P. v. Yun
Bobby Matters and John Lee Yun appeal their convictions for assault. Matters also appeals his conviction for dissuading a witness. The juries[1] found allegations to be true that (1) Yun’s offenses of assault by means likely to produce great bodily injury, and Matters’s offenses of simple assault and attempt to dissuade a witness were committed for the benefit of, in association with, or at the direction of a criminal street gang.
Matters contends that the trial court erred, and that reversal is required because the court, (1) improperly admitted his statement to the police obtained during a custodial interrogation; (2) failed to instruct sua sponte on the defense of necessity; (3) imposed an unauthorized sentence for his conviction for dissuading a witness; and (4) wrongly concluded it lacked the discretion to strike the Penal Code section 186.22, subdivision (b)(4) allegation.[2] Matters also contends that his trial counsel rendered ineffective assistance of counsel by failing to seek a reduction of his conviction for dissuading a witness to a misdemeanor offense. We will vacate Matters’s sentence for dissuading a witness and remand for resentencing.
Yun, in turn, maintains the trial court committed reversible by (1) failing sua sponte to give accomplice instructions; (2) admitting incendiary photographic evidence; (3) excluding evidence of a hung jury in the trial of defense witnesses. Yun also argues that cumulative errors require reversal and that an enhancement imposed under section 667.5, subdivision (b) must be stricken. We agree only with Yun’s final contention, an error the Attorney General concedes. In all other respects, we affirm.
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