P. v. Gonzalez
A jury found defendants Charles Gonzalez and Frank Marshall Martinez guilty as charged of the premeditated, attempted murders of Lamar Clemmons and Derek Edwards (counts 1 & 2), assaulting Clemmons and Edwards with a firearm (counts 3 & 4), and the second degree robbery of Edwards (count 5). (Pen. Code, §§ 664, 187, subd. (a), 245, subd. (a)(2), 211.)[1] The jury found multiple firearm enhancements true in each count, and great bodily injury (GBI) enhancements against Martinez in counts 4 and 5. (§§ 12022.53, subds. (b), (c), (d), 12022.5, subd. (a), 12022.7, subd. (a).) Gonzalez was sentenced to 54 years to life, and Martinez was sentenced to 59 years to life.
We reverse Martinez’s conviction in count 1 and Gonzalez’s convictions in counts 2 and 4 based on insufficient evidence. The prosecution tried the case based solely on the theory that each defendant directly perpetrated each attempted murder and each firearm assault on each victim. Hence no aiding and abetting instructions were given on counts 1 through 4; they were only given on the robbery charge in count 5. As will appear, this was a mistake on the part of the prosecution.
We also agree Gonzalez is entitled to three days of additional presentence custody credits (1,048 days, not the 1,045 awarded), and a new minute order and corrected abstract of judgment must be issued to show that Gonzalez’s personal use enhancement in count 3 is based on section 12022.5, subdivision (a), not section 12022.53, subdivision (b), because assault with a firearm is not an offense listed in section 12022.53, subdivision (a). We reject defendants’ other claims of error, affirm the judgment in all other respects, and remand the matter for resentencing.
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