P. v. Soto

Filed 9/20/17 P. v. Soto CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR E. SOTO,
Defendant and Appellant.
B270095
(Los Angeles County
Super. Ct. No.TA036418)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed as
modified.
Derek Kowata, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven E. Mercer and Corey J. Robins, Deputy
Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Defendant Victor Edgar Soto was convicted of murder and
attempted murder for a gang-related shooting that occurred in
1996. On appeal, he argues that the trial court erred in denying
his post-trial request for discovery of officer personnel records
under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
In addition, the parties agree that the trial court made several
minor sentencing errors. We instruct the court to correct the
sentencing errors, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
The Los Angeles County District Attorney (the People) filed
an information charging defendant with the murder of Armando
Flores (Pen. Code, § 187, subd. (a),1 count 1), and attempted
murder of David Velasquez (§§ 187, subd. (a), 664, count 2). The
information further alleged that defendant personally used a
firearm in the commission of both offenses (§§ 1203.06,
subd. (a)(1), 12022.5, subd. (a)), and that defendant had a prior
serious felony conviction (§§ 667, subd. (a)(1), 1170, subd. (h)(3)).
In an allegation that became a point of confusion and is at issue
on appeal, the information further alleged that the offenses were
committed for the benefit of a criminal street gang “pursuant to
Penal Code 186.22(b)(1)(4),” and if defendant were to be
sentenced to prison for life, he “shall not be paroled until a
minimum of 15 calendar years have been served, a serious felony
1 All further unspecified statutory references are to the
Penal Code.

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pursuant to Penal Code section 186.22(b)(1)(4).”2 Defendant pled
not guilty. The case proceeded to a jury trial.
B. Prosecution case
1. Incident
At trial, Olga Flores testified that her brother Armando
Flores was killed on August 26, 1996. Olga3 and her family lived
in an apartment complex in Compton. Armando was a member
of the Largo gang, and was friends with David Velasquez. On the
day of Armando’s death, David and another friend, “Flaco,” came
to the apartment looking for Armando. Olga testified that
Armando, David, and Flaco went outside to a nearby set of stairs.
Olga saw two men coming from the front of the apartment
building toward her apartment and toward her brother. Both
men were Hispanic; one was tall and chubby, and the other was
shorter and thinner. The taller man had acne scars on his face
and was wearing a blue shirt. The man in blue got close to
Armando and asked where he was from.4 Armando responded
that he was from Largo. The man in blue said, “Colonial Watts,”
pulled a gun from his waistband, and pointed it at Armando’s
face. Armando picked up a rock from the ground and threw it at
the man’s face, and then ran. David and Flaco ran up the stairs,
2 As discussed further below, section 186.22 does not have a
subdivision (b)(1)(4). It appears that the correct subdivision is
(b)(5). 3 Because multiple witnesses and the victim have the same
or similar last names, we refer to several people herein by their
first names for clarity.
4 On cross-examination, Olga agreed that she told a
detective that she could not hear what the men said to each other
before the shooting. She testified that she heard the initial
exchange, but did not hear anything after that.

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and the shorter man remained in the courtyard holding a
weapon. The man in blue ran after Armando toward a parking
area in the rear of the complex. Olga heard “more than seven”
gunshots. Olga ran after her brother and the man, and found
Armando lying on the ground; the man in blue was gone.
Rosa Flores, Olga and Armando’s sister, testified that she
was at home on the day of Armando’s death, and she also saw the
two men. She noticed them because of the way they were dressed
and because of their unusual behavior. Rosa said she did not
remember much else from that day.
Maria Velazquez testified that in 1996 she was 14 years old
and lived in the same apartment complex as the Flores family.
On the day Armando was shot, she saw “more than seven men”
come into the complex. Armando was near Maria, talking to her.
One of the men pointed a gun at Armando and asked him if he
was from a gang. Armando said no, swatted the gun away, and
ran. The man with the gun ran after Armando and started
shooting.
Geraldo Velazquez, Maria’s older brother, testified that he
was 16 at the time of the shooting. He was standing in the
doorway of his family’s apartment when he saw three men
running through the apartment complex. The men ran from the
street toward the back of the complex. Geraldo heard “a lot” of
gunshots, then the men ran toward the street again.
Victim David Velasquez testified that he and Armando
were members of Largo. On the day of the shooting, David was
at the apartment complex, hanging out with Armando and Flaco
and getting high.5 He noticed a white van going by the
5 David did not remember Flaco’s real name. Detective
Aguirre testified that Flaco’s name was Manuel Sanchez.

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apartment complex. David said he heard gunshots and ran
toward the back of the apartment complex; he did not see
anything involving the shooting. David also said that he did not
want to testify, and that he had been arrested and brought to
court because he refused to comply with the court’s subpoena.
The prosecution played a video recording of an interview
with David from August 28, 1996, two days after the shooting.6
In the interview, David said that several hours before the
shooting, he had seen “Jap” from Colonial, who was married to
David’s cousin, Edith. Jap blamed David and Largo for shooting
at him recently. Later the same day, David was with Armando
and Flaco near Armando’s apartment. He saw Jap’s white van
pass by the complex a couple of times. The van parked, and Jap
walked up to David, Armando, and Flaco. Jap asked Armando
where he was from, and Armando responded that he was from
Largo. David said or did something (the interview transcript is
unclear), then Jap shot at David and missed. Jap also shot at
Flaco, and then started chasing Armando. David ran away and
told a neighbor to call an ambulance. David saw the van leave.
When officers asked about Jap’s real name, David said he was
not sure, but he thought it might be Victor Santos. David said
his mother would know the name.
Armando died the day of the shooting. The medical
examiner testified that Armando had five gunshot wound entries,
including a fatal wound in which a projectile entered the back of
Armando’s head and traveled through his brain.
6 The video from the interview is not in the record on
appeal. The following information is from the transcript included
in the record as a trial exhibit.

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2. Investigation
Los Angeles County Sheriff’s Department (LASD) deputy
Victor Locklin testified that he worked for the Compton Police
Department in 1996. When Locklin talked to David at the scene,
David said he was with Armando and Flaco when he saw a white
van with two Colonial Watts members “mad dogging” them, or
looking at them. David, Armando, and Flaco walked into the
apartment complex, and then one of the people from the van
walked into the complex from the other direction. The man asked
where they were from, and Armando said, “Largo.” The man
yelled, “Colonial,” pulled out a gun, and started shooting at them.
David ran into an apartment, and Armando ran toward the rear
of the complex. David heard additional gunshots coming from the
rear of the complex. Locklin testified that David did not tell him
the name of the shooter.
LASD deputy Eduardo Aguirre testified that he currently
works as an investigator in the homicide bureau. When he was
with the Compton Police Department in 1996, he was assigned to
investigate Armando’s murder. Aguirre interviewed David and
recorded the interview. Based on David’s statement that Jap’s
real name might be Victor Santos, Aguirre had a photographic
six-pack prepared that included a photo of a man with a similar
name. When Aguirre showed the six-pack to David and David’s
mother, neither identified any of the photos as showing Edith’s
husband.
After getting additional information from David’s mother,
including defendant’s name, Aguirre created a six-pack that
included defendant’s photo in the number one position. Aguirre
showed the six-pack to multiple witnesses in the case. Rosa,
Maria, and Geraldo each immediately identified defendant.

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Aguirre testified that David also chose defendant from the six-
pack, and said he was the person who shot at him, Flaco, and
Armando. David testified that the officer only asked him to
identify his family member. David testified at trial that
defendant was his cousin Edith’s husband.7
Olga was also shown a six-pack photographic lineup, but at
trial could did not recall whether she had identified anyone in
1996. At trial, however, Olga testified that defendant looked like
the man who shot Armando. Olga testified that at a prior
hearing defendant looked at her in a way that reminded her of
the way the man in blue looked at her the day of the shooting.
Defendant’s walk also reminded her of the way the man who shot
Armando walked.
Aguirre testified that Armando, David, and Flaco were
members of the Compton Varrio Largo gang. In 1996, local
gangs, including Largo, were feuding with Colonial Watts over
Colonial Watts members’ attempts to move into the area.
Aguirre learned that David’s cousin Edith was a member of
Colonial Watts. Aguirre also testified that in his opinion,
defendant was a member of Colonial Watts and his moniker was
Jap. Aguirre testified that when gang names are exchanged
before a shooting, as they were in this case, the shooting is done
to benefit the gang of the shooter.
A warrant was issued for defendant’s arrest, but attempts
to locate him were unsuccessful. Defendant’s driver’s license
expired in 1998 and his state identification expired in 2000;
neither was renewed. Aguirre testified that when the Compton
7 On cross-examination, David said that Edith’s husband
and Jap are not the same person. On redirect, David said there
are two different people called Jap.

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Police Department merged with the Los Angeles County Sheriff’s
Department in 2000 or 2001, all pending Compton cases were
transferred to someone else, and he no longer worked on those
cases.
3. Defendant’s arrest
Huntington Park police officer Marko Mendoza testified
that he pulled defendant over as he was driving on October 2,
2014. Defendant told Mendoza his name was George Herrera.
Mendoza arrested defendant for reasons that are not clear in the
record,8 and eventually defendant gave police his true name and
date of birth. A search of defendant’s name in the police database
returned a possible warrant for murder issued in 1996. Live-scan
fingerprints confirmed defendant’s identity.
LASD deputy Steven Blagg testified that he was assigned
to the case after defendant was arrested. Blagg confirmed that
the man arrested was the same person for whom a warrant was
issued in 1996. He gathered materials from the old case file,
including photos from the crime scene, physical evidence, and the
videotaped interview of David.
Blagg testified that he spoke with Olga Flores, and showed
her the six-pack with defendant’s photograph in it. Olga said the
person in position number six looked familiar. As she looked at
the six-pack, her eyes kept going back to the person in position
number one. Blagg’s partner, Fred Reynolds, asked Olga why
she kept looking at the photograph in position number one. Olga
said the person in position number one also looked familiar. She
did not say that either the person in position one or six was the
shooter.
8 The parties stipulated that there was probable cause to
arrest defendant.

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LASD deputy Timothy Cho testified that he works as a
custody investigator at the North County Correctional Facility,
where defendant was housed after his arrest. Blagg requested a
property search of defendant’s possessions. Defendant was in
possession of three styrofoam cups with graffiti-type writing on
them; photos of the cups were shown to the jury. Aguirre
testified that the markings on the cups were Colonial Watts gang
symbols or tags. Defendant also had a seven-page letter
addressed to him from an inmate at North Kern State Prison.
The letter was addressed to “Jap,” and the letter had the words
“Watts up” twice on the first page. Aguirre testified that “Jap”
was a gang moniker, and “Watts” was a gang tag used to identify
and represent the gang. The letter was from Victor Alarcon, who
has Colonial Watts tattoos.
C. Defense case
The defense called a single witness, psychologist Mitchell
Eisen, Ph.D. He testified generally about memory and how
memories may change over time. He testified that pieces of old
memories are replaced by reconstructed data that may not be
correct. Eisen said life-threatening trauma can influence
memory. He also testified that suggestions to a witness looking
at a six-pack photographic lineup could influence the witness’s
identification of a person involved in an incident.
D. Verdict, post-trial motions, and sentence
The jury found defendant guilty on both counts, and found
the firearm allegations and gang allegations to be true as to both
counts. The jury found the attempted murder of David to be
willful, deliberate, and premeditated (count 2). Defendant
waived a jury trial as to the prior allegations.

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Defendant chose to represent himself for purposes of filing
post-trial motions. Defendant filed nine post-trial motions,
including various requests for post-trial discovery, assignment of
an investigator, funding for an investigation, juror contact
information, trial transcripts, and appointment of an expert
witness, as well as a motion for a new trial. The only motion
relevant for purposes of appeal is defendant’s post-trial Pitchess
motion, in which defendant sought the personnel files of Aguirre,
Blagg, and Reynolds. We discuss the motion in further detail
below, but in short, defendant argued that the records were
required to show that Aguirre “lied and falsified police reports”,
and that Blagg and Reynolds collaborated to guide Olga into
choosing defendant from the six-pack photo lineup. Defendant
also asserted that Blagg improperly ordered belongings
confiscated from defendant’s housing unit, including the foam
cups and letter.
The Los Angeles County Sheriff’s Department opposed
defendant’s motion. The Sheriff’s Department asserted that
defendant was not entitled to post-judgment discovery, and
defendant’s motion failed to satisfy the requirements for
discovery of confidential peace officer records. The opposition
also noted that the Penal Code does not require that peace officer
records be maintained for more than five years, and because
parts of defendant’s request related to the investigation in 1996,
such records were not available.
The trial court found that although defendant was entitled
to discovery relevant to his motion for new trial, he failed to show
good cause warranting in-camera review of the records. The
court therefore denied the motion.

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The court denied defendant’s motion for a new trial. The
court held a trial regarding defendant’s prior conviction, and
found the prior allegation to be true. The court granted the
People’s motion to amend the information to include an allegation
pursuant to the Three Strikes law (§§ 667, subd. (b)-(i), 1170.12,
subd. (a)-(d)), and denied defendant’s Romero motion.9
The court sentenced defendant to 100 years to life,
calculated as follows. On count 1 (murder) , the court sentenced
defendant to 25 years to life, doubled pursuant to the Three
Strikes law, with a consecutive term of ten years pursuant to
section 12022.5, for a total of 60 years to life. On count 2
(attempted murder), the court sentenced defendant to 15 years to
life, doubled pursuant to the Three Strikes law, with a
consecutive term of ten years pursuant to section 12022.5, for a
total of 40 years to life, to run consecutive to count 1. The court
stayed sentencing on the gang enhancements.
Defendant timely appealed.
DISCUSSION
A. Pitchess motion
Defendant asserts that the trial court abused its discretion
in denying his post-trial Pitchess motion. “A motion for discovery
of peace officer personnel records is addressed to the sound
discretion of the trial court, reviewable for abuse.” (Alford v.
Superior Court (2003) 29 Cal.4th 1033, 1039.)
1. Motion
Defendant sought the personnel records of Aguirre,
Reynolds, and Blagg “relating to acts of misconduct concerning
these officers’ characters for honesty and integrity, including (but
not limited to) accusations of lying, filing any false reports,
9 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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perjury, fabricating addmissions [sic], theft, confessions, or other
evidence, evidence tampering, fraud, misrepresentation, illegal
cover-ups, malfeasance.”
Defendant explained that he “intends to show that . . .
Aguirre lied and falsified police reports.” In a declaration
attached to the motion, defendant compared parts of Aguirre’s
report of his interview with David to the transcript of Aguirre’s
interview with David, noting minor discrepancies. For example,
defendant stated, “Officer Aguirre ask[ed] David if he knows Japs
[sic] first name, wich [sic] to David on lines 6-7 states he doesn’t
know. On line 14 it is Ofcr. Aguirre who mentions a last name of
Santos to David.”10 The report states, “[David] stated that he
believes ‘Jap’s’ last name is Santos.” The transcript of the
interview indicates that Aguirre asked David about Jap’s last
name, and asked, “Santos or (Inaudible)?” David responded,
“Santos.”
Defendant also asserted that “the collective collaboration of
. . . Reynolds and . . . Blagg” influenced witness identifications.
He argued that Blagg and Reynolds interviewed Norma Flores,
Olga and Armando’s sister, and during the interview with
Norma, “Det. Blagg . . . begins leading Norma Flores to position
#1 photo of six pack, wich [sic] is that of the defendant Victor E.
Soto.” Three pages of a transcript are attached, in which Blagg
(spelled Blag in defendant’s transcript) asks Norma, “You keep
staring at one quite a bit. Why – why do you keep going back to –
10 The pages of transcript attached to defendant’s motion do
not match the transcript from the trial. The transcript attached
to defendant’s motion includes several discrepancies. For
example, it identifies Aguirre as “Officer Geary.” “Officer Geary”
asks David if he knows the true name of “Jack” rather than Jap.

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to that one?” Defendant contended that Reynolds did the same in
Olga’s interview, saying that he “leads Olga back to the photo six-
pack by means of ‘I couldn’t help notice you kept looking at #1’
suggestive unconstitutional method.”
Defendant concluded that “officers [sic] credibility will be a
material issue in this matter. These materials will be used by
defense private investigator Mr. Allard . . . to interview these
witnesses.”11
2. Analysis
On appeal, defendant contends that his Pitchess motion
should have been granted because the motion asserted that
“Aguirre lied and falsified police reports, and that Blagg and
Reynolds exploited witnesses to obtain false identifications of
[defendant] from a six-pack photographic lineup.” Defendant
asserts that this met the “relatively low threshold for discovery”
required for a Pitchess motion.
A defendant seeking peace officer records “must file a
motion supported by affidavits showing ‘good cause for the
discovery,’ first by demonstrating the materiality of the
information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or
information at issue. ([Evid. Code.,] § 1043, subd. (b)(3).)”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; see also
Evid. Code, § 1045, subd. (a) [a defendant is entitled to records of
complaints against peace officers “provided that information is
11 Defendant’s motion also asserted that Blagg
demonstrated “moral turpitude and corrupt tendencies” because,
without a court order, Blagg had defendant’s belongings searched
for evidence and took defendant’s photograph to look for gang
tattoos. He does not assert this argument on appeal as a
potential basis for reversal.

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relevant to the subject matter involved in the pending
litigation.”].) “[A] showing of good cause requires a defendant
seeking Pitchess discovery to establish not only a logical link
between the defense proposed and the pending charge, but also to
articulate how the discovery being sought would support such a
defense or how it would impeach the officer’s version of events.”
(Warrick, supra, 35 Cal.4th at p. 1021.)
For a post-trial Pitchess motion following a conviction, a
new trial motion is the “pending litigation” to which requested
records must be material. (People v. Nguyen (2007) 151
Cal.App.4th 1473, 1478.) Defendant asserts that “the present
litigation at issue was his new trial motion based on a claim of
ineffective assistance of counsel.” To prevail on a claim of
ineffective assistance of counsel, “defendant would have to show a
‘reasonable probability’ that competent performance would have
led to a different result. [Citation.] Thus, the proper standard
for reviewing defendant’s posttrial Pitchess motion was whether a
reasonable probability existed that disclosure of the requested
records would have led to a different result at trial.” (Nguyen,
151 Cal.App.4th at p. 1478.)
Defendant did not make this showing, and the record does
not support his argument that the officers’ records would bolster
any assertions of ineffective assistance of counsel. Although
defendant asserted that Aguirre’s report differed in minor details
from the transcript of David’s interview, defendant’s declaration
did not support a suggestion that Aguirre’s report was falsified.
Defendant pointed to minor discrepancies between Aguirre’s
report and the transcript of David’s interview, but the report
itself referenced the videotaped interview. Because Aguirre’s
report made it clear that the transcribed interview itself was an

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additional source of information, defendant’s assertion that
Aguirre attempted to hide or obscure information elicited from
David in the interview is not well taken.
Regarding Blagg and Reynolds, defendant did not
demonstrate that the officers committed misconduct by causing
Norma and Olga to identify defendant in the six-pack. Blagg and
Reynolds asked Norma and Olga in separate interviews whether
they were focusing on a particular photo. Both Norma and Olga
said that the person in the photograph in position number one
(defendant) looked familiar. However, neither identified
defendant as the shooter when looking at the six-pack. Thus
defendant’s assertion that Blagg and Reynolds caused Norma and
Olga to identify him as the shooter was not supported by the
record.
In addition, Norma did not testify, and therefore her
identification of defendant as someone who looked familiar had
no effect on defendant’s conviction. Blagg and Reynolds played
no part in interviewing the other witnesses who identified
defendant in the photo six-pack within days of the shooting, so
any allegation that they may have guided Norma or Olga to
identify defendant has no bearing on the identification of
defendant by Rosa, Maria, Geraldo, and David. Defendant
therefore did not establish that the Pitchess materials he sought
would impeach the officers’ version of events.
Defendant also did not show a logical connection between
the requested Pitchess discovery and any potential defense
relating to his motion for new trial. Defendant argued generally
that Aguirre, Blagg, and Reynolds may have been dishonest, but
this assertion does not present an adequate basis for either
Pitchess discovery or a new trial. A defendant may not assert

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that police officers may have been dishonest “and thereby obtain
discovery of all information contained in an officer’s personnel
records which potentially reflects on the officer’s credibility.”
(California Highway Patrol v. Superior Court (2000) 84
Cal.App.4th 1010, 1024.) Even if the Pitchess motion were
granted, any resulting evidence would not warrant a new trial
where the only value of the newly discovered evidence is to
impeach or contradict a witness. (People v. Hall (2010) 187
Cal.App.4th 282, 299.) “As a general rule, ‘evidence which merely
impeaches a witness is not significant enough to make a different
result probable. . . .’ [Citation.]” (People v. Green (1982) 130
Cal.App.3d 1, 11.)
Moreover, defendant did not demonstrate how the
disclosure of personnel files would have any bearing on his
assertion that his counsel was ineffective. In his Pitchess motion,
defendant asserted that the records were related to his ineffective
assistance of counsel claim, but he made no effort to demonstrate
how the officers’ personnel information would relate to that
assertion. In his motion for new trial, filed three days after the
court denied defendant’s Pitchess motion, defendant argued
ineffective assistance of counsel on the basis that counsel failed to
do the following: call a gang expert to testify at trial, move to
exclude the cup and letter found in defendant’s possession, assert
a “speedy trial defense due to the case being 20 years old,” and
poll the jury after the verdict was read. Defendant did not assert
that his trial counsel was ineffective for failing to file a Pitchess
motion before trial, nor did he allege that his counsel failed to
investigate any facts related to Aguirre, Blagg, or Reynolds.
In addition, defendant has not demonstrated a reasonable
probability that the outcome of the trial would have been

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different if he had access to the information he sought. Even if
counsel successfully undermined Aguirre’s police report or
Blagg’s and Reynold’s interview of Olga, the evidence against
defendant was substantial. Olga, Rosa, Maria, and Geraldo each
recounted the incident with relative consistency. David’s
testimony, while less clear, corroborated the basic facts recounted
by the other witnesses and identified “Jap” as the perpetrator.
When shown the six-pack after the shooting, Rosa, Maria, and
Geraldo all immediately identified defendant as the shooter, and
each of them testified at trial that they identified defendant and
signed their names on copies of the six-pack. Olga identified
defendant in court as the shooter. Defendant makes no effort to
refute this evidence, or to demonstrate that it would have been
undermined had the Pitchess motion been granted. “[A]
defendant who has established that the trial court erred in
denying Pitchess discovery must also demonstrate a reasonable
probability of a different outcome had the evidence been
disclosed.” (People v. Gaines (2009) 46 Cal.4th 172, 182.)
Defendant has not made that showing here.
The trial court did not abuse its discretion in denying
defendant’s post-trial Pitchess motion.
B. Sentencing errors
The parties agree that the court made several minor
sentencing errors. We discuss the errors here and direct the trial
court to correct them.
1. Section 667, subdivision (a) enhancement
The parties agree that the court failed to impose a five-year
sentence enhancement under section 667, subdivision (a)(1).
Imposition of this term is mandatory. (People v. Purata (1996) 42
Cal.App.4th 489, 498.) “The failure to impose a five-year section

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667, subdivision (a) prior serious felony conviction enhancement .
. . may be corrected for the first time on appeal.” (People v.
Garcia (2008) 167 Cal.App.4th 1550, 1562.) We order the trial
court to correct the sentence to include the section 667,
subdivision (a) enhancement.
2. Basis for sentence on count 2
The parties agree that although the sentence on count 2
was correct, the court’s articulated reasoning was erroneous.
Defendant has asked us to clarify the appropriate basis for the
sentence, and instruct the court to correct the abstract of
judgment.
On count 2, the court sentenced defendant to 15 years to
life, doubled pursuant to the Three Strikes law, with a
consecutive term of ten years pursuant to section 12022.5, for a
total of 40 years to life. As to the gang finding under section
186.22, the court said, “The 186.22 allegation has no effect as
that only minimizes the parole eligibility period of 15 years. So
that’s both [sic] stayed as to both counts.”
To clarify the basis for the court’s sentence, we must first
address an error in the information. The gang allegation in the
information was asserted under “Penal Code section
186.22(b)(1)(4).” Similarly, the jury found true the allegation
under “Penal Code Section 186.22(b)(1)(4)” for both counts.
However, there is no subdivision (b)(1)(4) in section 186.22.
Both parties agree that section 186.22, subdivision (b)(5)
(section 186.22(b)(5)) applies. That subdivision states that “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.” This also comports with the information, which stated

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that pursuant to the gang allegation, defendant would not be
eligible for parole for a minimum of 15 calendar years, as well as
the court’s statement during sentencing that the “186.22
allegation” set parole eligibility at 15 years. We therefore agree
with the parties that despite the incorrect designation in the
information and on the verdict form, section 186.22(b)(5) applies
here.
The sentence for attempted willful, deliberate, and
premeditated murder is life with the possibility of parole. (§ 664,
subd. (a).) Typically, a defendant sentenced to life with the
possibility of parole must serve a term of at least seven years
before becoming eligible for parole. (§ 3046, subd. (a)(1).)
However, section 186.22(b)(5) “sets forth an alternate penalty for
the underlying felony itself, when the jury has determined that
the defendant has satisfied the conditions specified in the
statute.” (People v. Jefferson (1999) 21 Cal.4th 86, 101 (Jefferson)
[discussing former section 186.22, subdivision (b)(4), and
clarifying that the 15–year minimum term is not a sentence
enhancement].) Section 186.22(b)(5) therefore “establishes the
punishment for the ‘current felony conviction’” and is subject to
sentence-doubling under the Three Strikes law. (Ibid.)
The parties agree that the appropriate term for count 2 was
a life term with 15-years minimum parole eligibility based on the
jury’s finding under section 186.22(b)(5), doubled pursuant to
section 667, subdivision (e)(1) to 30 years, plus 10 years for the
firearm enhancement under section 12022.5. In total, therefore
the sentence is 40 years to life, or a life sentence with minimum
parole eligibility in 40 years.
Although defendant agrees that this was the correct term,
he contends that the court stated it incorrectly. Defendant

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insists that “the correct sentence for premeditated attempted
murder can only be life with the possibility of parole, and that a
minimum parole eligibility should be stated separately from the
sentence.” He insists that this is “a distinction with a difference”
because defendant “believes there would be nothing preventing
him from a parole hearing in less than 30 years . . . if section
186.22(b)(5) were amended.” Defendant cites Jefferson, supra, in
support of this argument, but that case contradicts his assertion.
In Jefferson, the Court held that parole ineligibility periods in
section 3046 and section 186.22 are minimum terms of
confinement. (Jefferson, supra, 21 Cal.4th at p. 101.) The
Supreme Court also said that “it is not improper for the trial
court to include, as part of a defendant’s sentence, the minimum
term of confinement the defendant must serve before becoming
eligible for parole.” (Id.at p. 102 fn. 3.) That is what the court
did here, and it was not improper.
3. The “stayed” allegation under section 186.22
After the trial court sentenced defendant on both counts, it
stated that the “186.22 allegation has no effect as that only
minimizes the parole eligibility period of 15 years. So that’s both
[sic] stayed as to both counts.” Defendant argues that as to both
counts, “the trial court erred in staying the gang enhancements
under section 186.22, subdivision (b)(1) . . . because the court was
required to strike the enhancements.” He argues that because
10-year sentence enhancements under section 186.22, subdivision
(b)(1)(C) may not be applied to an indeterminate life term (see
People v. Lopez (2005) 34 Cal.4th 1002, 1004), “the 186.22
determinate 10-year terms on counts 1 and 2 must each be
ordered stricken instead of stayed pursuant to section 654.”

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Section 186.22, subdivision (b)(1)(C) imposes a 10-year
enhancement when a defendant commits a violent felony for the
benefit of a gang. “Section 186.22(b)(1)(C) does not apply,
however, where the violent felony is ‘punishable by imprisonment
in the state prison for life.’ (Pen.Code, § 186.22, subd. (b)(5).)”
(Lopez, supra, 34 Cal.4th at p. 1004; see also People v. Harper
(2003) 109 Cal.App.4th 520, 525 [“if, as here, an indeterminate
life term is imposed, then the 15-year minimum parole eligibility
applies rather than a determinate, consecutive enhancement.”].)
Here, both counts carried life sentences; thus subdivision
(b)(1)(C) was not applicable.
Although defendant is correct that the section 186.22,
subdivision (b)(1)(C) enhancement does not apply under the
circumstances of this case, the court did not in fact impose and
stay separate 10-year terms pursuant to section 186.22,
subdivision (b)(1)(C). Thus, there is no 10-year sentence under
section 186.22 to strike.12
4. Custody credits
The court awarded defendant custody credit of “490 days
actual with no conduct credit.” The parties agree that defendant
was entitled to 491 days actual presentence custody credit. In
12 The court “staying” sentences under section 186.22(b)(5)
appears to have no practical effect, given that the parties agree
that the court relied on section 186.22(b)(5) in sentencing
defendant on count 2, and section 186.22(b)(5)’s limitation on
parole is necessarily subsumed by defendant’s doubled 25-years-
to-life sentence on count 1. (See, e.g., Harper, supra, 109
Cal.App.4th at p. 527 [“the 15-year minimum parole eligibility
has little effect since it is subsumed in the 25-year minimum
parole eligibility imposed for the underlying murder
conviction.”].)

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addition, the parties agree that defendant is entitled to 15
percent presentence custody credits under section 2933.1, subd.
(a).13 The parties therefore agree that defendant is entitled to 73
days presentence conduct credits.
DISPOSITION
The judgment is modified to include the five-year sentence
enhancement under section 667, subdivision (a), and to award
defendant 491 days of actual custody and 73 days of conduct
credit for a total of 564 days of presentence credit. The trial court
is directed to prepare a new abstract of judgment reflecting these
changes, and in that abstract the court shall remove any
reference to “PC 186.22(b)(1)(4),” and replace it with the
applicable subdivision, Penal Code section 186.22(b)(5). We order
the trial court to send a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
WILLHITE, Acting P. J. MANELLA, J.
13 Section 2933.2, subdivision (a) prohibits murderers from
accruing credit. However, that statute became effective in 1998,
and does not apply to the crimes here, which were committed in
1996. (People v. Reyes (2008) 165 Cal.App.4th 426, 437.)

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