P. v. Botello
Patrick Joseph Botello, Jr. appeals from his conviction, following a jury trial, for second degree murder, attempted murder, discharging a firearm at an inhabited dwelling, and active participation in a criminal street gang—including true findings on various sentencing allegations for gang involvement and firearm use and discharge.
Botello challenges his convictions, alleging various instructional errors; abuse of the trial court’s discretion in allowing a gang expert to briefly describe a prior “bad actâ€; insufficiency of the evidence in support of the gang involvement allegations; insufficiency of the evidence in support of one of the firearm use and discharge allegations; and ineffective assistance of counsel.
Botello also challenges his sentence, contending that a 10-year consecutive term for the gang involvement allegation was invalid; that the fines imposed for restitution and parole revocation restitution exceeded the statutory maximum allowed; and that the trial court failed, as required by statute, to determine his ability to pay before imposing a probation report fee.
We conclude that Botello’s assertions of error during trial are without merit, except for two instructional errors which were not prejudicial. Accordingly, we affirm Botello’s convictions and the true findings on the sentencing allegations.
All of Botello’s challenges to his sentence have merit and, with the exception of the challenge to the probation report fee, are unopposed by the People. We reverse Botello’s sentence and remand to the trial court for a resentencing hearing.
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