The People v. Joseph Garcia

Riverside, California, criminal defense lawyer represented the Defendant charged with second-degree murder and assautl with a firearm.



On March 29, 1994, a jury convicted defendant of second degree murder (§ 187, count 1) and assault with a firearm (§ 245, subd. (a), count 2). The jury additionally found true allegations that defendant committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that a principal was armed with a firearm (§ 12022, subd. (a)(1)). Defendant subsequently admitted that he had suffered two prior serious felony convictions (§ 667, subd. (a)) and a prior prison term (§ 667.5, subd. (b)). (People v. Guillen (Feb. 2, 1996, E014756) [nonpub. opn.] (Guillen); People v. Garcia (Dec. 8, 2022, E077916) [nonpub. opn.] (Garcia).)



The court thereafter sentenced defendant to an aggregate term of imprisonment of 26 years to life. The court imposed a sentence of 15 years to life for the murder, one year consecutive on the firearm enhancement, and five years consecutive for each of the two prior serious felony conviction enhancements. The court imposed the midterm of three years concurrent on the assault offense, one year concurrent on the attached firearm enhancement, and two years concurrent on the attached gang enhancement.



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Legal issue Does Penal Code section 1172.75 entitle a defendant to a full resentencing hearing if their prior prison term enhancement was imposed but stayed?



Key Phrases Sentencing enhancement. Penal Code section 1172.75. Prior prison term enhancement. Full resentencing hearing. Legislative intent.

The trial court is directed to strike the section 667.5, subdivision (b) enhancement in its entirety, rather than merely punishment on the enhancement. The court is further directed to issue a new minute order and abstract of judgment reflecting the court's order.



The court is directed to forward a copy of the new minute order and abstract of judgment to the CDCR. The court's order is otherwise affirmed.