Penal Code section 186.22, subdivision (b)(1)(C) 10-year gang enhancement cannot be imposed when the defendant is convicted of an offense that carries a life term under the One Strike law (Pen. Code, § 667.61). Salvador was convicted of a number of gang-related offenses stemming from a sexual assault. The trial court imposed a sentence that included two indeterminate terms of 15 years to life under section 667.61, subdivision (b) and eight indeterminate terms of 25 years to life under section 667.61, subdivision (a). As to each of these terms, the court also imposed a separate consecutive 10-year term for the gang enhancement under to Penal Code section 186.22, subdivision (b)(1)(C). On appeal, Salvador argued that the trial court erred when it imposed separate 10-year gang enhancements on each of ten counts carrying indeterminate life terms. Held: Sentence vacated. Section 186.22, subdivision (b)(1)(C) imposes a 10-year gang enhancement when a defendant commits a violent felony. However, subdivision (b)(1)(C) does not apply where the violent felony is punishable by imprisonment in the state prison for life. In People v. Lopez (2005) 34 Cal.4th 1002, the court held that a 10-year gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) did not apply to a first degree murder already being punished by a term of 25 years to life because the 15-year minimum parole eligibility term under subdivision (b)(5), and not the 10-year enhancement set forth in subdivision (b)(1)(C), applies when the term being enhanced is a life term. Here, the Court of Appeal concluded that section 667.61 is an alternate sentencing scheme that identifies a number of situations that will be punished with a base term of either 15 or 25 years to life and, as a result, section 186.22, subdivision (b)(1)(C) does not apply. The court remanded the case for resentencing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A142488.PDF