P. v. Macklin and Sawyer
In this case two gang members lured a friend out of his house and tried to shoot him to death for allegedly being a snitch. When the shooting began the friends uncle ran to his aid and dragged him back inside the house as the gang members continued shooting. The gang members were charged with attempted murder, assault with a semiautomatic firearm, shooting at an inhabited dwelling and related criminal street gang and gun use allegations/enhancements. With certain exceptions, the jury convicted them of the charges and found true the gang and gun use allegations. The gang members appeal, alleging the trial court committed numerous instructional and sentencing errors. They also claim the evidence is insufficient to support their convictions for shooting at an inhabited dwelling. Court find no prejudicial error warranting reversal and accordingly affirm the judgments of conviction. On the other hand, we find the trial court erred in imposing an upper term sentence based on facts not found by the jury beyond a reasonable doubt in violation of Cunningham v. California. Accordingly, Court vacate the sentence imposed on one of the convictions and remand for resentencing.
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