People v. Guzman CA5

Filed 6/8/21 P. v. Guzman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F077918 Plaintiff and Respondent, (Super. Ct. No. 17CR04410E) v.

ANGEL HERMAN AVILA GUZMAN, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Angel Herman Avila Guzman was convicted by jury for his role in a gang-related assault with a deadly weapon occurring in jail (Pen. Code,1 §§ 245, subd. (a)(1) &

1 All statutory references are to the Penal Code.

186.22, subd. (b)). On appeal, he contends the court’s jury instruction describing an uncharged conspiracy erroneously lowered the prosecution’s burden of proof. The People concede the error but dispute its prejudice. We conclude the jury instruction at issue was both in error and prejudicial. We will reverse the judgment.2 BACKGROUND Charges The Merced County District Attorney charged Guzman with three crimes: Attempted murder (§§ 187 & 664, Count 1), assault with a deadly weapon (§ 245, subd. (a)(1), Count 2), and possessing a weapon in jail (§ 4502, subd. (a), Count 3). It was also alleged the crimes were gang-related (§ 186.22, subd. (b)) and the victim suffered great bodily injury (§ 12022.7, subd. (a)). Trial Evidence3 The victim testified he was attacked by several other men he was housed with in jail.4 He suffered significant injuries including “numerous small puncture wounds” across his back. He identified Guzman as one of his assailants but was unaware if Guzman utilized a weapon in the attack. Verdict and Sentence Guzman was convicted of assault with a deadly weapon (Count 2) but acquitted of attempted murder and possessing a weapon (Counts 1 and 3). The gang-related crime and great bodily injury enhancements were found true. He was sentenced to serve 12 years in prison.