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Gang Enhancement Applied to Substantive Gang Offense

Defendant Lam Thanh Nguyen was sentenced to death by the Orange County Superior Court on January 28, 1999; his automatic appeal (People v. Nguyen, S076340) is currently pending before the court. On June 1, 2015, the court directed the parties to submit supplemental briefing addressing the following question in this automatic appeal: May a gang enhancement under section 186.22, subdivision (b)(1), be applied to a conviction for active participation in a street gang under section 186.22, subdivision (a)? (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1137-1138; People v. Albillar (2010) 51 Cal.4th 47, 60-62; People v. Briceno (2004) 34 Cal.4th 451, 465; Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828-832; People v. Arroyas (2002) 96 Cal.App.4th 1439, 1445-1448.)

Held: "The Attorney General concedes that it was improper to add to each of defendant's convictions for the crime of gang participation a sentence enhancement for committing the crime for the benefit of a gang under section 186.22, subdivision (b)(1). We accept the Attorney General's concession, which accords with case law interpreting analogous provisions of section 186.22 as well as with the relevant legislative history. (See People v. Briceno (2004) 34 Cal.4th 451, 465 [20 Cal. Rptr. 3d 418, 99 P.3d 1007]; Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 833 [72 Cal. Rptr. 3d 929]; People v. Arroyas (2002) 96 Cal.App.4th 1439, 1445 [118 Cal. Rptr. 2d 380]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2013 (1987?1988 Reg. Sess.) as amended Aug. 30, 1988, par. 15, p. 2 HN23 section 186.22, subdivision (a) offense is 'a "wobbler," punishable by the minimum term of imprisonment in the county jail and the state prison for these offenses and [a section 186.22, subdivision (b)] enhancement of the underlying felony'].) Accordingly, we strike defendant's gang enhancements from the sentences imposed for actively participating in a gang in counts 3, 5, 7, 10, and 14." (People v. Nguyen (2015) 61 Cal.4th 1015, 1068.) This case was decided on 8/13/2015.

Updated: 8/13/2015

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