P. v. Ortiz
Defendant was charged with attempting to murder Sean DeMel, intentionally discharging and personally using a firearm causing great bodily injury, and having served three prior prison terms. He waived trial by jury, and the court found him guilty of attempted murder. The court also found the firearm allegations were true, but failed to make any findings as to the truth of the prior prison term allegations. Defendant was sentenced to 35 years to life in prison (the middle term of seven years for the attempted murder, plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury, plus three years for the prior prison term enhancements).
On appeal, defendant contends that (1) his attempted murder conviction must be reversed for insufficient evidence, (2) the great bodily injury enhancement must be stricken for lack of substantial evidence, and (3) the prior prison term enhancements must be stricken because the trial court did not find them to be true. With respect to his third contention, he claims that retrial of the prior prison term allegations is barred by double jeopardy.
Court vacate the judgment and sentence on the prior prison term enhancements, remand for further proceedings to determine the truth of those allegations, and affirm the judgment in all other respects.
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