People v. Miller

A jury convicted Eric Hunter of conspiracy to commit willful, deliberate and premeditated murder with malice aforethought (Pen. Code, § 182) and Larry Eugene Miller of accessory after the fact (Pen. Code, § 32), as a lesser included offense of conspiracy to commit willful, deliberate and premeditated murder with malice aforethought. In bifurcated proceedings, the trial court found that each defendant had committed his crime for the benefit of a street gang. (Pen. Code, § 186.22, subd. (b)(1).) Both were sentenced to prison and appeal. Miller contends that his postarrest statements and the recordation of a witness’s past recollection should not have been admitted. Hunter joins him in this latter argument. Miller also contends that the prosecutor engaged in prejudicial misconduct. We reject all these contentions and affirm Miller’s conviction. Hunter additionally contends that the jury was misinstructed as to the offense for which he was convicted. We agree with Hunter that the jury was misinstructed and therefore reverse his conviction, which moots his remaining contentions about another jury instruction error and insufficiency of the evidence as to the enhancement. We…