Gang Related First Degree Murder In California Law
Penal Code section 186.22, subdivision (b)(1) provided:
"Except as provided in paragraphs (4) and (5), 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 for the felony or attempted felony of which he or she has been convicted, 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."
However, subdivision (b)(5) specifies: "Except as provided in paragraph (4), 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, the California Supreme Court explained that under the "plain language of Penal Code section 186.22, subdivision (b)(5)," a first degree murder committed for the benefit of a gang is not subject to the 10-year enhancement in Penal Code section 186.22, subdivision (b)(1)(C); instead, such a murder falls within that subdivision's excepting clause and is governed by the 15-year minimum parole eligibility term in Penal Code section 186.22, subdivision (b)(5). (Id. at p. 1011.)
The same reasoning applies to an attempted premeditation murder committed for the benefit of a gang.
For the reasons stated in People v. Lopez, supra, 34 Cal.4th 1002, the 10-year gang enhancements relating to counts 3, 4 and 5 must be stricken. Only the 15-year parole eligibility minimum of subdivision (b)(5) applies.