Saephanh

Statement of the Case

A single-count information filed on August 12, 1998, in Kings County Superior Court charged appellant Lou Tong Saephanh with solicitation of murder in violation of Penal Code section 653f, subdivision (b). On October 7, 1998, after a two-day jury trial, appellant’s motion for acquittal pursuant to section 1118.1 was denied, and appellant was subsequently found guilty.

On November 5, 1998, after consideration of the probation officer’s report, the court denied probation. The court sentenced appellant to the upper term of nine years. On November 23, 1998, appellant filed a notice of appeal.

Facts

In October and November 1997, appellant had consensual sexual intercourse with Cassandra Y. Cassandra became pregnant and, in January 1998 while appellant was in prison, she informed appellant of her pregnancy. Appellant first asked if the baby was his and, when told it was, exclaimed, “ ‘Oh, I’ve been wanting a baby for a long time.’ ” Cassandra and appellant spoke about the baby every week and appellant was excited.

In May 1998, while still incarcerated, appellant wrote a letter dated May 22, 1998, to his friend and fellow gang member Cheng Saechao,…