P. v. Tienda
By information filed July 8, 2004, in Tulare County Superior Court, appellant was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code, 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault ( 182, subd. (a)(1); count 2), attempted robbery of Mark P. ( 211; count 3), attempted robbery of Trajinder S. ( 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. ( 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang ( 186.22, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5). As to all but count 4, it was also alleged that the offense involved the use of a deadly weapon ( 12022, subd. (b)(1)), and the personal infliction of great bodily injury ( 12022.7, subd. (a)) and great bodily injury causing the victim to become comatose due to brain injury (id., subd. (b)).
Following a jury trial, appellant was convicted on all counts, and the gang enhancement allegations were found to be true. As to counts 1, 2, and 5, jurors found true both great bodily injury, and the weapon use, allegations; as to count 3, those three allegations were found not true.[3] Appellant subsequently was sentenced to prison for seven years to life with the possibility of parole on count 1, plus a consecutive 10-year term for the gang enhancement, a consecutive five-year term for the great bodily injury enhancement, and a consecutive one-year term for the weapon use enhancement. The court imposed concurrent terms on counts 2, 3, and 4, and stayed sentence on count 5 pursuant to section 654. In this timely appeal, appellant raises various claims of error, one of which has merit. For the reasons that follow, Court strike the finding of premeditation and deliberation on count 1, and remand the matter for resentencing.
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