P. v. Vo
Defendant appeals from a judgment of conviction entered after a jury found him guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 189, 664 - count 1), assault with a firearm ( 245, subd. (a)(2) - count 2), and possession of a firearm by a felon ( 12021, subd. (a)(1) - count 3). As to count 1, the jury found that defendant personally discharged a firearm and proximately caused great bodily injury ( 12022.7, 12022.53, subd. (d)). As to count 2, the jury found that defendant personally used a firearm and personally inflicted great bodily injury ( 12022.5, subd. (a), 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had four prior strike convictions ( 667, subds. (b) - (i), 1170.12), two prior serious felony convictions ( 667, subd. (a)), and one prior prison term ( 667.5, subd. (b)). The trial court sentenced defendant to 68 years to life in prison consecutive to a determinate term of 11 years.
On appeal, defendant contends: (1) there was insufficient evidence that he acted with premeditation and deliberation; (2) the trial court erred in failing to instruct the jury that count 2 was a lesser included offense of count 1; (3) the trial court erred in failing to instruct the jury on accomplice testimony; (4) the trial court erred in instructing the jury pursuant to CALJIC No. 2.11.5; (5) the trial court erred in excluding evidence that certain witnesses were on probation; (6) trial counsel rendered ineffective assistance by failing to object to the admission of hearsay evidence; (7) the trial court improperly coerced the jury; (8) cumulative error requires reversal; (9) there was insufficient evidence that defendants Minnesota convictions were serious felonies; (10) the trial court erred in imposing sentence on a prior prison term enhancement under section 667.5, subdivision (b); and (11) section 654 bars imposition of sentence on count 3. Court conclude that there was insufficient evidence that defendants prior convictions were serious felonies and that the trial court erred in imposing sentence on a prior prison term enhancement. Accordingly, the judgment is reversed.
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