Opinion
F074184
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ANGEL HERNAN HERNANDEZ, Defendant and Appellant.
Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CMS1997)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Ellison, J.†
-ooOoo-
Defendant Angel Hernan Hernandez contends on appeal that the trial court erred in applying a five-year gang enhancement instead of a 15-year minimum term for parole eligibility. The People concede and we agree. Accordingly, we strike the former and impose the latter.
BACKGROUND
On March 2, 2016, defendant was convicted by jury trial of conspiracy to commit assault with a deadly weapon upon a custodial officer (Pen. Code, §§ 182, subd. (a)(1), 245.3; count 2). The jury found true the allegations that defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1-5)) and that he had suffered three prior felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)(1)) and within the meaning of section 667, subdivision (a)(1).
All statutory references are to the Penal Code. --------
On July 19, 2016, the trial court sentenced defendant to 40 years to life in prison: 25 years to life on count 2 pursuant to the Three Strikes law, plus five years for the gang enhancement (§ 186.22, subd. (b)(1)(B)) and 10 years for two prior serious conviction enhancements (§ 667, subd. (a)(1)).
On August 5, 2016, defendant filed a notice of appeal.
DISCUSSION
Where a gang allegation is found true, section 186.22, subdivision (b)(1)(B) provides for a five-year enhancement if the underlying crime is a serious felony under section 1192.7, subdivision (c). Conspiracy to commit assault with a deadly weapon upon a custodial officer is a serious felony under that statute.
If, however, the offense is a "felony punishable by imprisonment in the state prison for life," then section 186.22, subdivision (b)(5) applies instead and imposes a minimum term of 15 years before the defendant may be considered for parole. (§ 186.22, subd. (b)(5) [person "shall not be paroled until a minimum of 15 calendar years have been served"]; People v. Lopez (2005) 34 Cal.4th 1002, 1005-1011 [in that situation, § 186.22, subd. (b)(5) applies instead of § 186.22, subd. (b)(1)]; People v. Fiu (2008) 165 Cal.App.4th 360, 390 ["if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in subdivision (b)(5) is applicable"].)
A sentence of 25 years to life imposed under the Three Strikes law, such as the one imposed here, is considered a life sentence subject to section 186.22, subdivision (b)(5). (People v. Williams (2014) 227 Cal.App.4th 733, 742-745.) Thus, here, the trial court should have imposed the 15-year minimum term for parole eligibility rather than the five-year enhancement.
DISPOSITION
The five-year gang enhancement imposed pursuant to Penal Code section 186.22, subdivision (b)(1)(B) is stricken. A 15-year minimum term for parole eligibility is imposed pursuant to Penal Code section 186.22, subdivision (b)(5). As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and forward certified copies to the appropriate authorities.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.