People v. Palomares CA5

INTRODUCTION

Appellants Victor Manuel Palomares and Oscar J. Martinez were tried jointly and convicted of various offenses arising out of an incident in March 2011 in a restaurant parking lot in Kern County. They contend the trial court committed several prejudicial errors, including: admission of gang expert evidence and postarrest statements; instructing the jury with CALCRIM Nos. 600 and 3472; denial of their Batson/Wheeler1 motion; and imposition of a three-year term for the Penal Code2 section 12022.7 enhancement. They also contend the evidence is insufficient to support the gang offense conviction under section 186.22, subdivision (a). We conclude appellants have waived3 some issues; some issues lack merit; and in other instances, any error was nonprejudicial. We will affirm the judgments.

FACTUAL AND PROCEDURAL SUMMARY

Essam Hashem arrived at the Maria Bonita Restaurant in Kern County with his brother and three friends at about 11:00 p.m. on March 11, 2011, for a birthday party. Hashem knew some people at the restaurant, including Chris Rodriguez, but there were also people he did not know. Hashem did not see any fights inside the restaurant, or hear anyone talking about…