P. v. Cruz
A jury convicted Benjamin Cruz, Jr. (appellant) of second degree murder (Pen. Code, 187, subd. (a))[1](count 1); attempted, willful, deliberate and premeditated murder ( 664/187, subd. (a)) (count 2); assault with a firearm ( 245, subd. (a)(2)) (count 3); and shooting at an occupied motor vehicle ( 246) (count 4). The jury found true the allegations in counts 1 and 2 that a principal intentionally discharged a firearm and caused great bodily injury and death pursuant to section 12022.53, subdivisions (d) and (e)(1). The jury found true that the offenses were committed for the benefit of a criminal street gang with respect to all counts. ( 186.22, subd. (b)(1)(A).) Appellant and his codefendant, Eugene Barron (Barron) were tried jointly with separate juries. The trial court declared a mistrial in Barrons case.
Appellant appeals on the grounds that: (1) there was insufficient evidence as a matter of law to support appellants convictions; (2) there was insufficient evidence to support the gang enhancement; (3) the gang experts testimony usurped the jurys fact-finding function and violated appellants rights to due process, a fair trial, and a trial by jury; (4) the gang experts testimony violated appellants right to confront and cross examine witnesses; (5) the trial courts limitation of defense counsels cross-examination of the coroner deprived appellant of his rights to due process, to confront and cross-examine his accuser, to a fair trial, and to present a defense; (6) cumulative error requires reversal; and (7) count 4 should be stayed pursuant to section 654. The judgment is modified.
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