People v. See CA5

INTRODUCTION

In March 2011, appellant Mouseng See, who is a documented gang member, fired two shots at a police officer while running from him. As relevant to this appeal, a jury convicted him in count 1 of attempted premeditated murder (Penal Code, §§ 187, subd. (a), 664, subds. (e), (f))1 and in count 2 of assault with a semiautomatic firearm (§ 245, subd. (d)(2)), finding true the gang enhancements (§ 186.22, subd. (b)) in both counts. In addition, the jury convicted appellant in count 4 of carrying a loaded firearm (§ 12031, subd. (a)(1)), and found true that he did so as an active participant of a criminal street gang (§ 12031, subd. (a)(2)(C)), resulting in a felony conviction. On appeal, appellant raises seven issues: First, he contends the trial court erred by failing to consider the merits of his pretrial motion wherein he sought to strike the gang enhancements in counts 1 and 2. Second, he argues the trial court breached its sua sponte duty to provide a gang limiting instruction to the jury. In the alternative, he alleges his trial counsel rendered ineffective assistance for not seeking such an instruction. Third, he maintains the jury instructions and verdict for count…