Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA067087 James B. Pierce, Judge.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Isaul Esquivel Franco contends that his conviction for first degree murder must be reversed because the trial court failed to instruct sua sponte on imperfect self-defense and his counsel failed to request an instruction on provocation as a basis for reducing first degree murder to second degree murder. In addition, with respect to the sentence imposed, he contends (1) the separate term imposed for discharge of a weapon that proximately caused great bodily injury or death violated the multiple conviction rule and principles of double jeopardy; and (2) the separate term imposed for committing an offense for the benefit of, at the direction of and in association with a criminal street gang did not comply with the governing statute. Respondent agrees that as appellant was sentenced to a term of 25 years to life for first degree murder, he was not subject to a separate term for the gang allegation under the interpretation of the governing statute set forth in People v. Lopez (2005) 34 Cal.4th 1002, 1004.
We conclude that no instruction was required on imperfect self-defense or provocation and that the separate term for the weapon enhancement was properly imposed. We agree with the parties that the separate term for the gang enhancement should not have been imposed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a one-count information with murder (Penal Code § 187). The information further alleged: (1) appellant personally and intentionally used a firearm, discharged a firearm and discharged a firearm in a manner that proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (b), (c) and (d); (2) a principal personally and intentionally used a firearm, discharged a firearm and discharged a firearm in a manner that proximately caused great bodily injury and death within the meaning of section 12022.53, subdivisions (b), (c) and (d); (3) the offense was committed for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(C); and (4) appellant had previously been convicted of a violent felony and served a separate term in state prison for that offense.
Statutory references are to the Penal Code.
Generally, we review the record in a criminal appeal “by reading it most favorably to the prosecution, indulging every reasonable intendment in favor of the judgment.” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304.) Here, appellant contends that jury instructions on imperfect self-defense and provocation to reduce first degree murder to second degree murder were supported by the evidence and should either have been given sua sponte or requested by defense counsel. We therefore review the evidence pertinent to those instructions in greater detail.
1. Prosecution Evidence
On December 27, 2003, at approximately 8:00 p.m., appellant’s fellow Dominguez 13 gang member Michael Olivas was shot and hospitalized. Olivas reported that he had been shot by a member of the Eastside Wilmas, a rival gang.
Kimberly Hernandez, appellant’s girlfriend, was with him that night, along with friends of appellant’s whom Hernandez knew only as “Termite,” “Silent” and “Dreamer.” Appellant received a telephone call at 7:00 or 8:00 p.m. He then took the keys to Hernandez’s car, a black Nissan Altima, and left in a rush with his three friends.
Hernandez did not know the subject of appellant’s telephone conversation. Appellant later stated in an interview with police investigators that he was with Hernandez when he learned Olivas had been shot.
At approximately 9:30 that same night, Los Angeles Police Department officers George Gallegos and Jeromy Paciorkowski were patrolling in the area of McFarland Avenue and Denni Street in Wilmington when they heard gunshots. The officers observed a small black car that looked like a Nissan Altima parked on Denni Street. Officer Paciorkowski also saw a muzzle flash come from inside the car and a man he believed to be the victim, Antonio Perez, running down the sidewalk.
The officers exited their patrol vehicle. At that point, the officers were on the driver’s side of the black car. Two men exited the car. One or both were armed and appeared to be shooting at Perez, who was on the opposite side of the car and subsequently fell out of the officers’ view, behind some other vehicles parked along the sidewalk. The officers saw several muzzle flashes. Just prior to seeing the flashes, Officer Gallegos heard the sound of yelling, consistent with an argument or dispute.
Officer Paciorkowski recalled that both men were armed and firing at Perez. Officer Gallegos saw only one gun, a .9 millimeter pistol.
Officer Paciorkowski did not hear any yelling, just a high-pitched scream.
The men ran toward the area where the officers had seen Perez fall, continuing to fire as they ran up to him. The officers ordered the men to stop, but the men ignored the order. One of the men turned toward Officer Paciorkowski pointing a gun in his direction, which led Officer Paciorkowski to fire four shots at the men. As he fired his weapon, he heard glass shatter. The two armed men then re-entered the black car and left. Because neither man got into or out of the driver’s seat, the officers presumed another individual was driving. After the black car left the scene, the officers found Perez lying on the sidewalk.
The medical examiner testified that Perez had been shot twice. One of the bullets went through his arm and chest; the second went through both his legs. The medical examiner considered both wounds fatal due to the heavy bleeding they caused.
Investigating officers subsequently found bullet casings and glass fragments in the area where the black car had stopped, near the passenger side. Counting the four casings from Officer Paciorkowski’s .9 millimeter weapon, investigators found a total of eight .9 millimeter casings and a .380 casing at the scene, indicating that three different weapons had been fired that night. The investigating officers did not find a gun or any casings near Perez. Perez had methamphetamine in his system and a crack pipe in his pocket.
When appellant returned the Nissan to Hernandez, the rear passenger side window was broken and there were two bullet holes in the driver’s side of the vehicle. Hernandez had the bullet holes filled in and the window replaced within a few days. At first, appellant did not tell Hernandez how the damage occurred. Much later, he told her that “the cops” shot the car.
In August 2005, Hernandez had a conversation with appellant about what had happened the night the Nissan was damaged. Appellant said he accidently shot out the window while shooting at someone. Appellant also told Hernandez during that conversation that he had been shot at by “the Huros” (slang for police), that he “shot that fool,” and that he went to visit Olivas in the hospital on the night Perez was shot.
Hernandez’s car was examined in 2005. There were two bullet holes on the driver’s side, covered over by bondo. Two bullets or fragments were found inside the front door and rear door panels, on the driver’s side. They were analyzed and determined to have been fired by Officer Paciorkowski’s weapon.
In September 2005, appellant was interviewed by Detective Michael Whelan. The interview lasted more than two hours and covered 238 pages of transcript. A portion of the tape of the interview covering 12 pages of transcript was played to the jury. During the interview, appellant admitted driving Hernandez’s Nissan to Wilmington, accompanied by “Dreamer” and “Wacky.” Appellant admitted having “shot at the guy” through the window of the car and possessing a .380 weapon which he used to “shoot through the window, and hit that guy . . . .” Appellant said after he shot out the window, “Dreamer” and “Wacky” “got out and . . . started blasting.” At one point during the interview, appellant said “[t]he homies . . . got blasted on.” Later, when asked if he had shot at “the guys that shot at you first,” appellant replied: “I don’t know if they -- if they -- if they were blasting at us. I don’t know who -- who -- who shot at us. I don’t know.” Questioned further and informed that investigators had found bullets in Hernandez’s car frame and identified the gun from which they came as belonging to a police officer, appellant said that as they were leaving the scene, his companions informed him that “a cop blasted back at me.”
The full text of appellant’s statement on this subject was as follows: “The homies, we got blasted on. The homies got blasted on. You know what I mean? That’s all I know. You know what I mean? In my separate ways, the homies with me. The homies are with me. I’m following the homies.”
A gang expert testified that Perez belonged to the Eastside Wilmas gang and lived near where he was shot. Appellant and Olivas were members of Dominguez 13. The two gangs are rivals and have been “at war” since 2002. The area in which Perez was shot is considered Eastside Wilmas territory.
2. Defense Evidence
The defense called a criminalist who testified that Perez had gunshot residue on his hand consistent with having fired a gun. Additionally, the expert explained that gunshot residue can appear on a gunshot victim’s hand if the hand is within 14 feet of a weapon when the weapon is discharged and nothing physically obstructs the residue from reaching the hand.
C. Pertinent Jury Instructions and Argument
The court gave instructions on first and second degree murder, first degree murder based on a drive-by shooting, culpability based on aiding and abetting, attempted murder, and self-defense.
With respect to self-defense, the court stated: “I do feel because of the statement that was introduced . . . that someone may have been blasting at him [appellant] before he blasted back . . . and also because of the [gunshot residue on Perez’s hand], there’s some evidence to support some theory of self-defense.”
Defense counsel made a request for voluntary manslaughter instructions based on provocation, which the court denied. In support, defense counsel argued: “[T]he evidence was that [appellant] received information that his associate, Michael Olivas, has been shot and that . . . the person that shot him shouted out ‘Eastside Wilmas.’ [¶] They then went into an area in East Wilmington and apparently got into a quarrel with an individual who was later found to have gunshot residue on his hands. Police arrived before the shooting, saw them engaged in a dispute, a commotion. [One officer] described what appeared to be an argument and then gunfire began. [¶] I believe that that creates a situation that one does not duly deliberate but rather acts rashly and is not planning and premeditating a murder as required by first degree.” The court responded: “[I]t’s . . . speculative. There was some shouting, but we don’t know if that was the victim shouting at the perpetrators or the perpetrators shouting at the victim. . . . [T]here’s just nothing to indicate that anyone on either side was provoked . . . .”
During closing argument, the prosecutor contended that the evidence pointed to first degree murder because “[w]e have [appellant] getting a phone call about one of his homeboys being shot . . . [t]hese guys from the Dominguez 13 Carson area jump in a car, end up in Wilmington, and Mr. Perez is shot dead.” The prosecutor argued that whether or not appellant shot Perez, he was guilty as an aider and abettor “[j]ust by driving and being part of this operation . . . .”
Defense counsel argued that appellant shot out the window, possibly hitting Perez, only after hearing gunshots and believing he was being fired upon. Counsel contended: “[I]t’s credible that [appellant] didn’t know the police were on the scene. It’s credible that he didn’t know the police were firing. They were out of view. . . . This whole incident happened in just a matter of seconds.” Counsel further argued that the jury should take into account the raised voices Officer Gallegos heard in assessing whether the shooting was premeditated. He summarized the state of the evidence on this point as follows: “[Officer] Gallegos said that there was an argument, angry words, commotion, and screaming. We don’t know what they said. We don’t know if there were threats. We don’t know if [Perez] displayed a firearm. We don’t know if . . . there were other individuals there before the police pulled up. We don’t know if Mr. Perez threatened [appellant] with a gun and then during the conflict the two individuals took the gun away from him, and that would explain why there’s gunshot residue on his hands.”
D. Verdict and Sentence
The jury found appellant guilty of first degree murder and found true the allegations that (1) the crime was committed for the benefit of, at the direction of and in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct of gang members; (2) appellant personally used a firearm; (3) appellant personally discharged a firearm; (4) appellant personally discharged a firearm in a manner that proximately caused great bodily injury or death. After the conclusion of the jury trial, the court found true the allegation that appellant had a prior conviction.
The court sentenced appellant to serve 25 years to life for murder, a consecutive 25 years to life term for the weapon enhancement (§ 12022.53, subd. (d)), a consecutive 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and an additional year based on the prior conviction (§ 667.5, subd. (b)).
DISCUSSION
A. Imperfect Self-Defense
The trial court found that the evidence -- specifically, appellant’s statement during his interview with Officer Whelan that he and his companions “got blasted on” and the evidence of gunshot residue on Perez’s hand -- supported giving self-defense instructions. Citing People v. Viramontes (2001) 93 Cal.App.4th 1256, in which Division Seven stated: “[I]f the evidence is sufficient to support instruction on self-defense, it is also sufficient to support instruction on imperfect self-defense[]” (id. at p. 1262), appellant contends that failure to instruct sua sponte on imperfect self-defense represented error. For the reasons discussed below, we conclude the evidence was insufficient to find that appellant held an actual belief in the need for self-defense for purposes of either self-defense or imperfect self-defense. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.)
As explained in People v. Randle (2005) 35 Cal.4th 987: “Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citations.]” (Id. at p. 994, italics omitted.) “‘One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.]’” (Ibid.) Accordingly, imperfect self-defense “‘mitigates, rather than justifies, homicide . . . .’” (Ibid.) “‘[W]hen the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.’” (Id. at p. 995, italics omitted, quoting, In re Christian S. (1994) 7 Cal.4th 768, 771.) “For the same reason, one who kills in imperfect defense of others -- in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury -- is guilty only of manslaughter.” (People v. Randle, supra, 35 Cal.4th at p. 997.)
Because perfect self-defense is a true defense, the trial court has a sua sponte duty to instruct on it only if the defendant appears to be relying on it or substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 200.) In contrast, imperfect self-defense is not a true defense, but is instead “a shorthand description of one form of voluntary manslaughter.” (Id. at p. 200.) Accordingly, “when a defendant is charged with murder[,] the trial court’s duty to instruct sua sponte, or its own initiative on [imperfect] self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.” (Id. at p. 201; accord, People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.)
It is clear, however, that “a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding ‘that the offense was less than that charged,’ is lacking.” (People v. Rios, supra, 23 Cal.4th at p. 463, fn. 10, quoting People v. Sedeno (1974) 10 Cal.3d 703, 715, italics omitted; accord, People v. Hill (2005) 131 Cal.App.4th 1089, 1101, disapproved in part on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) The prosecution is not required to negate imperfect self-defense in its case-in-chief, and “unless the People’s own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant’s obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder.” (People v. Rios, supra, at pp. 461-462.) “Instructions only need be given where the ‘evidence [is] substantial enough to merit consideration.’ [Citation.]” (People v. Hill, supra, 131 Cal.App.4th at p. 1101, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Here, the evidence was insufficient to support an instruction on either self-defense or imperfect self-defense. As noted above, there was no evidence Perez was armed at the time he was shot. Neither a gun nor casings were found near his body. In addition, the defense expert acknowledged the gunshot residue on Perez’s hand could have come from being shot at from close range, which was consistent with Officer Paciorkowski’s testimony that he saw two men, both firing weapons, run up to where Perez had fallen.
Moreover, a finding of either type of self-defense must be based on evidence that the defendant “actually believe[d] in the need to defend himself [or others] against imminent peril to life or great bodily injury.” (People v. Viramontes, supra, 93 Cal.App.4th at p. 1262.) As appellant did not testify, there was no direct evidence concerning his state of mind at the time he shot at Perez. Substantial evidence that the defendant had the requisite state of mind may come from other sources, such as the testimony of other witnesses. (People v. Hill, supra, 131 Cal.App.4th at p. 1102; People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) Here, the only evidence that potentially could have supported this element of self-defense was the tape of appellant’s interview with Officer Whelan. Yet, there is no suggestion that in an interview lasting over two hours appellant ever told Officer Whelan he believed his life or the lives of his companions were in peril, or that he believed the use of deadly force was necessary to protect himself or the others with him. He stated “the homies” were “blasted on,” but did not indicate that the “blast[ing]” came from Perez or anyone located near him, much less that it occurred before appellant fired at Perez. Indeed, appellant acknowledged that he did not know “if they were blasting at us” or “who shot at us.” On this evidence, there was no basis for the jury to conclude that appellant’s actions in firing out the window at Perez were motivated by a good faith attempt to defend himself or others.
As noted, appellant admitted later in the interview that his companions informed him as they were leaving that “a cop blasted back at [them].” It is likely, therefore, that appellant’s earlier statement that he and his companions had been “blasted on” was a reference to the shots fired by Officer Paciorkowski, who did not fire his weapon until after Perez was shot.
B. Ineffective Assistance of Counsel
As noted, defense counsel requested an instruction on provocation for purposes of reducing the offense from murder to manslaughter. Counsel did not request either CALJIC No. 8.73 or CALCRIM No. 522, which essentially inform the jury that where “the provocation was not sufficient to reduce the homicide to manslaughter,” it may nonetheless be sufficient to negate premeditation or deliberation. (CALJIC No. 8.73.)
It has been held that evidence the defendant formed an intent to kill as an “immediate[]” and “direct” response to provocation such as the exchange of “‘heated words’” or “‘a physical struggle . . . between the victim and the accused before the fatality’” could be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused premeditated or deliberated before the killing and lead to a verdict of second degree murder. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1296, quoting People v. Wickersham (1982) 32 Cal.3d 307, 329; see People v. Valentine (1946) 28 Cal.2d 121, 132 [“[T]he existence of provocation which is not ‘adequate’ to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.”].) Appellant acknowledges that an instruction of this type constitutes a “pinpoint” instruction and need not be given sua sponte. (See People v. Rogers (2006) 39 Cal.4th 826, 878-879; People v. Saille (1991) 54 Cal.3d 1103, 1119-1120.) Accordingly, appellant contends not that the court erred in failing to give CALJIC No. 8.73 or CALCRIM No. 522, but that failure to request the instruction represented incompetence of counsel.
We disagree. Absent an evidentiary basis, the court need not give CALJIC No. 8.73 or CALCRIM No. 522, and defense counsel cannot be faulted for failing to request such an instruction. (See People v. Ward (2005) 36 Cal.4th 186, 215.) As the trial court stated in ruling on defense counsel’s request for manslaughter instructions, evidence of provocation on the part of the victim was lacking. There was no evidence of a physical struggle. The only evidence of heated words came from Officer Gallegos, who heard raised voices when the officers arrived at the scene. Officer Gallegos could not identify who was speaking and could not comprehend any of the words spoken. The jury could not have concluded from this testimony that Perez said something to provoke his attackers. Moreover, when the officers arrived on the scene, shots were already being fired. Therefore, the raised voices Officer Gallegos heard were a reaction to the shooting rather than a precursor. Finally, as defense counsel acknowledged in closing argument, the real provocation for appellant’s actions was the earlier shooting of Olivas, which prompted appellant and his companions to leave Hernandez and drive to Eastside Wilmas gang territory seeking revenge. This provocation was neither “immediate[]” nor “direct” (People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1296), and could not support the finding needed to reduce the offense from first degree murder to second degree murder. (See People v. Middleton (1997) 52 Cal.App.4th 19, disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3 [where defendant chose to return and get his gun after initial interaction with victim had terminated, no substantial evidence supported provocation for purposes of raising doubt about premeditation or deliberation].)
Moreover, evidence of appellant’s mental state necessary to support giving CALJIC No. 8.73 or CALCRIM No. 522 was lacking. (See People v. Fitzpatrick, supra, 2 Cal.App.4th at p. 1295 [“The issue is whether the provocation precluded the defendant from deliberating. [Citation.] This requires a determination of the defendant’s subjective state.”]; People v. Padilla (2002) 103 Cal.App.4th 675, 678 [“The test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder . . . is subjective.”]; see also People v. Sedeno, supra, 10 Cal.3d at p. 719 [“It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act.”].) Appellant did not testify, and no one in a position to observe his mental or emotional state appeared at trial. In his lengthy interview with Officer Whelan, appellant said nothing about being provoked or being overcome by passion or rage when he shot at Perez. In the absence of evidence of provocation on the part of the victim or of appellant’s subjective mental state, there was no basis for defense counsel to request or for the trial court to give CALJIC No. 8.73 or CALCRIM No. 522.
C. Multiple Conviction/Double Jeopardy
The jury found true the allegations under section 12022.53 that appellant used and discharged a weapon. The trial court imposed a 25 years to life term under section 12022.53, subdivision (d), which applies where the defendant “personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death . . . .” Appellant contends the use of a firearm to cause death is an “essential and included element in the underlying offense of murder” and is also “an elemental component of a drive-by-shooting first degree murder.” Thus, according to appellant, the allegations under section 12022.53 should have been treated as elements of the charged offense, and the court’s imposition of a separate sentence for the weapons enhancement violated the multiple conviction rule and federal double jeopardy principles. Appellant attempts to support his position by reference to the United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, which “clarified what constitutes an ‘element’ of an offense for purposes of the Sixth Amendment’s jury-trial guarantee.” (Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111.)
See People v. Sloan (2007) 42 Cal.4th 110, 115 [explaining that the phrase “multiple conviction rule” is a shorthand way to refer to the rule prohibiting multiple convictions based on necessarily included offenses].
Appellant concedes that the issues he raises were recently resolved by the Supreme Court unfavorably to his position in People v. Sloan, supra, 42 Cal.4th 110 and People v. Izaguirre (2007) 42 Cal.4th 126. We are bound by this clear Supreme Court precedent. (Auto Equity Sales, Inc v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject appellant’s contentions with respect to the section 12022.53, subdivision (d) enhancement.
In People v. Sloan, the defendant was convicted of corporal injury on a spouse, aggravated assault, and battery with serious bodily injury. In addition, the jury found true enhancement allegations of personal infliction of great bodily injury under circumstances involving domestic violence. The Court of Appeal vacated both the assault conviction and the battery conviction, citing the multiple conviction rule, section 654, and federal double jeopardy principles. The Supreme Court recognized that “if the conviction of willful infliction of corporal injury on a spouse is considered together with the great bodily injury enhancement found true under that count, then all of the statutory elements of assault by means of force likely to produce great bodily injury . . . would be met” as well as the “elements of the charged battery with serious bodily injury.” (42 Cal.4th at p. 117.) Nonetheless, the Supreme Court held: “[E]nhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses” and “neither the ban on multiple punishment found in Penal Code section 654, nor principles of federal double jeopardy protection, require us to draw an exception from [this] bright-line test . . . .” (People v. Sloan, supra, 42 Cal.4th at p. 114, fn. omitted.) Citing Missouri v. Hunter (1983) 459 U.S. 359, 368-369, the court noted that “[f]ederal law, like California statutory law, clearly recognizes that cumulative punishment may be imposed under two statutes, even where they proscribe the same conduct, if the Legislature has specifically authorized cumulative punishment.” (People v. Sloan, supra, 42 Cal.4th at p. 121.) Double jeopardy “‘protects . . . against the imposition of multiple criminal punishments for the same offense . . . [citations] . . . only when such occurs in successive proceedings.’” (Ibid., quoting Hudson v. U.S. (1997) 522 U.S. 93, 99, italics omitted.) As the convictions to which the defendant objected arose out of a “unitary criminal proceeding,” federal double jeopardy principles did not require reversal. (People v. Sloan, supra, 42 Cal.4th at p. 121.)
D. Gang Enhancement
Appellant’s final contention is that the trial court erred in imposing a 10-year term under section 186.22, subdivision (b)(1)(C) for the gang allegations found true by the jury. In People v. Lopez, supra, 34 Cal.4th at p. 1002, the Supreme Court held that a defendant found guilty of first degree murder committed for the benefit of a criminal gang is not subject to the 10-year enhancement in section 186.22, subdivision (b)(1)(C). His sentence should instead be governed by the minimum parole eligibility term found in subdivision (b)(5), which provides: “‘[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 paroled until a minimum of 15 calendar years have been served.’” (People v. Lopez, supra, 34 Cal.4th at p. 1005.) Respondent concedes that the holding in Lopez applies here and precludes the imposition of a term under section 186.22, subdivision (b)(1)(C). Accordingly, that portion of the sentence attributable to section 186.22, subdivision (b)(1)(C) must be reversed and the matter remanded for the sentence to be corrected.
DISPOSITION
The 10-year term imposed under section 186.22, subdivision (b)(1)(C) is reversed. The matter is remanded. Upon remand, the trial court is directed to strike the 10-year term imposed under section 186.22, subdivision (b)(1)(C) and to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting this change. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
In People v. Izaguirre, the companion to People v. Sloan, the Supreme Court held that Apprendi v. New Jersey did not require enhancements to be treated as elements of the underlying offense for purposes of double jeopardy or the multiple conviction rule. (People v. Izaguirre, supra, 42 Cal.4th at pp. 128-129, 134.) The rule barring consideration of enhancements in defining necessarily included offenses for purposes of the multiple conviction rule did not implicate double jeopardy protections, which apply to “a second prosecution for the same offense after acquittal or conviction.” (Id. at p. 134.)