Filed 4/24/14 P. v. Quezada CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent,

v. RAMON RAMIREZ QUEZADA, Defendant and Appellant. D062939

(Super. Ct. No. JCF27256)

APPEAL from a judgment of the Superi or Court of Imperial County, Raymundo Ayala Cota, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Ramon Ramirez Quezada stabbe d the victim, as he was trying to rescue his wife from gang members who had assaulted her. Quezada was charged2 with attempted murder and assau lt with a deadly weapon; the dist rict attorney further alleged the crimes were committed for the bene fit of a criminal street gang. At Quezada's trial, a gang expert testified the attempt to murder the victim was gang related; in addition, at trial the prosecu tion presented a tape recording of a jailhouse conversation between Quezada and another gang member in which Quezada discussed dissuading the victim and othe r witnesses from testifying at Quezada's trial. The jury acquitted Quezada of attempted murder but fo und him guilty of assa ult with a deadly weapon; the jury also found th e assault was committed for the be nefit of a criminal street
gang. Contrary to Quezada's argument on appeal, th ere is sufficient evid ence to sustain the jury's finding the assault was gang related. In particular, the expert's testimony with respect to the stabbing Quezada inflicted on the victim wa s relevant as to both the attempted murder allegation and the assault charge. We also re ject Quezada's argument that the trial court abused its discretion in admitting his jailhouse co nversation, along with an interpretation of it offered by the prosecution's gang expert. The conversation was hi ghly probative: it not only demonstrated a consciousn ess of guilt, but it was also relevant with respect to Quezada's gang affiliation. It s probative value far outweighed any prejudice that arose from the fact otherwise ambiguous portions of the conversation called for expert interpretation. Accordingly, we affirm the judgment of conviction.3 FACTUAL BACKGROUND
A. Afternoon Melee In May 2011, the victim in this case, Alfonso Pineda, was living in a home in Brawley. Alfonso was living with his girlfri end, Diane Verdusco, Ve rdusco's son, Mark, and Mark's girlfriend, Monique Arellano. 1 Diane's former husba nd, Richard Pacheco, who was suffering from cancer, was also a member of the household. Mark was an associate of a Brawley crim inal street gang known as "Brole." His girlfriend, Monique, was from Calexico and associ ated with a rival Cale xico criminal street gang known as "Calexia." Around 3:00 p.m. on the afternoon of May 11, 2011, Monique was on the sidewalk in front of the house in Brawley when sh e was approached by two women, Vanessa Miranda, and Vanessa Mendoza. Miranda wa s known in the community by the gang moniker, Guera, meaning fair or blonde; Men doza was known by the gang moniker, Terca, meaning stubborn or obstinate. Miranda an d Mendoza confronted Monique and told her that, because she was affiliated with Calexia, her relationship with Mark, who was a Brole associate, was disrespectful of Brole. Monique, Miranda and Mendoza started walk ing around the side of the house into the backyard. Diane, who had been drinking a beer in the front yard, followed the women into the backyard. In th e backyard, Monique and Mend oza began fighting; Richard

1 Because their familial and romantic relations hips are material to what transpired and it is easier to comprehend thos e relationships by doin g so, we will refer to members of the victim's household by their first names.4 attempted to separate them. Miranda re sponded by punching Ri chard and assisting Mendoza in her fight with Monique. Diane joined the fight by pushing Miranda away from Monique; Diane and Miranda then began fighting. Eventually, Richard was able to separate the four comb atants. When the fighting stopped, Mendoza yelled that she and Mirand a would go get others and finish the fight; Mendoza and Miranda th en left the scene.
B. Assault During the course of the rest of the af ternoon and evening, Alfonso, Diane and Monique drank several beers. Around 10:15 p.m., while Alf onso was putting beer in the refrigerator inside the house and Diane and Mo nique were outside in the front yard, two cars drove by the house and parked nearby. A bout 10 gang members got out of the cars and began shouting profanities and "Brole, Brole. This is my hood. Better respect." Miranda and Mendoza were among the group that got out of the cars. Miranda, Mendoza and a third woman, Marie Hernandez, who was known in the community by her gang moniker "Cuca," approached the yard where Diane and Monique were standing. Miranda, Mendoza and Hernand ez were accompanied by Que zada, who is known by his gang moniker "Spider," and Lawrence Mendiv il, who is known by his gang moniker, "Low,
Low." Diane was pulled out of the yard by her ha ir and fell to the street, where she was punched and kicked in the face. At one poin t, Monique punched Mira nda to get her away from Diane.5 Alfonso came out of the house and saw Dian e lying in the street. Alfonso went to Diane and tried to pick her up. At that point, Quezada and Mendivil pulled out pocket knives and stabbed Alfonso. When someone yelled, "I'm calling the cops," Miranda, Mendoza, Hernandez, Quezad a and Mendivil ran back to their cars and fled. Police and emergency medical personnel responded to the scene. Alfonso was taken to the hospital in shock; he had been sta bbed five times, had suffered a collapsed lung and several fractured ribs in addition to the loss of a great deal of blood. At the scene, Diane's eyes were swollen and almost completely shut, her face was also swollen, her nose was bleeding and there were marks on her forehead and lips. Monique also had marks and bruises on her face. Later, while Quezada was in pretrial deten tion, he had a telephone conversation with a gang member who was not in custody. The conversation was recorded by law enforcement personnel. Acco rding to the prosecution's gang expert, who was asked to interpret the meaning of certain statements, du ring the conversation Qu ezada instructed the gang member to contact a third person about approaching Alfonso, Diane and Monique and dissuading them from testifying against him. During the conversa tion, Quezada also explained that he had give n the third person a gun. At trial, Quezada presented testimony fro m Miranda, Mendoza and Hernandez to the effect that neither Quezada nor Mendivil we re present when Alfonso was attacked. According to the defense witn esses, they were at the scene of the assault on Alfonso because earlier in the day Dian e had cheated Miranda and Mendo za in a drug deal and they6 had come back to ask Diane for the money th ey had given her. According to the three women, after trading insults with Diane a fight broke out and Diane pulled out a pocket knife.
PROCEDURAL HISTORY Quezada and Mendivil were charged by in formation with attempted murder and assault with a deadly weapon. The information alleged that the attempt was committed for the benefit of, at the direction of, and in associ ation with a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) Th e information further allege d that Quezada and Mendivil personally inflicted great bodily on Alfonso a nd that Quezada had suffered a prior prison

term. Prior to trial, the prosecution moved to amend the information to include an allegation that Quezada and Mend ivil were also guilty of assa ult with a deadly weapon. The trial court granted the motion to amend. The jury acquitted Quezada and Mendivil of attempted murder but fo und both of them guilty of assault with a d eadly weapon. The jury also found that the assault was for the benefit of a criminal street gang and that , in committing the assault, both Quezada and Mendivil had personally in flicted bodily injury. The trial court sentenced Quezada to a pr ison term of 14 years. The sentence was composed of an upper term of four years for the assault and a consec utive 10-year term for the street gang enhancemen t. The trial court stayed any sent ence on the grea t bodily injury enhancement. (Pen. C ode, § 654, subd. (a).)7 DISCUSSION
I On appeal, Quezada argues ther e is insufficient evidence to support the jury's finding the assault on Alfonso was, in the words of Penal Code section 186.22, subdivision (b), "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Quezada argues that although the prosecution's expert offered an opinion that the attempted murder was committed for the benefit of the Brol e gang, the expert offe red no such opinion with respect to the alleged assa ult with a deadly weapon. We reject Quezada's contention. Our review of the record shows that although the gang expert testified that he thought the attempted murder wa s committed for the benefit of the Brole gang and provided no such specific conclusion as to the motivation for the assault count, in his testimony the expert did make reference to the "crimes" committed by Qu ezada as being for the benefit of the gang. Thus, as a technical matter, the expert's testimony included re ference to the assault count. However, even if we interpret the expe rt's testimony narrowly and limited to the attempted murder charge, it nonetheless fully su pported the jury's determination the closelyrelated assault was committed for the benefit of the gang. Quezada's argument on appeal ignores the fact that the charges on both the a ttempted murder and the assault with a deadly weapon were based on the same conduct: the st abbing of Alfonso. Indeed, in moving to amend the information to includ e the assault count, the prosecutor relied on the fact that "the evidence and theory in this case as to count one [attempted murder] would be identical8 to the evidence and theory in this case for count two [assault]." We also note that assault with a deadly weapon is a lesser re lated offense of attempted murder. ( People v. Nelson (2011) 51 Cal.4th 198, 215; People v. Parks (2004) 118 Cal.App. 4th 1, 6.) These circumstances establish fairly clearly that th e expert's testimony as to Quezada's motivation in attempting to murder Alfonso by stabbing hi m applied as a matter of simple logic with equal force to defendant's mo tivation in assaulting him with a deadly weapon by stabbing him. We hasten to add that even in the absen ce of the expert's testimony, there was ample other evidence the crime was co mmitted for the benefit of th e Brole gang. Evidence from witnesses established that the afternoon me lee between Diane, Monique, Mendoza and Miranda was precipitated by Monique's affiliati on with Calexia and th at later, when the assault occurred, the perpetrators were part of a larger cohort, at least one of whom was shouting "Brole, Brole." We also note th e jury was presented with a tape-recorded conversation between Quezada and another identified Brole gang member in which Quezada discussed efforts to in timidate Alfonso, Diane and M onique. Taken together, these circumstances created a strong inference the assault was committed for the benefit of the Brole criminal street gang. In sum, there was sufficient evidence to support the jury's gang enhancement finding.
II Next, Quezada argues the trial court erred in admitting the tape recording of his conversation with another gang member. Follo wing an Evidence Code section 402 hearing,9 the trial court admitted the recording along with testimony from the gang expert with respect to the meaning of what was transpiring in the conversation. Contrary to Quezada's c ontention on appeal, the tria l court did not abuse its discretion under Evidence Code s ection 352 in admitting evidence of the conversation. The trial court has broad discretion to determine whether the "probative va lue [of the evidence] is substantially outwei ghed by the probability that its admi ssion will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudic e, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We review the trial court's evidentiary ruling for abuse of discretion. ( People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) When discretion is vested in the trial c ourt, the exercise of that discretion "must not be disturbed on appeal except on a showing that the court ex ercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ( People v. Jordan (1986) 42 Cal. 3d 308, 316.) Here, the recorded conversation was pr obative with respect to both Quezada's participation in the assault, which was conteste d, and his participation in gang activities. In particular, the statements Quezada made to th e effect that the other gang member should help him in dissuading Alfonso, Diane a nd Monique from testifying showed both a consciousness of guilt on Quezad a's part and a fairly close relationship with Brole gang members. (See People v. Vines (2011) 51 Cal.4th 830, 867 .) Contrary to Quezada's argument, Quezada's reference to a gun Quezada ha d provided the third person was relevant10 to the charges against him. In the context of the conversation, it is clear Quezada mentioned the gun because he intended that it be used as a means of dissuading the witnesses. We also reject Quezada's contention that th e use of the gang expert to interpret the conversation was inappropriate. As the Attorn ey General notes, a gang expert may testify on matters that are sufficiently beyond common e xperience, such as gang territories, culture and practices, if the testimony wi ll assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Here, the gang expert explained th at Quezada's statement "keep it going" was a reference to earlier efforts to dissuade the witnesses and th at Quezada's reference to a "cuarno" or "horn" was a reference to a gun he had provided the third person. These are matters beyond the common knowledge of jurors and were the proper subject of expert testimony. Moreover, in light of instructions that the jurors were the exclusive judges of witnesses' credibility and not bo und by the expert's opinion, th e risk of undue prejudice was minimal. (CALCRIM No . 226; CALCRIM No. 332.) Moreover, we note there was nothing unduly inflammatory or unfairly prejudicial in the recorded conversation. Th e conversation did not include re ferences to information that would create any unfair bias toward Quezada or that was otherwise irrelevant to the charges against him. In light of the clear probative va lue of the conversation, the trial court did not abuse its discretion in admitting it.11 DISPOSITION The judgment is affirmed. BENKE, Acting P. J. WE CONCUR:

HALLER, J.

McINTYRE, J.