Filed 8/17/21 P. v. Quevedo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JONATHAN QUEVEDO,

 Defendant and Appellant.

2d Crim. No. B300862

(Super. Ct. No. BA456662)

(Los Angeles County)

Jonathan Quevedo appeals from the judgment entered after 

a jury had found him guilty on 10 counts involving four victims: 

three counts of assault with a deadly weapon, to wit, a cane and 

the base unit of a telephone (Pen. Code, § 245, subd. (a)(1));1two 

counts of willful, deliberate, and premeditated attempted murder 

(§§ 187, subd. (a), 189); one count of discharging a firearm at an 

occupied motor vehicle (§ 246); one count of dissuading a witness 

by use of force (§ 136.1, subd. (c)(1)); two counts of assault with a 

1 All statutory references are to the Penal Code.
2

semiautomatic firearm (§ 245, subd. (b)); and one count of 

possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)). 

The jury found true allegations that all of the offenses had 

been committed for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)). As to the convictions for attempted 

murder and shooting at an occupied motor vehicle, the jury found 

true allegations that appellant had personally discharged a 

firearm causing great bodily injury (§ 12022.53, subd. (d)). 

Except for the convictions of assault with a deadly weapon, the 

jury found true allegations that appellant had committed the 

offenses while released from custody on another felony offense 

(§ 12022.1). 

The court found true one prior serious felony conviction 

(§ 667, subd. (a)(1)), three prior prison terms (§ 667.5, subd. (b)), 

and one prior strike within the meaning of California’s “Three 

Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). 

Appellant was sentenced to prison for an aggregate determinate 

term of 22 years, 8 months, plus an aggregate indeterminate 

term of 158 years to life. The indeterminate term included two 

years for two prior prison terms (§ 667.5, subd. (b)). The court 

directed that appellant shall serve the determinate sentence 

prior to serving the indeterminate sentence. 

Appellant contends that, as to all of the convictions except 

the three convictions for assault with a deadly weapon, the 

evidence is insufficient to support the gang allegations. In 

addition, he claims that his trial counsel was ineffective because 

counsel failed to object to a portion of a jury instruction on 

eyewitness identification. Finally, appellant argues, and the 

Attorney General concedes, that the two one-year enhancements 

for prior prison terms must be stricken because of an amendment 
3

to section 667.5, subdivision (b). We strike the prior prison terms 

and affirm in all other respects.

Facts

Three Counts of Assault with a Deadly Weapon

Appellant was a member of the Temple Street criminal 

street gang. One evening in March 2017, E.P. (husband) and his 

wife, V.P. (wife), were eating dinner at a restaurant within the 

territory claimed by the Temple Street gang. Appellant entered 

the restaurant and “looked at . . . husband with . . . a bad face.” 

“He was mad-dogging [husband] . . . .” “ [‘M]ad-dogging[’] . . . is 

street vernacular for staring at him to intimidate him.” Husband 

and appellant exchanged words. “[A] verbal altercation between 

the two took place.” 

Husband and wife finished their meal and got up to leave. 

As they were walking toward the exit, appellant ran toward 

husband and tried to hit him. Wife “got in between” appellant 

and husband. Appellant kicked wife in the “left side” of her 

“inner thigh.” He picked up the base unit of the restaurant’s 

telephone and threw it at either husband or wife. The base unit 

hit wife in the head, causing a wound that began to bleed. 

Appellant was yelling, “‘This is Temple Street.’” 

In an apparent attempt to mollify appellant, husband said 

he knew “Thumper,” a member of the Temple Street gang. 

Appellant replied, “‘He ain’t shit in our neighborhood.’ . . . ‘Fuck 

him.’” Appellant hit husband and wife with a cane. Appellant 

was yelling, “‘This is Temple Street, this is Temple Street.’” 

Husband and wife left the restaurant, drove away, and 

contacted the police. Husband told the police that the assailant 

had said, “‘I’m from Temple Street, and I will get my homies to 

come through.’” 
4

Appellant was arrested for the assault at the restaurant. 

Thumper told husband’s and wife’s relatives that husband/wife 

should “not . . . go to court and not . . . testify.” 

Remaining Seven Counts Based on Shooting

Husband and wife came to court for the preliminary 

hearing, but did not see appellant. They remained in the witness 

waiting room. Wife told detectives about Thumper’s warning and 

said she was afraid to testify against appellant. The prosecutor 

obtained a protective order for wife and her family. Appellant, 

who was out on bail, was served with the protective order in open 

court. The preliminary hearing was continued. 

Wife was horrified when she read the protective order 

served on appellant. The order stated her name, home address, 

and the names of her children. Wife complained to a detective, 

“‘You just basically gave [appellant] the keys to my house.’” 

Husband’s and wife’s son, J.P. (son), lived at his parents’ 

home with his wife, D.V. Early one morning after the protective 

order had been served on appellant, son was in his car at home 

waiting for D.V. so he could drive her to work. It was the day 

before appellant was supposed to participate in a live lineup in 

the restaurant assault case. Son and D.V. were not aware of the 

assault or Thumper’s warning. Husband and wife said nothing 

about the incident to son and D.V. because they “didn’t want to 

spook [their] kids out.” 

Son was seated in the driver’s seat. Appellant approached 

the driver’s side and told son to lower his window. Son complied. 

Appellant said, “‘You’re [wife’s] son; right?’” Son answered, 

“‘Yeah.’” Appellant warned, “‘You need to tell your mom that she 

better not show up to court.’” “‘She better not show up to the 

fucking lineup tomorrow.’” Son said, “‘Well, who are you?’” 
5

Appellant replied, “‘She knows who the fuck I am. Better tell her 

that I’m gonna hurt you guys.’” Appellant displayed the form of a 

gun under his sweater. A car alarm sounded, and appellant ran 

“down the driveway.” 

D.V. entered son’s vehicle. Son slowly drove away and 

stopped at a nearby stop sign. Appellant was waiting for him 

there. Son persisted in questioning appellant as to his identity. 

Appellant removed a gun from under his sweater and “just 

open[ed] fire on us.” He fired six to eight times. 

D.V. was shot three times – in the stomach, right leg, and 

left hand. She had “open stomach surgery.” Son was shot twice –

in the shoulder and the back of the head. 

Gang Expert’s Testimony

A gang expert testified: “Temple Street’s been around since 

1923. . . . So . . . you have multiple generations of this gang. You 

also have multiple generations of people who have lived in this 

area, who’ve known of Temple Street . . . . [¶] . . . [T]hey’ve seen 

the shootings, seen the murders, they’ve seen the robberies . . . .” 

When a Temple Street gang member yells the name of his gang 

within hearing distance of other persons, he “not only is 

identifying himself with that gang, but he’s also using the 

established reputation of that gang to intimidate people around 

him.” 

The expert noted how engendering fear in the community 

serves the purpose of the gang: “[I]f you have a gang [such as 

Temple Street] within a community, and the residents of that 

community know that this gang . . . is willing to use violence or is 

a violent gang, it creates an atmosphere of fear within that 

community. And once that [fear] takes . . . ahold of that 

community, . . . you have community members who are more 
6

hesitant to cooperate with law enforcement [out of concern for 

retaliation by the gang]. [¶] So . . . you have victims who won’t 

report a crime . . . ; you have witnesses . . . who won’t cooperate 

or won’t come forward with the police. [¶] . . . [T]hat . . . 

emboldens the gang.” 

The prosecutor presented the gang expert with a 

hypothetical that tracked the facts underlying the assault at the 

restaurant. The expert opined that the gang member “did . . . the 

acts for the benefit of the gang.” The expert explained: When the 

gang member announced, “This is Temple Street,” he was saying 

“he’s got an entire gang behind him.” The gang benefited from 

the member’s announcement and attack on husband/wife because 

his actions would enhance the gang’s reputation for violence and 

would “create[] this atmosphere of intimidation and fear within 

the community.” “Now you have potential witnesses, and maybe 

even future victims, who will be hesitant to cooperate with law 

enforcement.” 

The gang member’s assault “would enhance his status 

within the gang.” Gangs “equate violence with respect. So the 

more violent a particular gang member . . . or a gang is, the more 

they’re respected, and their reputation . . . is enhanced.” 

The prosecutor added facts to the hypothetical that tracked 

appellant’s shooting of son and D.V. The expert opined that the 

shooting “was done for the benefit of the gang.” The expert 

explained: The shooting shows “that Temple Street . . . will take 

the ultimate step to prevent any potential witnesses or victims 

from testifying in court.” “Now you have an individual who has 

committed that ultimate act, and he’s associated with this . . . 

gang. . . . [I]f anybody ever gets involved with Temple Street, 

either they’re a witness or victim, they know that this gang has 
7

committed this act and it would strongly . . . dissuade anybody 

from cooperating with police.” The shooter personally benefited 

because the violence of his act elevated “his level of status within 

the gang.” 

Substantial Evidence Supports Gang

Enhancements as to the Shooting

Appellant argues that the evidence is insufficient to prove 

the gang enhancements as to the seven counts based on his 

shooting of son and D.V. “In considering a challenge to the 

sufficiency of the evidence to support an enhancement, we review 

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—from 

which a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably 

deduced from the evidence. [Citation.] If the circumstances 

reasonably justify the trier of fact’s findings, reversal of the 

judgment is not warranted simply because the circumstances 

might also reasonably be reconciled with a contrary finding.

[Citation.] ‘A reviewing court neither reweighs evidence nor 

reevaluates a witness's credibility.’” (People v. Albillar (2010) 51 

Cal.4th 47, 59-60.) 

“Under the terms of the gang enhancement statute, the 

enhancement applies to ‘any person who is convicted of a felony 

committed 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 . . . .’ 

(§ 186.22, subd. (b)(1).) Thus, the trial court can impose the 

enhancement only if the prosecution establishes both of the 
8

following elements beyond a reasonable doubt: first, that the 

defendant committed a felony (a) for the benefit of, (b) at the 

direction of, or (c) in association with a criminal street gang; and 

second, that in connection with the felony, the defendant 

harbored the specific intent to (a) promote, (b) further, or (c) 

assist in any criminal conduct by gang members.” (In re Daniel

C. (2011) 195 Cal.App.4th 1350, 1358.) As to the specific intent 

element, “‘[i]ntent is rarely susceptible of direct proof and usually 

must be inferred from the facts and circumstances surrounding 

the offense.’” (People v. Rios (2013) 222 Cal.App.4th 542, 567-568

(Rios); see also People v. Miranda (2011) 192 Cal.App.4th 398, 

411 [“There is rarely direct evidence that a crime was committed 

for the benefit of a gang. For this reason, ‘we routinely draw 

inferences about intent from the predictable results of 

action . . .’”].)

Appellant asserts: “Apart from [his] gang status, . . . there 

was no evidence [other than the gang expert’s opinion] that the

shooting . . . [was] committed for the benefit of Temple Street.” 

“Nor was there any evidence that Temple Street’s status or 

reputation had been enhanced due to the violent nature of 

appellant’s crimes.” “At the time of the shooting, neither [son] 

[n]or [D.V.] knew that the suspect was a gang member charged in 

a gang-related case. Nor did appellant do anything to let them 

know. Appellant did not shout out the gang’s name, or make 

gang symbols. . . . There was no evidence that the shooting was 

in Temple Street territory. Likewise, there was no evidence that 

appellant’s status or reputation for violence increased within the 

Temple Street gang.” “[T]here was no evidence that other gang 

members were involved in the shooting. . . . [A]ny person charged 

with a crime, not only a gang member, would benefit by violently 
9

attempting to prevent a witness from testifying by attempting to 

murder the witness’s relatives . . . .” The “facts reasonably 

indicate . . . that appellant acted alone.” 

Appellant is viewing the shooting with blinders on. The 

shooting must be viewed together with the earlier assault on 

son’s parents at the restaurant. When appellant committed the 

earlier assault, he made clear he was acting for the benefit of 

Temple Street. He repeatedly invoked the gang’s name: “‘This is 

Temple Street, this is Temple Street.’” At the subsequent 

shooting of son and D.V., there was no need for appellant to again 

invoke the gang’s name. Any reasonable person in the 

community, and certainly son’s parents, would understand the 

message of the shooting – if you bring charges against appellant 

or other West Temple gang members, your family will face lifethreatening retribution. When son asked appellant to identify 

himself, appellant replied, “‘She [son’s mother] knows who the 

fuck I am.’” Appellant understood that son’s mother would 

realize he was the gang member who had assaulted her at the 

restaurant.

It did not matter whether the shooting was committed in 

the gang’s territory. The frightening message would be the same 

irrespective of where the shooting had occurred. Based on the 

gang expert’s testimony, the jury could reasonably infer that the 

shooting would benefit the gang because it would deter the public 

from reporting gang crimes and from cooperating in the 

investigation and prosecution of such crimes. The jury could also 

reasonably infer that the brutality of the shooting would enhance 

both the gang’s and appellant’s reputation for violence. This 

would increase respect for the gang and elevate appellant’s 

stature within the gang.
10

The evidence as to the gang enhancements was not 

insufficient because appellant acted alone during the shooting. 

(Rios, supra, 222 Cal.App.4th at p. 564 [“the section 186.22(b)(1) 

gang enhancement may be applied to a lone actor”].) Nor was it

insufficient because the shooting personally benefited appellant

by having the potential of dissuading witnesses from testifying

against him in the restaurant assault case. A reasonable trier of

fact could find beyond a reasonable doubt that appellant

specifically intended to promote criminal gang activity by

instilling fear in the community, thus facilitating the gang’s

commission of crimes with impunity. (See People v. Vazquez

(2009) 178 Cal.App.4th 347, 353 [“A reasonable jury could 

infer . . . that appellant intended for the Lopez murder to have 

the predicted effect of intimidating . . . neighborhood residents, 

thus facilitating future crimes committed by himself and his 

fellow gang members”].)

Counsel Was Not Ineffective

Appellant contends that trial counsel was constitutionally 

ineffective for not objecting to the portion of CALCRIM No. 315 

providing that, “[i]n evaluating identification testimony,” the jury 

should consider “[h]ow certain” a witness was “when he or she 

made an identification.” We refer to this portion of the 

instruction as “the certainty factor.”

“To establish constitutionally inadequate representation, a 

defendant must show that (1) counsel’s representation was 

deficient, i.e., it fell below an objective standard of 

reasonableness under prevailing professional norms; and (2) 

counsel’s representation subjected the defendant to prejudice, i.e., 

there is a reasonable probability that, but for counsel’s failings, 
11

the result would have been more favorable to the defendant.” 

(People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058.)

Counsel’s representation was not deficient. An objection to 

the certainty factor would have been futile. Three years earlier, 

our state Supreme Court upheld the inclusion of the certainty 

factor in a similar jury instruction (CALJIC No. 2.92) on 

eyewitness identification. (People v. Sanchez (2016) 63 Cal.4th 

411, 461-462.) The court noted that, in a prior opinion, “[w]e 

specifically approved CALJIC No. 2.92, including its certainty 

factor. [Citation.] We have since reiterated the propriety of 

including this factor. [Citation.]” (Id. at p. 462.) Pursuant to the 

principle of stare decisis, the trial court was required to follow 

Sanchez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 

Cal.2d 450, 455.) “Counsel does not render ineffective assistance 

by failing to make motions or objections that counsel reasonably 

determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 

387.)

Even if counsel’s performance had been deficient, appellant 

would not have been prejudiced in view of our state Supreme 

Court’s recent decision in People v. Lemcke (2021) 11 Cal.5th 644, 

(Lemcke). The Supreme Court concluded that the defendant had 

“failed to establish that the trial court's decision to include the 

certainty factor in CALCRIM No. 315 violated his due process 

rights or otherwise constituted error under the circumstances 

presented here.” (Id. at p. 669.) The Supreme Court reasoned: 

“[W]e find nothing in CALCRIM No. 315’s instruction on witness 

certainty that operates to ‘lower the prosecution’s burden of 

proof.’ . . . [T]he instruction does not direct the jury that ‘certainty 

equals accuracy.’ [Citation.] Nor does the instruction state that 

the jury must presume an identification is accurate if the 
12

eyewitness has expressed certainty. [Citation.] Instead, the 

instruction merely lists the witness's level of certainty at the time 

of identification as one of 15 different factors that the jury should 

consider when evaluating the credibility and accuracy of 

eyewitness testimony. The instruction leaves the jury to decide 

whether the witness expressed a credible claim of certainty and 

what weight, if any, should be placed on that certainty in relation 

to the numerous other factors listed in CALCRIM No. 315. 

Indeed, even [the defendant] acknowledges that, on its face, the 

instruction is ‘superficially neutral.’”

2

 (Id. at p. 657.) 

The One-Year Prior Prison Terms Must Be Stricken

Appellant was sentenced in August 2019. Effective 

January 1, 2020, Senate Bill No. “136 amended Penal Code 

section 667.5, subdivision (b) such that a one-year enhancement 

for a prior prison term shall be imposed only if the prior term was 

for a sexually violent offense.” (People v. Winn (2020) 44 

Cal.App.5th 859, 872.) “The trial court imposed [two] one-year 

terms under the prior version of . . . section 667.5. None of the 

prior prison terms was imposed for a sexually violent offense as 

defined by the amended version of section 667.5.” (Ibid.) “The 

Attorney General concedes the merit of [appellant’s] claim [that 

2 Nevertheless, the Supreme Court stated: “[W]e believe 

there is a risk that the current version of the instruction will 

prompt jurors to infer that an eyewitness’s certainty in an 

identification is generally a reliable indicator of accuracy. 

Accordingly, in the exercise of our supervisory powers, we direct 

our trial courts to omit the certainty factor from CALCRIM No. 

315 until the Judicial Council has the opportunity to consider 

how the language might be better worded to minimize juror 

confusion on this point.” (Lemcke, supra, 11 Cal.5th at p. 669.)
13

the two prior prison terms must be stricken]. [¶] The concession 

is well-taken.” (Ibid.) “Accordingly, we will strike the [two prior 

prison term] enhancements, modify the sentence, and affirm the 

judgment as modified.” (Id. at p. 873.)

Disposition

The two one-year enhancements imposed for prior prison 

terms under section 667.5, subdivision (b) are stricken, and the 

aggregate indeterminate term is reduced from 158 years to life to 

156 years to life. The aggregate determinate term remains the 

same – 22 years, 8 months. As modified, the judgment is 

affirmed. Upon issuance of the remittitur, the trial court shall 

send an amended indeterminate abstract of judgment along with 

the original determinate abstract of judgment to the Department 

of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.
Eleanor J. Hunter, Judge

Superior Court County of Los Angeles

______________________________

Alex Green, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Colleen M. Tiedemann, Daniel C. 

Chang, Deputy Attorneys General, for Plaintiff and Respondent.