P. v. Villalobos
Defendant Johnny Villalobos was charged with the murder of Juan Valdez. At trial, Villalobos admitted he aimed a pistol toward Valdez’s chest and fired a single shot. He testified, however, that he shot Valdez because he had been attacked and was in fear for his life. The jury convicted Villalobos of first degree murder and found true special allegations related to firearm and gang enhancements.
On appeal, Villalobos argues that the trial court’s use of the 1996 versions of CALJIC numbers 8.71 and 8.72, which instructed the jury on deciding between greater and lesser offenses, violated his due process rights and his right to jury by trial. He further asserts that there was insufficient evidence to support a true finding on the gang enhancement. We reverse the judgment and remand for further proceedings, concluding that the gang enhancement was not supported by substantial evidence.
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