(Super. Ct. No. 07F02356)
The opinion of the court was delivered by: Hull , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Manuel Jose Cervin of second degree murder (Pen. Code, §§ 187, 189; unspecified section references that follow are to the Penal Code) and found defendant committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury also found true a firearm use enhancement (§ 12022.53, subds. (b), (c), (d), (e)(1)), and the trial court subsequently imposed an aggregate sentence of 40 years to life.
On appeal, defendant contends that (1) the court violated constitutional guarantees in refusing to bifurcate the gang allegation, (2) a gang expert offered improper opinion testimony, (3) there is insufficient evidence to support the gang enhancement, and (4) the court erred in instructing the jury on the natural and probable consequences doctrine. None of these claims has merit and we therefore affirm the judgment.
Late one night, as the victim and his girlfriend drove up to the victim's house and prepared to turn left into the driveway, they found their way blocked by an occupied car. When the car did not move, the victim honked the horn. The blocking car drove down the street, the couple turned into the driveway, and the victim got out. The other car, which had driven forward a few houses, backed up and blocked the driveway again. The driver rolled down the window and the occupants said something to the victim, who raised his hands and yelled, "What the fuck?" The occupants of the car were smirking. The passenger in the front seat leaned toward the driver's side of the car, pointed a gun out of the window and shot the victim, killing him. The car then sped off.
A subsequent investigation revealed defendant to be the driver of the car and a leader of a gang associated with the Nortenos. The three other passengers were fellow gang members. One had shown defendant a gun earlier in the day. The group subsequently went to a park and then a pizza parlor where defendant admired the video game shooting skills of another person, and stated that he wanted to shoot someone.
An information charged defendant with first degree murder and alleged a firearms and gang enhancement.
At trial, an expert witness described gang behavior, particularly that of the Nortenos. In response to a series of hypothetical questions, he testified that gang members often have their weapons with them and occupants of a car would have known of their presence. He explained the importance of maintaining respect in a gang, and said that a gang member would need to respond to any perceived disrespect to avoid being thought of as weak.
Defendant admitted being a gang member and the driver of the car, but argued that the shooting was unconnected to gang activity.
The jury acquitted defendant of first degree murder but convicted him of the lesser included offense of second degree murder. It also found the charged enhancements to be true. The court sentenced defendant to an aggregate prison term of 40 years to life, and this appeal followed.
Refusal to Bifurcate Gang ...