People v. Herrera CA1/1

BACKGROUND

Defendant Marcus Herrera and Robert Frank Musial were involved in an altercation in Golden Gate Park, in which defendant wielded a 2.5-foot long wooden skateboard with metal trucks (which connect the deck of the board to the wheels). Defendant was lending aid to his friend Christian, who wanted to confront Musial over stolen marijuana. There is evidence defendant and Christian each inflicted harm of some kind on Musial. There is also evidence Musial, shortly after the confrontation with defendant and Christian, was attacked by another person, nicknamed Pandora. Later in

1 the evening, Musial died, according to San Francisco’s Chief Medical Examiner, of “probable stress-induced lethal cardiac arrhythmia.”1 A second amended information, filed March 26, 2013, charged defendant with murder (count 1), second degree robbery (count 2), and, as relevant in this appeal, two counts of assault (counts 3 and 4). Count 3 was for “assault with force likely to cause great bodily injury” under Penal Code section 245, subdivision (a)(4);2 count 4 was for “assault with a deadly weapon,” a skateboard, under section 245, subdivision (a)(1). In connection with counts 3 and 4, the…