P. v. Hernandez 11/10/10 CA5

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F057417

Case Date: 02/17/2011

Preview:Filed 11/10/10 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F057417 Plaintiff and Respondent, (Super. Ct. No. F08902368) v. FELIX ROLANDO HERNANDEZ, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

Defendant Felix Rolando Hernandez was convicted of two counts of felony robbery arising from the invasion of Regina Moraless home, which defendant committed with codefendant Mark Ortega. At a bifurcated trial, the trial court found true gang enhancements for both robberies, participation in a gang, and a prior conviction. On appeal, defendant contends (1) insufficient evidence supported the finding that he committed the robberies with the specific intent to benefit or promote a criminal street gang, (2) insufficient evidence supported the finding that he participated in a criminal street gang, (3) the sentence was cruel and unusual, (4) the trial court imposed an erroneous sentence, and (5) the abstract of judgment should be amended to include properly awarded conduct credits. We will vacate the sentence and remand for resentencing. In all other respects, we will affirm. PROCEDURAL SUMMARY On November 20, 2008, the Fresno County District Attorney charged defendant with Reginas murder (Pen. Code,

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