P.

INTRODUCTION

Defendant Arnoldo Estevez Vargas appeals from judgment entered following a

jury conviction for premeditated murder (Pen. Code, § 187, subd. (a)1). The jury also

found true allegations that the murder was committed for the benefit of a criminal street

gang (§ 186.22, subd. (b)) and that defendant personally used a firearm (§ 12022.53,

subd. (d)). The trial court sentenced defendant to 50 years to life, plus three years for the

gang enhancement.

Defendant contends the trial court erred in denying his request for instruction on

provocation (CALCRIM No. 522). Defendant also asserts the trial court erred in

imposing a fixed three-year term for the gang enhancement under section 186.22,

subdivision (b)(1). We conclude there was no instructional error but reverse the three-

year gang enhancement term because the murder conviction carries a life term and,

therefore, the gang enhancement must be stricken. The judgment is affirmed in all other

respects.

II

FACTS

In November 1998, defendant and Joshua McKendry lived in the Lake Elsinore

area and were both members of the Elsinore Young Classics street gang (EYC). The

victim, Harry Estrada and his friend, Armando…