P. v. Resendiz
Defendant Jose Enrique Resendiz appeals from a judgment of conviction entered after a jury found him guilty of first degree murder with the special circumstance that the murder was committed while defendant was an active participant in a criminal street gang and that the murder was carried out to further the gang's activities. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(22).)[1] The jury also found true the allegation that defendant committed the murder for the benefit of a criminal street gang. (Former § 186.22, subd. (b)(1).) In addition, the jury found that defendant personally used a firearm, intentionally discharged a firearm, and intentionally discharged a firearm causing death (§ 12022.53, subds. (b)-(d)). The trial court sentenced defendant to life imprisonment without the possibility of parole consecutive to a term of 25 years to life. On appeal, defendant raises issues relating to the cross-examination of a witness, the admissibility of evidence, the sufficiency of the evidence, prosecutorial misconduct, and jury instructions. We conclude the trial court erred in instructing the jury regarding an element of the special circumstance (§ 190.2, subd. (a)(22)) and the gang enhancement (former § 186.22, subd. (b)(1)) findings. Accordingly, the judgment is reversed and the matter is remanded for retrial of these findings. If the prosecutor elects not to retry the matter, the trial court shall resentence defendant.
Comments on P. v. Resendiz