Gutierrez

Defendants and appellants Steve Gonzales, Andrew Gonzales and Eddie Gutierrez appeal from judgments in case No. B088840 after a jury trial in which they were convicted of second degree murder, four counts of attempted murder, and shooting at an occupied motor vehicle. Their second degree murder sentences were enhanced pursuant to Penal Code section 12022.5, subdivision (b)(1) for causing the death of an occupant of a motor vehicle by discharging a firearm. In the published portion of this opinion, we conclude that the enhancement is applicable only to a defendant who personally discharges a firearm and whose firearm discharge causes the death or great bodily injury.

In the unpublished portion of the opinion, we address defendants’ remaining contentions. Defendants contend insufficient evidence supports their convictions, testimony of a witness’s subjective fear of retaliation was improperly admitted and a mistrial should have been declared after a juror was excused. Steve further contends the trial court erred in failing to hold an adequate Marsden hearing, denying his request to represent himself and refusing to hear his request for substitute counsel to prepare a new…