Filed 6/30/14 P. v. Yepez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO YEPEZ,

Defendant and Appellant.

 B247429

 (Los Angeles County

 Super. Ct. No. BA399823)

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

Craig Elliott Veals, Judge. Affirmed.

Eileen M. Rice, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and 

Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

Roberto Yepez appeals from the judgment entered after a jury convicted him of 

two counts of being a felon in possession of a firearm and one count of exhibiting a 

firearm, along with allegations that the firearm-possession counts were committed for the 

benefit of his street gang. We reject his contentions that the trial court erred by allowing 

the prosecution to introduce rebuttal evidence concerning his access to the car used to 

commit one set of the crimes and that there was insufficient evidence to support one of 

the street gang allegations. We therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

At around 7:00 p.m. on June 29, 2012, John M. was playing kickball on St. Elmo 

Drive with his daughter and several other children.1 John was a former member of the 

Sureno 13 gang and that stretch of St. Elmo Drive was claimed by Sureno’s rival, the

18th Street gang. John saw 18th Street gang member Jose Gomez, known as Darky,

riding a bicycle alongside a slow-moving tan or gray Ford Explorer. John had had 

several run-ins with Gomez over the years.

As Gomez and the Explorer approached John, Gomez began shouting insults to 

the Sureno gang. John ignored the first three, but after Gomez hurled another insult, John 

responded in kind with insults to 18th Street. Gomez approached John and the mutual 

insults continued, followed by Gomez spitting on John, and John spitting back. Gomez 

walked toward the Explorer and then walked back toward John, who pulled out a small 

knife and held it at his side to protect his girlfriend and the nearby children.

John and his girlfriend both saw the driver of the Explorer reach under the front 

seat. The driver then headed toward John, almost hitting the children before stopping. 

The driver’s side window was down and both John and his girlfriend saw that the driver

was holding a semiautomatic handgun in his lap with the barrel pointed toward the 

driver’s side door. The driver asked John why he was in his neighborhood. John replied 

that he had lived there since 1991. The driver said the area was “his hood” and told John 

 

1 We will refer to victim John M. by his first name.
3

to “get the fuck out of there.” After John’s girlfriend told the driver to respect the fact 

that children were present, he told her to “stay the fuck out of it” and drove off.

The police were called and, after viewing suspect photographs, John and his 

girlfriend identified Roberto Yepez as the driver of the Explorer. Several days later the 

police obtained a warrant to search the apartment where Yepez lived with his sister, Ana 

Rojas, as well as Rojas’s gray Explorer. A loaded .357 caliber revolver and boxes of 

10 mm and 45 caliber ammunition were found hidden behind a drawer in a hallway 

cabinet. Yepez slept on the living room sofa and a key ring that included a key to the 

Explorer was on the coffee table in front of the sofa. Detective Carlton Jones used that

key to start the engine on the Explorer. A search of the vehicle turned up nothing 

incriminating.

The police recorded an interview with Yepez, where he denied any knowledge of 

the incident with John, and also claimed that he never drove his sister’s Explorer. At the 

time of the police search, however, Yepez told officers that he had the keys because he 

had been repairing that car. He admitted that the revolver found at his sister’s house 

belonged to him.

Yepez, who had several prior convictions, was charged with one count of 

exhibiting a firearm and one count of being a felon in possession of a firearm in 

connection with the incident involving John, and with another count of being a felon in 

possession of a firearm based on the revolver found at his sister’s house. It was also 

alleged that the two firearm-possession counts were committed for the benefit of Yepez’s 

gang.

A jury convicted Yepez of all three counts and found true the street-gang 

allegations. He contends we should reverse the judgment because: (1) the trial court 

erred by allowing rebuttal evidence from a police officer about his admission that he 

sometimes drove his sister’s Explorer; and (2) there was insufficient evidence that he 

possessed the gun found at his apartment with the intent to benefit his gang.
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DISCUSSION

1. No Error In Admitting Rebuttal Testimony

Rojas testified for her brother that he did not have access to her Explorer, and was 

not allowed to drive it. She also testified that she had the only key to that car and the key 

was not on the key ring found on the coffee table. Finally, she claimed the Explorer was 

in need of repairs and had not been operable at the time of the incident involving John. 

On cross-examination by the prosecution she denied that Yepez ever drove the Explorer 

and denied telling the police that her brother sometimes or “barely” drove the car.

After the defense rested the prosecution called Los Angeles Police Officer John 

Shafia as a rebuttal witness. Shafia testified that he questioned Yepez and Rojas at their 

home on July 2, 2012. According to Shafia, Rojas told him that Yepez in fact drove the 

Explorer. When the prosecutor asked whether Yepez said anything about having ever 

used the Explorer, defense counsel objected that the prosecution was trying to introduce 

improper rebuttal evidence because evidence of Yepez’s supposed statements belonged in 

the prosecution’s case-in-chief. The trial court overruled that objection, and Shafia 

testified that Yepez said he drove the Explorer. Yepez contends the trial court erred.

Under Penal Code section 1093, subdivision (d), the trial court has broad 

discretion to determine whether rebuttal evidence is admissible. (People v. Edwards

(2013) 57 Cal.4th 658, 733.) Rebuttal evidence is limited to evidence made necessary by 

the defendant’s case because he has introduced new evidence or made assertions that 

were not implicit in his denial of guilt. (People v. Young (2005) 34 Cal.4th 1149, 1199 

(Young).) Proper rebuttal evidence does not include evidence that is material to the 

prosecution’s case which tends to establish that defendant committed the crime. (Ibid.)

The purpose behind these restrictions is to: (1) ensure the orderly presentation of 

evidence so as not to confuse the jury; (2) prevent the prosecutor from unduly 

emphasizing the importance of certain evidence by introducing it at the end of the trial; 

and (3) avoid unfairly surprising the defendant with crucial evidence late in the trial. 

(Ibid.)
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The court in Young, supra, 34 Cal.4th 1149, considered the admissibility of 

rebuttal evidence in a case where the defendant was charged with murder after gunning 

down his victim. A witness testified on direct examination that she saw the defendant 

exit the driver’s side of a car with a gun in his hand, who then approached her and the 

victim and ordered them to their knees. On cross-examination, the witness was 

impeached with statements that she saw the passenger exit the vehicle while the driver 

remained behind. Two police officers also confirmed those statements during the defense 

case. The prosecution called a rebuttal witness who also witnessed the incident and said 

the shooter had come from the driver’s side of the car.

On appeal, the defendant contended the trial court had erred by allowing the 

rebuttal testimony. The Supreme Court held that no error occurred even though the 

witness could have been presented during the prosecution’s case-in-chief because the 

testimony corroborated the other witness’s testimony that had been impeached during the 

defense case. The substance of the rebuttal witness’s testimony had therefore “already 

been conveyed to the jury during the prosecution’s case-in-chief. Testimony that repeats 

or fortifies a part of the prosecution’s case that has been impeached by defense evidence 

may properly be admitted in rebuttal.” (Young, supra, 34 Cal.4th at p. 1199.)

We conclude that the Young court’s rationale applies here. During its case-inchief, the prosecution presented two eyewitnesses who saw Yepez driving the Explorer. 

Yepez’s sister owned an Explorer of the same approximate color, Yepez lived with his 

sister, and there was direct evidence that the key to that vehicle was found directly in 

front of where he slept. Although the prosecution could have asked Officer Shafia about 

Yepez’s statement during its case-in-chief, the evidence was not material for purposes of 

determining the admissibility of rebuttal evidence. As in Young, the substance of 

Shafia’s testimony – that Yepez had access to the Explorer – had already been conveyed 

to the jury.

Although evidence of Yepez’s admission that he sometimes drove the Explorer 

would have tended to support the prosecution’s case, that did not make it improper 

rebuttal evidence. (People v. Warner (1969) 270 Cal.App.2d 900, 906.) Once Rojas took 
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the stand and denied that her brother had access to the Explorer, it was proper to rebut her 

testimony with evidence that not only did she tell the police something contrary, but that 

her brother admitted in her presence that he sometimes drove the car. (See People v. 

Bunyard (1988) 45 Cal.3d 1189, 1212.)

We alternatively conclude that even if the trial court erred, the error was not 

prejudicial. Prejudice in this context requires a showing that a result more favorable to 

Yepez was reasonably probable absent the error. (People v. Bunyard, supra, 45 Cal.3d at 

p. 1213.) As noted above, two eyewitnesses placed Yepez behind the wheel of the 

Explorer. His sister owned an Explorer of the same approximate color, keys to that car 

were found by his sleeping area, and his sister’s testimony was properly rebutted with 

evidence that she told the police Yepez drove the Explorer. On this record, we conclude 

there was no prejudice.

2. There Was Sufficient Evidence to Support the Gang Allegation

In order to prove the street gang allegations appended to the firearm possession 

counts, the prosecution had to show that Yepez possessed the weapons with the specific 

intent to promote, further, or assist criminal conduct by fellow gang members. (Pen. 

Code, § 186.22, subd. (b)(1); People v. Albillar (2010) 51 Cal.4th 47, 62-63, 67.) Expert 

testimony regarding whether a crime was gang-related is admissible and may be given in 

response to hypothetical questions that track the prosecution’s evidence, and may 

embrace the ultimate issues to be decided. (People v. Vang (2011) 52 Cal.4th 1038, 

1045-1046, 1049-1050 & fn. 5.)

Los Angeles Police Officer Ruben Rodriguez testified as an expert on street gangs. 

Rodriguez testified that gang members typically share or pass around firearms so the 

police cannot easily trace them. For gang members on probation or parole who are not 

allowed to keep guns, that practice allows them access to firearms. After being posed a 

hypothetical set of facts that tracked the prosecution’s evidence, Rodriguez opined that 

the gun found inside the gang member’s house after the earlier brandishing incident 

would have benefitted the gang by facilitating that exchange process. He opined that an 
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18th Street gang member who acted in a manner consistent with the evidence against 

Yepez would have possessed a firearm on both occasions for the benefit of his gang. 

Yepez contends this evidence was insufficient to establish that he possessed the 

revolver found in his apartment with the specific intent to assist his gang. He relies on 

three decisions to support this contention: People v. Ramon (2009) 175 Cal.App.4th 843 

(Ramon); In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.); and People v. 

Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), disapproved in part in People v. 

Vang, supra, at page 1047, footnote 3.

The defendant in Ramon was stopped driving a car that had been reported as 

stolen. A handgun was found under the driver’s seat. The defendant and his companion 

were charged with receiving a stolen vehicle and unlawful possession of a firearm, along 

with allegations that their crimes were committed for the benefit of their street gang. 

Based on a hypothetical set of facts that tracked the prosecution’s evidence, a gang expert 

testified that the crimes were committed for the benefit of a street gang because both 

defendants were gang members and they were stopped while in their gang’s territory.

The Ramon court agreed with defendant’s contention that those two facts were an 

insufficient basis for the expert’s opinion because, without more, the conclusion was 

mere speculation. (Ramon , supra, 175 Cal.App.4th at p. 851.)

The Frank S. court reviewed a judgment that a minor was a ward of the juvenile 

court for having carried a concealed dagger, along with a finding that he did so to benefit 

his gang. The Frank S. court reversed the gang allegation finding, concluding that an 

expert’s testimony on the subject did not constitute sufficient evidence as to the minor’s 

intent. As the Frank S. court characterized it, the expert “simply informed the judge of 

her belief of the minor’s intent with possession of the knife, an issue reserved for the trier 

of fact. . . . The prosecution presented no evidence other than the expert’s opinion 

regarding gangs in general and the expert’s improper opinion on the ultimate issue to 

establish [the minor’s intent]. The prosecution did not present any evidence that the 

minor was in gang territory, had gang members with him, or had any reason to expect to 

use the knife in a gang-related offense. In fact the only other evidence was the minor’s 
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statement to the arresting officer that he had been jumped two days prior and needed the 

knife for protection.” (Frank S., supra, 141 Cal.App.4th at p. 1199.)

In Killebrew, supra, 103 Cal.App.4th 644, the court reversed a judgment that the 

defendant took part in a conspiracy by active gang members to possess a handgun. The 

case arose when Bakersfield police went on alert after members of the East Side Crips 

shot and killed members of the Country Boy Crips. On the lookout for retaliation, 

officers pulled over three cars carrying East Side Crips members, and found handguns

inside two of them. Killebrew was spotted standing on a nearby sidewalk watching the

arrests and was arrested because he was an East Side Crips member and officers assumed 

he had been inside one of the cars.2

The prosecution’s gang expert testified about gang culture, psychology, and 

habits. He also testified that each of the individuals in the three cars knew there were 

guns in two of the cars and jointly possessed the guns with every other person in all three 

cars for their mutual protection. The Killebrew court held that the trial court erred by 

allowing that testimony because, although an expert may testify about gang culture and 

habits, he may not testify that a specific individual had specific knowledge or possessed a 

specific intent. (Killebrew, supra, 103 Cal.App.4th at pp. 657-658.)

None of these decisions is applicable here. The court in Ramon, supra,

175 Cal.App.4th 843, reversed because the only evidence to support the gang expert’s 

testimony that the crimes were gang-related was the fact that the defendants were gang 

members and were found in their gang’s territory driving a stolen car with a handgun 

inside. As a result, there was no evidence from which the expert could discern whether 

the defendants had acted on their own or for the benefit of their gang, making his opinion 

speculative. (Id. at p. 851.)

Similarly, the court in Frank S., supra, 141 Cal.App.4th 1192, reversed because 

the expert relied on no more than general evidence of gang culture to opine that the 

 

2 As it turned out, evidence that Killebrew had been in any of the three cars was 

virtually nonexistent and the Court of Appeal therefore also reversed due to insufficiency 

of the evidence on that basis as well. (Killebrew, supra,103 Cal.App.4th at p. 660.)
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defendant possessed a dagger for the benefit of his gang, with no case-specific evidence 

that supported her conclusion. (Id. at p. 1199.)

In People v. Vang, supra, 52 Cal.4th at pages 1048-1049, the Supreme Court 

disapproved Killebrew to the extent it purported to hold that gang experts could not 

respond to questions that track the evidence concerning whether hypothetical conduct 

was gang related. Instead, Killebrew remained good law to the extent it held that a gang 

expert cannot offer an opinion about the defendants themselves. Here, gang expert 

Rodriguez opined in response to a hypothetical that tracked the facts in this case that a 

gang member would have possessed a second gun found at his home in order to benefit 

his gang. That testimony was therefore proper under Vang.

Finally, unlike Frank S. and Ramon, Rodriguez’s opinion was supported by the 

evidence. There is no dispute that Yepez’s firearm possession during the brandishing 

incident was gang-related. According to Rodriquez, it is common practice for gang 

members to stash guns at their homes for use by other gang members. The fully-loaded 

gun found at Yepez’s house was not the same gun used during the brandishing incident, 

and ammunition for two other types of firearms were also found, indicating that Yepez 

had, or provided access to, multiple firearms for use by himself or other gang members. 

Based on this evidence, the jury was justified in concluding that the Yepez possessed the 

revolver found at his home for the benefit of his gang.

DISPOSITION

The judgment is affirmed.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J .

GRIMES, J.