Guilty Verdict Overturned in Street Murders : Appeal: Jury instructions held improper. Gang member was convicted of slaying rival and a 4-year-old boy.

Citing improper jury instructions by the trial court, an appeals court has reversed the conviction of a gang member who was convicted in 1990 of conspiracy to commit murder for his role in the killing of a 4-year-old boy and a rival gang member.

The 4th District Court of Appeal ruled that Superior Court Judge Tully H. Seymour, who presided over the trial of Roman Gabriel Menchaca, should have instructed jurors that they could consider conspiracy to commit second-degree murder as a conviction.

Second-degree murder is murder without premeditation, carrying a maximum sentence of 15 years to life in prison. Menchaca, who was 21 at the time, received 25 years to life for conspiracy to commit murder.

“It is in error to fail to instruct the jury (that) . . . such a crime does exist,” the appellate justices wrote in their unanimous decision released Thursday. “We must reverse for retrial or reduction to a lesser offense, at the district attorney’s option.”

Deputy Dist. Atty. Douglas H. Woodsmall, who heads the gang unit, said his office has not decided whether to appeal the decision to the state Supreme Court or to retry the case.

The appeals court noted that the Sept. 16, 1989, shooting on La Bonita Avenue in Garden Grove was one of the most violent gang-related incidents in the county.

Just after dark, a pickup truck with two young men in back drove slowly past a group of people gathered in cars and on the street. The men in the truck opened fire with semiautomatic rifles and shot at random toward the crowd.

Frankie Fernandez Jr., 4, who was sitting with his family in a car waiting to go to the movies, was shot to death. So, was Miguel (Smokey) Navarro, 17, who had been talking with friends. Six others were wounded.

Police said Navarro, a 17th Street Gang member, may have been the target of the drive-by shooting. His attackers, police said, were members of the 5th Street Gang.

In November, 1990, Louis P. Valadez, then 30, and Robert P. Figueroa, then 23, were convicted of two counts of first-degree murder with special circumstances and 11 counts of attempted murder. Both were sentenced to life imprisonment.

Menchaca, who was tried separately, was sentenced in October, 1990, for conspiracy to commit murder only. His jury deadlocked on the other counts, which were eventually dropped.