Filed 8/18/14 P. v. Loveless CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049644

         v.                                                            (Super. Ct. No. FSB702707)

QUWONTE LOVELESS,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
                   Michael B. McPartland, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl
T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
              Quwonte Loveless appeals from a judgment after a jury convicted him of
first degree murder, attempted willful, deliberate, and premeditated murder, and assault
with a firearm, and found true firearm and street gang enhancements. Loveless argues
the following: (1) the trial court erred in failing to instruct the jury sua sponte with a
CALJIC instruction on resolving doubt between first and second degree murder in favor
of the defendant; (2) the court erred in failing to give the jury the option of finding him
guilty of attempted murder that was not willful, deliberate, and premeditated; and
(3) there were sentencing errors. We agree the trial court’s instructions and the verdict
form on attempted murder were erroneous but conclude Loveless was not prejudiced.
We also conclude the trial court erred in sentencing Loveless. His other instructional
claim is meritless, and we affirm the judgment as modified.
                                           FACTS
              In June 2007, Summer Starnes had a 16th birthday party at her home on
5580 Bonnie Street in San Bernardino. The day of the party, Starnes saw Loveless and
Trevon Miller at a liquor store and invited them to her party. At the party, Starnes
arranged for someone to search guests for weapons before they entered her home.
              Nineteen-year-old Loveless, a member of the 59th Street East Coast Crips
(59th Street) who went by the gang moniker “Killer Tae,” went to the party with Miller 1
and Marshon Triplett.2 Miller, who was 14 years old, was also a member of 59th Street
and went by the gang moniker “Capone.” Triplett, who was 16 years old, was a member
of 18th Street Maze (18th Street) and went by the gang moniker, “Young 9” or “Baby 9.”


1             In exchange for his truthful testimony, Miller would not serve his 21-year
prison sentence for committing voluntary manslaughter for the benefit of a criminal street
gang.

2             In exchange for his truthful testimony, Triplett would not serve his 21-year
prison sentence for committing voluntary manslaughter for the benefit of a criminal street
gang.

                                               2
Loveless, Miller, and Triplett were driven to the party by a man they knew as “Joe Blow”
(Blow) in a Chevrolet Tahoe.
              Miller had a gun, which he gave to Loveless to sneak into the party.
Loveless, Miller, and Triplett went into the backyard. In the backyard, Donzell Tate, a
member of the Rolling 40 Crips (Rolling 40), approached Loveless and asked him if they
still had a problem. Six years earlier Tate stabbed Loveless’s “godbrother.” Tate told
Loveless, “I am going to stab you like I stabbed your brother[.]” Loveless pulled out a
gun and threatened to shoot Tate as they continued to argue. Tate told Loveless they
should move to the front of the house. Loveless refused Miller’s offer to hold the gun.
Tate said he was going to get his gun and left.
              Loveless, Miller, and Triplett got into Blow’s vehicle, and Blow drove
away; Loveless was in the passenger seat. Blow made a U-turn and drove past Starnes’s
home. As Blow drove past the house, Loveless opened fire, firing 12 to 15 shots, two of
which hit Demetrius Payne and resulted in his death.
              Officers arrived at the scene and found 12 bullet casings in front of
Starnes’s home and on the street. Officers found two bullet holes in a car parked down
the street. They also found two bullet holes in a residence near Starnes’s house. All of
the rounds were fired from the same .40 caliber gun.
              A November 2007 information charged Loveless with first degree murder
of Payne (Pen. Code, § 187, subd. (a))3 (count 1), attempted willful, deliberate, and
premeditated murder of Tate (§§ 664, 187, subd. (a)) (count 2), and assault with a firearm
(§ 245, subd. (a)(2)) (count 3). With respect to counts 1 and 2, the information alleged
Loveless personally and intentionally discharged a firearm (§ 12022.53, subd. (c)),
personally used a firearm (§ 12022.53, subd. (b)), and committed the offenses for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). As to count 1, the

3             All further statutory references are to the Penal Code, unless otherwise
indicated.

                                             3
information also alleged he personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)). With respect to count 3, the information alleged he
personally used a firearm (§ 12022.5, subds. (a), (d)).
              After numerous continuances and pre-trial motions, trial commenced in
April 2012. Triplett testified he did not remember if anyone in front of the house had a
gun as they drove by. He did not remember hearing any gun shots other than when
Loveless fired the gun. Miller testified they had to make a U-turn because Bonnie Street
was a cul-de-sac. He stated that after Blow made the U-turn, he heard Triplett say,
“Somebody got a gun.” He did not hear any shots other than the shots Loveless fired.
              Officer Michael Salazar testified concerning the physical evidence officers
found on Bonnie Street. When presented with a photographic exhibit of Bonnie Street,
Salazar said it was not a cul-de-sac; it is bordered on the south by Eureka Street and on
the north by Foothill Drive. He said a driver going north on Bonnie Street would not
have to make a U-turn to exit Bonnie Street.
              The parties stipulated 59th Street was a criminal street gang as defined in
section 186.22. Kevin Snyder, a gang expert testified Loveless was a 59th Street gang
member based on his self-admissions, his tattoos, and his associates. Snyder opined the
offenses were committed for the benefit of a criminal street gang because the offenses
show 59th Street gang members are willing to commit murder “to get their point across.”
              Loveless testified on his own behalf. Loveless admitted he pulled out a gun
after Tate threatened to stab him. As Loveless walked towards Blow’s vehicle, he heard
Tate say he was going to get his gun to shoot Loveless. Loveless, Miller, and Triplett got
into Blow’s vehicle, Blow drove away, and he made a U-turn. As they drove past
Starnes’s home, Miller said, “‘He got a gun.’” Loveless saw a flash and heard a gunshot.
Loveless put his gun out of the window and fired in the direction of where the gunshot
came from. Loveless testified he did not want to get shot and he did not intend to kill



                                               4
anyone. He only wanted to get out of the area without being shot. Loveless claimed that
a couple days later, he saw a couple of bullet holes in Blow’s vehicle.
               The trial court discussed the jury instructions, the CALCRIM instructions,
both off and on the record. At no point did Loveless request the trial court instruct the
jury with any CALJIC instructions. As relevant here, the court instructed the jury with
the following: CALCRIM Nos. 220, “Reasonable Doubt;” 520, “Murder: First and
Second Degree;” 521, “First Degree Murder;” 522, “Provocation: Effect on Degree of
Murder;” 570, “Voluntary Manslaughter: Heat of Passion—Lesser Included Offense;”
571, “Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another—Lesser Included Offense;” 600, “Attempted Murder;” 601, “Attempted
Murder: Deliberation and Premeditation;” and 641, “Deliberations and Completion of
Verdict Forms.”
               The jury convicted Loveless of all the counts and found true all the
enhancements, with the exception of the gang enhancement as to count 1 on which it
could not reach a verdict.
               The trial court sentenced Loveless to 50 years to life as follows:
count 1-25 years to life plus a consecutive term of 25 years to life for the
section 12022.53, subdivision (d), enhancement; the court imposed and stayed sentences
on the other enhancements; count 2-seven years to life concurrent to count 1 plus
consecutive sentences on the enhancements, including 10 years for the gang
enhancement; and count 3-the court imposed and stayed sentences for the offense and
enhancement.
                                        DISCUSSION
I. Jury Instructions
A. Degree of Murder
               Loveless argues the trial court erred in failing to instruct the jury sua sponte
with CALJIC Nos. 8.71 or 17.10 on the interplay between first degree murder and the

                                               5
lesser offense of second degree murder. Specifically, he claims the court failed to
instruct the jury that if they unanimously agreed he committed murder but had a
reasonable doubt whether murder was of the first or of the second degree, they should
give him the benefit of the doubt and return a verdict of second degree murder. The
Attorney General, noting the court instructed the jury with CALCRIM instructions,
contends Loveless forfeited appellate review of this claim because he did not request
either instruction, and alternatively the court did not err because courts are advised not to
give CALJIC and CALCRIM instructions together, and the court properly instructed the
jury on the interplay between charged offenses and lesser offenses. We agree with the
Attorney General.
               CALCRIM No. 521 is the newer counterpart to CALJIC No. 8.71, “Doubt
Whether First or Second Degree Murder.” (People v. Moore (2011) 51 Cal.4th 386, 412,
fn. 8 [CALCRIM No. 521 clearer than CALJIC No. 8.71].) Loveless does not dispute
CALCRIM No. 521 is a correct statement of the law. He argues, however, the court had
a sua sponte duty to instruct the jury with CALJIC No. 8.71, or CALJIC No. 17.10,
“Conviction of Lesser Included or Lesser Related Offense—Implied Acquittal—First.”
Loveless fails to recognize courts are specifically cautioned against using the instructions
together. (People v. Beltran (2013) 56 Cal.4th 935, 943-944, fn. 6 [“CALCRIM User’s
Guide expressly cautions” CALCRIM instructions should never be used with
CALJIC instructions].) More importantly, because CALCRIM No. 521 is a correct
statement of law, his failure to request further clarification is forfeited for failing to raise
the issue below. (People v. Young (2005) 34 Cal.4th 1149, 1202 [“defendant’s failure to
request clarification instruction forfeits that claim on appeal”].) Although Loveless
forfeited appellate review of this issue, we will address the merits of his claim to avoid
the inevitable ineffective assistance of counsel claim. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 92.)



                                                6
              “A court is required to instruct on the law applicable to the case, but no
particular form is required; the instructions must be complete and a correct statement of
the law.” (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) On a claim of instructional
error, “[w]e must consider whether it is reasonably likely that the trial court’s instructions
caused the jury to misapply the law. [Citations.] ‘[T]he correctness of jury instructions
is to be determined from the entire charge of the court, not from a consideration of parts
of an instruction or from a particular instruction.’” (People v. Carrington (2009)
47 Cal.4th 145, 192.) “The court has no duty to give an instruction if it is repetitious of
another instruction also given.” (People v. Barajas (2004) 120 Cal.App.4th 787, 791.)
              Whenever the evidence would support a conviction of the charged offense
and a lesser included offense, the jury must be instructed that if it has found defendant
committed an offense but has reasonable doubt about which offense the defendant
committed, it must find the defendant guilty only of the lesser offense. (§ 1097; People
v. Dewberry (1959) 51 Cal.2d 548, 555 (Dewberry).) The trial court must instruct the
jury on this principle sua sponte in any case involving a lesser included offense. (People
v. Crone (1997) 54 Cal.App.4th 71, 76 (Crone).) Since second degree murder is a lesser
included offense of first degree murder (People v. Blair (2005) 36 Cal.4th 686, 745,
overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919), we agree with
Loveless the court had a duty to instruct the jury in accordance with Dewberry. It did.
              The trial court instructed the jury Loveless was presumed innocent and the
prosecution needed to prove his guilt beyond a reasonable doubt (CALCRIM No. 220), to
find him guilty of murder, the prosecution had to prove certain elements
(CALCRIM No. 520), and that provocation may reduce a murder from first degree to
second degree (CALCRIM No. 522).
              The court also instructed the jury with CALCRIM No. 521, which
instructed the jury that if it found Loveless committed murder, it must decide whether it
was murder of the first or second degree. The instruction defined first and second degree

                                              7
murder and then told the jurors that: “The People have the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather than a lesser crime. If the
People have not met this burden, you must find the defendant not guilty of first degree
murder.” In other words, the court instructed the jury that if they had any doubt as to the
degree of murder, they must find Loveless not guilty of first degree murder. Although
CALJIC No. 8.714 and CALCRIM No. 521 use different language, both instructions
convey the same general legal principle that if the jury finds the defendant has committed
murder, it cannot convict the defendant of first degree murder if it is not convinced
beyond a reasonable doubt. Additionally, CALJIC No. 17.10 is similar to
CALCRIM No. 641, which the trial court gave to the jury in this case. As indicated by
the Bench Notes accompanying CALCRIM No. 641, this instruction is intended to satisfy
the Dewberry requirement.
              Loveless’s reliance on Crone, supra, 54 Cal.App.4th 71, is misplaced. In
that case, the deficient instruction (CALJIC No. 17.03) did not “tell[ ] the jury what to do
if it ha[d] a reasonable doubt as to whether the defendant committed the greater or a
lesser offense,” and “it [did] not appear that the omission was cured by any other
instructions.” (Id. at pp. 76-77.) As we have explained, however, the instructions here
adequately told the jury what to do if it had reasonable doubt between first and second
degree murder. Thus, based on the entire charge, we conclude the trial court properly
instructed the jury on the interplay between first and second degree murder and because
there was no error, Loveless was not prejudiced.




4             CALJIC No. 8.71 provides: “If any juror is convinced beyond a reasonable
doubt that the crime of murder has been committed by a defendant, but has a reasonable
doubt whether the murder was of the first or of the second degree, that juror must give
defendant the benefit of that doubt and find that the murder is of the second degree.”

                                             8
B. Attempted Murder
              Relying on the instruction concerning completing the verdict forms and the
verdict form for count 2, Loveless asserts the trial court erred in failing to give the jury
the option of finding him guilty of attempted murder as a lesser included offense of
attempted willful, deliberate, and premeditated murder. Relying on People v. Favor
(2012) 54 Cal.4th 868 (Favor), the Attorney General responds attempted murder is not a
lesser included offense of attempted willful, deliberate, and premeditated murder. The
Attorney General also argues the court was not required to instruct the jury on “attempted
murder” because the evidence pointed only to the conclusion he acted willfully,
deliberately, and with premeditation and any error was harmless. We agree the court
erred but conclude the error was harmless.
              “‘Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]
Attempted murder requires express malice, that is, the assailant either desires the victim’s
death, or knows to a substantial certainty that the victim’s death will occur.’ [Citation.]”
(People v. Houston (2012) 54 Cal.4th 1186, 1217.)
              “The mental state required for attempted murder has long differed from that
required for murder itself. Murder does not require the intent to kill. Implied malice—a
conscious disregard for life—suffices. [Citation.] But over a century ago, [the California
Supreme Court] made clear that implied malice cannot support a conviction of an attempt
to commit murder. ‘“To constitute murder, the guilty person need not intend to take life;
but to constitute an attempt to murder, he must so intend.” [Citation.] “The wrong-doer
must specifically contemplate taking life; and though his act is such as, were it
successful, would be murder, if in truth he does not mean to kill, he does not become
guilty of an attempt to commit murder.” [Citation.]’ [Citations.]” (People v. Bland
(2002) 28 Cal.4th 313, 327-328.) Premeditation and deliberation can be established by



                                               9
planning activity, preexisting motive, and manner of killing, the factors set forth in
People v. Anderson (1968) 70 Cal.2d 15, 26-27. (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 294 (Gonzales and Soliz).) Premeditation and deliberation may be
proven by circumstantial evidence. (Ibid.)
              “Section 664[, subdivision](a) provides that a defendant convicted of
attempted murder is subject to a determinate term of five, seven, or nine years. However,
a defendant convicted of attempted murder is subject to a sentence of life with the
possibility of parole if the jury finds that the attempted murder was ‘willful, deliberate,
and premeditated murder, as defined in [s]ection 189.’ [Citation.]” (Favor, supra, 54
Cal.4th at p. 875.) The Favor court explained the interplay between the two.
              “[A]ttempted premeditated murder and attempted unpremeditated murder
are not separate offenses. Attempted murder is not divided into different degrees.
[Citations.] ‘[T]he provision in section 664, subdivision (a), imposing a greater
punishment for an attempt to commit a murder that is “willful, deliberate, and
premeditated” does not create a greater degree of attempted murder but, rather,
constitutes a penalty provision that prescribes an increase in punishment (a greater base
term) for the offense of attempted murder.’ [Citation.] ‘[T]he statutory language
employed in prescribing an additional penalty for attempted murder . . . reflects a
legislative intent to create a penalty provision specifying a greater term, rather than a
substantive offense.’ [Citation.]” (Favor, supra, 54 Cal.4th at pp. 876-877.)
              Here, the trial court instructed the jury with CALCRIM Nos. 600 and 601.
CALCRIM No. 600 provided the jury with the elements of attempted murder.
CALCRIM No. 601 provided the jury with the definitions of deliberation and
premeditation. That instruction began, “If you find [Loveless] guilty of attempted murder
under [c]ount 2, you must then decide whether the People have proved the additional
allegation that the attempted murder was done willfully, and with deliberation and
premeditation.” Based on these instructions, it is clear the court properly instructed the

                                             10
jury it first had to determine whether Loveless was guilty of the offense and then had to
determine whether the penalty provision applied. Loveless does not dispute these
instructions were proper.
                 The problem though lies in another instruction and the verdict form.
Another instruction, what we presume to be CALCRIM No. 3517, concerns deliberations
and the completion of the verdict forms. As to count 2, it states, “We, the jury in the
above-entitled action, find . . . Loveless, guilty of the crime of attempted willful,
deliberate, and premeditated, as charged in [c]ount 2; or [¶] We, the jury in the
above-entitled action, find . . . Loveless, guilty of attempted voluntary manslaughter, a
lesser included offense to [c]ount 2; or [¶] We, the jury in the above-entitled action,
find . . . Loveless, not guilty as to [c]ount 2.” (Capitalization omitted.) This instruction
did not give the jury the option to convict Loveless of attempted murder without the
penalty provision. The verdict forms suffered from the same deficiency. The count 2
verdict form did not have a separate finding for the premeditation and deliberation
penalty provision. Nor was there a separate verdict form for the jury to make that finding
as to count 2.
                 Although we determine the correctness of the jury instructions from the
entire charge, we conclude the court erred. CALCRIM Nos. 600 and 601 properly
informed the jury it had to first determine whether Loveless was guilty of attempted
murder and if it so concluded, the jury had to determine whether he committed the
offense willfully, deliberately, and with premeditation. However, CALCRIM No. 3517
and the count 2 verdict form gave the jury only one option when determining whether
Loveless was guilty of attempted murder: attempted willful, deliberate, and premeditated
murder or nothing. The jury could not convict Loveless of attempted murder without the
premeditation and deliberation penalty provision.
                 However, we conclude Loveless was not prejudiced because it was not
reasonably probable he would have obtained a more favorable result had the trial court

                                              11
not erred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Lasko
(2000) 23 Cal.4th 101, 111 [stating Watson harmless error standard applicable to
instructional error on lesser included offenses and theories supported by evidence].) The
record contains circumstantial evidence from which the jury could reasonably conclude
Loveless acted willfully, deliberately, and with premeditation when he attempted to
murder Tate. Tate stabbed Loveless’s godbrother and threatened to stab Loveless.
Without hesitation, Loveless pulled out a gun and threatened to shoot Tate. After Blow
picked up Loveless, Miller, and Triplett and drove north on Bonnie Street, Blow turned
around. Salazar testified Bonnie Street was not a cul-de-sac as Miller claimed. Blow did
not have to turn around, but he did to drive past Starnes’s home. As Blow drove by the
house, Loveless put the gun out the window and fired 12 times at the people standing in
front of Starnes’s home. Loveless claimed he heard someone in the vehicle say, “‘He got
a gun[,]’” he saw a flash, and heard a gunshot, but neither Miller nor Triplett heard any
gunshots before Loveless fired his gun. Evidence of motive (Tate previously stabbed
Loveless’s family member and threatened to stab Loveless), planning (Blow turned
around to drive past Starnes’s home when he did not have to), and manner of attempting
to kill (Loveless fired his gun 12 times), were sufficient circumstantial evidence Loveless
retaliated against Tate and intended to murder him willfully, deliberately, and with
premeditation.
              Gonzales and Soliz, supra, 52 Cal.4th 254, is instructive. In that case,
defendants were members of a Hispanic street gang. (Gonzales and Soliz, supra,
52 Cal.4th at p. 263.) They were in a car when they saw two or three African-American
men from a rival gang standing in the driveway of a gas station. (Id. at pp. 268-270.)
Defendants recognized the men and told the driver of the car to return to the gas station.
(Id. at p. 270.) One of the defendants shot the African-American men. (Id. at p. 269.)
When one of the victims started to crawl away, the shooter walked up and shot him again.
(Ibid.) One of the victims had been shot nine times, one from behind while kneeling on

                                            12
the ground with the shooter standing over him, and the other had been shot seven times,
including two fatal wounds to the head. (Id. at p. 271.)
              The California Supreme Court held there was sufficient evidence of
premeditation and deliberation. “[T]he evidence of motive was that defendants targeted
[the victims] for a gang retaliation murder . . . . This motive evidence supported the
inference that defendants, who were armed at the time, had the prospect of retaliation in
mind and quickly decided to commit the murders once they identified potential targets.
A reasonable inference, therefore, is that defendants formed the intent to commit
premeditated and deliberate murder as early as when they asked the driver to turn the car
around and return to the gas station to confront [the victims] . . . .” (Gonzales and Soliz,
supra, 52 Cal.4th at p. 295.) As for “manner” evidence, the court stated multiple
gunshots at close range with a semiautomatic weapon supports an inference of
premeditation and deliberation. (Ibid.)
              Like the defendants in Gonzales and Soliz, Loveless had a motive to shoot
Tate, and the jury could reasonably infer Blow turned around so Loveless could do so.
Admittingly, the shots here were not at close range like in Gonzales and Soliz. However,
Loveless’s purposeful return and multiple gunshots support an inference of premeditation
and deliberation. Thus, we conclude there was sufficient circumstantial evidence
Loveless was guilty of count 2 with premeditation and deliberation, and Loveless was not
prejudiced by the trial court’s errors because it was not reasonably probable he would
have received a better result had the court not erred.
II. Sentence-Count 2
A. Principal Term
              Loveless argues the trial court erred in sentencing him to a concurrent term
of seven years to life for attempted willful, deliberate, and premeditated murder because
section 664, subdivision (a), mandates an indeterminate sentence of life with the



                                             13
possibility of parole. Relying on People v. Jefferson (1999) 21 Cal.4th 86 (Jefferson), the
Attorney General responds the sentence on count 2 was proper. We agree with Loveless.
              Section 664, subdivision (a), provides: “However, if the crime attempted is
willful, deliberate, and premeditated murder, as defined in [s]ection 189, the person guilty
of that attempt shall be punished by imprisonment in the state prison for life with the
possibility of parole.” (Favor, supra, 54 Cal.4th at p. 875.) Thus, the trial court erred in
sentencing Loveless to a concurrent term of seven years to life for willful, deliberate,
premeditated attempted murder. The proper term was life with the possibility of parole.
              Jefferson, supra, 21 Cal.4th 86, is of no assistance to the Attorney General
as that case involved the minimum term when the trial court sentenced defendant under
the Three Strikes Law (§ 667). We are not concerned here with the Three Strikes Law,
and section 664, subdivision (a), clearly provides the applicable sentence for attempted
willful, deliberate, and premeditated murder—life with the possibility of parole.
B. Section 186.22, Subdivision (b)
              Relying on People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), Loveless
contends the trial court erroneously imposed a 10-year enhancement on
count 2 pursuant to section 186.22, subdivision (b)(1)(C), because attempted willful,
deliberate, and premeditated murder is punishable by life in prison. The Attorney
General concedes the error.
              In Lopez, supra, 34 Cal.4th at pages 1004, 1007, the California Supreme
Court held a defendant convicted of first degree murder with a street gang enhancement
is not subject to a 10-year enhancement under section 186.22, subdivision (b)(1), but
rather a 15-year minimum eligible parole date under section 186.22, subdivision (b)(5).
Here, the trial court erred in imposing and staying a 10-year street terrorism enhancement
under section 186.22, subdivision (b)(1)(C). We modify the judgment by striking the
10-year street terrorism enhancement.



                                             14
                                      DISPOSITION
              The judgment is modified as to count 2 to reflect a concurrent term of life
with the possibility of parole and to strike the 10-year street terrorism enhancement as to
section 186.22, subdivision (b)(1)(C). The remaining sentences on count 2 are affirmed.
The clerk of the superior court is directed to prepare an amended abstract of judgment
consistent with this opinion and forward it to the Department of Corrections and
Rehabilitation, Division of Adult Operations. In all other respects, the judgment is
affirmed as modified.




                                                 O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                            15
