P. v. Yin 4/14/05 CA2/8

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2005 » P. v. Yin 4/14/05 CA2/8

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171170

Case Date: 07/20/2005

Preview:Filed 4/14/05 P. v. Yin CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. DARA YIN, Defendant and Appellant.

B171170 (Los Angeles County Super. Ct. No. NA053759)

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur R. Jean, Jr., Judge. Affirmed as modified. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, William T. Harter, Carl N. Henry and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

INTRODUCTION Appellant Dara Yin challenges his murder, attempted murder, and shooting at an occupied motor vehicle convictions on the grounds the trial court erred by denying his continuance request to attempt to raise money to retain counsel; insufficient evidence supports the jury's gang-related murder special circumstance and gang enhancement findings; gun use enhancements were improperly imposed upon him; the "drive-by" special circumstance violates the Eighth Amendment; the trial court erred by failing to instruct the jury, sua sponte, that appellant was required to personally premeditate and deliberate in order for the jury to find attempted murders were premeditated and deliberated and that appellant could be convicted of assault with a deadly weapon as a lesser offense included within attempted murder; Penal Code section 654,1 the merger doctrine, and section 12022.53, subdivision (j) bar enhancement of his sentence of life without parole under section 12022.53; the trial court erroneously applied minimum parole eligibility dates under the gang enhancement statute; and the abstract of judgment erroneously includes fines the court did not impose. We conclude the trial court did not abuse its discretion by denying appellant a continuance to attempt to raise money to retain counsel. Ample evidence supports the jury's findings on the gang enhancement allegations and the gang-related murder special circumstance. Section 12022.53 enhancements were correctly imposed upon appellant because the jury properly found gang enhancement allegations against him to be true. The "drive-by" special circumstance does not violate the Eighth Amendment, as a special circumstance need not differ from elements of the underlying offense. The trial court did not commit instructional error because an attempted murder may be found to have been premeditated and deliberated without personal premeditation or deliberation by the defendant, and assault with a deadly weapon was not a lesser offense included in the
1

All further code references are to the Penal Code.

2

attempted murder charges. Section 12022.53, subdivision (j) bars enhancing appellant's sentence of life without parole under section 12022.53. Additionally, the judgment must be modified by eliminating references to minimum parole eligibility periods, which are inapplicable, and fines not imposed by the trial court. BACKGROUND AND PROCEDURAL HISTORY Appellant was the front-seat passenger in a car driven by Thaisan Nguon. The rear seat passengers were Thaisan's brother Thailee Nguon and Choeun Mean. All four belonged to the Crazy Brother Clan ("CBC") gang in Long Beach. They stared harshly at Vutha Tea and Sattia Nin in the parking lot of the Department of Motor Vehicles ("DMV") office in Long Beach. After Tea and Nin collected their friend Sina Mao, who had business at the DMV, they drove out of the parking lot. Thaisan pulled his car in behind Tea's car and followed it. He accelerated to draw beside Tea's car, and Thailee fired a gun at Tea's car. Tea was fatally wounded by a gunshot wound to the head. Mao was also shot in the head, but survived with brain damage and other permanent injuries. Nin was not wounded. A jury convicted appellant of first degree murder with special circumstances, two counts of attempted murder, and shooting at an occupied motor vehicle. With respect to the murder charge, the jury found two special circumstance allegations true: (1) the murder was committed by means of firing a gun from a motor vehicle; and (2) appellant intentionally aided and abetted the murder while he was an active participant in a criminal street gang, and the murder was carried out to further the gang's activities. The jury also found true three gun-use allegations pertaining to the murder charge: a principal personally and intentionally fired a gun, causing death; a principal personally and intentionally fired a gun; and a principal used a gun. The jury found that both attempted murders were willful, deliberate, and premeditated. With respect to the attempted murder of Mao, the jury found a principal personally and intentionally fired a gun, causing great bodily injury; a principal personally and intentionally fired a gun; and a principal used a gun. With respect to the attempted murder of Nin, the jury found a

3

principal personally and intentionally fired a gun and a principal used a gun. The jury also found that all of the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang. On the murder conviction, the trial court sentenced appellant to life in prison without the possibility of parole, plus 25 years for discharging a gun, causing death (

Download P. v. Yin 4/14/05 CA2/8.pdf