People v. Carbajal CA1/1

Filed 5/31/24 P. v. Carbajal CA1/1 (corrected version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A168441 v. ALBERTO HERNANDEZ (Del Norte County CARBAJAL, Super. Ct. No. CR-PB-19-5041) Defendant and Appellant.

Alberto Hernandez Carbajal has appealed this conviction twice before. He now challenges a prison sentence comprised of indeterminate and determinate terms imposed by the trial court after a July 2023 resentencing hearing. We vacate the sentence and remand for resentencing. The court failed to designate a principal term among the determinate terms and impose the full term for that sentence. (Pen. Code,1 § 1170.1, subd. (a).) In all other respects, we affirm.

1 All statutory references are to the Penal Code.

I. BACKGROUND2 In 2017, while serving a life sentence, Carbajal participated in a riot that severely injured several correctional officers. A jury convicted him of 16 counts of assault in connection with the incident. Eight were counts of assault by a life prisoner by means of force likely to produce great bodily injury (assault by a life prisoner), and the other eight counts were assault by a state prisoner by means of force likely to produce great bodily injury (assault by a state prisoner). The trial court sentenced him to 59 years to life in prison, which included five years for a prior serious felony enhancement. In his first appeal, we reversed seven of the convictions for assault by a life prisoner and one conviction for assault by a state prisoner, and we remanded the matter for resentencing. (People v. Carbajal, supra, A161025.) On remand, the trial court sentenced Carbajal to 31 years to life in prison. He appealed. We again reversed and remanded for resentencing. We concluded defense counsel rendered prejudicial ineffective assistance at the resentencing hearing. (People v. Carbajal, supra, A165143.) The trial court held a third resentencing hearing in July 2023. In total, it sentenced Carbajal to an indeterminate term of 26 years to life in prison. The sentence was comprised of nine years to life on the conviction for assault by a life prisoner (count 15), doubled due to a prior strike conviction. On three of the convictions for assault by a state prisoner (counts 1, 2, and 3), the court imposed three consecutive