People v. Carvajal CA2/2

BACKGROUND

In 2011 defendant was charged with the murder of Juan Ocegueda and the allegations that the crime was committed in association with a criminal street gang and that defendant personally used a deadly weapon, a knife, in the commission of the crime. Defendant was tried by a jury, which was instructed that defendant was being prosecuted under two theories: “(1) malice aforethought, and (2) felony murder” based on burglary and attempted robbery. The court instructed with CALCRIM Nos. 520, 521, 540A, 540B and 548. The jury found defendant guilty of first degree murder with a true gang finding, but found not true the allegation that he had personally used a knife. Defendant was sentenced to 25 years to life in prison, plus 10 years due to the gang finding. Upon defendant’s appeal we amended the sentence to life in prison with a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5). The judgment was otherwise affirmed in People v.

All further statutory references are to the Penal Code, unless otherwise indicated.

2 Carvajal (Sept. 19, 2013, B239135) (nonpub. opn.) (appellate opinion).2 The evidence at defendant’s 2011 trial showed that…