P. v. Perez
Defendants, Raymond Paul Perez, Joshua Mathew Perez,[1]and Rosario Manuel Leanos, appeal from: their convictions for second degree murder (Pen. Code,[2] 187, subd. (a)); the finding that Mr. Leanos personally and intentionally discharged a firearm causing death ( 12022.53, subds. (d)(1), (e)(1)); and the finding the homicide was committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(C).) Raymond argues that the trial court improperly: instructed the jury on the natural and probable consequences doctrine; denied the motion to bifurcate the trial of the gang enhancement; admitted testimony by an experienced gang investigator; sentenced him to 25 years to life for vicarious personal use of a firearm and 40 years to life for vicarious liability second-degree murder; and stayed the 10-year criminal street gang enhancement. Raymond further argues: there was insufficient evidence the shooting was a natural and probable consequence of any act he knowingly aided and abetted; the testimony by the experienced gang investigator was insufficient to establish that the crime was committed for the benefit of a criminal street gang; he was denied effective assistance of counsel; and he is entitled to reversal because the trial errors were cumulatively prejudicial. Raymond also joined in the arguments of his co-defendants as they relate to him. Joshua argues there was insufficient evidence that he aided and abetted the murder and his 25 year-to-life sentence was improperly imposed because his liability was merely vicarious. Joshua further argues the trial court improperly stayed the gang enhancement and failed to order the victim restitution payable based upon joint and several liability. Joshua also joins the arguments of his co-defendants which may accrue to his benefit and are consistent with his contentions. Mr. Leanos argues that there was insufficient evidence to support his conviction or the finding that the murder was committed for the benefit of a street gang. Mr. Leanos also argues the trial court improperly: denied Joshuas bifurcation motion; admitted irrelevant and inflammatory evidence; admitted unnecessary gang testimony; imposed a 10-year gang enhancement; and imposed victim restitution that was not designated joint and several. Mr. Leanos further argues that cumulative error resulted in a miscarriage of justice and he was denied effective assistance of counsel. Court affirm in part and reverse in part with directions.
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