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Name: People v. Montes
Case #: C036904
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/27/2002
Subsequent History: Rev. granted 6/12/02: S105781.

Appellant was convicted of attempted second degree murder, and several enhancements for use of a firearm, great bodily injury, and for participation in a street gang. He was sentenced to seven years for attempted murder, a consecutive term of ten years for the street gang enhancement pursuant to Penal Code section 186.22, and a consecutive term of 25 years to life for the firearm and g.b.i. enhancement. On appeal, he argued that he was not eligible for the ten year street gang enhancement because under Penal Code section 186.22, the enhancement does not apply when the underlying felony is punishable by a life term, which is what he received because of the firearm and g.b.i. enhancements. The A.G. argued that the life term exception only applied where the underlying felony itself is punishable by a life term, without tacking on any enhancements. The appellate court here struck the enhancement. Section 186.22, subdivision (b) is ambiguous and therefore requires resolution in appellant’s favor. A “felony punishable by imprisonment in the state prison for life” therefore includes an enhancement which results in an indeterminate life term for what otherwise would be a determinate term felony.