People v. Pettis CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN192841
- Trial judge
- Brad A. Weinreb
- Outcome
- modified — Affirmed as modified.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Buchanan
Analysis
The trial court sentenced the defendant to 25 years to life for conspiracy to commit murder and imposed a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1). The Court of Appeal modified the judgment to vacate the 10-year enhancement and impose a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5), affirming the judgment as modified.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1) for a conviction of conspiracy to commit murder.“Because Pettis’s conspiracy to commit murder conviction “is a violent felony that is punishable by imprisonment in the state prison for life,” it is “not subject to a 10-year enhancement under section 186.22(b)(1)(C).”” | de novo | error | agree with court The court correctly identified that conspiracy to commit murder carries the same punishment as first-degree murder, which is punishable by life imprisonment. Under People v. Lopez, such offenses are not subject to the 10-year enhancement under section 186.22, subdivision (b)(1)(C), but rather the 15-year minimum parole eligibility term under subdivision (b)(5). The trial court's application of the 10-year enhancement was therefore legally incorrect. |
Authorities
- relied: People v. Lopez (2005) 34 Cal.4th 1002 — A violent felony punishable by life imprisonment is not subject to the 10-year enhancement under section 186.22(b)(1)(C) but is subject to the 15-year minimum parole eligibility term under section 186.22(b)(5).
- relied: People v. Ortiz (1997) 57 Cal.App.4th 480 — Supports the application of section 186.22, subdivision (b)(5) for violent felonies punishable by life imprisonment.
The appellate opinion: sound — The opinion is sound because it correctly applies the holding in People v. Lopez to the specific statutory scheme of section 186.22, distinguishing between the 10-year enhancement and the 15-year minimum parole eligibility term based on the punishment for the underlying offense. The reasoning is concise and directly addresses the legal error without unnecessary complexity.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Pettis to 25 years to life for conspiracy to commit murder and imposed but stayed a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1); Pettis later sought and was denied section 1172.6 resentencing. On appeal the Court of Appeal, with the People's concession, held the 10-year enhancement unauthorized under People v. Lopez, vacated it, substituted a 15-year minimum parole eligibility term under subdivision (b)(5), and affirmed the judgment as modified.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition (stayed) of a 10-year gang enhancement under section 186.22, subdivision (b)(1) on a conspiracy to commit murder conviction punishable by life imprisonment“As part of Pettis’s sentence, the court imposed a 10-year gang enhancement under section 186.22, subdivision (b)(1). This was error.” | unclear | error (law misapplied) | agree with court The opinion does not state a standard of review, but the question is the legality of a sentence, a pure question of law. Conspiracy to commit murder is punishable as first degree murder (§§ 182, 190), i.e., by a life term, and Lopez squarely holds that a felony punishable by life imprisonment is subject to the 15-year minimum parole eligibility term of section 186.22(b)(5), not the 10-year enhancement of (b)(1)(C). The court correctly applied controlling Supreme Court authority, and the People conceded. The modification follows the remedy Lopez itself used. |
Authorities
- relied: People v. Lopez (2005) 34 Cal.4th 1002 — A violent felony punishable by life imprisonment is not subject to the 10-year enhancement under section 186.22(b)(1)(C); instead the 15-year minimum parole eligibility term of section 186.22(b)(5) applies.
- relied: People v. Ortiz (1997) 57 Cal.App.4th 480 — Section 186.22(b)(5)'s 15-year minimum parole eligibility provision, rather than a determinate enhancement, governs gang-related felonies carrying life terms.
The appellate opinion: sound with gaps — The result is compelled by Lopez, which the court cites and applies correctly, and the People conceded the error, so the substantive holding is sound. The opinion skips any explanation of the procedural basis for correcting a 2007 sentence on an appeal that followed an unsuccessful section 1172.6 petition, and does not address whether the appellate court had jurisdiction over the original judgment in that posture.
How this analysis was made · dispute it
record incompleteOpinion
Filed 3/5/24 P. v. Pettis CA4/1 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082450
Plaintiff and Respondent, v. (Super. Ct. No. SCN192841)
MILTON ALLEN PETTIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Affirmed as modified. Heather L. Beugen, under appointment by the Court of Appeal for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Milton Allen Pettis of conspiring to commit murder.
(Pen. Code,1 §§ 182, subd. (a)(1), 187, subd. (a).) The Court found that Pettis 1 Future undesignated statutory references are to the Penal Code. committed the offense for the benefit of a gang (§ 186.22, subd. (b)(1)) and sentenced Pettis to an indeterminate term of 25 years to life for the conspiracy to commit murder, plus 10 years for the gang enhancement. The court stayed the enhancement. Pettis appeals, contending the 10-year gang enhancement should be deleted. We agree and direct the judgment to be modified accordingly. As modified, the judgment is affirmed. BACKGROUND Pettis is a member of the Deep Valley Crip gang.2 He conspired with other members of his gang to murder members of a rival gang in 2004 and 2005. The People charged Pettis with conspiracy to commit murder. A jury convicted Pettis in 2007 and the court sentenced him to an indeterminate term of 25 years to life and imposed but stayed an additional 10-year term under section 186.22, subdivision (b)(1). Pettis sought resentencing under section 1172.6 but was unsuccessful. He now appeals asserting the 10-year gang enhancement is unlawful and necessitates modification of the abstract of judgment. The People concede this sentencing error. DISCUSSION As part of Pettis’s sentence, the court imposed a 10-year gang enhancement under section 186.22, subdivision (b)(1). This was error. A conspiracy to commit murder carries the same punishment for first degree murder. (§§ 182, 190, subd. (a).) Because Pettis’s conspiracy to commit murder conviction “is a violent felony that is punishable by imprisonment in the state prison for life,” it is “not subject to a 10-year enhancement under section 186.22(b)(1)(C).” (People v. Lopez (2005) 34 Cal.4th 1002, 1004 2 We provide an abbreviated summary of the facts because they are not relevant to the issue on appeal. 2 (Lopez).) Instead, subdivision (b)(5) applies to impose a minimum term of 15 years before the defendant can be considered for parole. (Id. at pp. 1005– 1011; see People v. Ortiz (1997) 57 Cal.App.4th 480, 485–486; § 186.22, subd. (b)(5).) The People concede that the court erred and do not oppose modification of the sentence. We agree that modification is appropriate. The sentence is therefore modified as follows: the 10-year gang enhancement is vacated and a 15-year minimum parole eligibility term under section 186.22 subdivision (b)(5) is imposed instead. (Lopez, at pp. 1004, 1011.) DISPOSITION The sentence on the 10-year gang enhancement is vacated and a 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5) is imposed instead. The court is directed to prepare a corrected abstract of judgment reflecting the defendant’s sentence as modified and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
Cites, in this corpus
- People v. Lopez S119294 · 2005-01-06
- People v. Ortiz G019145 · 1997-08-28