Harper

Steven Boyd Harper appeals his conviction of first degree murder committed for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 186.22 subd. (b)(1).) He was sentenced to 25 years to life for the murder plus a 10-year consecutive criminal street gang enhancement pursuant to section 186.22.

On appeal, Harper contends his conviction must be reversed because CALJIC No. 17.41.1 (1998 new) (6th ed. 1996) was given. He also contends the court erred in imposing a 10-year criminal street gang enhancement rather than imposing the alternate criminal street gang penalty of a 15-year minimum term on his parole eligibility. We agree with the latter contention and affirm the judgment as modified.

Discussion

I

CALJIC No. 17.41.

In his opening appellate brief, Harper argues instructing the jury pursuant to CALJIC No. 17.41.1 violated his constitutional right to a jury trial by improperly interfering with the jury’s power to engage in jury nullification and by chilling freedom of expression during deliberations. Shortly after Harper filed his opening brief, the Supreme Court in People v. Engelman (2002) 28 Cal.4th 436 [ 121 Cal.Rptr.2d 862 , 49 P.3d 209 ]…