Ten years later, the superior court received a letter from the California Department of Corrections and Rehabilitation (CDCR), recommending that the court recall and resentence defendant under section 1170, subdivision (d). The letter stated that the court should not have imposed both the GBI and gang enhancements in light of People v. Gonzalez (2009) 178 Cal.App.4th 1325, 101 Cal.Rptr.3d 135 ( Gonzalez ). Defendant filed a motion agreeing with CDCR's recommendation and also requesting the court to apply Proposition 57 and transfer jurisdiction to the juvenile court (he was 15 years old at the time of the offense).
He contends his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory was eligible for relief under section 1170.95, and the trial court erred in denying his petition as he made a prima facie showing of eligibility. He also contends, and the People properly concede, that the sentence imposed is unauthorized under People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). In an unpublished opinion, we agreed the sentence was unauthorized and remanded for resentencing; we affirmed the order denying defendant's section 1170.95 petition, consistent with then prevailing case law that defendants convicted of attempted murder were not eligible for resentencing under section 1170.95. (People v. Phothirath (Oct. 20, 2021, C092316) [nonpub. opn.].)
He contends his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory was eligible for relief under section 1170.95. He also contends, and the People properly concede, that the sentence imposed is unauthorized under People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). We agree the sentence is unauthorized and remand for resentencing, and affirm the order denying defendant's section 1170.95 petition.
II. Gonzalez In People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the court applied Rodriguez to a situation identical to the instant case. The defendant in Gonzalez was convicted of one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and the jury found he personally inflicted great bodily injury on a person other than an accomplice in the commission of a felony (§ 12022.7, subd. (a)); and that the assault was a "violent felony" committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
(Rodriguez, supra, 47 Cal.4th at pp. 508-509.) Applying the Supreme Court's reasoning in Rodriguez, the Court of Appeal in People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328 (Gonzalez), concluded that imposition of both the three-year great bodily injury enhancement and the 10-year gang enhancement violated section 1170.1, subdivision (g). That court explained:
(Rodriguez, supra, 47 Cal.4th at p. 509.) Accordingly, the Rodriguez court held that the imposition and execution of both enhancements violated section 1170.1, subdivision (f), and remanded the matter for resentencing to allow the trial court to restructure its sentencing choices. (Rodriguez, supra, at p. 509; see also People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1328 [applying Rodriguez in concluding imposition of both a three-year great bodily injury enhancement (§ 12022.7, subd. (a)) and a 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) when the gang enhancement is based on the defendant's infliction of great bodily injury violated section 1170.1, subdivision (g)].) In this case, count 2, assault with a firearm (§ 245, subd. (a)(2)), qualified as a violent felony subject to a 10-year term under section 186.22, subdivision (b)(1)(C), only because the jury found the firearm and great bodily injury enhancements (§§ 12022.5, subd. (a), 12022.7, subd. (a)) true as to that count.
(§ 1170.1, subd. (f); Rodriguez, supra, 47 Cal.4th at pp. 508-509.) Applying the Supreme Court’s reasoning in Rodriguez, the court of appeal in People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, 1330-1332 (Gonzalez) concluded that imposition of both the three-year great bodily injury enhancement and the 10-year gang enhancement violated section 1170.1, subdivision (g). Section 1170.1, subdivision (g) provides, in relevant part: “When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.”
Both sentence enhancements were attached to inmate Morales's section 245 offense." The letter cited People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), for the proposition that the trial court should not have imposed both enhancements because they were both based on the same great bodily injury inflicted in the course of the underlying offense. The prosecution filed a written opposition to the recall on the ground that resentencing would deprive the prosecution of the benefit of the bargain it received as part of Morales's plea agreement.
Defendant waived preparation of a probation report, and the trial court imposed sentence immediately after the plea and admissions, sentencing defendant to a total of 22 years in prison, computed as follows: the upper term of four years on the charged count, doubled to eight years based on defendant's admission of a prior serious felony conviction, enhanced for 14 more years—10 years for committing a serious or violent felony for the benefit or, at the direction of, or in association with a criminal street gang, three years for personal infliction of great bodily injury, and one year for the prior prison term. In September 2018, pursuant to section 1170, subdivision (d), the Secretary of the Department of Corrections sent a letter to the superior court noting that the court should consider whether, under People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the court erred in imposing both the gang (§ 186.22, subd. (b)(1)(C)) and the great bodily injury (§ 12022.7, subd. (a)) enhancements. Section 1170, subdivision (d) provides in relevant part: "When a defendant . . . has been sentenced to be imprisoned in the state prison . . . , the court may . . . at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence."
In September 2018, the Secretary of the Department of Corrections and Rehabilitation (DCR) sent a letter authorizing Gonzalez to be resentenced pursuant to section 1170, subdivision (d). The DCR's letter requested the court consider People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez). Gonzalez moved to recall his sentence and transfer jurisdiction of the case back to the juvenile court.