P. v. Hernandez
Defendant was convicted after jury trial of attempted murder (Pen. Code, 664, 187, subd. (a); count 1), attempted murder of a peace officer ( 217.1, subd. (b); count 2), assault with a firearm on a peace officer ( 245, subd. (d)(1); count 3), exhibiting a firearm at a peace officer ( 417.8; count 4), and possession of a firearm by a felon ( 12021, subd. (a)(1); count 5). The jury also found true allegations that defendant personally used a firearm during the commission of counts 1 through 3 ( 12022.53, subd. (b)). The jury found defendant not guilty of a second count of possession of a firearm by a felon (count 9), two counts of actively participating in a criminal street gang ( 186.22, subd. (a); counts 6 & 10), and two counts of second degree robbery ( 211; counts 7 & 8). In a bifurcated proceeding, defendant admitted having suffered a prior strike ( 1170.12) and having served three prior prison terms ( 667.5, subd. (b)). The trial court sentenced defendant to the indeterminate term of 30 years to life, consecutive to the determinate term of 13 years.
On appeal defendant contends that the evidence is insufficient to support the attempted murder verdicts in counts 1 and 2. Defendant separately contends, and the Attorney General concedes, that the attempted murder conviction in count 1 must be reversed because it is a lesser included offense of the attempted murder of a peace officer conviction in count 2. Court agree with the Attorney Generals concession, and find sufficient evidence to support the jury verdict of attempted murder of a peace officer. Therefore, Court modify the judgment by vacating the attempted murder conviction on count 1 and affirm the judgment as so modified.
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