People v. Hernandez CA5

Filed 3/4/21 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F080208 Plaintiff and Respondent, (Super. Ct. No. VCF182700) v.

MANUEL HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Clara M. Levers and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Meehan, J. and DeSantos, J.

Defendant Manuel Hernandez was convicted of shooting at an occupied vehicle and three counts of assault with a firearm. He contends on appeal that the trial court erred in (1) denying his request to hold proceedings to create a record for a youthful offender parole hearing—commonly referred to as Franklin proceedings—pursuant to Penal Code section 1203.11 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and (2) imposing both firearm and gang enhancements on the assault with a firearm convictions. The People agree with defendant on both issues. We vacate the sentence and remand with direction for the trial court to strike the firearm enhancements, resentence defendant, and conduct Franklin proceedings. PROCEDURAL SUMMARY On November 30, 2007, the Tulare County District Attorney filed an information charging defendant, who was 17 years old on the date of the charged offenses, with attempted murder of R.M. (§§ 187, subd. (a), 664; count 1), attempted murder of A.G. (§§ 187, subd. (a), 664; count 2), attempted murder of A.A. (§§ 187, subd. (a), 664; count 3), shooting at an occupied vehicle (§ 246, count 4), assault with a firearm of R.M. (§ 245, subd. (a)(2); count 5), assault with a firearm of A.G., (§ 245, subd. (a)(2); count 6), and assault with firearm of A.A. (§ 245, subd. (a)(2); count 7). The information further alleged that defendant committed all offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). As to counts 1 through 3, the information alleged defendant was personally armed with and discharged a firearm (§ 12022.53, subds. (b), (c), (e)(1)) and as to counts 5 through 7, the information alleged defendant personally used a firearm (§§ 667, subd. (c), 1197, subd. (c), 12022.5). On October 3, 2008, the jury found defendant guilty on counts 4 through 7, but not guilty on counts 1 through 3. As to counts 4 through 7, the jury found true the gang allegations and the firearm allegations.