial, even if erroneously admitted, to establish whether there was substantial evidence. ( L ockhart v.
Nelson (1988) 488 U.S. 33, 39

- 42 .) “[ T ] he sufficiency of the evidence to support an
enhancement ” is reviewed “ using the same standard .

. . appl [ ied ] to a conviction. ” ( People v. Wilson (2008) 44 Cal. 4th 758, 806.)6

To prove a Penal Code 1 section 186.22, subdivision (b) allegation , the prosecution must establish, among other things, the existence of “an ongoing, organized association or group of three or more persons, whether formal or informal” that has “as one of its primary activities th e commission of one or more of the criminal acts enumerated in subdivision (e)

. . . and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” ( § 186.22, subd. (f).) “ ‘[P]attern of criminal gang activity’ means the commission of

. . . two or more of the following offenses, provided [among other things]

. . . the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common
benefit f rom the offense s is more than reputational.” ( § 186.22, subd. (e)(1).) “[B]enefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational.” ( § 186.22, subd. (g).)
A
The Prosecution Demonstrated A Single Criminal Street Gang Committed The Predicate Offenses Defendant argues the prosecution failed to prove the predicate offenses w ere committed by members of the same criminal street gang as required by People v. Prunty (2015) 62 Cal. 4th 59

. Defendant focuses on whether the prosecution proved an ongoing organization al relationship between the Varrio Gardenland subset and the Varrio
Diamond Sa c ramento subset, and further whether those subsets had an organizational relationship to the Norteño umbrella gang

. In a related argument, defendant argues that,
because of the prosecution ’s failure to show an organizational relationship under Prunty , the prosecution also failed to show “ the predicate offenses w ere collectively committed

1 Undesignated statutory references are to the Penal Code.7

by members of the ” Norteño gang. (Italics added.) Defendant’s reliance on Prunty is misplaced.
In Prunty , our Supreme Court held: “[W]here the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22[, subdivision ](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.” ( People v. Prunty , supra , 62 Cal. 4th at p. 71.) “ Prunty also explained, however, that this holding is inapplicable ‘when a defendant commits a crime to benefit a particular subset, and the prosecution can show that the subset in question satisfies the primary activities and predicate offense requirements, [because] there will be no need to link together the activities of various alleged cliques.’ ” ( People v. Tovar (2017) 10 Cal. App.5th 750, 758.) Here, t he prosecution did not allege that defendant committed his offense for the
benefit of the Norteño gang , which exists based on the conduct of subsets, like the two subsets here

— Varrio Gardenland and Varrio Diamond Sacramento. Instead, the prosecution alleged defendant committed his offense for the benefit of the Varrio
Gardenland subset

. B ecause the allegation was specific to the subset gang, which did not
turn on the existence and conduct of one or more subsets , t he prosecution was not required to show an organizational link between Varrio Gardenland and Varrio Diamond
Sacramento or the Norteño umbrella gang

. Accordingly, Prunty is inapplicable and does not provide a basis for us to conclude the gang enhancement is not supported by
substantial evidence. In reply, defendant argues that , if the gang enhancement was found true based on
defendant ’s conduct benefitting the Varrio Gardenland gang, then insufficient evidence supported a finding defendant acted to benefit Va r rio Gardenland because the evidence
demonstrated he committed the offense to benefi t the Norteño umbrella gang

. The People addressed this issue in their respondent’s brief. We disagree with defendant

.8

Like the defendant in Tovar , a case defendant relies on, defendant admitted he was

a member of a Norteño subset

— Varrio Gardenland

— at the time he committed the
offense. This testimony “permitted the inference that [defendant] intended to benefit [ his Norteño subset] in particular.” ( People v. Tovar , supra , 10 Cal. App.5th at p. 759.)

“ Prunty obser ved that the ‘ ample evidence ’ in that case that the defendant claimed to be a member of a specific subset ‘ was likely sufficient for the jury to infer that [the defendant] intended to benefit that group. ’ ” ( Ibid

. ) While dicta, “ ‘ Supreme Court dicta generally should be followed, particularly where the comments reflect the court’s considered reasoning.’ ” ( Ibid .) Thus, we reject defendant’s claim that insufficient evidence
demonstrated he acted to benefit Varrio Gardenland

. B
The Pro secution Demonstrated The Predicate Offenses Were
Committed To Confer A Benefit That Was More Than Reputational
Defendant contends the prosecution failed to demonstrate the predicate offenses
benefited the Norteño criminal street gang in a way that was m ore than reputational. We note again that the prosecution did not need to prove the predicate offenses were committed to benefit the Norteño gang because it was the Varrio Gardenland subset defendant was alleged to have benefitted. (See P eople v. Tovar , supra , 10 Cal. App.5th at
p. 758.) We will construe defendant’s argument as one contending the evidence did not sufficiently prove the predicate offenses benefited Varrio Gardenland beyond a reputational benefit

. T he People addressed this argument in their respondent’s brief. We
disa gree with defendant’s construed contention

. Under s ection 186.22 , “ E xamples 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.” ( § 186.22, subd. (g).)9

Detective Sample’s testimony was sufficient to demonstrate the benefit was financial, as opposed to merely reputational

. Both predicate offenses involved taking money from the victims in Varrio Gardenland territory. The first predicate offense dealt specifically with gang culture, in that the victim did not pay taxes to the Norteño
umbre lla gang from proceeds earned while drug dealing in Varrio Gardenland territory. It is reasonable to infer that the first predicate offense was committed to maintain the good standing of Varrio Gardenland within the larger Norteño structure and also for
V arrio Gardenland to financially benefit from the $15,000 taken, of which only a portion was meant to benefit the larger Norteño gang through ta x es . The second predicate offense also involved the taking of money and property

. Detective S ample testified th at if the money had not been recovered by officers that it would likely have gone to the gang and the members who took it

. Accordingly, sufficient evidence supports the trial court’s finding that the benefit to Varrio Gardenland as a result of the predicate offenses was more than reputational.
II Counsel Was Not Ineffective For Failing To Object To Hearsay Testimony Defendant contends his counsel was ineffective for failing to object to hearsay testimony under Sanchez . ( People v. Sanchez , su pra , 63 Cal. 4th 665

. ) We disagree. “To demonstrate ineffective assistance of counsel, [ defendant ] ‘must show that
counsel ’ s performance was deficient, and that the deficiency prejudiced the defense.’ [Citation.] On direct appeal, a finding of deficient performance is warranted where ‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the
ch allenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel ’ s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no10

conceivable reason for counsel ’ s acts or omissions.’ ” ( People v. Johnsen (2021)
10 Cal. 5th 1116, 1165.)
The record reflects that defendant ’s counsel wai ved the requirements of Sanchez
because he was confident the prosecution could produce sufficient witnesses to testify to the underlying facts. Counsel further indicated he was familiar with one of the predicate
offenses having served on the case. Additionally, counsel indicated the only reason defendant was going forward with a court trial o n his gang allegation , instead of admitting it , was because defendant wanted to preserve his right to benefit from any future change in the law. Based on th ese assertions, t h e record is sufficient to show
defense counsel had a tactical reason to waive application of Sanchez . Counsel opted to save time and progress through the bifurcated trial, knowing the prosecution could call
additional and qua lified witnesses to meet its burden

. Since defendant’s interest was merely in preserving future appellate rights, it was reasonable for counsel to make such a
waiver. Accordingly, counsel’s failure to object on Sanchez grounds was not ineffective.11 DISPOSITION The judgment is affirmed.

/s/ ROBIE, Acting P. J.

We concur:

/s/ DUARTE, J.

/s/ KRAUSE, J.