People v. Terrell CA2/5

Facts On January 5, 2011, appellant drove a Range Rover into Rollin 40s gang territory. Codefendant Marquise Turley was a passenger in the vehicle. Both men were members of the Black P Stones gang, which is a rival of the Rollin 40s gang. Someone in the vehicle shot Marcus Flagg as he walked down the street. Flagg was not in a gang, but he associated with gang members.

1 Further section references are to the Penal Code unless otherwise specified. 2 Discussion 1. Attempted murder sentence Appellant contends the trial court erred in imposing a minimum term of 15 years for his life sentence for the attempted murder as well as a term of 25 years to life for the firearm enhancement. He contends that the two enhancements may only be imposed when the jury has found that the defendant personally used a firearm, and no such finding was made here. Appellant is correct. Section 12022.53, subdivision (e)(2) provides, “An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision unless the person personally used or personally discharged a firearm in the commission of the offense.” The jury…