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People v. Hernandez

California Court of Appeals, Third District, San Joaquin

January 12, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ARTURO HERNANDEZ, Defendant and Appellant.

THE COURT:

The opinion of this court filed on December 11, 2014, 232 Cal.App.4th 278; ___ Cal.Rptr.3d ___ in the above entitled case is modified as follows and the petition for rehearing is DENIED:

On page 2, in the second line of the first paragraph [232 Cal.App.4th 281, advance report, 1st full par. of the opinion, line 2], delete “61” and insert “an effective term of 68” in its place.

On pages 2 and 3 [232 Cal.App.4th 282, advance report, 2d full par., delete the first sentence of the paragraph that begins “The trial court sentenced” and insert the following in its place: 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.

On page 3 [232 Cal.App.4th 282, advance report, fn. 2], delete the sentence in footnote 2 and insert the following in its place: The court stayed the sentences for being an accessory to a felony and for the third assault pursuant to Penal Code section 654.

On page 14, delete the second paragraph in footnote 11 [232 Cal.App.4th 283, advance report, fn. 11. 2d par.].

On page 15, in the seventh line of the paragraph in the footnote [232 Cal.App.4th 283, advance report, fn. 11, 3d par., line 7], delete “61” and insert “68” in its place.

Page 1249b

On page 15, in the ninth line of the paragraph in the footnote [232 Cal.App.4th 283, advance report, fn. 11, 3d par., line 9], delete “77” and insert “84” in its place.

On page 15, in the 10th line of the paragraph in the footnote [232 Cal.App.4th 283, advance report, fn. 11, 3d par., line 10], delete the parenthetical phrase “(even though it was based on a calculation error).”

On page 22, at the end of the paragraph immediately preceding the heading “DISPOSITION" [232 Cal.App.4th 289, advance report, 1st full par., line 7], insert a new footnote (12) containing the following text: In a petition for rehearing, the People argue for the first time that the trial court erred by calculating the determinate terms for the two assault convictions the court imposed consecutively as subordinate terms. The People request that we “address this issue to provide guidance to the trial court on remand.” We decline to do so, as the People have presented this argument both belatedly -- in a petition for rehearing -- and inadequately -- in a footnote. The People may raise this issue on remand, however, in connection with defendant’s resentencing.

The petition for rehearing is denied. This modification affects the judgment.


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