People v. Hemsley CA4/2

I.

INTRODUCTION

James M. believed defendant and appellant David Hemsley was having an affair

with his girlfriend. The two men engaged in a fistfight, leading to defendant firing two

shots at James, one of which hit him in the chest.

Defendant appeals from judgment entered following jury convictions for unlawful 1 possession of a firearm by a felon (Pen. Code, § 29800, subd. (a); count 2) , unlawful

possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3), and assault with a

semiautomatic firearm (§ 245, subd (b); count 4). The jury also found true allegations

that defendant personally used a firearm and inflicted great bodily injury (GBI) in the

commission of the assault (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd.

(a)). The jury also found that defendant had a prior burglary conviction, which qualified

as a strike and a prior serious felony enhancement (nickel prior) (§§ 667, subd. (a)(1),

1170.12). The jury acquitted defendant of making a criminal threat (§ 422, subd. (a);

count 1). The court sentenced defendant to a determinate prison term of 26 years eight

months.

Defendant contends the trial court committed instructional error by…