People v. Cano CA4/2

BACKGROUND

The facts of the offense are not relevant to our resolution of the issue presented on

appeal, and were set out in full in our opinion on defendant’s direct appeal (People v.

2 Cano, (April 2, 2004, E033115) [nonpub. opn.]), so we do no recite them here. Suffice it

to say that the charges arise from gang-related shootings that killed one person, and

injured another, at a birthday party. (People v. Cano, supra, E033115, pp. 3-4].)

Defendant was tried by a jury and convicted of one count of first degree murder

(Pen. Code, § 187,1 subd. (a), count 1), two counts of discharging a firearm at an

inhabited dwelling house (§ 246, counts 2 & 3), three counts of assault with a

semiautomatic firearm (§ 245, subd. (b), counts 4, 5, 10), and one count of possession of

a semiautomatic firearm by an ex-felon.2 (Former § 12021, subd, (a)(1), count 6.) As to

count one, the jury found true a special allegation that the murder was committed for the

benefit of a criminal street gang, within the meaning of section 190.2, subdivision

(a)(22), as well as a separate gang enhancement pursuant to section 186.22, subdivision

(b)(1), and that defendant personally discharged a firearm…