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People v. Cruz6/13/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
At the conclusion of a trial lasting five weeks, the jury's deliberations extended over the course of three days before it found the defendants, Manuel Cruz and Thomas Hernandez, guilty of first degree murder of one victim and attempted premeditated murder of four others. The jury also sustained numerous gun enhancements (the only material ones of which alleged that the defendants either personally fired a gun or personally fired a gun with resulting great bodily injury or death), an enhancement for committing the offenses to further criminal gang conduct, and a special circumstance allegation of committing the murder by firing a gun from a motor vehicle. The court imposed identical sentences on each defendant: life without possibility of parole, consecutive life terms for the four attempted murders and the three aggravated gun enhancements, and a consecutive 43-year term for the two lesser gun enhancements and the gang enhancement. The court stayed all of the other enhancements.
On appeal, the defendants have a welter of contentions. In connection with the conduct of the trial, they contend the court should have granted use immunity to certain defense witnesses, the court erred in preventing a testifying accomplice from being questioned about a pending wrongful death action against him, the prosecutor committed misconduct during closing argument, and the court erred in instructing the jury that it should not consider the possible reasons why others were not being prosecuted along with the defendants. They assert the special circumstance is unconstitutional. Finally, in regard to sentencing they argue the court could not impose sentence on the gang enhancement or the aggravated firearm enhancements; their aggregate subordinate prison terms are unconstitutionally long; the trial court erred in failing to declare expressly that their liability for victim restitution and fines is joint and several; and the trial court erred in imposing a suspended fine to become effective only in the event of the revocation of their parole. We will modify the imposition of certain fines and otherwise affirm.
Facts
There not being any challenge to the sufficiency of the evidence nor any error requiring us to assess prejudice, we may be succinct in relating the facts underlying the convictions. During an evening of drinking, the two defendants and three companions discussed attacking rival gang members outside a home where a party was being held. After rejecting the alternative of shooting at them on foot, the defendants decided to shoot from their car. They killed one of the partygoers. They then followed another car leaving the same party, firing on the four occupants when it stopped to let off one of the passengers.
The People originally included the defendants and two of their companions in the complaints in this matter. The third companion was the subject of murder charges in juvenile court (a fact the jury eventually learned). One of the co-defendants eventually testified for the prosecution pursuant to a plea bargain that, as he acknowledged before the jury, reduced his liability as a full co-defendant to a single conviction for attempted murder. The jury acquitted the other co-defendant on all counts.
Discussion
I.
A.
During the presentation of the defense case, counsel alerted the co
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