Motion-Secondary: THE PEOPLE OF THE STATE OF CALIFORNIA vs PORTILLO, JESSE

On April 21, 2020 a Motion-Secondary was filed involving a dispute between The People Of The State Of California, and Jesse Portillo, for Criminal Felony in the District Court of Stanislaus County.

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BIRGIT FLADAGER JAN?! 6 201
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District Attorney for the County of Stanislaus
PATRICK HOGAN, State Bar N0. 259998
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STIRNISEAUS
Deputy District Attorney
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832 12th Street, Suite 300 EPW.
Modesto, CA 95354
Telephone: (209) 525-5550
Facsimile: (209) 558—4027
Attorney for the People of the State of California, Plaintiff

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR COUNTY OF STANISLAUS

10 THE PEOPLE OF THE STATE OF CALIFORNIA, Case No.: CR—20-0042l7
Case No.: CR—20-0042 1 8
11
Plaintiff,
12 '
VS. PEOPLE’S OPPOSITION TO MOTION
I

13 BY BOTH DEFENDANTS TO DISMISS
PURSUANT TO PENAL CODE §995
14
JESSE PORTILLO and ANDRES GONZALES,
15
Defendants. Date: February 5, 2021
16
I

Time: 8:30 a.m.
Dept: 8
17
J Judge: Hon. Judge Ricardo Cordova
18
TO THE HONORAiBLE JUDGE RICARDO CORDOVA OF THE SUPERIOR COURT OF THE
19 STATE OF CALIFORNIA, AND TO THE ABOVE-NAMED DEFENDANTS, BY AND
THROUGH THEIR {RESPECTIV E ATTORNEYS, MR. MARTIN BAKER, REPRESENTING
20 MR. PORTILLO, AND MR. SAMUAL GETRICH, REPRESENTING MR. GONZALES:
21
PLEASE TAiKE NOTICE that on January 25, 2021, at 8:30 a.m., or as soon thereafter as the
22
matter can be heard Department 8 of the above-entitled Court, the People of the State of California,
ign
23
by and through their:attorneys, BIRGIT FLADAGER, District Attorney, and PATRICK HOGAN,
24
Deputy District Attoiney, will respectfully request that the Court deny Defendant’s Motion to Dismiss
25 Pursuant to Penal Code §995, arguments and evidence for which shall be presented at the time of the
26
hearing. This opposiition to the motion is based upon this notice, the attached memorandum of points
27 and authorities, the files and records in this case, any testimony to be taken at the hearing on the
28
I l

PEOPLE’S OPPOSITION TO DEFENDANT‘S §995 MOTlON - CASE NO. CR-20-0042l7/CR-20-004218
motion, oral and documentary evidence to be presented at the hearing, and any other evidence that
1

the Court may wish to consider.

INTRODUCTION
On April 21, 2020, the People ﬁled a complaint against Defendants Jesse Portillo and Andres

Gonzales alleging two counts: Robbery, as to both Defendants (and a third co—defendant, Daisy

Applewhite), and assault with a ﬁrearm against Defendant Portillo. On August 26, 2020, the People

ﬁled an amended complaint in the above-entitled matter which added to Count 1 an enhancement

pursuant to Penal Code § 186.22(b)(1) (as to both Defendants), and an enhancement pursuant to Penal
Code § 12022.7(a) as to Defendant Portillo only. Count 2 was similarly amended with enhancements

pursuant to Penal Code §§ 186.22(b)(1) and 12022.7(a) as to Defendant Portillo only. A Count 3, a
10

11
violation of Penal Code § 186.22(a) was added to complaint, alleging that at the time of the incident
both Defendants Portillo and Gonzales were members of the Norteﬁo criminal street gang.
12
On October 13, 2021, the preliminary hearing for this matter commenced for both Defendants.
l3
After a day of testimony, the matter continued to October l4, 2020, at which time the People and the
l4
Defense presented arguments in summation. The Magistrate found insufﬁcient evidence to hold both
15
Defendants Portillo and Gonzales to the enhancement pursuant to Penal Code § 186.22(b)(1), as
16

alleged in both Count 1 and Count 2, and found insufﬁcient evidence to hold Defendant Portillo to
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answer to the enhancement pursuant to Penal Code § 12022.7(a), as alleged in Count 2. The Court
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otherwise held the Defendants to answer to the substantive charges, including Count 3 (a violation of
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Penal Code § 186.22(a)).
20
At the time of the holding order, the Court conﬁrmed that the reason for the lack of a holding
21
order was based on the Court’s belief that there was insufﬁcient evidence presented to support those
22
added allegations. The People noticed an intention to ﬁle an information with the enhancements. The
23
People timely ﬁled the information with the enhancements pursuant to Penal Code sections 186.22,
24
subdivision (b)(1) and 12022.7, subdivision (a), and the Defendants were arraigned on December 3,
25
2020. Both Defendants have properly ﬁled their Motions pursuant to Penal Code section 995.
26
Defendants Portillo and Gonzales seek to have Count 3 (a violation of Penal Code § 186.22(a))
27
as well as the enhancement to Court one pursuant to Penal Code section 186.22, subdivision (b)(1).
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PEOPLE’S OPPOSITION TO DEFENDANT‘S §995 MOTION - CASE NO. CR-20~004217/CR-20-0042l8
Portillo further seeks to set aside the information as to the enhancement pursuant to Penal Code
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section 12022.7, subdivision (a).

The Motion by the Defendants to set aside the information should be denied. The Court

properly found sufﬁcient evidence to hold the Defendants to answer to a violation of Penal Code

section 186.22, subdivision (a), and in the course of the Preliminary Hearing, the People presented

sufﬁcient evidence tojustify a holding order as to the Penal Code section 186.22, subdivision (b)(l),
and Penal Code section 12022.7, subdivision (a) enhancements.

STATEMENT OF FACTS

10
Hon. Judge Dawna F. Reeves presided over the preliminary hearing on October 13, 2020, in

Department 1, wherein the following testimony occurred:
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12

13
Testimony of Modesto Police Department Ofﬁcer Branson Angle
Ofﬁcer Branson Angle testiﬁed that on April 4, 2020, he responded to a call in the area of
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1231 Ninth Street in the City of Modesto. (RT. p. 4, ln. 1-2.) At the scene, he contacted an individual
15
named Daniel Ayala, the reporting party in this case. (RT. p. 4, ln. 10-11.) Ofﬁcer Angle was shown
16

l7 People’s Exhibit l, which he identified as a picture of Daniel Ayala on the date of the incident. (RT.

l8 p. 5, ln.2-4.) Ofﬁcer Michael Rokaitis later testiﬁed that the image accurately depictured the injuries
sustained by Mr. Ayala on the date of the incident, and People’s Exhibit 1 was admitted into evidence.
l9
20
(RT. p. 45, ln. 2-6.) On the date of the incident, Mr. Ayala sustained injuries including, but not limited

21
to, signiﬁcant lacerations to his face, including one area where a circular section of his skin had been

22 nearly entirely removed and is seen hanging from his face. (See, People’s Exhibit l.)
Offer Angle asked Mr. Ayala what had led to his sustaining the injuries, and Ayala responded
23
that he had been struck in the face with a pistol at the E1 Capitan Motel on Needham Street in Modesto.
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(RT. p. 5, ln.21-27; p. 6, In. l—lO.) Ayala said that he was inside a motel room, meeting Daisy
25
Applewhite for the purposes of having sexual relations, when two males knocked and entered and
26
began demanding all of his property. (RT. p. 6, ln. 17-21.) Ayala described his assailants as two
27

28
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PEOPLE’S OPPOSITION TO DEFENDANT'S §995 MOTION - CASE NO. CR-20-0042l7/CR-20-004218
Hispanic males, one wearing along black tee-shirt with red basketball shorts and the second as having
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a ponytail and wearing all black clothing. (RT. p. 7, ln. 12—20.)

Ayala described how upon forcing their way into the motel room, the male with the red shorts
(later identiﬁed as Defendant Portillo) confronted Ayala about being with his “baby mama.” (RT. p.

8, ln. 17-19.) While Defendant Portillo held Ayala at gunpoint, the second male (later identiﬁed as

Defendant Gonzales) removed Ayala’s property from a backpack in the room. (RT. p. 10, ln 4-18.)
As Defendant Gonzales was removing the property from the backpack, Defendant Portillo began

striking him in the head and face with a pistol. (RT. p. 10, ln. 16-21.) As a part of his investigation,
Ofﬁcer Angle was able to view security footage from the area immediately outside the motel room

10
where Ayala was assaulted. (RT. p. ll, In. 18-23.)

Il
12
Testimony of Modesto Police Department Detective Shawn Kelley
Modesto Police Department Detective Shawn Kelley, an investigator within the Major Crimes
l3
l4 Unit, testiﬁed that he was assigned to follow up on the robbery and assault of Mr. Ayala. (RT. p. l8,
1n. 7—17.) Detective Kelley conﬁrmed that he was able to personally download the security camera
15

footage from the motel. (RT. p. l9, ln 2-13.) Detective Kelley described that, prior to the robbery,
I6
security footage shows an individual “peeking out” of a window in Room 107 of the El Capitan Motel.
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(RT. p. 22, ln. 2-14.) Later, a vehicle arrives, and Daisy Applewhite is seen leaving the vehicle and
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going into Room 127. (RT. p. 24, In. 3-8.) Shortly after Applewhite entered the room, Defendants
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Portillo and Gonzales came to the door of Room 127, knocked on the door, and entered. (RT. p. 26,
20
ln. 4-5.) Minutes later, they emerged from the room, with Defendant Gonzales “clutching” some
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items he did not have upon entering. (RT. p. 26, In.8-17.) Portillo and Gonzales then left with Daisy

Applewhite in the same vehicle in which she arrived at the motel. (RT. p. 26, ln 22—28.)
23
As a part of his investigation, Detective Kelley showed the video to members of the Modesto
24
Police Department’s Street Gang Unit to assist with identiﬁcation. (RT. p. 27, In. 6-9.) Ofﬁcers Brent
25
Ward and Martin Lemus were able to positively identify the individuals in the video. (RT. p. 27, ln.
26

27
10-13.)

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PEOPLE'S OPPOSITION TO DEFENDANT‘S §995 MOTION - CASE NO. CR-20-004217/CR-20-004218
Testimony of Modesto Police Department Officer Martin Lemus
Modesto Police Department Ofﬁcer Martin Lemus, a member of the Street Gang Unit (SGU),

testiﬁed that as a part of the investigation into the April 4, 2020 robbery at the El Capitan Motel he

was asked to look at several still shoots captured from surveillance footage. (RT. p. 29, 1n. 16-18.)
He was able to identify both Jesse Portillo and Andres Gonzales based on stillshots from that

surveillance footage. (RT. p. 30, 1n. 7; p. 31, 1n. l9.) Ofﬁcer Lemus testiﬁed that he was personally
familiar with both Defendants Gonzales and Portillo, and was speciﬁcally involved in an investigation

into Defendant Gonzales on July 12, 2018. (RT. p. 33, 1n. 12-18.) On that date, Ofﬁcer Lemus saw

Defendant Gonzales associating with another known gang member, Marco Vega. (RT. p. 36, ln. 21-

23.) In the course of that investigation, SGU ofﬁcers located approximately a pound of
10

11
methamphetamine and a ﬁrearm. (RT. p. 38, ln. 4-8.) The People subsequently offered certiﬁed prior
convictions for Marco Vega and Defendant Andres Gonzales related to that investigation, with
12

Vega’s conviction being for possessing of methamphetamine with intent to sell and doing so for the
13
beneﬁt of a criminal street gang. (See, Stanislaus County Superior Court Case Number CR-l8-
14
003581; See, also, Cal. Pen. Code § 186.22(e)(4).)
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I7 Testimony of Modesto Police Department Gang Expert Michael Rokaitis
Modesto Police Department Investigator Michael Rokaitis, a member of the Street Gang Unit
l8
(SGU), testiﬁed both as a percipient witness based on his prior interactions with the Defendants as
I9
well as an expert in criminal street gangs. The Court certiﬁed Investigator Rokaitis as an expert in
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21
criminal street gangs. (RT. p. 61, 1n. 13-16.) Investigator Rokaitis testiﬁed that, based on his extensive

22 training and his experience as a peace ofﬁcer in the City of Modesto, he was familiar with the Norteﬁo
criminal street gang. (RT. p. 55, 1n. 22 —
p. 56, ln.5.) Investigator Rokaitis further testiﬁed as to the
23

24
common signs, symbols and colors related to the Norteﬁo criminal street gang, speciﬁcally the color

red. Within Modesto, Investigator Rokaitis indicated that it was common for members of the Norteﬁo
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criminal street gang to associate with other Norteﬁo criminal street gang members from different gang
26
“sets,” and also to travel outside of their “territory.” (Rt. p. 58, ln. 4-14.) Within the wider Norteﬁo
27
criminal street gang organization, Investigator Rokaitis stated he was familiar with a subset known
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PEOPLE‘S OPPOSITION TO DEFENDANT‘S §995 MOTION - CASE NO. CR-20-0042l7/CR-20—004218
as the “Westside Boyz.” (RT. p. 58, 1n.15-28.) The Westside Boyz subset has three or more members.
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(Rt. p. 59, In. 15.)

According to Investigator Rokaitis, the primary activities of the Norteﬁo criminal street gang

(and its subsets) include, but are not limited to, violent assaults and robberies. (RT. p. 59, ln. 24-27.)

Members of criminal street gangs proﬁt from criminal activities, and use those proﬁts to fund future

criminal activities, pay bail for other members, and purchase narcotics for future sales. (RT. p. 62, ln.
13-16.) Ifindividual Norteﬁo street gang members commit crimes it raises their status within the gang,
but if they are unable to generate proﬁts they may be asked to do violent tasks for the gang. (RT. p.

63, ln 8-25.) Crimes that involve violence especially beneﬁt the Norteﬁo criminal street gang because

it increases the proﬁle of the gang, intimidates witnesses, and intimidates the community. (RT. p. 64,
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ln. 12-24.) Critically, Norteﬁo criminal street gang members will commit crimes together because of
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the “conﬁdence in one individual gang member who’s going to commit a crime with another gang
12
member knowing that person would be less likely to testify against them in court. That person will
l3
be less likely to back out if things get messy, so to say, during the crime, and will be on the same
I4

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page when it comes to committing the crime effectively.” (RT. p. 65, ln. 11-18.)

.Investigator Rokaitis opined that Defendants Portillo and Gonzales committed the crime in
16
association with a criminal street gang, and for the beneﬁt of the Noneﬁo criminal street gang. (RT.
17

p. 86, 1n. 13-17.) Investigator Rokaitis emphasized the violence in the robbery, which would assist
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the reputation of the gang in committing future violent acts. (RT. p. 86, ln.25-28.) Additionally, the
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fact that Defendant Portillo wore red during the robbery at the El Capitan may be evidence that the
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crime was gang-related. (RT. p. 100, ln. 9-14.)
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Opinion on Defendant Jesse Portillo’s Gang Membership:

Investigator Rokaitis testiﬁed that he was present during a ﬁeld interview with Defendant
24
Portillo March 15, 2019. At the time of the stop, the Defendant was with Eleuterio Avalos. (RT. p.
25
70, ln. 11—12.) Avalos presented indicia of gang membership, including tattoos of the number “l” and
26
“4” on opposite arms, a common symbol for the Norteﬁo criminal street gang. (RT. p. 71, ln. 17-18.)
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At the time of the stop, Defendant Portillo admitted membership in the Norteﬁo criminal street gang.
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PEOPLE’S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO. CR~20-0042|7/CR~20-004218
(RT. p. 73, In. 17-20.) Investigator Rokaitis also spoke to Sergeant Frank Inacio of the Modesto Police
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Department about a vehicle stop he did of Defendant Portillo of June 20, 2019. (RT. p. 76, 1n. 15-20.)
At the time of the stop, Defendant Portillo possessed a cup with Westside Boyz and Noneﬁo-related

writing on it,and was wearing red. (RT. p. 77, p. 16-19.)

Investigator Rokaitis testiﬁed that, based on his opinion, Defendant Portillo was an active

participant in the Norteﬁo criminal street gang at the time of the robbery at the El Capital Motel. (RT.
p. 83, ln. 21—24.) To render his opinion, Investigator Rokaitis considered Defendant Portillo’s prior
self-admissions to law enforcement regarding being a member of a criminal street gang, being in

possession of gang indicia during prior contacts with law enforcement, and for being arrested for

crimes enumerated in Penal Code section l86.22(e).
10

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l2 Opinion on Defendant Andres Gonzales’ Gang Membership:

l3 Investigator Rokaitis testiﬁed that on July ll, 2017, he and MPD Gang Ofﬁcer Martin Lemus
contacted Defendant Gonzales with Marco Vega. (RT. p. 78, ln. 10—13.) Investigator Rokaitis
l4
identiﬁed Defendant Gonzales as being depicted in several photographs that day taken by Ofﬁcer
15
Lemus. (RT. p. 79,1n. 14-22; See, also, People’s Exhibits 6-9.) Ofﬁcer Rokaitis related that Defendant
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Gonzales was wearing red clothing and had multiple tattoos afﬁliated with membership in both the
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Norteﬁo criminal street gang as well as the “Westside Boyz” subset of the Norteﬁo criminal street
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gang, including a tattoo on his neck of “BOYZ,” representing his afﬁliation with the Westside Boyz.
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(RT. p. 80, 1n. 80 — RT. p. 81, ln. 8.) Additionally, the Defendant’s arm had distinct tattoos ofa single
20
dot and, separately, four dots together, representing the number l4. (RT. p. 81, 1n. 13-24.)
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22 Investigator Rokaitis further testiﬁed to events previously discussed by Ofﬁcer Lemus related
to an arrest on July 12, 2018. Investigator Rokaitis testiﬁed that Defendant Gonzales’ arrest in that
23
case evinced his association with a known member of the West Side Boyz subset of the Norteﬁo
24
criminal street gang, Marco Vega, and that both were arrested for crimes enumerated in Penal Code
25

26
section 186.22(e). (RT. p. 82, 1n. 9-14.) Investigator Rokaitis discussed his review of the evidence he
had heard about the evidence of April 4, 2020. He testiﬁed that his write-up was inﬂuenced by the
27
fact that during the incident at the El Capitan Motel, the Defendants committed the offense in
28
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PEOPLE’S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO. CR-20-004217/CR-20-0042I8
association with one another, both were active participants in the Norteﬁo criminal street gang, and
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both were arrested for one of the predicate crimes enumerated in Penal Code section 186.22(e). (RT.
p. 83,1n 7—11.)

Investigator Rokaitis testiﬁed that, based on his research preparing a gang work-up for

Defendant Gonzales, he was able to render an opinion as to whether Defendant Gonzales was an

active member of the Norteﬁo criminal street gang on the date of the robbery at the El Capitan Motel.

(RT. p. 83, ln. 16-20.) To render his opinion, Investigator Rokaitis considered Defendant Gonzales’

association with known Norteﬁos, his prior arrests for predicate crimes, his tattoos, and his prior
contacts 'with law enforcement done while wearing gang-related clothing. (RT. p. 85, ln. 17-21.)

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LAW AND ARGUNENT
12

13 I. STANDARD OF REVIEW
14 Penal Code subdivision that the of a preliminary examination is
§866, (b), explains purpose
15 “establish whether there exists cause believe defendant
to probable to that the has committed a

16
felony.” The burden on the People is simply to produce evidence that there is a reasonable probability,
17
one which induces a strong suspicion in the mind of a man of ordinary caution or prudence, that a
18
crime has been committed and that defendant is guilty. (Garabedian v. Superior Court (1963) 59
19
Cal.2d 124, 126.) Penal Code §995 states, in pertinent part, that an information shall be set aside if
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“defendant ha[s] been committed without reasonable or probable cause.” (Penal Code §995
21
(a)(2)(B).) Thus, to establish probable cause sufficient to withstand a motion to set aside an
22
information, the People must make some showing as to the existence of each element of the charged
23
offense. (People v. Chapple (2006) 138 Cal,App.4th 540.)
24
Courts have held that an information will not be set aside merely because each element of the
25
charged crime is not established by direct testimony. (Williams v. Superior Court of Los Angeles
26

27 County (1969) 71 Cal.2d 1144, 1148.) Rather inquiry is whether evidence presented at the preliminary

28 examination discloses circumstances from which one might reasonably infer the existence of each
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PEOPLE'S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO. CR-20«0042l7/CR-20-0042l8
element of the charged crime. (Id.) “An information will not be set aside or a prosecution thereon
I

prohibited ifthere is some rational ground for assuming the possibility that an offense has been
2

committed and the accused is guilty of it." (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)
3

“[T]he at a is low.” (Salazar Court
4

showing required preliminary hearing exceedingly v. Superior
83 the Court
5.6

(2000) Cal.App.4th 840, 846.) Citing Salazar, in People v. Herrera, noted, an

“information should be set aside only when there is a total absence ofevidence to support a necessary
”
7

element of the offense charged.’ (People v. Herrera (2006) 136 Cal.App.4th .1191, 1206; italics
00

added.)
9

10 II. SUFFICIENT EVIDENCE WAS PRESENTED AT THE PRELIMINARY
HEARING TO SUPPORT A HOLDING ORDER AGAINST DEFENDANTS
11 PORTILLO AND GONZALES FOR BEING ACTIVE IVEMBERS OF A
CRIMINAL STREET GANG (PENAL CODE § 186.22(A))
12

13
For Defendants Portillo and Gonzales to be found to be active members of the Norteﬁo
14
criminal street gang, the People would have to Show that the Defendants actively participated in a

15
criminal street gang, the gang has engaged in a pattern of criminal activity, and that the Defendants
16
willfully promoted or assisted in the criminal activity of gang members. (See, CALCRlM 1400.) In
17
this case, the evidence presented at the preliminary hearing established that the Norteﬁo criminal
18
street gang operates in the City of Modesto, that it has common signs, symbols, colors, and commonly
19
practices criminal activities including (but by no means limited to) violent robberies. Further, both
20 the Norteﬁo criminal street gang and the Westside Boyz subset of the Norteﬁo criminal street gang
21
have more than three members. Finally, the Norteﬁo criminal street gang has a demonstrated pattern
22
of criminal behavior evinced through a series of criminal convictions for crimes enumerated in Penal
23
Code section 186.22(e).
24
Here, both Defendants Portillo and Gonzales were known to Investigator Rokaitis and the
25
Modesto Police Department’s Street Gang Unit prior to the robbery at the El Capitan Motel. Both
26 known Unit of their own
were to the Gang because criminal activities (as in the case of Defendant
27
Gonzales) or because of their constant associations with other known, active members of the Westside
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PEOPLE'S OPPOSITION TO DEFENDANT‘S §995 MOTlON - CASE NO. CR-20-0042l7/CR-20-0042l8
Boyz subset of the Norteﬁo criminal street gang. Defendant Gonzales displayed clear indicia of gang
I234567890

membership. Defendant Portillo actively asserts his membership in the Noneﬁo criminal street gang.

Both Gonzales and Portillo were described as wearing red during separate ﬁeld interviews, and

Defendant Portillo wore read during this robbery. Both Portillo and Gonzales, members of the same

subset of the Norteﬁo criminal street gang, participated in this robbery (Pen. Code § 211), which is

one of the crimes enumerated in Penal Code § 186.22(e). Based on their criminal histories, their

affiliations with known gang members, their proclamations (either in statements or in tattoos) of gang

membership, and their participation in the robbery at the El Capitan Motel in this case, there was

sufﬁcient evidence for the Court to ﬁnd that both Defendants Portillo and Gonzales were, at the time

of the robbery, active members in the Norteﬁo criminal street gang.
IO

ll III. SUFFICIENT EVIDENCE WAS PRESENTED AT THE PRELIMINARY
HEARING TO SUPPORT A HOLDING ORDER AGAINST BOTH
12
DEFENDANTS GONZALES AND PORTILLO FOR CONIMITTIN G A VIOLENT
13 FELONY FOR THE BENEFIT OF AND IN ASSOCIATION WITH A CRIMINAL
STREET GANG. (PENAL CODE § 186.22(B)(1))
l4
15 The gang enhancement applies to those crimes “committed for the beneﬁt of, at the direction

16 of, or in association with any criminal street gang, with the specific intent t0 promote, further, or

17 assist in any criminal conduct by gang members [4..].” (Cal. Pen. Code § l86.22(b)(l); see, also,

18 CALCRIM 1401.) Courts have narrowed the analysis of Section 186.22, subdivision (b)(1) to mean

19 that there are “three alternatives for establishing the ﬁrst prong—that the underlying offense was

2O ‘gang related.’ The offense may be committed (I) for the beneﬁt of a gang; (2) at the direction of a

21 gang; or (3) in association with a gang.” (People v. Weddiuglon (2016) 246 Cal.App.4th 468, 484,

22 citing People v.Abillar (2010) 51 Ca1.4th 47, 59-60.) Thus, the ﬁrst element of Penal Code section

23 186.22, subdivision (b)(l) “may be established with substantial evidence that two or more gang

24 members committed the crime together, unless there is evidence that they were ‘on a frolic and detour

25 unrelated to the gang.” (Id. at p. 484, citing People v.Morales (2003) l l2 Cal.App.4th l I76, l 1.98.

26 Courts have found that the mere fact that two (or more) gang members act together to commit

27 a crime’is sufﬁcient to establish that the crime was done “in association with” a criminal street

28 gan(See, People v. Morales, supra, 112 Cal.App.4th at p. 1198: “[T]he jury could reasonably infer
10

PEOPLE’S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO. CR-20—004217/CR-20-004218
G

the. requisite association from the very fact that defendant committed the Charged crimes in

association with fellow gang members.) The Court in Morales, for example, found that ajury holding

on an enhancement pursuant to Section 186.22, subdivision (b)(l) was justified based solely on

“evidence that defendant intended to commit robberies, that he intended to commit them in

association with Flores and Moreno, and that he knew that Flores and Moreno were members of his

gang.” (lbid.) Similarly, in People v. Leon (2008) l6l Ca|.App.4th 149, summed up itsﬁndings on

the evidence as follows: “[T]he People presented evidence that Leon committed [the charges] in

association with Rodriguez, a fellow gang member. Thus, the People presented evidence

that Leon committed I/ze offenses ‘in association wit/i (my criminal street gang.” (Id. at p. l63, italics

added.) Based on the holdings in both Morales and Leon, the mere fact that two gang members come
10

together to commit a crime is sufﬁcient evidence that the crime was committed in association with a
ll
criminal street gang.
12
The Magistrate found the Defendant’s association with Daisy Applewhite, not known to be a
l3
gang member, to be problematic, noting, “Ms. Applewhite was central and Ms. Applewhite isnot a
l4
member of the gang.” which the Court found “dilutes and disrupts the coming together as gang
15
members when you allow an outside to be so central.” However, Courts have consistently held that
16
the presence of non-gang members is not dispositive to the application of section 186.22, subdivision
l7
(b)(l). (See, People v. Rodriguez (20l2) 55 Cal.4th 1125, l'l38-l. l39.) Based on the Magistrate’s
18

argument, the inclusion of a non-gang member in a crime committed by multiple gang members
19
would effectively immunize all participants from prosecution under section l86.22, subdivision
20
(b)(l). Ironically, if anything, the Magistrate’s conclusion comes closer to advocating for Daisy
21
Applewhite’s prosecution under that same enhancement, assuming that the People could show that
22
Ms. Applewhite knew her associates were members of the Norteﬁo criminal street gang.
23
Additionally, the Magistrate stated that “several gang members can commit a crime together
24
yet be on a frolic or detour unrelated to the gang,” and that “it could be either/or in any situation, and
25
the [P]eople have to establish that it’s one or the other.” (RT. p. 139, ln. 21—24.) The Magistrate added
26
“I think the People have the burden of proving those circumstances even at prelim that push it away
27
from the fact that it’s [. . .] a frolic and detour unrelated to the gang.” (RT. p. 140,1n. 10-15.) It appears
28
ll
PEOPLE’S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO. CR-20-004217/CR-20-0042l8
that based on the Magistrate’s discussion, the evidentiary requirements at preliminary hearing were
123456789

being conflated with something closer to a preponderance of the evidence standard, rather than a

probable cause standard. As stated above, the proof requirements at a preliminary hearing are

exceptionally low, with the burden on the People essentially being to provide sufﬁcient evidence to

show that there is “some rational ground for assuming the possibility that an offense has been

committed and the accused is guilty of it." (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.)

In this case, Defendants Portillo and Gonzales, both
of
whom the Magistrate held were

members of the Norteﬁo criminal street gang at the time of the robbery, came together to commit the

act. Investigator Rokaitis discussed at length the myriad benefits for gang members who choose to

commit their crimes with other gang members, from knowing that they can count on their associate
lO
gang member’s silence upon possible capture, to that person bearing witness to the crime to bolster
ll
the gang member’s own status within the gang. For example, having another gang member bear
l2
witness to one’s own crimes is clearly beneﬁcial when establishing and maintaining one’s reputation
13
within the Norteﬁo criminal street gang. In this case, itis important that both Portillo and Gonzales
l4
were not merely members associated by afﬁliation in the wider Norteﬁo criminal street gang. Instead,
15

they were members of the same subset, the Westside Boyz, evincing an even deeper bond and trust
l6
l7
that acts as a foundation for their association. Finally, the fact that Defendant Portillo chose to pistol-

whip the victim, an act of exceptional violence, in the presence of a fellow gang member, and with
18
no evidence that such an assault was even necessary given that the victim was unarmed and
l9
outnumbered, shows a desire to commit a violent assault whose purpose was, at least in part, to bolster
20
Defendant Portillo’s own proﬁle within the Norteﬁo criminal street gang and the Westside Boyz.
21
The People will certainly concede that there is an argument — possibly even a strong argument
22
—
that, based on the evidence presented at the preliminary hearing, the Defendants were on a “frolic”
23
when they committed the robbery at the El Capitan Motel. It certainly was not possible to discount
24
that possibility based on the evidence that was presented, even with the strength of Investigator
25

26
Rokaitis’ opinion about the nature of the charged offense and itsrelationship to criminal street gang

27 activity. However, the mere fact that the Magistrate acknowledged that the argument could go “either

28 way” indicates the People met their evidentiary burden at the Preliminary Hearing.

PEOPLE’S OPPOSITION TO DEFENDANT’S §995 MOTION - CASE NO, CR-20-0042l7/CR-20-0042l8
IV. SUFFICIENT EVIDENCE WAS PRESENTED AT THE PRELIMINARY
HEARING TO SUPPORT A HOLDING ORDER AGAINST DEFENDANTS
PORTILLO AND GONZALES FOR BEING ACTIVE MEMBERS OF A
CRIMINAL STREET GANG (PENAL CODE § 186.22(A))

Case Info

Judge

Reeves, Dawna F Track Judge’s New Case

Case No.

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Document Filed Date

January 26, 2021

Case Filing Date

April 21, 2020

County

Parties

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