P. v. Resendiz
Filed 3/30/10 P. v. Resendiz CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE ENRIQUE RESENDIZ,
Defendant and
Appellant.
H032537
(Santa Cruz
County
Super. Ct.
No. F12957)
Defendant
Jose Enrique Resendiz appeals from a judgment
of conviction entered after a jury found him guilty of first degree murder
with the special circumstance that the murder was committed while defendant was
an active participant in a criminal
street gang and that the murder was carried out to further the gang's
activities. (Pen. Code, §§ 187, subd.
(a), 190.2, subd. (a)(22).)[1] The jury also found true the allegation that
defendant committed the murder for the benefit of a criminal street gang. (Former § 186.22, subd. (b)(1).) In addition, the jury found that defendant
personally used a firearm, intentionally discharged a firearm, and
intentionally discharged a firearm causing death (§ 12022.53, subds.
(b)-(d)). The trial court sentenced defendant
to life imprisonment without the possibility of parole consecutive to a term of
25 years to life. On appeal, defendant
raises issues relating to the cross-examination of a witness, the admissibility
of evidence, the sufficiency of the evidence, prosecutorial misconduct, and
jury instructions. We conclude the trial
court erred in instructing the jury regarding an element of the special
circumstance (§ 190.2, subd. (a)(22)) and the gang enhancement (former §
186.22, subd. (b)(1)) findings.
Accordingly, the judgment is reversed and the matter is remanded for
retrial of these findings. If the
prosecutor elects not to retry the matter, the trial court shall resentence
defendant.
I. Statement of Facts
A. The Murder
Defendant was a member of City Hall
Watsonville (CHW), a Norteno gang. He
frequently wore red and was shown in various photographs flashing CHW and
Norteno gang signs. Defendant also
associated with other CHW members.
During the week, defendant lived with his wife and her family in Redwood City. On
weekends, he stayed at his family's home at 422 Second Street in Watsonville.[2]
At approximately 5:15 p.m. on February 19, 2006, Arturo â€
| Description | Defendant Jose Enrique Resendiz appeals from a judgment of conviction entered after a jury found him guilty of first degree murder with the special circumstance that the murder was committed while defendant was an active participant in a criminal street gang and that the murder was carried out to further the gang's activities. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22).)[1] The jury also found true the allegation that defendant committed the murder for the benefit of a criminal street gang. (Former § 186.22, subd. (b)(1).) In addition, the jury found that defendant personally used a firearm, intentionally discharged a firearm, and intentionally discharged a firearm causing death (§ 12022.53, subds. (b)-(d)). The trial court sentenced defendant to life imprisonment without the possibility of parole consecutive to a term of 25 years to life. On appeal, defendant raises issues relating to the cross-examination of a witness, the admissibility of evidence, the sufficiency of the evidence, prosecutorial misconduct, and jury instructions. We conclude the trial court erred in instructing the jury regarding an element of the special circumstance (§ 190.2, subd. (a)(22)) and the gang enhancement (former § 186.22, subd. (b)(1)) findings. Accordingly, the judgment is reversed and the matter is remanded for retrial of these findings. If the prosecutor elects not to retry the matter, the trial court shall resentence defendant. |
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