The People v. Ambriz CA2/4

INTRODUCTION

Appellants Fernando Ambriz and Freddy Ambriz appeal from judgments of 1 conviction for first degree murder. They contend (1) the trial court erred in declining to hold a hearing to examine alleged juror misconduct, (2) the court erred in denying a mistrial motion brought after a prosecution witness mentioned he had previously arrested Fernando, (3) there was instructional error with respect to Freddy‟s role as an aider and abettor, and (4) the 10-year gang enhancement must be stricken. The People concede there was sentencing error. We affirm the convictions, and remand for resentencing in light of this opinion.

STATEMENT OF THE CASE

A jury found appellants guilty of the crime of first degree murder of 2 Shaquana Watson (Pen. Code, § 187, subd. (a)). It found true the special allegation that the crime was committed for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b)(1)(C). As to Fernando, the jury found that he personally discharged a firearm within the meaning of section 12022.53, subdivision (d). As to Freddy, the jury found true the allegation that a principal personally used a firearm within the meaning of section…