(Super. Ct. No. 09F00092)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Minh Dang of attempted murder (declining to find that it was premeditated), and sustained firearm allegations. It also convicted him of assault with a semiautomatic gun, and sustained allegations that he used a gun and personally inflicted great bodily injury that resulted in paralysis of a permanent nature. The trial court sentenced defendant to prison.*fn1
On appeal, defendant argues there is insufficient evidence of his intent to kill to support the jury's verdict of attempted murder, or of the permanent nature of the victim's paralysis to support the enhancement finding. He also contends the court applied the wrong standard in its consideration of his motion for appointment of counsel to prepare a motion for new trial based on ineffective assistance of retained trial counsel. Finally, he maintains the trial court misspoke in sentencing him to a stayed term of seven years for the infliction of permanent paralysis. We affirm the judgment as modified.
We limit our factual account to the evidence pertinent to defendant's claims. (As he does not contest the sufficiency of the evidence identifying him as the shooter, we omit it.)
The victim was one of a group of friends walking home from the grocery store late at night after buying snacks. As they walked toward a house on Stone Cliff Way, there was a group of people in the street in front of it who had been attending a party in the house. The victim's group attempted to pass by unobtrusively. However, someone in the other group challenged them to fight (his brother having recently been the victim of a beating at the hands of a member of the racial group of the victim and his friends). This confused the victim and his friends, because they did not know any of these people.
People came out of the garage. One of them was defendant, who removed his jacket and pulled a gun out of his pants when he reached the end of the driveway. Defendant walked toward the victim's group, told them that they did not want any problems, and began firing the gun into the air. The victim's group was about two houses away. As the victim's group began to run away, defendant pointed the gun in their direction and said they needed to get out of there because he was not playing. He fired the gun at the group. The victim was shot twice in the head. He fell to the ground about five or six houses away from where defendant was shooting.
A friend of defendant testified he heard five or six shots behind him. When he turned, defendant was standing there with a gun.
Investigators retrieved casings from defendant's driveway and a spent slug from the front of a house down the street. This was consistent with defendant standing in the driveway and firing at the victim down the street.
Since the shooting, the victim was not able to walk without assistance. He needed a cane on the left and someone's support on the right to walk, according to his mother's testimony. The right side of his body was paralyzed after the shooting. The victim was unable to raise his right hand to be sworn. He was unable to dress himself without assistance. Although she believed he remembered the incident, he had trouble verbalizing because he could speak only in broken sentences. The court noted at ...