P. v. Pena
Defendant Ronald Pena appeals from the judgment entered following a jury trial in which he was convicted of three counts of attempted murder, three counts of assault with a firearm, and a single count of possession of a firearm by a felon. Defendant admitted an allegation that he had suffered a prior serious or violent felony conviction within the scope of the “Three Strikes†law (Pen. Code, § 667, subds. (b)–(i)) and was sentenced to a second strike term.[1] Although he was not asked to admit the allegation, defendant’s sentence included a prior serious felony enhancement pursuant to section 667, subdivision (a)(1).
Defendant contends the trial court erred by denying his motion for a judgment of acquittal at the close of the prosecution’s case-in-chief with respect to one of the three counts of attempted murder. We conclude one of defendant’s attempted murder convictions must be reversed because the evidence at the close of the prosecution’s case-in-chief was insufficient to show that defendant specifically intended to kill more than two people. Thus the trial court should have granted defendant’s motion for acquittal with respect to one of the attempted murder counts.
Defendant further contends that he was not advised of his rights before admitting the second strike allegation (§ 667, subd. (b)–(i)) or the prior serious felony enhancement allegation (§ 667, subd. (a)). The Attorney General concedes this point. We further note that the trial court only asked defendant to admit the strike allegation, not the prior serious felony enhancement allegation (§ 667, subd. (a)(1))and the prosecutor offered no proof of that enhancement allegation.
Comments on P. v. Pena