P. v. Armstrong 8/29/11 CA3

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C063362

Case Date: 11/30/2011

Preview:Filed 8/29/11

P. v. Armstrong CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. TONY ARMSTRONG, Defendant and Appellant.

C063362 (Super. Ct. No. 08F05656)

Along with six others, defendant Tony Armstrong was charged with murdering Jose Guerrero on Memorial Day in 2008. There was

no evidence defendant was present when Guerrero was shot to death; instead, the prosecution contended defendant was guilty of the murder because just before the shooting, he aided and abetted the offense of fighting or challenging another person to fight, and the murder was the natural and probable consequence of that target offense. The jury found defendant guilty of

first degree murder, and the trial court sentenced him to 50 years to life in prison.

1

On appeal, defendant contends:

(1) there was no

substantial evidence he aided and abetted the target offense; (2) the jury instructions on the natural and probable consequences doctrine were erroneous; and (3) his trial attorney was ineffective for failing to object to improper opinion testimony from a gang expert and improper argument by the prosecutor. We conclude the evidence was sufficient to support defendants conviction and defendant has failed to prove he received ineffective assistance of counsel; however, we agree the jury instructions were erroneous because they did not allow the jury to consider whether defendant might have been guilty of only second degree murder under the natural and probable consequence doctrine, even if the shooter committed first degree murder. Consistent with our prior decisions on this issue, we

will reverse defendants conviction and remand for a retrial unless the People accept a reduction of the conviction to second degree murder. FACTUAL AND PROCEDURAL BACKGROUND The victim, Jose Guerrero, lived on Lindley Drive in Sacramento, in an area known as the Flats. At the time of his

death, he had lived there for about eight years with his wife, Celica Cardenas, and their children.1

1

Together, Guerrero and Celica had two young daughters, and Celica had three other children of her own -- a daughter and two sons. 2

The Flats is predominantly controlled by two street gangs, the Norte

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