People v. Aquino CA4/3

FACTS

Aquino drove fellow gang member Ricardo Cruz into rival gang territory. When Aquino stopped the car, Cruz got out and fired a gun several times at men who he thought were rival gang members. One of the bullets struck nine-year-old X.M. who was playing in front of her apartment with her two younger sisters. As her Father began to run outside, X.M. walked through the front door holding her two younger sisters to protect them. X.M.’s father held his unresponsive and bleeding daughter as she passed away. 2 An information charged Aquino, and Cruz, with the following: murder for a criminal street gang (Pen. Code, §§ 187, subd. (a), 186.22, subd. (b)(4), 190.2, subd. (a)(22), all further statutory references are to the Penal Code) (count 1); gang offense (§ 186.22, subd. (a)) (count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3); and possession of a firearm on school grounds (§ 626.9, subd. (b)) (count 4). The information alleged Aquino vicariously discharged a firearm causing death as to count 1 (§ 12022.53, subds. (d), (e)(1)), and committed the offenses for a criminal street gang as to counts 3 and 4 (§ 186.22, subd. (b)(1)). The information also…