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Name: People v. Belmudes
Case #: B147885
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 10/16/2001
Subsequent History: 4/3/02: this case depublished by 2DCA before official citation entered.
Summary

The ten-year gang enhancement under Penal Code section 186.22, subdivision (b)(1) does not apply to an attempted robbery conviction because it is not a violent felony within the meaning of section 667.5, subdivision (b)(1). Unless otherwise specified, an attempt to commit an enumerated felony does not fall within the scope of the section. However, since attempted robbery is a serious felony, appellant was eligible for an additional maximum five year sentence for the gang enhancement, which could be imposed on remand. Further, the trial court erred when it imposed the gang enhancement concurrently. A gang enhancement imposed under section 186.22, subdivision (b)(1) may not be ordered to run concurrently if the underlying offense is to be served consecutively. Therefore, since the sentence imposed was unauthorized, appellant was entitled to limited remand to allow the court to determine whether it wished to strike the additional term.