P. v. Huerta

Filed 2/20/07  P. v. Huerta CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

            APPEAL from a judgment of the Superior Court of Los  Angeles County, Charles Horan, Judge.  Affirmed.

            Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

            Appellant Hugo Z. Huerta was convicted by a jury of assault with a firearm with the personal use of a firearm (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a)(1)),[1] two counts of attempted premeditated murder with the personal use and intentional discharge of a firearm (§§ 664/187, subd. (a), 12022.53, subds. (b) & (c)), and shooting at an inhabited dwelling (§ 246).  The jury also found that he committed all four offenses for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).  Appellant was sentenced to 35 years to life.  He appeals, contending that:  (1) the evidence was insufficient to support the finding that he committed the assault for the benefit of a street gang; (2) his constitutional rights to due process were violated when the court allowed an expert to testify that the shootings were committed to benefit a gang; and (3) the court erred when it failed to instruct the jury on the offense of discharging a firearm in a grossly negligent manner (§  246.3) as a lesser included offense of shooting at an inhabited dwelling, the charged offense in count 4.  We affirm the judgment.

STATEMENT OF FACTS

            At approximately 9:00 p.m. on December 11, 2005, 16-year-old Martin Mendiaz was standing at a street corner in the mobilehome park in El Monte where he lived.  He was with two of his friends.  Mendiaz saw a Hispanic man, whom he later identified as appellant, pointing a gun and walking towards them.  Mendiaz heard four clicks but nothing came out of the gun.  Appellant walked right past Mendiaz.  Approximately 30 seconds later, a person came from behind Mendiaz saying, â€