People v. Herrera CA5

INTRODUCTION

The California Supreme Court, on September 10, 2014, granted a petition for review of our opinion in this case filed June 13, 2014, and transferred the case to this court with directions to vacate our decision and reconsider the enhancements imposed in this case under Penal Code1 section 667, subdivision (a)(1), in light of People v. West (1984) 154 Cal.App.3d 100, 107-108 (West) and People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10 (Smith). We have received supplemental briefing from appellant Marcelo Antonio Herrera (defendant) and have considered the authority cited in the transfer order. The opinion of this court, filed June 13, 2014, is vacated and we issue this new opinion in accordance with the directions of the Supreme Court. A jury found defendant guilty of attempted murder §§ 664, 187, subd. (a); count 1), aggravated mayhem (§ 205; count 2), first degree burglary (§§ 459, 667.5, subd. (c); count 3), first degree robbery (§ 221; counts 4 -5), assault with a deadly weapon (§ 245, subd. (a)(1); counts 6-7), and active participation in a criminal street gang (§ 186.22, subd. (a); count 8). The jury also found true allegations that defendant committed…