P. v. Yang
A jury found defendant Teng Yang guilty of firing a nine-millimeter semiautomatic handgun into a crowd of young people outside a dance. Defendant contends the trial court erred in denying his motions to have the jacket he was wearing that night tested for gunshot residue or, alternatively, to appoint new counsel to investigate whether his attorneys failure to have done that before or during trial constituted ineffective assistance of counsel. Further, he argues: (1) the court erred in admitting statements detectives elicited from him in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] and in admitting evidence obtained in a warrantless search; (2) substantial evidence does not support the jurys gang enhancement finding; (3) the court erred in denying his motion to bifurcate the trial of the gang enhancement allegation from the trial on the assault charge; (4) one of the jury instructions proposed by the People should not have been given; and (5) imposition of the upper terms for assault and a firearm enhancement violated his Sixth Amendment rights. We conclude the expert opinion testimony proffered in support of the gang enhancement does not rise to the level of substantial evidence and we shall reverse that finding. Court also conclude the upper terms were not properly imposed here. In all other respects, Court affirm the judgment.
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