P. v. Fayette









Filed 11/22/10 P. v. Fayette CA1/4






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. MARCUS FAYETTE, Defendant and Appellant.

A125602 (San Francisco City and County Super. Ct. No. 204704)

Appellant Marcus Fayette was convicted by a jury of attempted murder (count 1), with sustained findings of firearm use and great bodily injury; assault with a semiautomatic firearm (counts 4-5), with sustained findings of great bodily injury; discharging a firearm with gross negligence (count 7); carrying a concealed firearm (count 8); and carrying a loaded firearm (count 9). All special allegations that appellant committed counts 1 through 7 for the benefit of and in association with a criminal street gang, were found untrue. The court declared a mistrial as to two additional counts of attempted murder (counts 2-3) and one additional count of assault with a semiautomatic firearm (count 6); the San Francisco District Attorney subsequently dismissed those counts. The court sentenced appellant to the lower term of five years on count 1, plus a consecutive term of 25 years to life for the gun use enhancement.[1]
This timely appeal followed.
I. FACTS
On July 4, 2007, Selvin Flores, along with Roberto Henriquez, Raul Bueso and Enrique Gonzales went to the Embarcadero near the Ferry Building to watch the fireworks. Around 10:30 p.m., Flores and his friends noticed a group of five or six persons who were looking at them. There were two women, one younger than the other; an African-American man and a Latino youth (14 to 15 years old); and a Latino man (20 to 21 years old).
People in the group asked Flores and his friends where they were â€