P. v. Gary
Dartagnan Andre Gary, the defendant, was charged with murder in the shooting death of Jared D., on a street near a house where a party was held. The shooting followed a gang challenge to the Gutta[1] Squad Mafia street gang, of which defendant was an associate. A jury convicted defendant of first degree murder (Pen. Code,[2] § 187, subd. (a)), found that a firearm was discharged, causing death, in the commission of the crime (§ 12022.53, subd. (d)), and the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Defendant was also convicted of a active participation in a criminal street gang. (§ 186.22, subd. (a).) He was sentenced to an aggregate term of 50 years to life and appealed.
On appeal, defendant argues (1) independent review of the record of in camera proceedings pertaining to discovery of information regarding an ongoing investigation is required; (2) his conviction, based upon prior inconsistent statements of witnesses, violated his right of confrontation; (3) his conviction is not supported by substantial evidence; (4) his due process rights were violated by the admission into evidence of a witness’s photographic lineup identification; (5) his trial attorney was ineffective for failing to object to allegedly coerced statements made by a witness who identified defendant as the shooter; (6) reading CALCRIM No. 223 constituted reversible error because it shifted the burden of proof; (7) reading CALCRIM No. 224 misstated the prosecutor’s burden of proof and constituted structural error for instructing the jury it must determine whether defendant was innocent as opposed to not guilty; and (8) defendant’s sentence on count 2 should be modified to conform with the oral pronouncement. We remand for resentencing on count 2, but otherwise affirm.
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