P. v. Rodriguez
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[2]; 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)), and involved the use of a deadly weapon ( 12022, subd. (b)(1)). As to all but count 4, it was also alleged that the offense involved 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)).
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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