P. v. Yin CA4/3

Filed 7/17/13 P. v. Yin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046831

v. (Super. Ct. No. 11CF2822)

SARITH YIN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseño, Judge. Affirmed as modified. J. Courtney Shevelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Sarith Yin was convicted of murder for the benefit of a criminal street gang (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(22); count one), active participation in a criminal street gang (§ 186.22, subd. (a); count two), and felon in possession of a firearm (former § 12021, subd. (a)(1);2 count three). The jury found defendant’s possession of a firearm was for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and defendant intentionally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). Defendant waived his right to a jury trial on his prior conviction allegations and, in a subsequent proceeding, the court found defendant suffered a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction. (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1) [same].) The court sentenced defendant to life in prison without the possibility of parole, with a consecutive term of 30 years to life. The court imposed concurrent terms on counts two and three. On appeal, defendant contends the evidence was insufficient to demonstrate the primary activities required to establish his gang was a criminal street gang and the trial court erred in failing to stay the sentence on the gang charge pursuant to section 654. (People v. Mesa (2012) 54 Cal.4th 191.) We agree with his second issue. We will therefore order the sentence on count two stayed pursuant to section 654 and affirm the judgment as modified. I FACTS Due to the issues presented on appeal, the facts are stated in a truncated manner. The facts pertaining to the primary activities of defendant’s gang, We Don’t Care (WDC), are set out in the discussion.