People v. Hernandez CA5

Filed 10/19/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084420 Plaintiff and Respondent, (Super. Ct. No. 14CMS1997) v.

ANGEL HERNAN HERNANDEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Peña, J. and Snauffer, J.

Appointed counsel for defendant Angel Hernan Hernandez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending the trial court erred in denying his petition for resentencing under Penal Code section 1170.126.1 We affirm the trial court’s denial of the petition. BACKGROUND On April 30, 2014, defendant and other inmates, all gang members, planned to “ ‘hit’ ” a correctional officer with a shank. On February 29, 2016, the Kings County District Attorney filed a second amended information charging defendant with conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a); count 1) and conspiracy to commit an assault upon a custodial officer (§§ 182, subd. (a)(1), 245.3; count 2). As to both counts, the information further alleged defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)). The information further alleged defendant had suffered three prior serious felony convictions (§ 667, subd. (a)) and three prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On March 2, 2016, a jury found defendant not guilty on count 1 and guilty on count 2, and found true the criminal street gang and prior conviction allegations. On July 19, 2016, the trial court concluded that only two of the priors were separately brought and tried. The court sentenced defendant to 40 years to life in prison as follows: 25 years to life on count 2 pursuant to the Three Strikes law, plus a five-year gang enhancement and two five-year prior serious felony conviction enhancements.