P. v. Martinez
A jury convicted Darren Martinez and Hector Martinez of first degree murder (Pen. Code,[1] § 187, subd. (a); count 1); assault with a semi-automatic firearm (§ 245, subd. (b); count 2); and assault with force likely to cause great bodily injury (§ 245,
subd. (a)(1); count 3). It additionally convicted Darren of assault with a deadly weapon and force likely to cause great bodily injury (§ 245, subd. (a)(1); count 4) and two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); counts 5 and 6). The jury found true allegations that each crime was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); the appellants were principals in the commission of the murder, and a principal used a firearm and proximately caused great bodily injury and death (§ 12022.53, subds. (d), (e)(1)); in the commission of the murder, Darren intentionally and personally discharged a firearm, proximately causing great bodily injury and death (§ 12022.53, subd. (d)), and personally used a firearm (§ 12022.5, subd. (a)); Darren personally used a firearm in the commission of the count 2 assault (§ 12022.5, subd. (a)); and Darren personally used a deadly weapon and inflicted great bodily injury in the count 4 assault (§ 1192.7, subds. (c)(8), (23)). The jury also found true that Hector was vicariously armed with a firearm in the commission of the murder (§ 12022, subd. (a)), and was 16 years or older when he committed the offenses (Welf. & Inst. Code, § 707, subd. (d)(1)).
The court sentenced Darren to a determinate term of 14 years plus an indeterminate term of 50 years to life. It sentenced Hector to a determinate term of six years plus an indeterminate term of 50 years to life.
Hector contends his murder conviction must be reversed because the court failed to properly instruct the jury on the natural and probable consequences doctrine of liability for aiders and abettors. He alternatively contends his attorney provided ineffective assistance by failing to object to the jury instructions on that doctrine. Darren contends the court prejudicially erred in admitting expert testimony that counts four through six were gang motivated. Appellants both contend there was no substantial evidence to support the count three conviction for assault by means of force likely to produce great bodily injury; and the abstracts of judgment must be amended to correct certain errors. They both join in each other's contentions as applicable. We affirm the judgments, but direct the trial court to amend the abstracts of judgment to correct the errors identified by appellants.
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