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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                                   B247429

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA399823)
          v.

ROBERTO YEPEZ,

          Defendant and Appellant.




          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.


                                             __________________________
       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.

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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-in-
chief, 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.)
                                             8
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.

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