P. v. Hooks
Filed 4/13/09 P. v. Hooks CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. DARNEIL JAMAR HOOKS, Defendant and Appellant. | 2d Crim. No. B207109 (Super. Ct. No. TA090896-01) (Los Angeles County) |
A jury convicted Darneil Jamar Hooks of first degree murder (Pen. Code, 187, subd.(a))[1]with special findings that he personally and intentionally discharged a firearm causing death ( 12022.53, subd. (d)), and committed the offense for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The trial court sentenced appellant to 25 years to life on the murder count, a consecutive term of 25 years to life on the firearm use enhancement ( 12022.53, subd. (d)), and 10 years on the gang enhancement ( 186.22, subd. (b)(2)(C)) for a total aggregate term of 60 years to life.
Appellant contends and the Attorney General concedes that we should strike the gang enhancement and modify the sentence to reflect a total aggregate term of 50 years to life with a minimum service of 15 calendar years before parole eligibility. ( 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004.) We agree and modify the judgment accordingly.
Facts
On the afternoon of May 14, 2007, appellant approached Carl Pickering as he sat in a car parked in front of a liquor store. Appellant leaned into the car and shot and killed Pickering.
Gregory Newberry knew appellant and Pickering, heard the two gun shots, and saw appellant run from Pickering's car. Newberry shouted, "You bitch motherfucker." Appellant turned, glanced at Newberry, and kept running. A second witness, Thomas Perry, heard the shots and saw appellant with a gun in his right hand. The shooting was photographed on a store surveillance camera, which was shown to the jury.
Los Angeles Police Department Detective Daniel Meyers arrested appellant on May 23, 2007, after he saw appellant driving a stolen car near the liquor store. Appellant and a second man jumped from the vehicle and ran into the apartment complex where appellant lived. Appellant was clutching something in his waistband. Upon the arrest, appellant admitted that it was a .22 caliber revolver. Inside the apartment, the police found the .22 caliber revolver hidden in a stove, ammo, and gang photos and clothing.
Waiving his Miranda rights (Miranda v. Arrizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], appellant stated that he was a member of the Miller Gangster Bloods, a local street gang. The shooting victim, Pickering, belonged to a rival gang, Hard Time Hustler Crips.
In a tape-recorded jail conversation, appellant told a cellmate that he saw Newberry just before the victim was shot. A gang expert opined that the murder was committed at the direction of and to benefit the Miller Gangster Bloods.
Sentencing Gang Enhancement
Appellant contends, and the Attorney General agrees, that the trial court erred imposing the 10-year gang enhancement because appellant was sentenced to 50 years to life. The 10-year gang enhancement does not apply "where the violent felony is 'punishable by imprisonment in the state prison for life.' (Pen. Code, 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez, supra, 34 Cal.4th at p. 1004; People v. Johnson (2003) 109 Cal.App.4th 1230, 1239.)
The trial court is directed to strike the 10-year gang enhancement and to amend the abstract of judgment to reflect (1) an aggregate sentence of 50 years to life, and (2) that appellant serve a minimum of 15 calendar years before he is considered eligible for parole. (186.22, subd. (b)(5); People v. Lopez, supra, 34 Cal.4th at p. 1004.) The trial court is further directed to forward 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.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
Kelvin D. Filer, Judge
Superior Court County of Los Angeles
______________________________
John P. Dwyer, 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 Sullivan Pithey, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
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[1]All statutory references are to the Penal Code.
