P.

I. INTRODUCTION

A jury convicted Steven Hector Alcaraz (defendant) of second degree murder (Pen. Code,1 § 187, subd. (a)) (count 1) and shooting at an occupied vehicle (§ 246) (count 5). The jury acquitted defendant of three counts of attempted murder (§§ 664, 187, subd. (a)) (counts 2, 3, 4). The jury found as to counts 1 and 5: a principal personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subds. (d) & (e)(1)); and the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd (b)(1)(C)). Defendant was sentenced to 65 years to life in state prison. This was the third time defendant was tried for these crimes. We remand for resentencing as to count 5 and certain other modifications, and otherwise affirm the judgment.

II. THE EVIDENCE

We view the evidence in the light most favorable to the verdict. (People v. Griffin (2004) 33 Cal.4th 1015, 1028; People v. Barnes (1986) 42 Cal.3d 284, 303.) Defendant participated in a gang-related assault on September 22, 2006. He was driving in his home neighborhood when he saw a GMC Yukon occupied by Javier Nuno, Jr., his brother, Fernando Nuno, Javier’s2 girlfriend, Janett Ramirez,…