P.

I. INTRODUCTION

Defendant and appellant Manuel Chaira, Jr., appeals from his conviction of

attempted deliberate and premeditated murder (Pen. Code,1 §§ 664, 187; counts 1 & 2);

assault with a firearm (§ 245, subd. (a)(2)); counts 3 & 4) and gang participation

(§ 186.22, subd. (a); count 5), along with true findings on enhancement allegations

(§§ 12022.53, subd. (c), 186.22, subd. (b), 12022.53, subd. (d), and 12022.7, subd. (a)).

He contends his convictions for attempted murder must be reversed, because the evidence

was insufficient to establish an intent to kill, and his sentence of 20 years plus 69 years to

life constituted cruel and unusual punishment. On our own motion, we requested the

parties to provide additional briefing on the following issues: (1) did the trial court err in

imposing 15-year terms for the gang use allegations as to counts 1 and 2 instead of a 15-

year minimum parole eligibility for those counts; (2) was the evidence sufficient to

establish that the attempted murders were deliberate and premeditated; and (3) did the

trial court err in failing to instruct the jury sua sponte on provocation?

We conclude the trial court erred in imposing…