P. v. Santoyo
Jesus Enrique Santoyo appeals from a judgment entered upon his convictions by jury of premeditated attempted murder (Pen. Code, 664, subd. (a) & 187, subd.(a)) and shooting from a motor vehicle ( 12034, subd. (c)). The jury also found to be true as to each count that appellant personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subds. (b), (c), (d), (b) & (e)(1), (c) & (e)(1), and (d) & (e)(1)), that appellant inflicted great bodily injury by discharging a firearm from a motor vehicle ( 12022.55), and that he committed the offense to benefit a criminal street gang ( 186.22, subd. (b)(1)(A)). The trial court sentenced appellant to an aggregate state prison term of 40 years to life.
Appellant contends that (1) CALJIC No. 2.92 is erroneous, and instructing the jury with it rendered his trial fundamentally unfair; (2) he was deprived of due process and a fair trial by the use of unduly suggestive identification procedures; (3) eyewitness identification evidence is unreliable and, absent corroborating evidence, is insufficient to support his convictions; (4) he suffered ineffective assistance of counsel as the result of his counsels failure to (a) move to exclude the identification evidence as having been obtained through unconstitutionally suggestive police identification procedures, (b) present expert testimony, (c) request cautionary instructions on the fallibility of memory and eyewitness identifications, and/or (d) object to several CALJIC No. 2.92 factors as ambiguous or having been proven to be inadequate indicators of identification accuracy; (5) the opinion testimony of the investigating detective exceeded the scope of permissible expert testimony; and (6) punishment for both the crime of attempted murder and the firearm enhancement violates double jeopardy, collateral estoppel, double punishment, the IrelandMerger Doctrine[2]and the principles set forth in Apprendi v. New Jersey(2000) 530 U.S. 466 (Apprendi). Court affirm.
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