People v. Toscano CA5

INTRODUCTION

In April 2011, appellant Emmanuel Toscano shot and killed Gerardo V., a 16- year-old high school student, in Bakersfield. Toscano and appellants Hilario Aguero, Fernando Garcia-Santos, and Gabriel Gonzales were tried together before a jury, and each was convicted of first degree premeditated murder, with robbery and gang special circumstance findings (Pen. Code,1 §§ 187, 189, 190.2, subds. (a)(17), (22); count 1), second degree robbery (§ 211; count 2), shooting at an occupied motor vehicle (§ 246; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 4).2 Toscano was further convicted of possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5), and Aguero was convicted of assault with a semiautomatic firearm (§ 245, subd. (b); count 6) and a second count of active participation in a criminal street gang (§ 186.22, subd. (a); count 8) based on his involvement in a separate incident in August 2010.3 Numerous sentence enhancement allegations were also found to be true and appellants each were sentenced, inter alia, to life in prison without the possibility of parole for the murder and received an additional…