P. v. Raya
Based on two separate, gang-related incidents in March and April 2001, defendant was charged in a consolidated, amended information with the attempted robbery (count 1); assaulting with a deadly weapon (S 245, subd. (a)(1), count 2); the willful, deliberate, and premeditated attempted murder of Alfonso Stollwarth (SS 187, subd. (a), 664, count 3); shooting at an inhabited dwelling (S 246, count 4); and two counts of actively participating in a criminal street gang (S 186.22, subd. (a), counts 5 & 6). It was further alleged that defendant had one prior strike conviction (S 667, subds. (c) & (e)(1)); and committed counts 1 through 4 for the benefit of a criminal street gang (S 186.22, subd. (b)). Firearm enhancements, within the meaning of section 12022.53, subdivisions (c) (personal discharge), (d) (personal discharge causing great bodily injury), and (e) (vicarious gang liability) were alleged in counts 3 and 4. Defendant admitted the prior strike conviction, and a jury found him guilty as charged and found all enhancement allegations true. Defendant was sentenced to an aggregate term of 110 years to life, plus six years four months in prison.
Defendant appeals. He contends the information did not put him on notice he was being charged with the premeditation enhancement on the attempted murder charge in count 3; insufficient evidence supports his attempted robbery conviction in count 1; the jury was erroneously instructed on the malice element of attempted murder in count 3; and the trial court erred in failing to instruct sua sponte on the lesser included offense of simple assault in count 2 and on battery as a lesser included offense in count 1. Court agree that the trial court erroneously failed to instruct on the lesser included offense of simple assault in count 2, and that the error was prejudicial. Court therefore reduce defendant's conviction in count 2 to simple assault, and remand the matter for resentencing. Court find defendant's other aforementioned claims without merit.
Defendant also raises multiple claims of pleading, instructional, and sentencing error regarding the firearm and gang enhancements in counts 3 and 4. We agree with three of defendant's claims of sentencing error. Thus, Court remand the matter for resentencing in light of these errors as well as the reduction of defendant's conviction to simple assault in count 2. In all other respects, court affirm the judgment.
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