P. v. Martinez CA6
A jury convicted defendant Antonio Miranda Martinez of first degree murder (Pen. Code, § 187, subd. (a)) and found true an allegation that defendant personally and intentionally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced defendant to consecutive terms of 25 years to life for the murder and the firearm allegation.
On appeal, defendant contends the trial court should have granted his motion to dismiss because the prosecution had dismissed two prior complaints involving the same charges (§ 1387, subd. (a)) and neither of those dismissals was “due solely to excusable neglect” (§ 1387.1, subd. (a)). Defendant also contends the trial court erred by instructing the jury on lying in wait as a theory of first degree murder, and he challenges CALCRIM No. 521, the lying-in-wait instruction. For reasons that we shall explain, we will affirm the judgment.
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