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Firearm Enhancement Stricken on Resentencing

People v. Arellano Docket: H049413 (Sixth Appellate District), Opinion Date: December 16, 2022. In 1992, Arellano and two others were charged with murder “with malice aforethought” (Pen. Code 187), attempted robbery (sections 664, 211, 212.5(a)), and first-degree burglary (459, 460(a)). The murder and attempted robbery counts alleged that each defendant personally used a firearm during the commission of the offense (12022.5(a), 1203.06). Arellano pleaded guilty to second-degree murder, with the firearm enhancement to be stricken. The court sentenced Arellano to an indeterminate term of 15 years to life for second-degree murder concurrent to another sentence for a different case and dismissed the other counts. In 2020. the court recalled Arellano’s sentence and redesignated Count 1 to allege a violation of Penal Code Sections 664/211 and 212.5(a) with an enhancement under Penal Code Section 12022.5(a). On redesignated count 1, the court sentenced Arellano to seven years, the upper term of three years for the attempted robbery and the middle term of four years for the firearm enhancement, which was satisfied by time served, and imposed a three-year period of parole. The court of appeal vacated. The trial court erred under section 1172.6(e) when it included the firearm enhancement in the redesignated conviction. A trial court may not include a sentence enhancement in the target offense or underlying felony when redesignating a conviction under Penal Code section 1172.6(e).

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