Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR525788
NEEDHAM, J.
Antonio Carranza Huerta (Huerta) appeals from a judgment of conviction and sentence imposed after he pleaded no contest to willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)) and admitted a gang allegation (§ 186.22, subd. (b)(5)). He contends the minute order from the sentencing hearing and the abstract of judgment incorrectly set forth the proper sentence.
All statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Huerta was charged with: attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a); see §§ 189, 664, subd. (a)); willful and malicious discharge of a firearm from a motor vehicle (§ 12034, subd. (c)); willful and malicious discharge of a firearm at an inhabited dwelling house (§ 246); and assault with a semiautomatic firearm (§ 245, subd. (b)). It was further alleged, as to one or more of the offenses, that Huerta committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b); 1203.06, subd. (a)(1)).
Huerta entered a plea of no contest to the charge of attempted murder (§ 664/187), admitted that the attempt was of a murder that was willful, deliberate and premeditated (see §§ 189, 664, subd. (a)), and admitted a gang “enhancement” pursuant to section 186.22, subdivision (b)(5), in exchange for dismissal of the remaining charges and a stipulated term of “15 years to life” in state prison.
The presentence report recommended a prison term for the attempted murder of “fifteen (15) years to life with the possibility of parole.” The report asserted that the “base term” for the attempted murder offense was life with the possibility of parole, and 15 years to life pursuant to section 186.22, subdivision (b)(5), for a total prison term of 15 years plus life with possibility of parole. The report noted that “the 186.22 (b)(5) [Penal Code] enhancement increases the MPE [minimum parole eligibility] on life terms to 15 years.”
On November 6, 2008, the court imposed sentence as follows: “So probation is denied; you’re ordered committed to the California Department of Corrections and Rehabilitation for 15 years to life with possibility of parole.”
The minute order of the same date shows a sentence of life with possibility of parole for attempted murder and 15 years to life with parole after consideration of the section 186.22, subdivision (b)(5) “enhancement.”
The abstract of judgment shows a sentence of 15 years to life with possibility of parole for attempted murder, and 15 years to life “on [the] enhancement” of section 186.22, subdivision (b)(5).
Huerta filed a notice of appeal, and the court granted his request for a certificate of probable cause.
II. DISCUSSION
As mentioned, Huerta pleaded no contest in exchange for a stipulated term of “15 years to life.” The minute order from the sentencing hearing indicates a sentence of life with possibility of parole for attempted murder, and 15 years to life as the total term after consideration of the section 186.22, subdivision (b)(5) “enhancement, ” for a “total aggregate sentence” of “15 years to life” with parole. The abstract of judgment shows a sentence of 15 years to life with possibility of parole for attempted murder, and 15 years to life “on [the] enhancement.” Huerta contends the minute order and the abstract of judgment should be corrected to state Huerta’s sentence is “ ‘life’ with a minimum of 15 calendar years before parole.” The Attorney General agrees.
Huerta pleaded no contest to the charge of willful, deliberate, and premeditated attempted murder. Under section 664, subdivision (a), for the crime of “attempted... willful, deliberate and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.” Huerta’s sentence on count one, therefore, is life imprisonment with possibility of parole.
Huerta also admitted the truth of the section 186.22, subdivision (b) allegation, pertaining to the commission of a felony for the benefit of, at the direction of, or in association with a criminal street gang. Section 186.22, subdivision (b)(5), provides in part that “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” Therefore, Huerta’s minimum term before parole eligibility is 15 years.
The Attorney General further agrees that, in this context, section 186.22, subdivision (b)(5), is not a sentence enhancement, but a penalty provision that affects when Huerta will become eligible for parole. (See People v. Jefferson (1999) 21 Cal.4th 86, 101.)
The abstract of judgment must be amended to show a life sentence with possibility of parole (§ 664, subd. (a)), with a minimum term of 15 years before parole eligibility (§ 186.22, subd. (b)(5)). This is the proper sentence and consistent with the stipulated term in Huerta’s plea agreement. The minute order, which describes the base term as “life w[ith] parole” and a total aggregate term of “15 years to life” with “parole, ” is reasonably read to set forth the proper sentence, shall be deemed to set forth the proper sentence, and need not be amended. Huerta does not demonstrate in this appeal any basis for reversal of the judgment itself.
Huerta has also filed a petition for writ of habeas corpus and request for judicial notice (appeal no. A126446). We deferred the question of whether to issue an order to show cause, and the request for judicial notice, pending this appeal. By separate order, we now deny the habeas petition and the request for judicial notice.
III. DISPOSITION
The judgment is affirmed. The abstract of judgment shall be amended to show a life sentence with possibility of parole, with a minimum term of 15 years before parole eligibility.
We concur. SIMONS, Acting P. J., BRUINIERS, J.