P. v. Barragan
In November 2002, Kerry MacDougall awoke to find his son shot in the head in the hallway. Fourteen-year-old Daniel MacDougall was killed in what proved to be a foiled home invasion robbery. The district attorney charged Victor Barragan, Terry Gonzales, Jr., Luis Dominguez and Gerardo Herrera with the crime. The information alleged the following felony offenses and enhancements as to all defendants: (1) in count 1, murder (Pen. Code, 187),[1]with the special circumstances of felony murder/attempted robbery and felony murder/attempted burglary ( 190.2, subds. (a)(17)(A) & (G)), and an enhancement for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)); (2) in count 2, burglary ( 459) with a personal firearm use enhancement ( 12022.5, subd. (a)); and (3) in count 3, attempted home invasion robbery ( 664/211) with enhancements for the intentional discharge of a firearm ( 12022.53, subds. (d) & (e)(1)) and for committing the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The information also alleged in counts 4 and 5 that Barragan and Gonzales were each felons in possession of a firearm. ( 12021, subd. (a).) As to all relevant counts, the information alleged that Gonzales had a prior violent felony conviction. ( 667, subd. (b)-(i).)
On appeal, defendants collectively make over 20 claims of error. They argue that they are entitled to reversal because of evidentiary error, prosecutorial misconduct, instructional error, and sentencing error, among other claims. Court strike the section 186.22, subdivision (b)(1)(C) enhancement imposed on each defendant in count 1, and affirm the judgment as modified.
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