Opinion
B159578.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE E. BAILEY et al., Defendants and Appellants.
Leslie C. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Lawrence E. Bailey. Tracy Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Judge Roberts. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellants Lawrence Lee Bailey and Judge Roberts of one count of first degree murder. (Pen. Code, § 187, subd. (a).)[] The jury found true the allegations that appellants committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that they personally and intentionally used and discharged a firearm causing death (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c), (d), (e)(1), 1203.06, subd. (a)(1)). The trial court sentenced appellants to respective terms of 60 years to life, which consisted of 25 years to life for the murder, 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d), and ten years for the gang enhancement.
All further references to statutes are to the Penal Code unless stated otherwise.
Bailey and Roberts contend on appeal that: (1) the trial court violated Evidence Code section 352 and denied them a fair trial by allowing witnesses to testify about their fear of retaliation and threats they had received and by allowing a witness to turn her back to them; and (2) the trial court erred in imposing the gang enhancement, and the abstract of judgment must be corrected.[]
Appellants join in all issues and arguments raised by each other on appeal.
FACTS
I. Prosecution Evidence
On June 10, 1999, at approximately 6:00 p.m., Patrick Fulton was riding his bicycle on 99th Street in Los Angeles with a friend, Milton J. Patrick who was 14 years of age and a member of the Watts Mafia Crips gang. Patrick was riding in his gangs territory and wearing his gang colors, which were blue, gold and white. Milton stopped at his residence on 99th Street and saw Patrick riding toward an alley between 99th and 100th Streets. Milton saw appellant Roberts standing near a house on the corner of the alley. Roberts was wearing a hooded garment with the hood covering his head. Milton did not see anyone else near the alley, but his view was blocked by some bushes. As Patrick rode toward the alley, Milton saw Roberts run onto 99th Street and shoot at Patrick three or four times. Roberts then turned and ran in the opposite direction.
Milton went to where Patrick lay, which was near the back gate of Miltons home. A woman was holding Patrick, and he was gasping for breath and bleeding from a gunshot wound. Milton went back to the front of his home and saw Roberts getting inside a brown minivan. The van went north on Central Avenue. When police later spoke with Milton, he did not say he had seen the shooter. Milton, a Watts Mafia Crip, did not tell the police what he knew for over two years. He was afraid of being a "snitch" and he feared for his family. He knew that snitches were killed.
Patrick died as a result of a gunshot wound to his torso. Five expended nine-millimeter shell casings and one live nine-millimeter bullet were later found at or near the crime scene.
Melody T. also witnessed the shooting. She was a former member of the Watts Mafia Crips and was standing on the street talking to someone in a car at the corner of 99th Street and Central Avenue. She saw three males—Roberts, Bailey and a third man— come out of the alley. Melody knew Bailey as "Damu." She had recently met Roberts, and Roberts had told Melody he was from the Bee Bop Bloods gang. The three men left but returned a short time later, and each man had his hand inside his shirt. The area of 99th Street and Central Avenue was known as Crips territory.
Melody heard shots and saw two of the men (later identified as Bailey and Roberts) and the third man shooting at Patrick as he turned into the alley. They were running back up the alley as they fired. Melody ran away for safety and later saw a brown van on 98th Street that was heading away from Central Avenue. When police arrived, Melody was reluctant to talk to them and she did not tell them that she had recognized the shooter. Melody gave the police incorrect information about how to contact her. Melody did not identify appellants for almost two years. She did not want to be involved in a gang case.
Melody eventually identified appellants as the shooters to a Detective Looney on May 11, 2001. She picked out their mug shots and identified them in a lineup. Melody had an encounter with a woman named Erica who had a child with appellant Roberts. At the preliminary hearing, Melody heard Erica say, "Where I know this bitch from." That night, Melody saw Erica at a nightclub, and Erica asked Melody why she was "coming to court on my man." Melody left the nightclub and found her car blocked in. She was afraid something would happen, but someone helped her and she was able to leave. Melody moved from the area of the shooting and kept her address a secret. After Melody testified, she received a telephone call from "Blue" at the county jail. He asked her why she was testifying against someone in jail. Melody realized people were discussing her "snitching." Thereafter, her demeanor in court changed.
Keith H. encountered three Black males near the alley shortly before the shooting on June 10, 1999. One male wore a black hooded sweatshirt with the hood up; one wore a blue L.A. Dodgers hat, black T-shirt and blue jeans; and the third wore a dark-colored shirt and jeans. The man in the hooded sweatshirt asked Keith what gang he was from. Keith replied he was not in a gang. The man remembered Keith from the time Keith worked in a local liquor store, and the three men let Keith pass. Shortly thereafter, Keith heard seven to twelve gunshots. Keith ran home and told his roommate, John C., about his encounter in the alley. He said he remembered the man in the hooded sweatshirt was called "Judge," and that he had attended the same elementary school as Keith and his roommate.
Keith did not want to testify because his family lived in the area of the shooting. Keith denied telling his roommate that he recognized Roberts, whom he called "Judge." He did not identify anyone in the police lineup, and he testified in court that he did not recognize anyone. He initially told police he was in his house at the time of the shooting and did not see or hear anything.
John C., Keiths former roommate, was also worried about the safety of his family because they lived in the area of the shooting. On the night of the shooting, John told the police he heard several gunshots. However, he did not tell them about Keith recognizing Roberts from elementary school.
Carole J. drove by the intersection of 99th Street and Central Avenue at the time of the shooting. Carole later called 911 and said that the men who actually pulled the trigger were "Judgee" and "Damu" (Baileys moniker) from Bee Bop Watts. Carole told a Deputy Dana Ellison that she had seen Roberts and Damu coming out of the alley and that they were responsible for the shooting. She saw a third man whom she did not recognize. She said she had previously seen Roberts with a nine-millimeter and Bailey with a revolver. She told police where the men were hiding. At trial she denied seeing appellants on the day of the shooting. She admitted calling 911, but she denied she said what appeared in the transcript of the call. She did not want to testify. She avoided law enforcement personnel and did not return telephone calls from the prosecutor. She believed she would be retaliated against if she cooperated with the police. She was afraid for her family. Two women named Erica and Leona who had dated appellants made remarks to her.
Police located Roberts and Bailey. Approximately seven hours after the shooting, police searched a home on 628 East 94th Street where Roberts was found. The search yielded a black sweatshirt, a box containing two .38-caliber revolvers and one nine-millimeter handgun, 13 live nine-millimeter rounds, a box of ammunition with 27 .38-caliber rounds inside, and some rock cocaine. The items were inside a clothes dryer. Baileys fingerprint was on the box of ammunition. The box had gang writing on it referring to the Bee Bop Bloods as well as gang monikers and the words "Fuck Crips." Robertss fingerprint was on a plastic container containing the bullets. Roberts was arrested at his residence, and he attempted to flee after his hands were cuffed. Detectives chased him and apprehended him.
At appellants trial, Senior Criminalist Dale Higashi testified that the .38-caliber bullet that killed Patrick was fired from one of the .38-caliber revolvers found in the dryer at Robertss home. He determined that the expended nine-millimeter casings found at the crime scene were fired from the nine-millimeter firearm found in Robertss home. Three of the casings were of an uncommon brand, which was the same brand as 12 of the nine-millimeter live rounds found in the dryer. The 27 .38-caliber rounds were the same brand as the bullet that killed Patrick.
A gang expert, Los Angeles County Sheriffs Deputy Carlos Ponce, testified at appellants trial. Ponce stated that appellants were both members of the Bee Bop Bloods. When asked a hypothetical question based on the facts of the instant case, Ponce gave his opinion, based on his training and experience, that Patricks murder was planned and premeditated for the benefit of appellants gang. The Bee Bop Bloods and the Watts Mafia Crips were rivals. Ponce described appellants as hard-core gang members who were loyal to the gang. They most likely killed Patrick in retaliation and to further and promote their gangs reputation as well as to instill fear of themselves and of their gang in other people.
II. Defense Evidence
Roberts called Deputy Susan Coleman to the stand. Coleman testified that on June 22, 1999, Milton J. told her he was too far away and could not identify the shooters. On May 14, 2001, Milton said he saw one of the suspects but claimed he could not identify him. On March 7, 2002, Milton identified Roberts. Milton did not mention any threats against himself, although he was a Watts Mafia Crips and he knew the killers were Bee Bop Bloods.
Coleman testified that Melody telephoned the police on July 11, 1999, and said she knew an eyewitness to the murder. She arranged a meeting with police, but she did not show up for the meeting. Police attempts to contact her were in vain. Nearly two years later, Coleman interviewed Melody, and Melody identified one of the shooters. Because Melody feared for her safety, she was relocated under a state program that paid her first and last months rent.
Appellant Bailey presented no evidence in his defense.
DISCUSSION
I. Witnesses Fear
A. Appellants Argument
Appellants argue that the prosecutor went too far in presenting evidence of the fear of various witnesses. The prosecutor began with a mini-opening statement during voir dire that addressed the fear of the prosecution witnesses. He proceeded to comment on the witnesses reluctance in his opening statement and present evidence of this fear and of threats through the testimony of Carole, Milton, Keith, John, and Melody. The prosecution also put appellant Robertss fiancée on the stand and implied she was monitoring the testimony. According to appellants, the erroneous admission of this evidence created a climate of fear and portrayed them as dangerous men. Therefore, appellants claim, the trial court should have excluded the evidence under Evidence Code section 352. Furthermore, the admission of the evidence resulted in their being denied a fair trial in violation of the Fourteenth Amendment.
Bailey also contends it was error for Melody to be allowed to testify with her back to the defense. He argues that this violated his right to confront witnesses under the Sixth Amendment. Roberts presumably joins in this argument.
B. Relevant Authority
The court has broad discretion when weighing evidence under Evidence Code section 352. (People v. Champion (1995) 9 Cal.4th 879, 913.) However, "`[t]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant." (People v. Cardenas (1982) 31 Cal.3d 897, 905.)
Evidence of a witnesss fear of testifying is relevant to that witnesss credibility and is therefore admissible. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) Evidence of a witnesss fear of retaliation, including retaliation from gang members, is also relevant to that witnesss credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) Evidence of a witnesss fear and possible threats and intimidation by gang members is relevant to explain possible witness bias during testimony. (See People v. Harris (1985) 175 Cal.App.3d 944, 957.)
Evidence regarding threats against witnesses need not show that the threats were made by the defendant personally. Likewise, the witnesss fear of retaliation need not be directly linked to the defendant for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [testimony witness was afraid to go to jail because defendant had friends there relevant to witnesss credibility]; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) "Regardless of [the] source [of the fear], the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear." (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)
C. No Error or Constitutional Violation
We conclude the trial courts rulings were appropriate, and we disagree with appellants claim that the prejudicial effect of the evidence outweighed any probative value it might have. As noted, and as appellants concede, evidence that a witness fears retaliation, whether or not attributable to the defendant, is relevant to the witnesss credibility. (See, e.g., People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450; People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) It is true that five witnesses testified to their fear of retaliation and two testified they had received threats. The testimony of each of these witnesses, however, was susceptible to an adverse credibility determination by the jury.
The first witness, Carole, took the stand and denied making the statements contained in the 911 call she placed on the evening of the shooting. In the call she had identified both appellants as men she had seen near the scene of the shooting. Milton did not tell police that he had seen appellant Roberts at the mouth of the alley for over two years. He refused to point to Roberts at trial, and when spurred on to make an in-court identification, he indicated that Bailey was the man he saw. Keith told his roommate that he had seen three men in the alley before the shooting and had recognized one of them as Roberts. Keith lied to police at the time of the shooting, saying he had been at home, and continued to deny what he had told his roommate when called to testify at trial. John, Keiths roommate, testified about Keiths statements on the day of the shooting, but he admitted lying to police at the time of the shooting. Melody did not tell police what she had seen on the day of the shooting and tried to avoid being found by police. She did not tell police what she had seen until approximately two years after the shooting. Thus, all the witnesses had inconsistencies in their statements and testimony or had delayed or attempted to avoid providing their information to the authorities. It was clear that the defense would attack each of these witnesses credibility. The jury was entitled to the opportunity to evaluate each witnesss testimony with knowledge of the circumstances under which it was given. The jury was also entitled to know the facts underlying that fear in order to properly evaluate the declarations of fear. (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)
As in People v. Olguin, supra, the trial court recognized defense counsels concerns and sought to achieve a balance by repeatedly admonishing the jury and by denying the prosecution the opportunity to present some of the fear and threat evidence it wished to place before the jury. When the prosecutor asked Carole about her fears, the court pointed out to the jury that what Carole believed might be incorrect, and the only important fact was that she believed it. The court reiterated this warning during the testimony of Milton and Melody. During Melodys testimony, the court, in answer to objections by counsel regarding evidence of Melodys fear, stated in front of the jury, "Listen, the jury is entitled to, in evaluating the testimony of a witness, consider among other things the attitude of the witness towards testifying or towards this action, the interest of any or the existence of any interest, bias or motive. To the extent that the jury finds this persons state of mind relevant to that extent they can consider that in judging her credibility. This is not a novel issue."
Before Melody began her testimony on the following day, the court admonished the jury as follows: "Just so there is no misunderstanding about this case, the People have asked various witnesses if they have been threatened or feel threatened. The importance of that testimony, if you find it to be important, is only that it reflects upon the witnesss state of mind while testifying here in court. And these threats that people testify to they may be accurate, they may not be inaccurate, they may be correctly perceived by the witness or incorrectly perceived by the witness. They may be serious or innocuous, but if the witness feels that they are important it is important in this case, if you find it to be important, only to the extent it reflects on the witnesss state of mind while testifying. [& para;] You will be instructed that in judging the credibility of a witness you are entitled to consider the attitude of the witness towards this action or towards the giving of testimony. You will also be directed to include in your analysis any bias, interest or other motive the witness might have in testifying. So when we introduce this evidence absent some other fact tying it in with the defendants in this case it cannot be used against either defendant but rather to be used only as it helps you to gauge the credibility of the witnesses."
Later on in Melodys testimony, the court stated, in reference to telephone calls Melody received from county jail about her testimony, "Right. What we need to know is it was not either one of these two defendants, right?" When Melody replied that it was not appellants, the court stated, "Beyond that, it would be overruled because you cant hold any of these threats against either defendant unless it can be proved that the defendant has initiated the threats, and so far theres no evidence of that. [¶] So the entire import of these threats, if any — and youll decide `if any — is solely going to this witness credibility, her state of mind. You cant hold it against either defendant." The court repeated its admonishment at two different times when Melody talked about telephone calls she received from a person who said that "Giggles" (Melodys former moniker) was going to court. Moreover, the court told counsel that it had turned to the jury while giving its admonishments, and it had no doubt that, based on what it had seen and the jurys demeanor, the jury understood and was following its limiting instructions. Finally, the court gave the jury CALJIC No. 2.09, which stated that: "Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted." We presume the jury followed the courts instruction. (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.)
We also observe that the trial court did not rule uniformly in favor of the prosecution on this point. The court struck Melodys answer and told the prosecutor to move on when he attempted to ask Melody if she feared going into custody. The trial court stated that it believed the jury had got the point and it could evaluate the testimony and give it the import it deserved. When the prosecutor later told Melody to put whatever telephone calls she received out of her mind, prompting an objection from counsel, the court stated, "Weve heard enough about phone calls and now we need to get on with testimony." When the prosecutor wished to introduce a statement by a woman living in the neighborhood of the shooting to the effect that her house would be fire-bombed if she spoke with the police, the court refused to allow the statement to be introduced. The court told the prosecutor that he had made his point. Later, when the prosecutor wished to elicit information from Carlos Ponce, the gang expert, about an incident of intimidation of Melody Thomas that occurred during the preliminary hearing, the court did not allow it. The court sustained an objection that Ponces testimony regarding non-cooperation with law enforcement was cumulative.
Appellants also contend that the gang experts testimony and two of the deputies testimony about a gangs effect on witnesses should not have been allowed. Bailey argues that this evidence carried a greater risk of prejudice because it came from an expert and from officers in the field.
The record shows that when the prosecutor asked a Deputy Ellison, who had spoken with Carole at the time of the shooting, if he had dealt with cases in which people had been retaliated against, Ellison replied that he had seen minor incidents but had not personally handled a case where something tragic happened. Ellison acknowledged it commonly occurred that witnesses ignored subpoenas. The prosecutor asked a Deputy Jurado if it was difficult to get statements from witnesses in the area of the shooting. Jurado said it was, and the cause was their reluctance to talk for fear of retaliation. Jurado also testified that Melody was reluctant to talk to him. The gang expert, Deputy Ponce, stated that it was difficult in most gang cases to get people to come to court or talk to the police.
We conclude that these comments by the deputies were properly allowed. The deputies testified to different versions of the events as told to them by Carole (Deputy Ellison) and Melody (Deputy Jurado), and it was appropriate to ask them about the reluctance of these witnesses, and witnesses in general, to testify. Deputy Ponces comment on the reluctance of witnesses was insignificant when one considers that Ponces testimony on direct examination alone is 90 pages long. The remarks by Ponce and the other deputies were also not of an inflammatory nature. They did not belabor the issue of witness reluctance and were more probative than prejudicial in that they confirmed the existence of a general reluctance to deal with police in gang-occupied areas. Moreover, their testimony was relevant to provide a factual basis for the witnesses fears.
Under the circumstances of the instant case, therefore, we find no abuse of discretion under Evidence Code section 352. The evidence was properly admitted on the issue of witness credibility, and the prosecutor did not argue that the evidence of fear reflected a consciousness of guilt on the part of appellants. We also reject the claim that appellants right to due process was violated by admission of this evidence.
As noted, appellant Bailey additionally complains that Melody Thomas testified with her back turned towards the defendants. The record indicates that when Baileys counsel complained of this during trial, the court disagreed with counsels observation. The court found that the witnesss posture was related to her looking at charts and photographs. The prosecutor disagreed with the court, stating that the witness was clearly shying away and turning her back, but that the witness should not be forced to look at the defendants. The court noted that the witness had turned away on the occasions when she had been asked to identify the defendants in court, and those instances were on the record. The court found that at all other times there was nothing unusual about Melodys demeanor. Melody was appropriately facing her interrogator, the prosecutor.
"In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, `to be confronted with the witnesses against him. [Citations.] `The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845 . . . (1990)." (Lilly v. Virginia (1999) 527 U.S. 116, 123-124.) In Maryland v. Craig, supra, 497 U.S. 836, the court reasoned that "[a]lthough face-to-face confrontation forms `the core of the values furthered by the Confrontation Clause, [citation], we have nevertheless recognized that it is not the sine qua non of the confrontation right. [Citation.]." (Id. at p. 847.) After reviewing the cases of precedential value, the Maryland v. Craig court concluded that the Confrontation Clause reflects a preference for face-to-face trial confrontation at trial that must at times yield to public policy considerations and the "`necessities of the case." (Id. at p. 849.) "Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendments guarantee of the right to confront ones accusers." (Id. at pp. 849-850.)
Even if Melody had turned her back toward appellants at certain times during her testimony, the instant case would not approach the lack of confrontation experienced by the defendant in Maryland v. Craig, supra, where the witnesses were allowed to testify by means of one-way, closed-circuit television outside the courtroom where defendant remained. (Maryland v. Craig, supra, 497 U.S. at pp. 840-842.) Therefore, in light of the instant courts findings, we conclude there was no violation of appellants right to confront witnesses against him. As in the case of Maryland v. Craig, supra, the other elements of the confrontation right, i.e., the oath, opportunity to cross-examine, and the ability to observe the witnesss demeanor, sufficiently ensured that Melodys testimony was reliable and subject to testing. (Id. at p. 851.) Appellants argument is without merit.
Finally, even if the trial court had erred in admitting some of the evidence of threats and of the witnesses fear, we conclude that appellants suffered no prejudice from admission of this evidence. The gun used to kill Patrick was found hidden in the residence where appellant Roberts was staying. Another gun used during the shooting was hidden there. The same unusual brand of ammunition found at the scene was also found at Robertss residence. Both Robertss and Baileys fingerprints were found on boxes of ammunition in the hiding place. Appellants were identified by Carole and Melody as being at the scene, and Milton identified Roberts as a shooter. Therefore, any error in admitting the complained-of evidence was harmless under any standard.
II. Imposition of Gang Enhancement
The trial court imposed on both appellants the high term of ten years for the gang enhancement. Appellant Bailey points out that the version of section 186.22, subdivision (b)(1) in effect in 1999 provided for additional terms of only one, two, or three years as a gang enhancement.[] Appellant Roberts argues that the trial court erred in imposing any enhancement pursuant to section 186.22, subdivision (b)(1) because, if the underlying felony is punishable by life imprisonment, as Robertss crime is, then no additional sentence is imposed for the enhancement. Rather, the provisions of section 186.22, subdivision (b)(4) apply, which provide for an extended minimum parole eligibility period of 15 years. Appellant Bailey presumably joins in this argument.
The relevant provisions of section 186.22 as they read in 1999 when the instant murder was committed, are as follows: "(b)(1) Except as provided in paragraph (4), any person who is convicted of a felony committed for the benefit of, . . . any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony . . . , be punished by an additional term of one, two, or three years at the courts discretion. [¶] . . . [¶] (4) Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served." (Stats. 1997, ch. 500, § 2.)
In People v. Ortiz (1997) 57 Cal.App.4th 480 (Ortiz), the court stated that the plain language of section 186.22, subdivision (b)(1) excepts prisoners serving a life term from an additional determinate term under the statute. (Ortiz, at p. 485.) The court was referring to the language in former subdivision (b)(1) that provided: "`Except as provided in paragraph (4), [when a defendant] is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Ortiz, at p. 485.) The language in former paragraph (b)(4) provided that "`[a]ny person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroleduntil a minimum of 15 calendar years have been served." (Ortiz, at p. 485.) The court pointed out that there was nothing in the statute to suggest that the extended parole eligibility limitation period should be combined with an additional determinate term. (Id. at pp. 485-486; see also People v. Herrera (1999) 70 Cal.App.4th 1456, 1465.)
In People v. Herrera (2001) 88 Cal.App.4th 1353 (Herrera), however, the court found Ortizs reasoning did not apply when the life sentence imposed contained a requirement that the defendant serve a minimum of 25 years of his life sentence. (Herrera, at pp. 1359, 1363.) Referring to section 190, which prescribes a term of 25 years to life as one of the possible sentences for first degree murder, Herrera states: ". . . the 15-year statutorily adopted minimum term [in section 186.22, former subdivision (b)(4)] is inconsistent with the 25-year minimum term [in section 190] chosen by the voters through the initiative process. We construe the language in section 186.22, former subdivision (b)(1) `[e]xcept as provided by paragraph (4) to mean that if paragraph (4) is inapplicable for any reason, then one of the three determinate terms [of the section 186.22, subdivision (b)(1) enhancement] applies to the defendant."[] (Herrera, supra, at p. 1364, italics added.) Herrera upheld imposition of an enhancement of three years, pursuant to section 186.22, subdivision (b)(1), to the defendants 25-year-to-life term for first degree murder. (Herrera, at p. 1364.)
Currently, the language describing the 15-year minimum parole eligibility period is found in paragraph (5) of section 186.22, subdivision (b). Paragraph (b)(4) was amended to prescribe specific enhancement terms for certain listed offense, such as home invasion robbery and carjacking. (§ 186.22, subds. (b)(4), (b)(5).)
In the instant case as well, the language prescribing a minimum term of 15 years for anyone violating section 186.22, subdivision (b) by committing a felony punishable by imprisonment for life is inapplicable to appellants. (§ 186.22, subd. (b)(5).) A 15-year minimum term is inherently inconsistent with a sentence of 25 years to life. Therefore, we conclude that the trial court properly imposed the determinate sentence enhancement, although for an incorrect number of years, pursuant to section 186.22.
DISPOSITION
The ten-year enhancement imposed on both appellants pursuant to section 186.22 is modified to reflect the three-year enhancement in effect at the time of the offense. We order the superior court to forward the corrected abstracts of judgment to the Department of Corrections. In all other respects, the judgments are affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.