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P. v. Hernandez
Appellant, Moises Hernandez, was convicted of second degree murder (Pen. Code, 187, subd. (a))with a gang enhancement ( 186.22, subd. (b)((1)). On September 3, 2003, this court issued its opinion in case F041897 remanding the matter to the trial court for resentencing and directing the trial court to strike the 10 year gang enhancement it imposed. On November 20, 2003, the trial court sentenced appellant to an indeterminate term of 15 years to life.
On June 9, 2006, Hernandez filed a motion to modify his sentence by striking the $5,000 restitution fine imposed at his initial sentencing hearing on November 8, 2002, alleging that the court did not consider his ability to pay. On July 19, 2006, the court denied Hernandezs motion.Hernandezs motion to deem the motion he filed in superior court a petition for writ of habeas corpus is denied as is his motion to deem his opening brief a petition for writ of habeas corpus in this court. Hernandezs appeal is dismissed without prejudice to him filing a petition for writ of habeas corpus in the trial court.



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