Cervantes

Ubaldo Cervantes, Jose Martinez and Cesar R. Morales appeal the judgments entered after conviction by jury of first degree murder and attempted willful, deliberate and premeditated murder. (Pen. Code, §§ 187, 664.) The jury that tried Morales and Cervantes, as well as the jury that tried Martinez, found the offenses had been committed for the benefit of a criminal street gang and that a principal personally discharged a firearm causing death as to the murder count, and a principal personally discharged a firearm causing great bodily injury as to the attempted murder count. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The jury that tried Martinez found he personally discharged a firearm in the commission of both counts. (§ 12022.53, subd. (c).) The trial court sentenced Martinez to a term of 84 years to life in state prison and sentenced Cervantes and Morales to terms of 80 years to life in state prison.

In the published portion of the opinion, we reject the claim that evidence of a statement made by Morales to his neighbor regarding the underlying incident should not have been presented at trial as against nondeclarants Cervantes and Martinez. In the…