People v. Nyako CA2/5

FACTS AND PROCEDURAL BACKGROUND

I. Underlying Crimes

In April 2015, defendant and three fellow Blood gang members confronted Eugene Cooley (Cooley), who was a member of a rival Crips gang, at a gas station in Crips territory. One of the men in defendant’s group demanded to know Cooley’s gang

All further statutory references are to the Penal Code unless otherwise indicated.

Effective June 30, 2022, section 1171.1 was renumbered section 1172.75, with no substantive change. (Stats. 2022, ch. 58, § 12; People v. Burgess (2022) 86 Cal.App.5th 375, 378, fn. 2.) For simplicity, we refer to the section by its current numbering.

2 affiliation. Defendant shot Cooley as Cooley attempted to flee, but Cooley survived. At trial, defendant testified that he shot Cooley because he believed Cooley was “going for a gun.” Surveillance video cameras at the gas station captured the confrontation.

II. Charges, Conviction and Sentencing

The People charged defendant with attempted murder (§§ 664, 187). The People also alleged that the attempted murder was premeditated, that defendant personally used a firearm (§ 12022.5, subd. (a)), that he personally inflicted great bodily…