P. v. Gutierrez
In this case, defendants and appellants Monique Yvonne Garcia (hereafter, Defendant Garcia) and Cruz Alonzo Gutierrez (hereafter, Defendant Gutierrez) were convicted by separate juries of attempted murder, assault and active participation in a criminal street gang. Both defendants and the People appeal the judgment.
Defendant Gutierrez contends: (1) his statement regarding gang affiliation during booking was admitted in violation of his Fifth Amendment right against self-incrimination; (2) the trial court erred by failing to instruct the jury on the meaning of the term “in association with any criminal street gangâ€; (3) there was insufficient evidence to support the gang enhancement; (4) there was insufficient evidence to support his conviction of active gang participation; (5) he was denied due process when the gang expert was allowed to testify that his acts were committed for the benefit of, in association with, or at the direction of a criminal street gang; (6) the prosecutor committed misconduct in failing to properly prepare the witnesses; (7) CALCRIM No. 372 is unconstitutional; and (8) the trial court abused its discretion in denying his posttrial Marsden[1] motion.
Defendant Garcia contends: (1) her convictions must be reversed because the prosecutor presented the jury with a legally incorrect theory of conviction; (2) the prosecutor committed misconduct, violating her constitutional rights, by eliciting evidence that the deputies conducted a probationary search of her home, which was prohibited by the court’s pretrial rulings; (3) the gang expert improperly opined that she was guilty of the attempted murder and felony assault charges; and (4) the cumulative error doctrine applies. Each defendant joins in the issues raised by the other defendant.
The People appeal, contending the trial court’s postverdict dismissal of the gang enhancements and gang offenses constitutes error because there was legally sufficient evidence to support those charges.
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