People v. Gaytan CA2/8

Filed 11/19/24 P. v. Gaytan CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B334098

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA350813 v.

HERSON GAYTAN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David V. Herriford, Judge. Affirmed. Charles Carbone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Bill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

Herson Gaytan appeals the trial court’s denial of his section 1172.6 petition without an evidentiary hearing. We affirm. Citations are to the Penal Code. We summarize the facts which we described in detail in our previous opinion, People v. Gaytan et al. (Oct. 14, 2011, B226031) [nonpub. opn.]. Tow truck driver Joseph Mosesean stopped behind a Volvo at an intersection. Mosesean saw a hand holding a gun extend out of the rear driver’s side window and begin shooting. The Volvo sped off, and Mosesean followed. The Volvo stopped, and Gaytan got out of the front passenger side door and ran away. The Volvo took off again. When it stopped again, the driver and the passenger in the back both got out and ran off as well. Police eventually apprehended all three men. In April 2010, a jury convicted Gaytan and two confederates of first degree murder and found true gang and firearm enhancements. The trial court gave CALJIC No. 3.01 on direct aiding and abetting and did not instruct on a natural and probable consequences theory of aiding and abetting. The trial court also gave CALJIC No. 8.25.1, which states: “Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree. The essential elements of drive-by murder are: 1. The defendant committed the crime of murder; 2. The defendant perpetrated the murder by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle; and 3. The defendant specifically intended to kill a human being.”