P. v. Herrera
Jose Angel Herrera, also known as Jose Luis Herrera and Angel Herrera, appeals from a judgment entered upon his conviction by jury of first degree murder (Pen. Code, 187, subd. (a)). The jury also found to be true the special circumstance allegations of murder by active participant in a criminal street gang to further promote its activities ( 190.2, subd. (a)(22)), murder of a witness ( 190.2, subd. (a)(10)), and murder by lying in wait ( 190.2, subd. (a)(15)). It further found to be true the allegations that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1) and committed the offense to benefit a criminal street gang within the meaning of section 186.22, subdivision (a). The trial court sentenced defendant to life in prison without the possibility of parole for the murder conviction plus 25 years to life for the firearm use. Defendant contends that (1) the trial court prejudicially erred in excluding relevant expert identification testimony, thereby denying him of his constitutional right to present a defense, (2) the trial court abused its discretion under Evidence Code section 352 by allowing the prosecutor to elicit evidence that a witness was fearful and had an altruistic motive to identify defendant, (3) the California death penalty law violates the Eighth Amendment of the United States Constitution by proliferating special circumstances and thereby undermining their required narrowing function, (4) his sentence of life in prison without the possibility of parole is cruel and unusual punishment pursuant to the state and federal Constitutions, and (5) the $5,000 parole revocation fine imposed should be stricken because defendant was sentenced to life in prison without the possibility of parole. The Attorney General contends that if the parole revocation fine is stricken, the matter should be remanded to the trial court to adjust the restitution fine accordingly. Court strike the parole revocation fine and otherwise affirm.
Comments on P. v. Herrera