People v. Perez CA2/2

BACKGROUND

Perez and Montecino were both charged in count 1 with the second degree robbery of Victor Medina (Medina), in violation of section 211. It was also alleged, pursuant to section 186.22, subdivision (b)(1)(C), that the crime was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist criminal conduct by gang members. In count 2 Montecino was charged with the second degree robbery of Felipe Calderon (Calderon), while personally using a firearm in the commission of the crime within the meaning of section 12022.53, subdivision (b). As to both counts it was alleged that Montecino was out of custody on bail when he committed the crimes, within the meaning of section 12022.1, and that he suffered a prior conviction for which he served a prior prison term as described in section 667.5. Defendants were jointly tried. In court 1 the jury found Perez guilty as charged, and found true the gang allegation, but found Montecino not guilty.

Montecino also filed a petition for writ of habeas corpus on the same ground, in case No. B258597. We have denied the petition in a separate…