People v. Tapia CA5

INTRODUCTION

Appellant Jeffrey Tapia shot and killed Benjamin Mendoza while he was walking home in South Bakersfield. A jury convicted appellant of second degree murder (Pen. Code, § 187, subd. (a); count 1),1 participating in a criminal street gang (§ 186.22, subd. (a); count 2), and being a felon in possession of a firearm (§ 29800, subd (a)(1); count 3), and found true enhancements for personal use of a firearm (§§ 12022.53, subd. (d), 12022.5, subd. (a)) and for acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced appellant to an indeterminate term of 15 years to life on count 1, plus an additional 25 years to life for the firearm enhancement, but stayed the remaining counts and enhancements pursuant to section 654. On appeal, appellant raises claims of instructional error, which we reject. Appellant also contends his substantive gang offense conviction and gang enhancement findings must be reversed in light of newly enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.). Respondent concedes, and we accept respondent’s concession. We reverse the conviction for the substantive gang offense and true findings for the gang…