People v. Sims CA3

BACKGROUND

In April 2013, defendant fired three shots at his niece’s boyfriend (a member of a rival gang), striking the boyfriend in the arm. The jury found defendant guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a))1 and making criminal threats (§ 422), also finding true enhancement allegations that defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b), (c)) and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the trial court also found true an allegation that defendant had a prior serious felony conviction. (§ 667, subd. (a).) The trial court sentenced defendant to seven years to life for the attempted murder, doubled for the prior strike conviction; 20 years for the firearm enhancement; 10 years for the gang enhancement; three years for the criminal threats conviction, doubled for the prior strike; and a five-year term on each conviction for the prior serious felony enhancement. In the first appeal, this court reversed the gang enhancement because there was no substantial evidence that a primary activity of defendant’s gang was any of the enumerated offenses in section…