(Super. Ct. No. SF109486B)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Billy Chum of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 1),*fn1 threatening a witness (§ 140; count 2), street terrorism (§ 186.22, subd. (a); count 4), and street gang activity (§ 186.26, subd. (a); count 5). The jury also found true the allegations that each of the offenses was committed for the benefit of a street gang (§ 186.22, subd. (b)(1)), and that count 5 was committed by recruiting a minor for street gang activity (§ 186.26, subd. (d)). The trial court sentenced defendant to nine years and eight months in state prison.
On appeal, defendant contends (1) the information was improperly amended to substitute a different victim in count 2 after he waived his right to a preliminary hearing, (2) insufficient evidence supports his conviction of threatening a witness, (3) the trial court erred in admitting testimony by a detective that defendant knew about the conviction of a fellow gang member, and (4) section 654 precluded separate prison terms for his conviction of counts 1 and 2.
We conclude that the trial court erred in allowing the People to amend count 2 of the information during trial. Our conclusion obviates the need to consider defendant's remaining contentions, each of which hinges upon his conviction of count 2. We remand the case to the trial court for resentencing on the remaining counts of conviction and sentence enhancements.
FACTUAL AND PROCEDURAL HISTORY
In an amended complaint, the San Joaquin County District Attorney charged Rodney Noch and defendant with several offenses related to the beating of Uon Un. In pertinent part, the amended complaint alleged that defendant dissuaded a witness, Uon Un, in violation of section 136.1. During a preliminary hearing on the charges faced by Noch and defendant, Noch reached a negotiated plea agreement. Defendant then waived the remainder of the preliminary hearing. The evidence presented during the preliminary hearing focused on the beating of Uon Un, but did not show any threat to Emily Un.*fn2
An information was subsequently filed that charged, in count 2, that "[o]n or about 09/09/2008 the crime of THREATENING A WITNESS, in violation of Section 140 . . . , a FELONY, was committed by BILLY CHUM, who at the time and place last aforesaid, did willfully and unlawfully threaten to use force and violence upon UON UN, or did take, damage and destroy property of said victim because said victim provided assistance and information to a law enforcement officer and a public prosecutor in a criminal and juvenile court proceeding."
A jury trial commenced, during which the People introduced evidence that defendant is a member of the Tiny Raskal Gang and participated in attacking Uon on September 9, 2008. The People also introduced evidence that defendant's assault on Uon was meant to retaliate against Emily for her testimony against other members of the Tiny Raskal Gang.
Amendment of Count 2 of the Information to Allege a Different Victim Defendant contends the trial court erred in allowing the People to amend the information to substitute Emily for Uon as ...