P. v. Muratalla
Richard James Muratalla shot Fernando Delarosa in the buttocks after driving up to Delarosa in a stolen car. He was convicted of attempted murder, assault with a firearm, carrying a loaded firearm in a public place while an active gang member, being a felon in possession of a firearm, and unlawful taking of a vehicle. Gang allegations, among other sentence enhancement allegations, were found true.
Muratalla correctly argues that under the California Supreme Court’s recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), the evidence does not support the conviction of carrying a loaded firearm in a public place while an active gang member. Rodriguez held that a person cannot be found to be an active gang member without proof that he committed a crime in concert with another gang member. Because the facts here did not involve perpetration of an offense with any other gang member, we reduce the offense to carrying a loaded firearm in a public place, a misdemeanor, and remand for resentencing on that count.
Muratalla also makes the following arguments: reliance by the prosecution’s gang expert on hearsay violated Muratalla’s rights under the confrontation clause of the Sixth Amendment; there was insufficient evidence to support the gang enhancement findings; and defense counsel rendered ineffective assistance by conducting deficient voir dire during jury selection, choosing not to make an opening statement, not objecting to evidence of prior crimes, making an inadequate closing argument, and not objecting to the prosecutor’s closing argument. We reject these contentions.
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