People v. Wilson CA4/3

Filed 5/23/14 P. v. Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G049201

v. (Super. Ct. No. FSB1000566)

KAYLIN DEJUAN WILSON, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Bryan Foster, Judge. Affirmed as modified. Patricia L. Brisbois, 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, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Kaylin Dejuan Wilson guilty of first degree murder and found the related gang and gun sentencing enhancement allegations were true. After denying his motion for a new trial, the trial court sentenced him to an aggregate term of 50 years to life, consisting of 25 years to life for the murder, plus consecutive terms of 25 years to life for one of the gun enhancements and 10 years for the gang enhancement. Wilson contends the trial court abused its discretion by denying his new trial motion. He also claims the trial court erroneously imposed the 10-year sentence for the gang enhancement under Penal Code1 section 186.22, subdivision (b)(1)(C), instead of the 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5). The Attorney General concedes the sentencing error, and we modify the judgment accordingly. We affirm the judgment in all other respects. FACTUAL AND PROCEDURAL BACKGROUND One February night in 2010, Wilson shot and killed Christopher Johnson at a party in the Pinehurst condominium projects. Wilson is a member of one criminal street gang, and Johnson was a member of another. The murder was committed for the benefit of, at the direction of or in association with Wilson’s gang. During the trial, after the prosecution rested its case in chief, and outside the presence of the jury, defense counsel, Ron Powell, stated, “it’s been my recommendation and I’m hoping my client will follow it that we will rest and rely on the state of the evidence.” The trial court told Wilson he had the right to testify on his own behalf and the right to remain silent, and that no one could force him to testify. However, the court also told him that he would be subject to cross-examination by the prosecutor if he decided to testify. The trial court then asked, “Do you want to follow your attorney’s advice and not testify or do you wish to exercise your right to testify?” Wilson replied, “Well, right now I still want to talk a little bit about that.”