PEOPLE v. CABRERA
A jury convicted defendant Henry Cabrera of carjacking (Pen. Code, § 215, subd. (a); all statutory references are to this code unless otherwise stated; count 1); attempted second degree robbery (§§ 211, 212.5, subd. (c), 664; count 2); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3); street terrorism (§ 186.22, subd. (a); count 4); evading police while driving recklessly (Veh. Code, § 2800.2; count 5); receiving a stolen vehicle (§ 496d, subd. (a); count 6); carrying a loaded firearm by a gang member (§ 12031, subd. (a)(1), (2)(c); count 7); and unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a); count 8.) The jury found true a gang enhancement (§ 186.22, subd. (b)) for counts 1 through 3 and 5 through 7 and that defendant personally used a firearm (§ 12022.53, subd. (b)) while committing counts 1 and 2. In a bench trial the court found that defendant had one prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to 30 years to life.
Defendant argues there was insufficient evidence to support the street terrorism conviction or the gang enhancement and the court erroneously excluded an exculpatory statement which should have been admitted under Evidence Code section 356 and failed to instruct the jury on a crime on which the prosecution relied to prove the gang's primary activity. court affirm.
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