P. v. Diaz
Appellant Enrique Diaz and Luis Vega appeal their conviction and sentencing for second degree murder and misdemeanor battery. Diaz contends the trial court erred in (1) failing to instruct sua sponte on the defense of withdrawal from participation in a crime and (2) denying a defense motion for new trial based on newly discovered evidence. Diaz further contends that the state court construction penalty and DNA penalty were erroneously calculated. Vega contends that (1) substantial evidence does not support his conviction for aiding and abetting second degree murder, as the offense was not a reasonable and probable consequence of assault, battery or breach of the peace; (2) there was insufficient evidence corroborating the adverse testimony of an accomplice; and (3) the prosecutor misled the jury concerning the sufficiency of the corroborative evidence. Respondent concedes the state court construction and DNA penalties were wrongly assessed and should be stricken. Court modify the judgments to delete the improperly assessed penalties and affirm.
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