Linarez

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1395 OPINION Defendant Raul Rodriguez Linarez fired at a group of rival gang members from a car, wounding the victim in the abdomen. He pled no contest to assault with a firearm (Pen. Code, § 245 , subd. (a)(2)) 1 and admitted that he personally used a firearm in the commission of that offense (§ 12022.5, subd. (a)(1)). Pursuant to the plea agreement, the court dismissed street gang enhancement allegations (§ 186.22, subd. (b)(1)(A), (4)(B)) and a great bodily injury enhancement allegation (§ 12022.55). Defendant was sentenced to the upper term of four years for assault with a firearm and a consecutive term of 10 years for the firearm use enhancement. In entering his plea, defendant agreed to a Harvey waiver ( People v. Harvey (1979) 25 Cal.3d 754 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ]) in which he stipulated that when imposing sentence, the trial court could consider defendant's prior criminal history and the…