P. v. Griffin
Filed 3/16/07 P. v. Griffin CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE LAMONT GRIFFIN, Defendant and Appellant. | F050666 (Super. Ct. No. 1035319) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Terrance Griffin of second degree murder (Pen. Code, 187, subd. (a))[1]and found true an enhancement allegation that he committed that offense for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1).[2] The court imposed a term of 15 years to life on the substantive offense, with 10 years added to the determinate portion of that term for the gang enhancement.
On appeal, appellant contends, and the People concede, the court erred in imposing the 10-year gang enhancement. We agree, and will strike the enhancement.
DISCUSSION
Under section 186.22(b)(1), except as provided in, inter alia, subdivision (b)(5) of section 186.22, any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed . . . , be punished as follows: [] . . . [] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. Second degree murder is a violent felony. ( 667.5, subd. (c)(1).)
Subdivision (b)(5) of section 186.22 provides that any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served. In People v. Lopez (2005) 34 Cal.4th 1002, our Supreme Court held that under this subdivision, a defendant serving a life sentence must serve a minimum term of 15 years before being considered for parole, and that this 15-year minimum parole eligibility period is imposed in lieu of the determinate enhancement under section 186.22(b)(1), not in addition to it. Therefore, when a sentencing court imposes a life sentence, it may not also impose a gang enhancement.
As indicated above, the court here imposed a life sentence. Therefore, as the parties agree, the 10-year gang enhancement must be stricken.
DISPOSITION
The sentence is modified to delete the 10-year term that is based on the true finding on the gang enhancement allegation. The superior court shall modify the abstract of judgment to reflect a sentence of 15 years to life on the substantive offense, and shall note a 15-year minimum parole eligibility date pursuant to section 186.22, subdivision (b)(5). The clerk of the superior court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections. As modified, the judgment is affirmed.
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*Before Harris, Acting P.J., Wiseman, J., and Cornell, J.
[1] All statutory references are to the Penal Code.
[2] We refer to subdivision (b)(1) of section 186.22 as section 186.22(b)(1), and we refer to the section 186.22(b)(1) enhancement as the gang enhancement.
