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Name: People v. Hernandez
Case #: B185049
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 11/28/2005

Appellant contended that the Penal Code section 12022.53 denies equal protection and due process of law to those who aid and abet a gang related murder in which the perpetrator uses a gun because it treats aiders and abettors in killings for the benefit of a street gang more severely than aiders and abettors in killings for the benefit of other groups such as hate groups or terrorist groups. The appellate court rejected the argument and affirmed. Where, as here, the question is not whether to deprive appellant of his liberty, but for how long, a rational basis review is the appropriate test to use for an equal protection challenge. The rational basis for the statute is to reduce the threat to people posed by gang members using guns. Nor is the statute unconstitutional because it imposes a sentence of 25 years to life on aiders and abettors whose relationship with the gang may be nominal or passive. First, Hernandez’s involvement was far more than nominal or passive, so he has no standing to make the challenge. Since the Legislature had a rational basis for creating the enhancement as noted above, it is irrelevant to this purpose whether the aider and abettor was merely a “wannabe.”