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Wensel v. Martel

June 17, 2009

SHAW RONALD WENSEL, PETITIONER,
v.
MICHAEL MARTEL, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Shaw Wensel is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the California Department of Corrections and Rehabilitation's ("CDCR") calculation of his minimum eligible parole date ("MEPD").

Upon careful consideration of the record and the applicable law, it is recommend that this petition for habeas corpus relief be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

On July 17, 1995, the San Joaquin County Superior Court sentenced petitioner as follows:

THE COURT: Okay. Count Number 1, the Court will sentence the defendant on the charge of 664/187 of the Penal Code, attempted murder, with the special findings that the attempted murder was willful, deliberate, premeditated, he is sentenced to the life term. Probation is denied.

In terms of the enhancements, first of all, we have the 12022.5 use of the firearm, for that particular enhancement, the Court will select the mid term which is the four years.

And then for the 12022.7 the great bodily injury, the Court picks the three years. Of course, that's the statutory amount. So it's a total of seven years to life on Count Number 1.

That's the indeterminate term under 1168 of the Penal Code.

In turning to the determinate term, the Court will rule that this will be a consecutive sentence, and for the reason is that the objectives in the first count and the second and third count were independent and not dependent upon one another.

The Court, however, is going to make the (sic) Count 2 and Count 3 run concurrently. And for that reason, the Court can cite that the crimes were committed at the same place and represent a single period of aberrant behavior.

Count Number 2, the charge of 664/459 of the Penal Code, first degree attempted burglary, the Court will select the mid term on that, total of two years.

For the 12022.5, the use of the firearm, it will impose the mid term of four years and stay that, since we have imposed that in the indeterminate term.

Also, the 12022.7, the great bodily injury, we will impose the three year term on that and also stay, because we sentenced him on the ...


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