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Name: People v. Herrera
Case #: B139597
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/10/2001
Subsequent History: Rev. den. 8/22/01

Defendant was convicted of first degree murder, and was found to have personally used a firearm under Penal Code section 12022.53, subdivisions (d) and (e). The murder was found to have been for the benefit of a street gang under Penal Code section 186.22, subdivision (b)(1). After a lengthy statutory history analysis, the court concluded that the correct term for the first degree murder was 25 years to life, because that punishment was set by a voter initiative (Pen. Code, § 190), which could not be amended by a mere legislative enactment (former Penal Code section 186.22, subdivision (4), specifying a 15 year to life term). The court further concluded that an additional consecutive three year term for the gang enhancement could be imposed, because the ordinary punishment of 15 years to life could not be imposed. Moreover, the correct term for the attempted murder was 15 years to life, because the attempted murder statute was a legislative enactment, and thus could be amended by section 186.22. Finally, Penal Code section 2933.2 prohibits a grant of presentence conduct credits to murderers after June 2, 1998. Defendant was entitled only to actual presentence custody days. [2-1 decision].