Filed 7/20/21 P. v. Balbuena CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO THE PEOPLE, B303752 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104376) v. JOHNNY BALBUENA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed as modified. Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________ In an amended information filed by the Los Angeles County District Attorney’s Office, defendant and appellant Johnny Balbuena was charged with the murder of Raymond Vasquez (Vasquez). (Pen. Code, § 187, subd. (a);1 count 1.) Firearm and gang enhancements were also alleged. Defendant was tried with codefendant Ulises Jose Gutierrez (Gutierrez), who had also been charged in the amended information with count 1, as well as two additional counts of murder (§ 187, subd. (a), counts 8 & 9) and three counts of attempted murder (§§ 664, 187, subd. (a); counts 5, 6 & 7). The jury found defendant guilty of first degree murder in count 1 and found it true that a principal personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d) & (e)(1)) and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury convicted Gutierrez of counts 1, 5, 6, 7, and 8, but found him not guilty of count 9.2 The trial court sentenced defendant to an aggregate term of 50 years to life, comprised of 25 years to life for the murder and an additional and consecutive 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)). The court also imposed a 15-year parole ineligibility term for the gang enhancement (§ 186.22, subd. (b)(5)). In this timely appeal, defendant argues that (1) the trial court abused its discretion by denying defendant’s motion to 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 We previously affirmed the judgment against Gutierrez. (People v. Gutierrez (May 25, 2021, B302264) [nonpub. opn.].) 2 sever his trial from Gutierrez’s and that the subsequent joint trial violated due process; (2) the trial court committed instructional error by failing to sua sponte instruct the jury (a) not to consider evidence admitted on the counts not involving defendant and (b) that it must find each element of the charge in count 1 beyond a reasonable doubt; (3) cumulative error denied defendant …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals