The People v. Alcantar CA5

INTRODUCTION

Defendant was charged with, and convicted of, second degree murder with a gang enhancement. He contends that the enhancement was not supported by substantial evidence at trial. He further argues that the court erroneously and prejudicially denied his motion to bifurcate the gang enhancement. We disagree. Defendant also argues that he was improperly sentenced to a 10-year prison term on the gang enhancement, and is entitled to five more days of custody credits. Respondent concedes both issues, and we agree. We strike the 10-year prison term and order the abstract of judgment be modified to reflect an additional 5 days of presentence custody credits. As modified, we affirm the judgment.

FACTS

I.

CHARGES AND ENHANCEMENT ALLEGATIONS

Defendant Jorge Armando Alcantar (defendant) was charged with one count of murder in connection with the death of Stephen Maciel (Maciel).1 (Pen. Code,2 § 187, subd. (a).) The prosecution also alleged that defendant personally and intentionally discharged a firearm, (§ 12022.53, subd. (c)) and did so proximately causing death. (§ 12022.53, subd. (d).) Finally, the prosecution alleged that defendant committed the murder “for the benefit…