People v. Lewis CA6

Filed 6/22/23 P. v. Lewis CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047349 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1646378)

v.

MICHAEL JAMESLEE LEWIS,

Defendant and Appellant.

Defendant Michael Jameslee Lewis shot at several moving vehicles over the course of a few months in 2016 near Blossom Hill Road in San Jose. He was convicted by jury of 11 counts of assault with a semiautomatic firearm and related offenses. He argues on appeal that insufficient evidence supports his convictions for two of the 11 counts of assault with a semiautomatic firearm because the ballistics expert could not determine whether the lead fragments recovered from two vehicles came from a semiautomatic firearm. In addition, the parties agree that the trial court erred in calculating and applying presentence custody credit, and that defendant is entitled to the benefit of sentencing legislation enacted while this appeal was pending. We conclude sufficient evidence supports defendant’s convictions, but we will reverse the judgment and remand the matter for the limited purpose of resentencing to reflect statutory changes and to correct the presentence credit error.

I. TRIAL COURT PROCEEDINGS Defendant was charged by amended information with 11 counts of attempted premeditated murder (Pen. Code, §§ 664, 187; counts 1, 4, 7, 10, 13, 16, 19, 22, 25, 28, and 31), including special allegations that he personally discharged a firearm (Pen. Code, § 12022.53, subd. (c)); 11 counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 2, 5, 8, 11, 14, 17, 20, 23, 26, 29, and 32), including special allegations that he personally used a firearm (Pen. Code, § 12022.5, subd. (a)); 11 counts of shooting at an occupied vehicle (Pen. Code, § 246; counts 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, and 33); possession of a firearm as a felon (Pen. Code, § 29800, subd. (a)(1); count 34); possession of ammunition as a felon (Pen. Code, § 30305, subd. (a)(1); count 35); reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 36); misdemeanor resisting arrest (Pen. Code, § 148; count 37); and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 38). A. TRIAL EVIDENCE