People v. Thurman

Full title: THE PEOPLE, Plaintiff and Respondent, v. STEVEN EUGENE THURMAN, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Dec 16, 2011

E052491 (Cal. Ct. App. Dec. 16, 2011)

Opinion

E052491

12-16-2011

THE PEOPLE, Plaintiff and Respondent, v. STEVEN EUGENE THURMAN, Defendant and Appellant.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.

RAMIREZ

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for

publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVI802220)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed as modified.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Steven Eugene Thurman of first degree murder (Pen. Code, §§ 187, 189)¹ and being an active gang participant (§ 186.22, subd. (a)). As to the murder conviction, the jury found that defendant, a principal, personally used, discharged, and discharged causing death, a handgun (§ 12022.53, subds. (b)-(d), (e)(1)) and committed the offense for the benefit of a gang with the intent to promote criminal conduct by gang members (§ 186.22, subd. (b)(1)). As to the gang participation conviction, the jury found that defendant personally used a handgun (§ 12022.5, subd. (a)) and was armed with a handgun (§ 12022, subd. (a)(1)).

1 Undesignated statutory references are to the Penal Code.

Defendant was sentenced to a total prison term of 10 years determinate followed by 50 years to life, consisting of 25 years to life for the murder conviction, 25 years to life for the personal discharge of a firearm causing death (§ 12022.53, subd. (d)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). Upper term sentences were imposed and stayed for the remaining conviction and enhancements.

Defendant contends, and the People concede, that the trial court erred when it imposed a 10-year sentence for the gang enhancement. (§ 186.22, subd. (b)(1)(C).) They are correct because "first degree murder is a violent felony that is punishable by imprisonment in the state prison for life and therefore is not subject to a 10-year enhancement under section 186.22[, subdivision ](b)(1)(C)." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) "Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (Ibid.)

DISPOSITION

The judgment is modified to strike the 10-year consecutive prison term imposed under section 186.22, subdivision (b)(1)(C), on the first degree murder conviction and replace it with the requirement that defendant "shall not be paroled until a minimum of 15 calendar years have been served." (§ 186.22, subd. (b)(5).) The superior court clerk is directed to prepare a new minute order and corrected abstract of judgment reflecting the modification and then forward certified copies to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

KING

J.

CODRINGTON

J.