Filed 8/23/16 P. v. Renteria 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                NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B262367
                                                                          (Super. Ct. No. 2014026677)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

GERMAN RENTERIA,

     Defendant and Appellant.




                   A jury convicted German Renteria of carrying a loaded firearm in
public (Pen. Code, § 25850, subd. (c)(6))1 and assault with a semiautomatic firearm
(§ 245, subd. (b)). The jury found true criminal street gang and personal firearms
use allegations. (§§ 186.22, subd. (b)(1), 12022.5, subd. (a)(1).) He was sentenced
to 16 years in prison—6 years for the assault plus 10 years for the gang
enhancement and a concurrent two-year term for carrying a loaded firearm. The
trial court stayed the firearms use enhancement. (§ 654.)



          1
              All further statutory references are to the Penal Code unless otherwise
stated.
              Renteria contends that substantial evidence does not support the gang
enhancement and that the trial court erred by admitting into evidence rap lyrics and
a video of him rapping. We affirm.
                                       FACTS
                             Carrying a Loaded Firearm
              Angela Forhan was driving Renteria and her cousin, Eric Medrano,
around Santa Paula. Medrano was a member of the Crimies gang. From the back
seat, Renteria fired a gun out of the window two or three times.2 Forhan dropped
off Renteria at his house. Ten minutes later, the police stopped her while
investigating a “shots fired call.” They recovered a nine-millimeter shell casing
from the rear seat of the vehicle.
              Six months later, Officer Joash Rothermel encountered Renteria in
front of Renteria’s house in Santa Paula. When Rothermel got out of his vehicle to
talk to him, Renteria ran away. Rothermel caught up and grabbed him. Renteria
said “he was just trying to take a piss.” The next day, Renteria’s next-door
neighbors found a nine-millimeter semiautomatic handgun in their yard near the
fence along the property line. They contacted the police. The gun was loaded with
12 rounds of ammunition. Forensic expert Geoff Bruton compared the casing from
a test-fired cartridge with the casing recovered from the back seat of Forhan’s car
and concluded based on microscopic markings that both had been fired from the
same gun.
                                       Assault
              Renteria and Yesenia Calderon were in a relationship for three years.
They “had problems.” “[H]e would tell [her] that he was never gonna let [her] be

       2
        This was the account that Forhan gave the police as well as her testimony
on direct examination. On redirect, she testified that Renteria handed the gun to
Medrano, who fired the shots and handed the gun back. She admitted at trial that
she was “scared” to testify because Renteria was “ruthless.”

                                          2
happy with anybody else” and “[t]hat whoever he saw [her] with, he was gonna beat
‘em up.” About six months after their second child was born, they “split up” and
Calderon moved out. Subsequently, Renteria did not speak to her or see their
children. He “sent a message” to her sister that he did not “want . . . any dudes
around [his] kids.”
                The next year, Calderon began dating Jesus Ochoa. They had known
each other for about five years before becoming boyfriend and girlfriend. One
evening they were talking in front of her apartment building when a car passed by
“with the radio real loud.” It made a U-turn and “came back again.” Renteria was
alone in the car.
                Ochoa believed that Renteria was associated with the local Crimies
gang because “the minute he came back” in the car he “was waving gang signs,” in
particular the letter “C” that he made with his hand. Ochoa interpreted this to mean
that Renteria was “trying to let [him] know that he’s a gang member” and was
warning him to stay away from Calderon, in effect saying “this is my crew and this
is what’s gonna happen to you if you’re here again.”
                Calderon also thought Renteria “was saying he was like a Crimie or
something” when he made a “C” shape with his hand that she thought was a gang
sign. She knew he had cousins who were Crimies and he used to say “he was gonna
be a Crimie.”
                Renteria pulled into her driveway and “came out of the car real
aggressively.” He said, “Ora,” meaning “what.” He was “brandish[ing] a firearm,”
which he pointed at Ochoa. Ochoa ducked because he was scared Renteria was
going to shoot him. Renteria put his hand on top of Ochoa’s neck and beat him
with the bottom of the gun “really, really hard” about six times. Ochoa ran away,
fearing for his life. Renteria got in his car and left. As he was leaving, Calderon
heard him say something gang-related but she could not remember what it was.



                                           3
              Ochoa felt a lot of blood dripping from the back of his head. He
drove himself to the hospital, accompanied by Calderon. He had three lacerations
that would have required about nine stitches to suture, but he refused treatment. A
nurse called the police. In separate interviews, Ochoa and Calderon told them what
had happened. Ochoa identified Renteria from a “six-pack” photographic lineup.
He was “110 percent” positive that Renteria was the person who assaulted him.
              Calderon asked that the police “not mention [her] name,” stating, “I
don’t want to be involved” because “I have kids. And . . . I know the kind of person
[Renteria] is.” A few weeks later, Ochoa called Sergeant Kenneth Clark, saying he
did not want to prosecute the case because “it would be best for his safety.” Ochoa
“felt that even if the suspect was in custody, that [the suspect] could have somebody
on the outside get to him.” Someone “on the street . . . told him . . . that someone
was going to come after him if he continued or he didn’t drop charges in the case.”
              At trial, Calderon testified that she lied about the assailant being
Renteria because she was mad after hearing that he “was with” one of her relatives.
She did not know who the assailant was. At the time Ochoa was assaulted, she was
also dating someone from Oxnard who was a member of the Colonia gang.
              Ochoa testified that his assailant said “Colonia” when he made a “C”
sign. It was not Renteria. On the way to the hospital, Calderon told him to say that
his assailant “was this guy named German.” She told him, “‘He’s been giving me
hard problems, and I just want him out of here.’”
                                   Gang Evidence
              Detective Allen Macias supervised the gang unit of the Santa Paula
Police Department. He testified as both an investigating officer and as a gang
expert. He explained that Santa Paula has five main Hispanic-oriented gangs. One,
the Crimies, has about 50 active members. Their primary activities are assaults,
robberies, drug dealing, and burglary.



                                           4
              Gang members identify themselves in various ways, including using
hand signs, wearing sports team paraphernalia, spray painting their gang name in
the area they claim, and getting tattoos. A non-member who wears gang clothing or
has a gang tattoo “could get beaten up severely and/or killed” because the person
has not earned that privilege by being initiated into the gang. Crimies wear sports
paraphernalia with the letter “C,” such as the Chicago Cubs or the Cincinnati Reds.
They use a hand sign made by forming the letter “C.”
              The purpose of “throwing out” gang signs is to intimidate a rival gang
member during a confrontation. The gang sign implies that if the gang member is
challenged, the challenger will have to deal not only with that particular gang
member but also with others from his gang. Gang members intimidate witnesses by
sending intermediaries to their houses and telling them that there will be “hell to
pay” if they testify against the gang member.
              Four days after Ochoa was assaulted, Macias searched Renteria’s
house. In his room, they found a blue hat embroidered with “CMS,” the
abbreviation for “Crimies.” They found a black hat with the letter “C” on it. They
also found photos of other Crimies members. In addition, they found rap lyrics.
Macias opined that “[t]he Hispanic gang rap scene is pretty huge now in Southern
California. What they do is they rap, meaning write music, regarding . . . their
criminal activity, where they’re from and what they’ll do if you cross them.”
              The rap lyrics began, “‘Still roll around in the calle [street]’ . . . ‘with
a mother fucking nine [millimeter gun]’ . . . ‘in my damn pocket.’” The lyrics also
stated, “‘I don’t see you lames, mother fuck the west.’” Macias explained that
“‘lames’ is a slang term, pretty much disrespecting and degrading a rival gang
member or an individual they don’t like.” The Crimies “claim the east side of Santa
Paula” as their territory. “[T]he west [side] is claimed by another gang.”




                                            5
              The lyrics also stated, “‘All you fools are fake. Go ahead and run
your mouths. You’re nothing but a fucking clown.’ ‘I’m going to get to popping
[shooting]’ all these rounds towards your brain. This is Crimies gang, and I’m
banging until my death.’” Macias interpreted this passage to mean that “I’m down
for mine, and I’m going to go to whatever extreme it takes to show you that, hey,
we’re the Crimies gang, and we’ll do anything to show you this is our territory.”
              Approximately 13 months after the assault, Macias spoke with
Dolores De Los Reyes, a probation officer, who gave him a cell phone belonging to
probationer Alberto Perez, a documented member of the Crimies gang. The phone
contained a video of Renteria rapping, which was played for the jury.3 In the video,
Renteria shows a hat with the letter “C” and makes a gang sign consistent with the
“C” associated with the Crimies. Macias concluded that, “based on [Renteria’s]
throwing up the first initial of the gang, ‘C,’ and [then] assaulting the victim with a
firearm,” he was an active member of the Crimies at the time.
              The following month, Renteria was stopped for driving at a high rate
of speed. A man sitting in the front passenger seat fled and another passenger

       3
          The lyrics were as follows: “Fuckin’ right here, dude. I’m gonna sing
something, okay? (UNINTELLIGIBLE) I just want to try and set it straight.
(UNINTELLIGIBLE) around the corner with the motherfuckin’
(UNINTELLIGIBLE) they want to come my way, I’m ready to spray any day in the
motherfuckin’ light of broad day. All day the C gang don’t give a fuck. We just
want trip, end up in the ditch. That’s a consequence of smoking all that Mary Jane,
just to get tame. I’m still posted up, trying to win a name. Hanging with my block,
yeah, smokin’ (UNINTELLIGIBLE) in the game. (UNINTELLIGIBLE) until I
fuckin’ drop (UNINTELLIGIBLE) get shot. Fuck ‘em. They ran as we got there,
but we’re the ones that (UNINTELLIGIBLE) keep you boys down. Yeah. ‘Cause
like I said we represent the motherfuckin’ C, I represent to my death. Fools
(UNINTELLIGIBLE) I don’t give a shit. Motherfuckers want to come my way, I
got the 12-gauge. Just proving it, dropping (UNINTELLIGIBLE) the homies. And
they just ran up and said are you posing. What’s (UNINTELLIGIBLE) still.
Posted up on the block we tryin’ to get real so just puffing on that Mary Jane
(UNINTELLIGIBLE) all day. I shot them punks.”

                                           6
remained in the back seat. Rap lyrics were found in the center console between the
driver and passenger seats. Macias read to the jury “significant phrases and words”
from the lyrics.4 One lyric was, “‘You got the huras [a street slang term for


       4
          Macias’s testimony, in its entirety, was as follows: “The first line says,
‘Putting through the east bitch, catch you.’ The term ‘east’ is—like I explained
earlier, from the map, the east side of Santa Paula is the geographical area the
Crimies claim.
        “Says, ‘That’s the way we handle business always in the snake pit.’ ‘Snake
pit’ is a moniker for the city of Santa Paula. ‘Vatos want to talk shit. Homie keep
on barking. When I catch you slipping, ain’t no doubt I’m fucking dumping.’ What
that means is that ‘vatos’ is a street slang term for homeboy. So basically what he’s
saying, that I’ve interpreted is that, hey, listen, you’re the homeboy. Want to talk
shit. Go ahead and keep on barking, keep on talking your crap. When I catch you
slipping, meaning when I catch you off guard, ain’t no doubt—self-explanatory—
I’m going to fucking dumping. ‘Dumping’ is a street slang term of emptying a gun,
shooting.
        “‘All you all better duck quick because I don’t give a fuck. Even in the
broad day, I’m aiming at your fucking brains. Spill them on the pavement. Pin up
on the A.M. Got the huras [and] the [coroners] with the caution tape.’
        “Well, I interpret that is even in the daylight when people can witness a
shooting, they will still go to the extreme and go after their target, who they’re
targeting.
        “‘You got the huras,’ which is the street slang term for police, ‘and the
coroners,’ the medical examiner’s office, ‘with the caution tape,’ meaning the tape
around a crime scene, ‘saying who is there to blame. Witnesses don’t give no
name.’ Meaning the witnesses won’t give their name. [‘]They don’t want to end up
like them.’ ‘Them’ I interpret is the person out there that they're going to shoot
with the brains on the pavement.
        “‘So they better not say that’s the way the game is played. That’s to look the
other way. 805 stays active on that gangster way, too.’
        “Basically saying this is how we run stuff. This is how we do it in the 805.
        “On Exhibit No. 40 it says, ‘And the homies hit me up when they raid the
pad. They tell me, “Hide the heat and money and the other stash.”’
        “Basically what he’s saying is when the police are out there either doing
search warrants, probation searches on residences up in the city of Santa Paula or
any other jurisdiction, to hide the heat. ‘Heat’ is a street slang term for a gun and
the money, which I interpret from proceeds from drug dealings and the other stash,
meaning the drugs, that I interpret, the drugs.

                                          7
police]’ . . . ‘and the coroners’ . . . ‘with the caution tape’ . . . ‘saying who is there to
blame. Witnesses [to a shooting] don’t give no name. . . . They don’t want to end
up like them [i.e., the victim].’”
               The prosecutor asked Macias about a hypothetical situation in which
“an active gang member . . . sees somebody with his ex-girlfriend, [the] mother of
his kids. [He] [d]rives by in a vehicle and exits, flashes the gang sign belonging to
his gang, a gang sign that he’s flashed on rap videos. He points a semiautomatic
firearm at the victim’s head, proceeds to say either ‘what’ or ‘ora,’ something
similar in Spanish, and hits this individual on the back of the head at least three
times with the semiautomatic firearm.” Macias opined that the gang member was
“using his gang to intimidate the victim.” He reasoned that it promotes or further
assists the gang’s criminal conduct by elevating the gang’s status. The crime is
reported in the newspapers as a gang crime, which members of other gangs see.
                                      DISCUSSION
                              Gang Enhancement Evidence
               Renteria contends that there is insufficient evidence to prove that he
committed the crime either “for the benefit of, at the direction of, or in association
with” the Crimies or “with the specific intent to promote, further, or assist in any
criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) We disagree.
               “When the sufficiency of the evidence to support a conviction is
challenged on appeal, we review the entire record in the light most favorable to the
judgment to determine whether it contains 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.] ‘Conflicts and even testimony which is


        “‘Just a normal life would be a 9:00 to 5:00, come home and be with the
wife, but something in my head keeps telling me it’s crime time.’ Essentially
saying, I understand that I can live a normal life, but I choose not to. I choose to
live the life, the life of a Crimies gang member.”

                                             8
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends.’ [Citation.]
Unless it describes facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.) The substantial
evidence standard also applies to gang enhancement findings. (People v. Villalobos
(2006) 145 Cal.App.4th 310, 321-322.)
              Renteria concedes that there is substantial evidence that he was a gang
member but argues that his motives were purely personal—he was jealous about
Calderon’s new relationship with Ochoa—and the assault had nothing to do with his
gang. He points out that he committed the assault alone, without other gang
members present, and that the victim was not a rival gang member.
              Renteria’s personal motive for assaulting Ochoa does not preclude an
additional, gang-related motive, which is all the statute requires. (See People v.
Albillar (2010) 51 Cal.4th 47, 62 [“[T]he jury, which was presented with the
competing inferences [regarding the defendants’ motives], was entitled to credit the
evidence that the attack . . . was gang related”].) Renteria committed the offense
with a telltale sign of acting to benefit his gang: he flashed a gang symbol. (See
People v. Ochoa (2009) 179 Cal.App.4th 650, 663, fn. 9 [“[E]ven if the . . . victim
was not a gang member, substantial evidence would have supported the true
findings on the [gang enhancements] if defendant had been shown, in some other
manner, to have had a gang purpose in mind when he committed the . . . offense,
e.g., by shouting his gang name, throwing gang signs, or otherwise demonstrating
that he was seeking to intimidate the . . . victim on his gang’s behalf”].)
              Citing In re Cesar V. (2011) 192 Cal.App.4th 989 (Cesar V.) and
People v. Margarejo (2008) 162 Cal.App.4th 102 (Margarejo), Renteria



                                            9
acknowledges that “[t]he flashing of gang signs at the time of an offense can be
evidence from which a trier of fact can reasonably infer that the offense was
committed for the benefit of the gang and with the specific intent to promote the
criminal activity of any gang member.” He attempts to distinguish Cesar V. and
Margarejo by asserting that “[those] defendants displayed their gang affiliations in
a very public manner.” The public manner was irrelevant in Cesar V. because, as
here, the gang signs were made on a public street but directed at specific persons,
not the public at large. In Margarejo, the gang signs were directed at both specific
persons—the pursuing police officers—and the public at large, with the purpose of
intimidating both. (See Margarejo, 162 Cal.App.4th at pp. 109-110.) The
defendant’s intimidating the public was relevant only because the crime itself—
evading the police during a long car chase—had no victim and the only witnesses
were the police and members of the public. Here, similar to Margarejo, the gang
expert testified that a gang member making a gang sign before committing an
assault would be “using his gang to intimidate the victim.”
              That Renteria apparently only made a gang sign once did not lessen
its intended effect. The gang expert explained that Santa Paula is a “small town”
and “most of the younger generation . . . have a rough knowledge of the gangs”
there. The purpose of confronting someone with a gang sign is to intimidate,
signaling that the person would “not only have to deal with [that particular gang
member], but . . . with 50 other members.” Ochoa understood this. He interpreted
Renteria’s gang sign as saying, “this is my crew and this is what’s gonna happen to
you if you’re here again.”
              Renteria also assails the gang expert’s conclusion that he was “putting
[the assault] out there for his gang” because it elevated his status within the
Crimies. He asserts that this opinion was improper because there is no evidence in
the record to support it. The gang expert testified without objection that when a



                                           10
gang member “flashes the gang sign belonging to his gang” before assaulting a
victim, “[it’s] deemed in the newspapers as a gang crime.” This was proper expert
testimony.
                          Admission of the Rap Lyrics and Video
                 Renteria contends that the trial court erred by admitting evidence of
the rap lyrics recovered from the center console of a car he was driving and the
video of him rapping found on the cell phone of another Crimies member.5 He
argues that it was irrelevant (Evid. Code, § 350), more prejudicial than probative
(id. § 352), improper character evidence (id. § 1101), and violated his constitutional
rights to due process and a fair trial.
                 “We review claims regarding a trial court’s ruling on the admissibility
of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb
the trial court’s ruling ‘except on a showing the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258,
266.)
                 The rap evidence was properly admitted. The gang expert explained
its relevance to the jury: “The Hispanic gang rap scene is pretty huge now in
Southern California. What they do is they rap, meaning write music, regarding . . .
their criminal activity, where they’re from and what they’ll do if you cross them.”
The rap lyrics “demonstrated his membership in [the Crimies], his loyalty to it, his
familiarity with gang culture, and, inferentially, his motive and intent on the day of
the [assault].” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.)
                 The lyrics also supported the gang expert’s opinion that gang
members intimidate witnesses from reporting their crimes to the police, in particular


        5
            Renteria does not challenge the admission of the rap lyrics found in his
room.

                                             11
the line that witnesses to a gang crime “don’t give no name” to the police because
“[t]hey don’t want to end up like” the victim. This evidence linked Renteria’s gang
sign with Ochoa’s and Calderon’s reluctance to testify and their recanting of
statements to the police incriminating him. Moreover, given that the only witnesses
changed their story, the rap video of Renteria making a “C” sign in an aggressive,
threatening manner was crucial to corroborate their initial version of events.
              Renteria argues the admission of the rap evidence was more
prejudicial than probative because “whether or not [he] belonged to a gang was not
the issue in the case.” To the contrary, his gang membership was very much at
issue. Defense counsel told the jury, “I don’t agree . . . that . . . Mr. Renteria is a
gang member.”
              Renteria also argues that the rap evidence recovered more than a year
after the assault was “irrelevant to a finding that he acted on behalf of the gang.”
“[T]his was not a case in which the date of creation of the work was critical.”
(People v. Olguin, supra, 31 Cal.App.4th at p. 1373.) Renteria was a member of the
Crimies at the time of the assault and their intimidation tactics continued over time.
Ochoa testified that, two months later, a man who “might have been” his assailant
told him “to stay away from [the man’s] girlfriend,” referring to Calderon, “said
some [gang] type of stuff,” and drove off.6 The rap lyrics and video were not so
remote as to be inadmissible. (See People v. Gutierrez (2002) 28 Cal.4th 1083,
1138 [defendant’s statements that he did not like police officers and wanted to kill
one, made years before and years after he attempted to do so, properly admitted as
relevant to his state of mind].)
              Lastly, Renteria argues that the rap lyrics recovered from the car he
was driving were insufficiently authenticated since the car did not belong to him


       6
        Ochoa testified that the man was not Renteria and mentioned the “Colonia”
gang rather than the Crimies, but the jury evidently discredited those details.

                                            12
and two other persons were present. Authentication of rap lyrics need not be
accomplished through statutorily created means, but can be done through the
location in which they were found and their content. (People v. Olguin, supra, 31
Cal.App.4th at p. 1372.) Renteria was driving the car, and the lyrics were found in
the center console, a natural place for the driver to store personal effects.
Moreover, the lyrics’ content was similar to those performed by Renteria in the rap
video. In the video he states, “I’m ready to spray any day in the motherfuckin’ light
of broad day. All day the C gang don’t give a fuck.” The lyrics from the car state,
“‘All you all better duck quick because I don’t give a fuck. Even in the broad day,
I’m aiming at your fucking brains.’”
              The trial court did not abuse its discretion by admitting the rap
evidence. As there was no error under state evidence law, Renteria’s derivative
claim under the federal Constitution is also meritless. (People v. Seumanu (2015)
61 Cal.4th 1293, 1311.)
                                    DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:


              YEGAN, Acting P. J.



              TANGEMAN, J.



                                           13
                           Manuel J. Covarrubias, Judge

                        Superior Court County of Ventura
                      ______________________________


             Arielle Bases, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General,
Margaret E. Maxwell, Supervising Deputy Attorney General, and Tannaz
Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
