P. v. Smith
A jury found defendant and appellant, James Rogers Smith, guilty of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664 & 187, subd. (a)), committed for the benefit of, at the direction of or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and during which he personally used a firearm (Pen. Code, § 12022.53, subds. (b) & (c)), possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) and evading a police officer with a willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)). The trial court sentenced Smith to a term of 37 years-to-life in prison. Smith appealed from the judgment and filed a petition for writ of habeas corpus. This court consolidated the petition with the appeal and, in an opinion filed April 11, 2011 (People v. Smith (B217167, B226570) [nonpub. opn.]), determined that the trial court’s failure to properly instruct the jury on the alleged gang allegation “require[d] reversal and remand on that ground only.†With regard to Smith’s remaining contentions, this court held there was no error or that any error which occurred had been harmless.
On remand, the trial court noted that this court had reversed the gang allegation and indicated that, under the circumstances, sentence would not be imposed “in that regard.†The trial court, however, imposed a term of 37 years in prison. Smith’s counsel filed a motion for reconsideration of the sentence and the trial court granted it. At the second resentencing, held on October 10, 2012, the trial court imposed a total term of 27 years-to-life in prison. We affirm.
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