People v. Hernandez CA2/3

INTRODUCTION

Brian Hernandez (defendant), who pled no contest to one count of attempted murder and one count of attempted robbery in 2010, successfully petitioned for resentencing under Penal Code section 1172.6.1 Consistent with the parties’ stipulation, the court redesignated the attempted murder conviction as robbery in concert and dismissed the attempted robbery conviction. The court then found circumstances in aggravation justified the imposition of the high term of imprisonment, based mainly on the trial transcript from a codefendant’s trial and the Court of Appeal opinion affirming that codefendant’s conviction. The parties agree, as we do, that the court erred in relying on facts not admitted by defendant or found true beyond a reasonable doubt in his case. Accordingly, we vacate the sentence and remand for resentencing.

PROCEDURAL BACKGROUND

In April 2010, defendant pled nolo contendere to two counts: attempted murder (§§ 664, 187, subd. (a); count 1) with an allegation that a principal personally used a firearm (§ 12022.53, subd. (b)) and attempted robbery (§§ 664, 211; count 2). The court sentenced defendant on count 1 to the upper term of nine years plus 10 years…