Rincon

INTRODUCTION

Defendant Mario Rincon, Jr., appeals from the judgment of conviction following a jury trial. Defendant and his codefendant, Ludwig Oswaldo Juarez, were jointly charged with the murder of John Rutherford (Pen. Code, § 187, subd. (a), count l), the attempted willful, deliberate, and premeditated murder of Frank Salas (§§ 664, 187, subd. (a), count 2), shooting at an inhabited dwelling (§ 246, count 3), and conspiracy to commit murder (§ 182, subd. (a)(1), count 4). The murder and attempted murder counts also alleged that a principal discharged a firearm (§ 12022.53, subds. (c) and (e)(1)), and that a principal personally used a firearm (§ 12022.53, subds. (b) and (e)(1)). All four counts alleged that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant and codefendant Juarez were tried concurrently by separate juries. Defendant’s jury convicted defendant on all counts, finding the murder to be of the second degree, and finding not true the allegation that the attempted murder was willful, deliberate, and premeditated. The jury found the firearm discharge and use allegations true, but found the gang enhancement…