P. v. Borja
Jose Anthony Borja appeals from the judgment entered after his conviction by a jury on one count of attempted murder, five counts of assault with a firearm and one count each of shooting at an occupied motor vehicle and an inhabited dwelling. As to six of the counts, the jury also found true the special allegations Borja had personally used a firearm and, as to all of the counts, had committed the offenses for the benefit of a criminal street gang. Borja contends the testimony of the Peoples gang expert was insufficient to support the gang enhancement under Penal Code section 186.22 and violated his constitutional right to have a jury decide the ultimate issue of fact. He further contends four of the assault convictions should be reversed on the grounds they were lesser included offenses of count 7 (shooting at an occupied vehicle) and the evidence failed to establish the intent required to support those charges. Finally, he contends, and the People agree, the trial court incorrectly calculated the gang enhancement portion of his sentence. In light of this and an additional sentencing error, Court reverse and remand for resentencing. In all other respects, Court affirm.
Comments on P. v. Borja