People v. Guerrero CA6

Filed 8/19/21 P. v. Guerrero CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045752 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 215585)

v.

RICHARD GUERRERO et al.,

Defendants and Appellants.

I. INTRODUCTION Defendants Richard Guerrero and James Guerrero are brothers and fellow Norteño gang members who shot and killed Eric Mendoza in a drive-by shooting on April 3, 2014.1 Defendants appeal after a jury found them guilty of first degree murder (Pen. Code, § 187; count 1)2 and active participation in a criminal street gang (§ 186.22, subd. (a); count 2). The jury also found true the allegations that defendants committed count 1 for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and that a principal personally and intentionally discharged a firearm and proximately caused death

1 Because defendants share the same last name, we use their first names to refer to them individually and “defendants” to refer to them collectively. Likewise, we refer to David Martinez and Isaac Martinez by their first names. 2 All further statutory references are to the Penal Code unless otherwise indicated.

in the commission of count 1 (§ 12022.53, subds. (d), (e)(1)). The trial court sentenced each defendant to aggregate terms of 53 years to life. Defendants contend that insufficient evidence supports the gang crime and enhancement because there is not substantial evidence connecting defendants’ subset gangs with the Norteño gang; the trial court violated Evidence Code section 352 through its admission of cumulative and prejudicial predicate gang acts evidence; the court erred when it failed to define “in association with any criminal street gang” in its instructions to the jury; the court erred when it failed to instruct the jury on heat of passion voluntary manslaughter and unreasonable self-defense; the court erred when it did not instruct the jury that the prosecution had to prove the lack of provocation and unreasonable self- defense in order to establish the malice element of murder; counsel were ineffective in failing to request an instruction on third-party culpability; and the court committed several sentencing errors. In addition, James contends that the trial court improperly admitted a hearsay statement as a declaration against penal interest; the statement’s admission violated his federal constitutional rights to a fair trial and a jury trial; and the court improperly allowed David Martinez to testify about a statement Richard made to Isaac Martinez that Isaac relayed to David under the coconspirator statement hearsay exception. For reasons that we will explain, we determine that the trial court erred when it failed to stay the three-year terms imposed for defendants’ active participation in a criminal street gang. We reject defendants’ remaining claims. Accordingly, we order the judgments modified to stay the three-year terms imposed on count 2 and affirm the judgments as modified.