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Name: People v. McMahon
Case #: G032347
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/30/2005
Subsequent History: Rev. gr. 10/12/05: S136165

A defendant’s statement during a custodial interrogation that he was going to call a lawyer, along with his query as to whether he could call a lawyer if he signed an advisement form, was not an unequivocal invocation of his Miranda rights, and thus the court did not err in admitting the interrogation at trial. Moreover, the evidence was sufficient to sustain six counts of attempted murder where defendant fired a total of five shots into a van at close range, killing one person with one shot and firing an additional four shots at the six remaining passengers. The court held that the number of additional occupants was immaterial and that a reasonable jury could convict the defendant of the attempted murder of each of the remaining occupants. Next, the court found sufficient evidence to support a finding that the defendant was an active participant in a criminal street gang, and rejected the argument that Penal Code section 186.22(a) applies only to aiders and abettors and not to direct perpetrators. Finally, the court rejected the argument that Penal Code section 12022.53(d) is subsumed under section 190.2(a)(21), but agreed that an enhancement under section 12022.53(c) should be stricken because the prosecution should have pled and proved that enhancement under section 12022.53(d).