Lepe

Defendant Henry Jimenez Lepe was convicted of one count of first degree murder, in violation of Penal Code section 187, subdivision (a). The jury found a personal use of a firearm allegation to be true. The trial court sentenced defendant to a term of 29 years to life in state prison. He appeals.

Facts

On June 13, 1995, between 6:30 and 6:45 p.m., Gabriel Mercado and Danny Gonzales were walking along Archibald Avenue in Ontario. Gabriel Mercado testified at the preliminary hearing that defendant, an acquaintance of theirs, came up behind him, walked up to Danny Gonzales, and fired a shot. Mr. Gonzales died of his wound. Since Mr. Mercado was unavailable at the time of trial, his preliminary hearing testimony was read to the jury.

David T. Moore and his two sons were driving on Archibald Avenue at the time of the shooting. One son, David C. Moore, testified that they were stopped at a traffic light when he saw the two men walking on the sidewalk. As he watched, a red truck stopped behind them. A man, identified by the witness as defendant, jumped out of the truck bed, and walked up to one of the men on the sidewalk. Although the witness did not hear a gunshot, he…