P. v. Gutierrez
Defendant appeals from the judgment entered following a jury trial in which he was convicted of robbery with a further finding that he personally and intentionally discharged a firearm (Pen. Code, 211, 12022.53, subd. (c), count 2) and shooting at an occupied motor vehicle (id., 246, count 3). (Further section references are to the Pen. Code.) The jury acquitted defendant on a charge of attempted murder ( 664/187, count 1). Defendant was sentenced to the middle term of three years on count 2, with an enhancement of 20 years for firearm use. Sentence on count 3 was stayed under section 654.
Defendant contends that (1) the evidence was insufficient to support the robbery conviction and that the trial court prejudicially erred in (2) instructing on count 2, (3) failing to instruct on a lesser included offense of count 3, and (4) responding to a jury question on count 3. Court find merit in defendants third contention and reverse count 3 on that basis, rendering it unnecessary to address defendants fourth contention. In all other respects, Court affirm.
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