Abf Capital Corp. v. Berglass

A jury found appellant Ruben Joe Hernandez guilty of first degree murder. It also found true allegations the crime was committed for the benefit of a criminal street gang, a principal personally used and discharged a firearm causing death, and Hernandez had suffered a prior conviction and prison term. In sentencing Hernandez the trial court imposed a term of 25 years to life for the murder and added a consecutive term of 25 years to life under Penal Code section 12022.53, subdivisions (d) and (e)(1). On appeal Hernandez contends the evidence was insufficient to convict him of murder and section 12022.53, subdivision (e)(1) is unconstitutional because it treats aiders and abettors in killings for the benefit of a street gang more severely than aiders and abettors in killings for the benefit of other groups. In a petition for habeas corpus Hernandez claims his conviction resulted from the ineffective assistance of his trial counsel. We ordered the petition for habeas corpus heard together with the appeal.