People v. Luna CA2/5

INTRODUCTION

Defendants and appellants Nestor Luna (Luna) and Domingo Pena (Pena) were tried together before separate juries. Luna’s jury found him guilty of first degree murder. (Pen. Code, §187, subd. (a)1.) Pena’s jury found him guilty of first degree murder (§ 187, subd. (a)), found true personal and principal firearm use and discharge allegations (§ 12022.53, subds. (b), (c), (d), & (e)(1)), and found true the allegation that Pena committed the murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, (b)(1)(c)). The trial court sentenced Luna to 25 years to life and Pena to 50 years to life in state prison. On appeal, defendants contend the trial court violated their right to confront a witness when it allowed the prosecution to read the witness’s preliminary hearing testimony; and the trial court erred in failing to instruct their respective juries on the lesser included offense of voluntary manslaughter based on a sudden quarrel or heat of passion. Luna also contends that his first degree murder conviction is not supported by…