Rodriguez

Mynor Arnold Rodriguez, a minor tried as an adult, appeals from his conviction of second degree murder. He contends the identification of him as a suspect resulted from a photograph obtained during an illegal “gang sweep” field interrogation and thus his motion to suppress the photograph and subsequent identifications should have been granted. He also contends the court erroneously imposed the aggravated term for gun use, claiming his use of a gun was no worse than ordinary. We affirm the conviction, but remand for resentencing.

On October 21, 1990, Roberto “Eddie” Gonzalez, the murder victim, was walking to a convenience store in the City of Orange with his friends, Esteban De Paz, Juan Martinez and Edmundo Sanchez. They had just crossed Tustin Avenue when three Hispanic youths riding bicycles overtook them. One, later identified as Rodriguez, got off his chrome bicycle and challenged Eddie to reveal any gang affiliation. Included in Rodriguez’s comments was the phrase, “Puro South Side.” When Eddie did not respond, Rodriguez punched him in the face. Eddie backed away, and Rodriguez pulled a small pistol from his pants, pointed it at Eddie’s chest and pulled the…