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People v. Vilan10/24/2001
A jury convicted Shaun Adam Vilan of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), during the latter of which he inflicted serious bodily injury (Pen. Code, § 12022.7). In bifurcated proceedings, he admitted being on O.R. (own recognizance) while he committed the second assault. (Pen. Code, § 12022.1.) He was sentenced to prison for eight years. He appeals, claiming evidence was improperly admitted and excluded, the jury was misinstructed and sentencing error occurred. We reject his contentions, save the last, and remand the matter for resentencing, while affirming the convictions and findings.
Facts
Vilan hit the victim of the first incident in the face with a beer bottle during a melee outside the victim's home on November 9, 1996. On March 29, 1998, Vilan hit the victim of the second incident in the face with a beer bottle during a party. Issues and Discussion
1. Admission of Other Acts Evidence
Before trial began, the People moved to introduce evidence of past acts committed by Vilan. In their moving papers, the prosecutor described the charged offenses as follows:
On November 9, 1996,Vilan, his two co-defendants, and four or five others, in two cars, drove by the first victim's house in Temecula. One of the cars swerved towards this victim, who was standing outside with his brother and two others. The cars were parked and the occupants approached this victim and his brother. Vilan and his cohorts began pushing and challenging the first victim, who said that he did not know them and did not want to fight. They also attacked the victim's brother and his male companion. The victim's brother attempted to ward them off with pepper spray. Unsuccessful, he went inside and had his mother call 911. The attack continued. Vilan's female co-defendant poured a beer over the victim's mother when she came outside and hit the victim over the head with a can of beer, which exploded on contact. Vilan broke a bottle of beer on the victim's face and continued to hold the broken bottle in his hand. Afraid that he would stab the victim with the broken bottle, the victim's brother hit Vilan over the head with a wrench, ending Vilan's participation in the melee. The brother also used the wrench to hit Vilan's male co-defendant on the arm after the latter brandished a knife at the mother and repeatedly assaulted the brother with it.
On March 29, 1998, Vilan and his co-defendants were at a birthday party at the home of a friend. Vilan approached another guest, sniffed him and told him that he smelled like white trash. The two squared off, but, before any blows were attempted, the victim of the second count stepped in to stop them. Vilan struck him in the face with a bottle of beer, breaking the bottle.
The prior incidents began with a birthday party on August 17, 1996, attended by, inter alia, Vilan and his co-defendants. When the victim, another guest, saw Vilan and his co-defendants ransacking the room of the host's father, he tried to stop them. Vilan's female co-defendant smashed a jewelry box over the victim's back. Vilan and his male co-defendant then attacked the victim. The victim temporarily escaped, but was later tripped in the hall and again attacked by Vilan and his male co-defendant. The attackers punched the victim and stomped him on the head with steel toed boots.
In September 1996, the brother of the victim of the first count and a third brother attended a party. When the third brother was alone, Vilan and two other men attacked him. They punched him, knocked him to the ground and kicked him.
In November 1997, another victim and his girlfriend were sitting in t
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