People v. Hernandez CA5

BACKGROUND

On April 30, 2014, defendant and other inmates, all gang members, planned to “ ‘hit’ ” a correctional officer with a shank. On February 29, 2016, the Kings County District Attorney filed a second amended information charging defendant with conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a); count 1) and conspiracy to commit an assault upon a custodial officer (§§ 182, subd. (a)(1), 245.3; count 2). As to both counts, the information further alleged defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)). The information further alleged defendant had suffered three prior serious felony convictions (§ 667, subd. (a)) and three prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On March 2, 2016, a jury found defendant not guilty on count 1 and guilty on count 2, and found true the criminal street gang and prior conviction allegations. On July 19, 2016, the trial court concluded that only two of the priors were separately brought and tried. The court sentenced defendant to 40 years to life in prison as follows: 25 years to life on count 2…