People v. Cervantes CA4/2

I. INTRODUCTION

A jury found defendant and appellant Nester Cervantes guilty as charged of the

first degree premeditated murder of Chris Aguilar on July 20, 2014. (Pen. Code, §§ 187,

subd. (a), 189, subd. (a).)1 The jury also found true an allegation that defendant

personally and intentionally discharged a firearm causing great bodily injury or death in

the commission of the murder. (§ 12022.53, subd. (d).) Defendant was sentenced to

years to life: 25 years to life for the murder, plus 25 years to life for the firearm

enhancement.

In this appeal, defendant claims: (1) insufficient evidence shows the murder was

willful, deliberate, and premeditated; (2) the court erroneously failed to instruct sua

sponte on the “subjective” meaning of provocation for purposes of second degree murder;

(3) the prosecutor prejudicially misstated the law during closing argument; (4) the trial

court abused its discretion and violated his right to a jury trial in failing to investigate a

report of a juror’s possible misconduct during jury deliberations; (5) remand for

resentencing is necessary for the court to consider sentencing him on a lesser, uncharged

firearm enhancement; and (6)…