People v. Diep CA4/3

FACTS

A detailed recitation of the facts was provided in People v. Diep (June 5, 2009, G039379) [nonpub. opn.] (Diep I). An amended indictment charged Diep with murder (§ 187, subd. (a); count 1), willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), and street terrorism (§ 186.22, subd. (a), count 3). As to count 1, the amended indictment alleged it was murder by drive-by shooting (§ 190.2, subd. (a)(21)), committed for a criminal street gang (§ 190.2, subd. (a)(22)), and Diep was a gang member who vicariously discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). With respect to count 2, it alleged Diep was a gang member who vicariously discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). Finally, it alleged Diep committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury convicted Diep of count 1, first degree murder, count 2, attempted murder, and count 3, street terrorism. As to count 1, the jury did not find true either of the special circumstances. With respect to count 2, the jury did not find true Diep committed attempted murder willfully,…