Anzalone

Scott C. Anzalone was convicted of four counts of willful, deliberate and premeditated attempted murder, grossly negligent discharge of a firearm, being a felon in possession of a firearm, being a felon in possession of ammunition and attempted vehicle theft. As to the attempted murder and firearm discharge offenses, the jury made true findings on various firearm and weapon use allegations. Anzalone was sentenced to a prison term of 42 years six months plus two consecutive life terms. He appeals, arguing instructional error with regard to his defense of alibi, prosecutorial misconduct, instructional error concerning the intent element of attempted murder, ineffective assistance of counsel and sentencing error.

After the filing of the original opinion in this case, our Supreme Court granted review and ordered the case held pending decision in People v. Smith (2005) 37 Cal.4th 733 [ 37 Cal.Rptr.3d 163 , 124 P.3d 730 ]. After deciding Smith , the court transferred the matter to this court for reconsideration.

FACTS

A. Prosecution Case

1. Newport Avenue

On July 11, 2002, Che Love, Joe Diez, Kelly McGuire and Paul Foster went surfing. When they finished, Love and Diez…