P. v. Momoh
Azeez Momoh appeals the judgment entered after a jury convicted him of attempted willful, deliberate, premeditated murder (Pen. Code[1], 664/187, subd. (a)); first degree burglary ( 459, 460, subd. (a)); assault with a semiautomatic firearm ( 245, subd. (b)); threatening a witness ( 140, subd. (a)); dissuading a witness by force or threat ( 136.1, subd. (c)(1)); two counts of false imprisonment by force or violence ( 236); misdemeanor false imprisonment ( 237, subd. (a)); and possession of a firearm by a felon ( 12021, subd. (a)(1)). Momoh admitted three prior convictions as to the section 12021, subdivision (a)(1) charge, and also admitted the allegations that he had served three prior prison terms ( 667.5, subd. (b)). The jury also found true the allegations that Momoh personally inflicted great bodily injury in committing the attempted murder ( 12022.7, subd. (a)), and that he personally used a firearm in committing the assault with a firearm and one count of false imprisonment, and in threatening and dissuading a witness ( 12022.5). Prior to sentencing, the trial court dismissed count 7 (false imprisonment of Rian Frazier) due to insufficient evidence ( 1118.1). Momoh was sentenced to a total term of life with the possibility of parole plus 23 years two months, consisting of: life for the attempted murder plus three years for the great bodily injury enhancement, a consecutive upper term of nine years for the assault with a firearm count plus an additional 10 years for the firearm enhancement, eight months (one-third the midterm) for the false imprisonment of Marquis Smaulding, and six months for the misdemeanor false imprisonment. He contends (1) the evidence is insufficient to support his attempted murder conviction; (2) the evidence is insufficient to support his conviction for felony false imprisonment of Marquis Smaulding; (3) the trial court abused its discretion in admitting certain gang evidence pursuant to Evidence Code section 352; (4) the court violated its sua sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter; (5) the court had a sua sponte duty to give a pinpoint instruction on provocation; and (6) he was sentenced to the upper term in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856]. Court affirm.
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