(Super. Ct. No. SF079707A)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 October 2000, a jury convicted defendant David Hernandez of eight felonies and found true numerous sentence enhancements in connection with two gang-related shootings in October 1999. On count 4--attempted premeditated murder of Samuel Vasquez--(Pen. Code, §§ 187, subd. (a), 664)*fn1 defendant was sentenced to state prison for life with a minimum term of 15 years (§ 186.22, former subd. (b)(4) [now subd. (b)(5)]), plus 25 years to life for personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). On the remaining counts, the trial court imposed terms totaling 24 years eight months, all to run concurrent with the life term on count 4. Sentences on counts 3 (shooting at an occupied motor vehicle (§ 246)) and 5 (shooting from a motor vehicle (former § 12034, subd. (c) [now § 26100, subd. (c)]) were stayed pursuant to section 654. Defendant was awarded a total of 521 days of presentence credit (453 days of actual custody credit and 68 days of conduct credit) pursuant to section 2933.1.*fn2
Defendant appealed to this court. In an unpublished opinion filed in August 2002, we affirmed the judgment in its entirety. (People v. Hernandez (Aug. 20, 2002, C037543) (Hernandez I).)
Defendant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of California. In January 2009, the District Court granted the petition in part, ordering count 4's finding of premeditation stricken and returning the case to state court for resentencing on that count. (Hernandez v. McGrath (E.D. Cal. 2008) 595 F.Supp.2d 1111, 1120, 1127-1132 [see subsequent history].)*fn3
In October 2010, the trial court resentenced defendant on count 4 in accordance with the writ. Because the new count 4 term was less than the count 5 (shooting from a motor vehicle) term, the trial court stayed count 4 pursuant to section 654 and lifted the stay on count 5. The count 4 term is not at issue in this appeal.
On count 5, the trial court imposed the middle term of five years plus 25 years to life for personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court also ordered that defendant serve a minimum of 15 years before becoming eligible for parole, pursuant to section 186.22, former subdivision (b)(4) (now subdivision (b)(5)).
Noting that defendant "has continually been in the custody of the Department of Corrections throughout his appearance here," the trial court stated it would "not be announcing actual time, good time."
Defendant contends, and the Attorney General concedes, the trial court erred in imposing a 15-year minimum term on count 5 because the underlying offense is not punishable by imprisonment for life. The parties agree that, on remand, the trial court must recalculate defendant's actual custody time in state prison and must correct the abstract of judgment by removing count 4's reference to premeditation. We remand for resentencing.
The facts of defendant's crimes are set forth in the published opinion of the federal district court. (Hernandez v. McGrath, supra, 595 F.Supp.2d at pp. 1122-1125 [adopting facts from this court's opinion in Hernandez I, supra, C037643].) The ...