People v. Luke CA2/2

BACKGROUND

Prior proceedings After a preliminary hearing defendant was charged with the willful, deliberate and premeditated attempted murder of Jonathan McDaniel in violation of sections 187, subdivision (a) and 664 (count 1), shooting at an occupied motor vehicle in violation of section 246 (count 2), and possession of a firearm by a felon in violation of section 29800, subdivision (a)(1) (count 3.) As to counts 1 and 2, it was alleged pursuant to section 186.22,

All further unattributed code sections are to the Penal Code unless otherwise stated. Former section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) We refer to the current section 1172.6 in this opinion.

2 subdivision (b)(1)(C) the charged offenses were committed for the benefit of or in association with a criminal street gang. It was further alleged as to count 1 that defendant personally used and intentionally discharged a firearm in the commission of the crime within the meaning of section 12022.53, subdivision (c), and he personally used a firearm within the meaning of section 12022.5, subdivision (a). As to all counts it was alleged defendant had suffered a…