P. v. Guevara
A jury found defendant, guilty as charged of two counts of murder committed on March 29, 2002, and both the proximate result of personally and intentionally discharging a firearm, and intentionally killing the victims, Carlos Cornejo (count 1) and Jose Vargas, Jr., (count 2), for the benefit of a criminal street gang (Pen. Code, 187, subd. (a), 12022.53, subd. (d), 186.22, subd. (b), 190.2, subd. (a)(3), (22)); one count of using a firearm to dissuade a witness, identified in the information only as April, from testifying or reporting a suspected crime, all for the benefit of a criminal street gang (Pen. Code, 136.1, subd. (c)(1), 186.22, subd. (b), 12022.5, subd. (a)(1)) (count 3); one count of possessing methamphetamine for sale for the benefit of a criminal street gang (Health and Saf. Code, 11378; Pen. Code, 186.22, subd. (b)) (count 4); and two counts of possessing a firearm for the benefit of a criminal street gang and after having previously been convicted of violating Penal Code section 12020, subdivision (a) (Pen. Code, 12021, subd. (a)(1), 186.22, subd. (b)) (counts 5 and 6). The jury further found true an allegation under Penal Code section 667.5, subdivision (b), that defendant had served a term in prison for his conviction in 2000 of illegally possessing a weapon in violation of Penal Code section 12020, subdivision (a).
Based on the jury's verdicts and true findings, the trial court sentenced defendant to prison for two consecutive terms of life without the possibility of parole on counts 1 and 2, the first degree murder convictions, with consecutive terms of 25 years to life on the firearms use and gang enhancements related to those counts.
Defendant contends in this appeal that the trial court erred by admitting various evidence at trial, the details of which we recount below in our discussion of the pertinent claim, and committed various errors during sentencing. Court agree with defendant's assertion that the trial court erred in finding that the prosecution had used due diligence in its effort to locate April Romero in order to subpoena her to appear and testify at trial, and therefore the trial court erred in admitting her preliminary hearing testimony. Court further conclude that error was prejudicial and requires reversal of defendant's convictions on count 3, the charge that defendant dissuaded April from testifying as a witness, count 4, the charge that defendant possessed methamphetamine for sale, and on count 5, the charge that defendant unlawfully possessed a .38-caliber revolver. Therefore, Court reverse defendant's convictions on those three counts. Court conclude defendant's other claims of error, the details of which court recount below, are meritless.
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