People v. Lacroix CA2/5

DISCUSSION

1. The Gang Enhancement on the Murder Count Must be Stricken Section 186.22 provides various gang enhancements, depending on the offense to which the enhancement applies. If the offense is a violent felony, the defendant shall be punished by an additional 10 years in prison. (§ 186.22, subd. (b)(1)(C).) However, if the offense is punishable by imprisonment for life, the formulation differs – the defendant “shall not be paroled until a minimum of 15 calendar years have been served.” (§ 186.22, subd. (b)(5).) A violent felony punishable by imprisonment for life falls under subdivision (b)(5) (the 15-year minimum parole eligibility) not subdivision (b)(1)(C) (the 10-year enhancement), even if the gang enhancement results in no increase to the defendant’s term. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Defendant contends, the Attorney General concedes, and we agree that defendant’s sentence must be modified to strike the 10-year gang enhancement on his murder conviction, and replace it with a 15-year minimum parole eligibility term. (People v. Arauz (2012) 210 Cal.App.4th 1394, 1404–1405.)

Direct victim restitution of $6,856.44 was ordered at a subsequent…