California, United States of America
The following excerpt is from People v. Franklin, B284671 (Cal. App. 2018):
Pursuant to section 186.22, subdivision (b)(1)(C), the trial court imposed an additional term of 10 years because the crime of attempted murder charged in count is a violent felony, as defined in section 667.5, subdivision (c). "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).) Instead, section 186.22, subdivision (b)(5) [citation] applies and imposes a minimum term of 15 years before the defendant may be considered for parole." (People v. Lopez (2005) 34 Cal.4th 1002, 1004.)
Because defendant's conviction on count one for attempted willful, deliberate, and premeditated murder ( 664, 187, subd. (a)) is a violent felony ( 667.5, subd. (c)(1)) that is punishable by life imprisonment ( 664, subd. (a)), the trial court erred by imposing the consecutive 10-year term pursuant to section 186.22, subdivision (b)(1)(C). We, therefore, vacate defendant's sentence on both counts and remand for the trial court to resentence defendant in accordance herewith. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking the illegal portions, the trial court may reconsider all sentencing choices"].)
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexsei.com.