P. v. Mendoza
Appellant Daniel Lua Mendoza, Jr., was the driver in two drive-by shootings that occurred on May 22, 2004. Julian Espitia fired a handgun out the passenger window at two houses. A man was struck in the chest by a bullet, but he survived. An occupant of one of the houses admitted that he had been a member of the Original Gangsters Surenos (OGS), which is a Surenos subset. Gang expert Joe Aguilar testified that appellant is a member of the Brown Pride Catella (BPC), which is a Nortenos subset. Nortenos and Surenos are rivals. Appellant and six other BPC members had been injured in a drive-by shooting that occurred on February 28, 2004. Detective Aguilar opined that the May 22, 2204, drive-by shooting was committed to enhance and benefit the BPC. Appellant denied knowingly participating in the drive-by shootings. He testified that he was simply giving two friends a ride and Espitia unexpectedly fired a handgun out of the passenger window on two occasions.
Appellant was convicted after jury trial of three counts of attempted premeditated murder (counts 1, 4 & 5), two counts of shooting at an inhabited dwelling (counts 2 & 6), and two counts of permitting another to shoot from a vehicle (counts 3 & 7). Street gang enhancements were found true in connection with all the counts. It was found on count 1 that a principal personally and intentionally discharged a firearm proximately causing bodily injury and it was found on counts 4 and 5 that a principal personally and intentionally discharged a firearm. Appellant was sentenced to an aggregate term of 59 years to life imprisonment.
Appellant argues that the prosecutor misstated a controlling legal principle during his closing arguments and the court compounded the prosecutors error during its corrective advisement. As a result, the jury was permitted to convict him on an erroneous legal theory in violation of the rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. We are not persuaded; neither the prosecutor nor the court misled the jury. Appellant also contends that he was improperly sentenced. Respondent concedes the sentencing errors and agrees that resentencing is required. Court accept respondents concession as properly made. Accordingly, Court affirm the convictions and remand for resentencing.
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