California Court of Appeals, Third District, San Joaquin
[REVIEW GRANTED BY CAL. SUPREME COURT]
[As Modification on January 12, 2015]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Joaquin County No. SF113661D, Bernard Garber, Judge. Reversed.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose Arturo Hernandez was convicted of two counts of attempted murder and five other charges and sentenced to 68 years to life in prison for crimes he committed when he was 16 years old. On appeal, he contends his trial attorney was ineffective because: (1) his attorney did not move to suppress his confession; and (2) his attorney did not object to his sentence as violating the constitutional proscription against cruel and unusual punishment.
We find no ineffective assistance in counsel’s failure to move to suppress the confession because such a motion would have had no merit. We do conclude, however, that under recent decisions from the United States and California Supreme Courts, defendant’s sentence is unconstitutional. Accordingly, we reverse and remand for resentencing consistent with those decisions.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s arguments on appeal do not require a detailed recitation of the evidence or of the trial. Suffice it to say that on December 16, 2009,
defendant participated in three different gang-related shootings. A week later, defendant was arrested and interrogated by Tracy Police Detective Matthew Sierra. During the interrogation, defendant admitted being involved in the shootings.
A jury found defendant guilty of two counts of attempted murder, one count of being an accessory to a felony, three counts of assault with a firearm, and one count of shooting at an inhabited dwelling. The jury also found true a number of firearm and gang enhancement allegations.
The trial court sentenced defendant to an effective term of 68 years to life in prison, constituted as follows: a term of 15 years to life for shooting at an inhabited dwelling; a consecutive life term for one of the attempted murders (which requires service of no less than seven years in prison before parole (Pen. Code, § 3046, subd. (a)); a consecutive term of 25 years to life for the firearm enhancement on that attempted murder; a consecutive term of three years four months for one of the assaults; a consecutive term of 15 years to life for the other attempted murder; and a consecutive term of two years eight months for one of the other assaults. The court granted defendant 451 days of presentence credits. Defendant timely appealed.
Defendant’s Trial Attorney Was Not Ineffective In Failing To Move To Suppress Defendant’s Confession [*]
Defendant’s Sentence Constitutes Cruel And Unusual ...