The People v. Gonzalez CA4/2

I. INTRODUCTION

A jury found defendants Charles Gonzalez and Frank Marshall Martinez guilty as

charged of the premeditated, attempted murders of Lamar Clemmons and Derek Edwards

(counts 1 & 2), assaulting Clemmons and Edwards with a firearm (counts 3 & 4), and the

second degree robbery of Edwards (count 5). (Pen. Code, §§ 664, 187, subd. (a), 245,

subd. (a)(2), 211.)1 The jury found multiple firearm enhancements true in each count,

and great bodily injury (GBI) enhancements against Martinez in counts 4 and 5.

(§§ 12022.53, subds. (b), (c), (d), 12022.5, subd. (a), 12022.7, subd. (a).) Gonzalez was

sentenced to 54 years to life, and Martinez was sentenced to 59 years to life.

We reverse Martinez’s conviction in count 1 and Gonzalez’s convictions in counts

2 and 4 based on insufficient evidence. The prosecution tried the case based solely on the

theory that each defendant directly perpetrated each attempted murder and each firearm

assault on each victim. Hence no aiding and abetting instructions were given on counts 1

through 4; they were only given on the robbery charge in count 5. As will appear, this

was a mistake on the part of the prosecution.

We also agree…