P. v. Horne
A jury convicted defendant Joseph Deonn Horne of eight offenses and found true a special circumstance allegation and numerous enhancement allegations. The convictions and enhancements are as follows: count 1, murder with a criminal street gang special circumstance and enhancements for discharging a firearm and causing great bodily injury and death and committing the offense for the benefit of a criminal street gang (Pen. Code, 187, 186.22, subd. (b)(1), 190.2, subd. (a)(22), 12022.53, subds. (c) and (d); count 2, attempted murder with gang and firearm discharge enhancements ( 664, 187, 186.22, subd. (b)(1)); count 3, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)); count 5, making criminal threats (422); count 6, shooting at an occupied vehicle with a gang enhancement ( 246, 186.22, subd. (b)(1)); count 7, sale or transportation of a controlled substance with a gang enhancement (Health & Saf. Code, 11352; 186.22, subd. (b)(1)); count 8, shooting at an inhabited dwelling with gang enhancements ( 246, 186.22, subds. (b)(1) & (b)(4)(B); count 9, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)).
For these crimes and enhancements, the court imposed a term of life without parole for the murder (count 1) plus a consecutive indeterminate life term for using a firearm; a consecutive indeterminate life term for the attempted murder (count 2) plus a 20-year firearm enhancement; a consecutive life term for shooting at an occupied vehicle (count 6); a consecutive life term for shooting at an occupied dwelling (count 8); a consecutive determinate term of three years for selling drugs (count 7) plus a four-year gang enhancement; and a consecutive eight-month term for making a criminal threat (count 5). The court imposed additional terms and enhancements but stayed them under section 654.
On appeal from the judgment, defendant raises the following claims: (1) the prosecutor was guilty of misconduct during cross-examination, the court abused its discretion in failing to curtail the misconduct, and defense counsel rendered ineffective assistance in failing to object; (2) the prosecutor improperly used defendants juvenile adjudications to impeach him; (3) there is insufficient evidence to support the gang special circumstance and the gang enhancements; (4) the court erred in failing to give a unanimity instruction concerning the pattern element of the gang enhancements; (5) the court erred in admitting hearsay concerning the alleged criminal threats; (6) the court misinstructed on the intent element of making a criminal threat; (7) the court erred in failing to give a unanimity instruction concerning the charge of making a criminal threat; (8) the court erred in admitting opinion evidence concerning the credibility of a prosecution witness; (9) the court erred in admitting hearsay concerning a codefendants guilty plea; (10) the indictment/information was defective in not alleging that the attempted murder was premeditated; and (11) the court erred in imposing a consecutive indeterminate term for the murder and a consecutive 20-year enhancement for the attempted murder.
Court conclude that instructional error compels the reversal of defendants conviction for making a criminal threat and reverse the judgment.
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