IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DENISHO DEMMETRIUS COLLINS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F07216)
The opinion of the court was delivered by: Robie, J.
P. v. Collins
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Denisho Demmetrius Collins guilty of first degree murder after hearing evidence that the victim was shot to death after he, defendant, and others set out to avenge the killing of a fellow gang member. The jury also found true allegations defendant personally discharged a firearm in the commission of the offense and that he committed the offense in association with a criminal street gang to promote criminal conduct by the gang.*fn1
As relevant to this appeal, the trial court sentenced defendant for his first degree murder conviction to a term of 25 years to life plus a consecutive 20-year term for the firearm enhancement and a 10-year consecutive sentence for the gang enhancement.
Defendant argues that the 10-year sentence enhancement was error. Respondent concedes that the trial court erred, and we agree.
Penal Code*fn2 section 186.22, subdivision (b)(1)(C) authorizes the court to impose a 10-year sentence enhancement if a defendant commits a violent felony either for the benefit of, at the direction of, or in association with a criminal street gang. However, if the defendant is convicted of a felony punishable by life imprisonment, the 10-year enhancement authorized under subdivision (b)(1)(C) does not apply. (People v. Lopez (2005) 34 Cal.4th 1002, 1004; People v. Fiu (2008) 165 Cal.App.4th 360, 390.) Instead, the enhancement provides such a defendant shall not be paroled until a minimum of 15 calendar years have been served, pursuant to section 186.22 subdivision (b)(5). (Fiu, at p. 390.) "The determinate term enhancement provided for in [Penal Code section 186.22] subdivision (b)(1)(C) is to be applied only when the conviction is of a violent offense for which a determinate term is proscribed; if the conviction is of a crime for which an indeterminate term of life in prison is proscribed, the limitation upon parole eligibility provided for in [Penal Code section 186.22] subdivision (b)(5) is applicable. If the parole limitation of subdivision (b)(5) is applicable, the 10-year enhancement is not. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.)" (Ibid.)
Defendant's sentence for murder was for an indeterminate term of 25 years to life, plus 20 years for the firearm enhancement. Therefore, the trial court erred in imposing the 10-year gang enhancement, pursuant to section 186.22, subdivision (b)(1)(C). It should instead have imposed a limitation upon the defendant's minimum parole eligibility of 15 years, pursuant to section 186.22, subdivision (b)(5). The abstract of judgment should be amended to strike the 10-year consecutive sentence to be replaced with a 15-year minimum parole eligibility.*fn3
Defendant also contends and the People concede that the abstract of judgment fails to reflect the trial court's oral judgment at sentencing awarding him 1,076 days' custody credit for time served and that it should be amended to conform to the oral judgment at sentencing. This court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts, either on the parties' motion or on our own, and we shall do so. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)
The 10-year enhancement imposed on the murder count pursuant to section 186.22, subdivision (b)(1)(C), is ordered stricken and a minimum parole eligibility of 15 years shall be imposed on that count. The abstract of judgment shall be modified to reflect a sentence of 25 years to life, plus a 20-year sentence on the firearm enhancement under section 12022.53, subdivision (c), with a minimum parole eligibility of 15 years. The abstract of judgment shall also be modified to reflect the trial court's award to defendant of 1,076 days' custody credit. The trial court shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, Acting P. J. DUARTE , J.