P. v. Ybarra
Defendant appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code, 187) and two counts of attempted willful, deliberate, and premeditated murder ( 664, 187; counts 2 & 3) with, as to each offense, jury findings that a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), a principal personally and intentionally discharged a firearm ( 12022.53, subds. (c) & (e)(1)), a principal personally and intentionally discharged a firearm causing great bodily injury or death ( 12022.53, subds. (d) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), and with court findings that appellant suffered a prior felony conviction ( 667, subd. (d)), a prior serious felony conviction ( 667, subd. (a)), and a prior felony conviction for which he served a separate prison term ( 667.5, subd. (b)). The court sentenced appellant on count 1 to a prison term of 50 years to life, plus 30 years and, on each of counts 2 and 3, to a term of life with the possibility of parole, plus 25 years to life, with service of a 14-year minimum parole eligibility term, and with the sentences on counts 2 and 3 consecutive to count 1 but concurrent with each other.
Court reject appellants claim that the trial court had a duty to give sua sponte CALJIC No. 8.73 to the jury. The court had no such duty because CALJIC No. 8.73 is a pinpoint instruction. Moreover, appellant has failed to demonstrate that there was substantial evidence to support such an instruction and, in any event, it was inconsistent with his alibi defense.
Court reject appellants claim that there is insufficient evidence to support the gang-related firearm enhancements imposed pursuant to section 12022.53, subdivisions (d) and (e)(1). Appellant argues there is insufficient evidence that he had the requisite specific intent to promote, further, or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). Appellant argues that in order to violate these sections he had to have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted. Appellant and fellow gang members in one car made gang signs to, and pursued, rival gang members in another car. The two gangs were at war. One of appellants confederates shot at three of the rival gang members, killing one. A gang expert opined the crimes were committed with intent to help out appellants gang. There was sufficient evidence that appellant harbored the requisite specific intent, and it was not required that he have a specific intent to promote, further, or assist in criminal conduct other than the offenses of which he was convicted. Finally, appellants claim that his sentence constituted cruel and unusual punishment is unavailing since he failed to object below on that ground. In any event, on the merits, Court reject his claim.
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