Herrera

*1356 Opinion

I. Introduction

Defendants, Juan Gabriel Herrera and Efren Hernandez, appeal from their convictions for first degree murder (Pen. Code, 1 § 187) and attempted murder. (§§ 664, 187.) The jury made several special findings which will be discussed shortly. In the published portion of this opinion, we discuss the effect of the section 186.22 gang enhancements on Mr. Hernandez’s indeterminate prison terms. Further, we discuss defendants’ rights to presentence credits in the published portion of this opinion. (§ 12022.53, subd. (e).) We affirm the judgment in part and reverse it in part.

II. Factual Background

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [ 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 ]; People v. Osband (1996) 13 Cal.4th 622, 690 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ]; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909 .) During the month of March 1999, Jose Cruz was confronted by Mr. Herrera, Mr. Hernandez, and Mr. Robles, who were members of a gang. Mr. Cruz had been a member of another gang 10 years prior to March 1999. The trio asked what gang Mr. Cruz was from. Mr. Cruz responded that he…

I dissent from that portion of the majority opinion which concludes the trial court properly imposed a three-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1) 1 on defendant Efren Hernandez’s 25-year-to-life sentence for first degree murder. I concur in the balance of the majority opinion.

In the first place, the majority mistakenly attributes to defendant Hernandez an argument which he does not make. Defendant Hernandez contends the trial court erred when it imposed a three-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1) instead of a 15-year minimum term pursuant to Penal Code section 186.22, subdivision (b)(4). 2 He does not contend the 15-year minimum term supersedes the mandatory 25-year minimum term of Penal Code section 190, subdivisions (a) and (e). In fact, he raises no issue concerning the effect of the 15-year minimum term, probably in the hope it will be subsumed in the 25-year minimum term for the murder.

Second, I disagree with the majority on the merits. Penal Code section 186.22, subdivision (b)(1) provides in relevant part that, except as provided in subparagraph (b)(4), a consecutive one-, two- or…

Certified for Partial Publication. [*]

Defendants, Juan Gabriel Herrera and Efren Hernandez, appeal from their convictions for first degree murder (Pen. Code, [1] § 187) and attempted murder. (§§ 664, 187.) The jury made several special findings which will be discussed shortly. In the published portion of this opinion, we discuss the effect of the section 186.22 gang enhancements on Mr. Hernandez's indeterminate prison terms. Further, we discuss defendants' rights to presentence credits in the published portion of this opinion. (§ 12022.53, subd. (e).) We affirm the judgment in part and reverse it in part.

We view the evidence in a light most favorable to the judgment. ( Jackson v. Virginia (1979) 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 ; People v. Osband (1996) 13 Cal.4th 622, 690 , 55 Cal.Rptr.2d 26 , 919 P.2d 640 ; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909 .) During the month of March 1999, Jose Cruz was confronted by Mr. Herrera, Mr. Hernandez, and Mr. Robles, who were members of a gang. Mr. Cruz had been a member of another gang 10 years prior to March 1999. The trio asked what gang Mr. Cruz was from. Mr. Cruz responded that he "didn't…