P. v. Masiel
A jury convicted Robert Martin Masiel of second degree murder (Pen. Code,[1] 187, subd. (a)) and found true allegations that he personally and intentionally discharged a firearm, proximately causing great bodily injury or death ( 12022.53, subd. (d)) and committed the murder for the benefit of a criminal street gang ( 186.22, subd. (b)).[2] After denying a new trial motion, the trial court sentenced Masiel to prison for indeterminate terms of 15 years to life for the murder and 25 years to life for use of a firearm, both consecutive to the determinate 10 year criminal street gang enhancement.
Masiel appeals, contending that there was insufficient evidence to support the jury's verdicts for the second degree murder and the street gang and firearm enhancements, that the trial court erred in failing to instruct the jury on misdemeanor-manslaughter based on brandishing a firearm, and that the 10 year street gang enhancement must be stricken. Court concur with the People's concession on this latter point (see People v. Lopez (2005) 34 Cal.4th 1002, 1011) and modify the sentence to delete the 10 year gang enhancement. In all other respects, Court affirm.
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