Defendant's conviction for attempted unpremeditated murder and related firearm offenses is affirmed where: 1) trial court did not err in a failure to give an instruction not supported by the evidence on what was asserted to be a lesser included offense; 2) there is no infirmity in the wording of CALCRIM Nos. 105 and 226, and they were properly given in the case; and 3) CALCRIM No. 600 correctly states the law. Defendant's sentence is remanded with directions to the trial court to stay the sentence on count 4 and exercise its discretion to impose or strike the second enhancement found under section 667.5(b).
Filed September 8, 2009
Opinion by Judge Ardaiz
For Appellant: Victor Blumenkrantz
For Respondent: Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General