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Name: People v. Johnson
Case #: B160112
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/18/2003

In appellant’s trial for home invasion robbery and second degree murder, the prosecutor committed misconduct when he asked improperly argumentative questions during cross-examination, such as “Are you going to pick and choose what you feel like telling us today and what you don’t feel like telling us?” The questions went beyond an attempt to elicit facts within appellant’s knowledge and were designed to engage him in an argument. However, those questions did not affect the outcome of the trial , and appellant’s answers were not damaging to his defense. Therefore, reversal was not required. The trial court erred when it imposed a ten-year consecutive gang enhancement pursuant to Penal Code section 186.22, subd. (b)(1) in addition to appellant’s term of 15 years to life for second degree murder. When the defendant has been convicted of a felony which already carries a life sentence, there is no specific enhancement for a term of years under section 186.22. Instead, section 186.22, subdivision (b)(5) requires that the defendant serve a minimum of 15 years before being considered for parole. Therefore, the sentence had to be modified to delete the 10-year term, and the abstract amended to reflect a 15-year minimum parole eligibility date on that count.