People v. Lopez CA3

I. BACKGROUND

On May 8, 2016, Victor stopped at a liquor store. As he walked out, defendant asked him if he was from around there. Victor said yes. Defendant asked, “Do you bang?” Victor said “no” and left. Later that day, Victor and two other men went to buy food for a barbecue. Victor drove. When he stopped at a stop sign at an intersection, he noticed a black SUV that was stopped even though it had the right of way and no stop sign. Co-defendant Stephon Ramirez, who was in the passenger seat of the black SUV, pointed a semiautomatic firearm at Victor’s vehicle. Defendant was jumping up and down in the driver’s seat and saying, “pop it, pop it.” Ramirez pulled the trigger several times and racked the weapon several times. The gun did not fire. Based on a hypothetical set of facts that mirrored the evidence, the prosecution’s firearms expert opined that there was a malfunction that the operator of the weapon was trying to clear.

II. DISCUSSION

A. Instructions on Attempted Shooting at an Occupied Vehicle With respect to the crime of attempted shooting at an occupied vehicle, the trial court instructed the jury that the People had to prove: “One, the defendant took a direct…