People v. Moore CA5

INTRODUCTION

Defendant David Lee Moore entered an illegal gaming business with three other gang members and robbed the business at gunpoint. While fleeing, the four robbers shot at a security guard and wounded him in the leg. A jury convicted defendant of attempted murder, second degree robbery, assault with a firearm, conspiracy to commit robbery and assault with a firearm, and unlawful possession of a firearm by a felon and found true multiple firearm and gang enhancements. After defendant’s trial, the Legislature substantially amended the statutes applicable to gang enhancements and sentencing. On appeal, we reversed the true findings on the Penal Code1 former section 186.22, subdivision (b)(1) gang enhancements, the section 12022.53, subdivision (e) gang-related firearm enhancements, and the section 12022.7 great bodily injury enhancement (due to an erroneous jury instruction). (People v. Moore (July 13, 2023, F082544) [nonpub. opn.].) After remand, the prosecutor declined to retry the enhancements, and the trial court resentenced defendant after declining to strike the remaining enhancements. Defendant argues that we must remand for resentencing because the trial court was…