P. v. Hernandez
Defendant was convicted after jury trial of attempted murder (Pen. Code, SS 664, 187), shooting at an occupied motor vehicle (S 246), and assault with a deadly weapon or by means of force likely to produce great bodily injury (S 245, subd. (a)(1)). The jury found true allegations that defendant personally and intentionally discharged a firearm in the commission of the attempted murder (S 12022.53, subd. (c)), and that all the offenses were committed for the benefit of, or in association with, a criminal street gang (S 186.22, subd. (b)). The trial court sentenced defendant to the indeterminate term of 15 years to life consecutive to the determinate term of eight years. On appeal, defendant contends that the trial court prejudicially erred in (1) instructing the jury with CALJIC No. 1.22; (2) instructing the jury with CALJIC No. 2.50; (3) failing to instruct the jury on negligent discharging of a firearm (S 246.3) as a lesser included offense of shooting at an occupied motor vehicle; (4) refusing his co defendant's request to instruct the jury on accomplice testimony; and (5) allowing the gang expert to testify regarding the motive for the offenses. Defendant also contends that there was sentencing error. Court disagree with all but the last contention, and court remand the matter for resentencing on count 3, the assault count.
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