People v. Duarte CA6

I. INTRODUCTION

Defendant Giovanni Duarte appeals after a jury convicted him of second degree murder. (Pen. Code, § 187.1) The jury found true an allegation that defendant personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and an allegation that defendant committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)). The trial court sentenced defendant to a prison term of 15 years to life for the murder, with a consecutive term of 25 years to life for the firearm allegation. The trial court did not impose a separate term for the gang enhancement, which provided for a minimum parole eligibility term of 15 years. (§ 186.22, subd. (b)(5); see People v. Lopez (2005) 34 Cal.4th 1002, 1007 (Lopez).)

1 All further statutory references are to the Penal Code unless otherwise indicated. On appeal, defendant’s arguments concern testimony by the prosecution’s gang expert regarding the ties between defendant’s gang, Varrio Mountain View (VMV) and the Nuestra Familia prison gang. Defendant contends there was inadequate foundation for the gang expert’s testimony and that the prosecution violated…