P. v. Gutierrez
Appellant Juan Carlos Gutierrez challenges his murder, robbery and attempted robbery convictions on the grounds the trial court committed numerous instructional errors, violated due process by imposing upper and consecutive terms on the basis of facts not found by the jury or admitted by him, and improperly imposed a gang enhancement. We conclude the trial court made several errors in relation to the aiding and abetting and accomplice instructions. However, the errors were harmless under the circumstances. The court also erred harmlessly by failing to instruct the jury upon the requirements for finding that a principal used or discharged a firearm for purposes of a Penal Code section 12022.53 enhancement. Moreover, the imposition of upper and consecutive terms did not violate due process. Finally, the trial court improperly enhanced appellants sentence under Penal Code section 186.22.
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