Filed 4/24/14 P. v. Quezada CA4/1
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                      COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                             STATE OF CALIFORNIA

THE PEOPLE,                                                         D062939

        Plaintiff and Respondent,

        v.                                                          (Super. Ct. No. JCF27256)

RAMON RAMIREZ QUEZADA,

        Defendant and Appellant.



         APPEAL from a judgment of the Superior 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, Dane 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 stabbed the victim, as he was

trying to rescue his wife from gang members who had assaulted her. Quezada was charged
with attempted murder and assault with a deadly weapon; the district attorney further alleged

the crimes were committed for the benefit 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 prosecution presented a tape recording of a jailhouse

conversation between Quezada and another gang member in which Quezada discussed

dissuading the victim and other witnesses from testifying at Quezada's trial. The jury

acquitted Quezada of attempted murder but found him guilty of assault with a deadly

weapon; the jury also found the assault was committed for the benefit of a criminal street

gang.

        Contrary to Quezada's argument on appeal, there is sufficient evidence 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 was relevant as to both the attempted murder

allegation and the assault charge. We also reject Quezada's argument that the trial court

abused its discretion in admitting his jailhouse conversation, along with an interpretation of

it offered by the prosecution's gang expert. The conversation was highly probative: it not

only demonstrated a consciousness of guilt, but it was also relevant with respect to

Quezada's gang affiliation. Its 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.




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                                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 girlfriend, Diane Verdusco, Verdusco's son, Mark,

and Mark's girlfriend, Monique Arellano.1 Diane's former husband, Richard Pacheco, who

was suffering from cancer, was also a member of the household.

       Mark was an associate of a Brawley criminal street gang known as "Brole." His

girlfriend, Monique, was from Calexico and associated with a rival Calexico 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 she was approached by two women, Vanessa

Miranda, and Vanessa Mendoza. Miranda was known in the community by the gang

moniker, Guera, meaning fair or blonde; Mendoza was known by the gang moniker, Terca,

meaning stubborn or obstinate. Miranda and 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 walking 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 the backyard, Monique and Mendoza began fighting; Richard


1       Because their familial and romantic relationships are material to what transpired and
it is easier to comprehend those relationships by doing so, we will refer to members of the
victim's household by their first names.
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attempted to separate them. Miranda responded by punching Richard 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 combatants. When the fighting

stopped, Mendoza yelled that she and Miranda would go get others and finish the fight;

Mendoza and Miranda then left the scene.

        B. Assault

        During the course of the rest of the afternoon and evening, Alfonso, Diane and

Monique drank several beers. Around 10:15 p.m., while Alfonso was putting beer in the

refrigerator inside the house and Diane and Monique were outside in the front yard, two

cars drove by the house and parked nearby. About 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 Hernandez were accompanied by Quezada, who is known by his

gang moniker "Spider," and Lawrence Mendivil, who is known by his gang moniker, "Low,

Low."

        Diane was pulled out of the yard by her hair and fell to the street, where she was

punched and kicked in the face. At one point, Monique punched Miranda to get her away

from Diane.


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       Alfonso came out of the house and saw Diane 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, Quezada 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 stabbed 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 detention, he had a telephone conversation with

a gang member who was not in custody. The conversation was recorded by law

enforcement personnel. According to the prosecution's gang expert, who was asked to

interpret the meaning of certain statements, during the conversation Quezada instructed the

gang member to contact a third person about approaching Alfonso, Diane and Monique and

dissuading them from testifying against him. During the conversation, Quezada also

explained that he had given the third person a gun.

       At trial, Quezada presented testimony from Miranda, Mendoza and Hernandez to the

effect that neither Quezada nor Mendivil were present when Alfonso was attacked.

According to the defense witnesses, they were at the scene of the assault on Alfonso

because earlier in the day Diane had cheated Miranda and Mendoza in a drug deal and they


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had come back to ask Diane for the money they 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 information 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 association with a criminal street gang. (Pen. Code,

§ 186.22, subd. (b)(1).) The information further alleged that Quezada and Mendivil

personally inflicted great bodily on Alfonso and 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 Mendivil were also guilty of assault with a deadly weapon.

The trial court granted the motion to amend.

         The jury acquitted Quezada and Mendivil of attempted murder but found both of

them guilty of assault with a deadly 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 inflicted bodily injury.

         The trial court sentenced Quezada to a prison term of 14 years. The sentence was

composed of an upper term of four years for the assault and a consecutive 10-year term for

the street gang enhancement. The trial court stayed any sentence on the great bodily injury

enhancement. (Pen. Code, § 654, subd. (a).)


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                                         DISCUSSION

                                                I

       On appeal, Quezada argues there 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 Brole gang, the expert offered no such opinion

with respect to the alleged assault 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 was 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 Quezada as being for the benefit of the gang.

Thus, as a technical matter, the expert's testimony included reference to the assault count.

       However, even if we interpret the expert's testimony narrowly and limited to the

attempted murder charge, it nonetheless fully supported the jury's determination the closely-

related assault was committed for the benefit of the gang. Quezada's argument on appeal

ignores the fact that the charges on both the attempted murder and the assault with a deadly

weapon were based on the same conduct: the stabbing of Alfonso. Indeed, in moving to

amend the information to include 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 identical


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to the evidence and theory in this case for count two [assault]." We also note that assault

with a deadly weapon is a lesser related 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 the expert's testimony as to Quezada's motivation

in attempting to murder Alfonso by stabbing him applied as a matter of simple logic with

equal force to defendant's motivation in assaulting him with a deadly weapon by stabbing

him.

       We hasten to add that even in the absence of the expert's testimony, there was ample

other evidence the crime was committed for the benefit of the Brole gang. Evidence from

witnesses established that the afternoon melee between Diane, Monique, Mendoza and

Miranda was precipitated by Monique's affiliation with Calexia and that 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 the jury was presented with a tape-recorded

conversation between Quezada and another identified Brole gang member in which

Quezada discussed efforts to intimidate Alfonso, Diane and Monique. 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. Following an Evidence Code section 402 hearing,


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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 contention on appeal, the trial court did not abuse its

discretion under Evidence Code section 352 in admitting evidence of the conversation. The

trial court has broad discretion to determine whether the "probative value [of the evidence]

is substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, 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 court, the exercise of that discretion "must not

be disturbed on appeal except on a showing that the court exercised 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 probative with respect to both Quezada's

participation in the assault, which was contested, and his participation in gang activities. In

particular, the statements Quezada made to the effect that the other gang member should

help him in dissuading Alfonso, Diane and Monique from testifying showed both a

consciousness of guilt on Quezada'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 had provided the third person was relevant




                                               9
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 the use of the gang expert to interpret the

conversation was inappropriate. As the Attorney General notes, a gang expert may testify

on matters that are sufficiently beyond common experience, such as gang territories, culture

and practices, if the testimony will 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 that Quezada's statement "keep it going" was a

reference to earlier efforts to dissuade the witnesses and that 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 bound by the expert's opinion, the 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. The conversation did not include references 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 value of the conversation, the trial court did not

abuse its discretion in admitting it.




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                                 DISPOSITION

     The judgment is affirmed.

                                               BENKE, Acting P. J.

WE CONCUR:


HALLER, J.


McINTYRE, J.




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