Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF184161B. Kathryn T. Montejano, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
A jury convicted appellant, Armand Torres, of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 3 and 4) and a single count of kidnapping for the purpose of committing robbery (§ 209, subd. (b)(1); count 1), and found true allegations of the following: appellant committed each of these offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)); he personally used a firearm in committing the assaults charged in counts 3 and 4, within the meaning of section 12022.5, subdivision (a); and he personally used a firearm in committing the count 1 offense, within the meaning of section 12022.53, subdivision (b) (section 12022.53(b)).
All further statutory references are to the Penal Code unless otherwise indicated.
We generally refer to subdivisions of section 186.22, and to smaller components of those subdivisions, in abbreviated form, e.g., sections 186.22(a), 186.22(b)(1), 186.22(b)(1)(C). We refer to the allegation made pursuant to section 186.22(b) as the gang allegation.
The court imposed an indeterminate sentence of life imprisonment with the possibility of parole on count 1 and a 10-year determinate term on the accompanying section 12022.53(b) firearm use enhancement, and “stay[ed] punishment for the [count 1] gang allegation.” On the remaining counts, the court imposed prison terms and stayed those terms pursuant to section 654. The court also imposed two fines of $10,200 each, a section 1202.4, subdivision (b), restitution fine and what section 1202.45 terms a “parole revocation restitution fine.” The court stayed the latter fine pending successful completion of parole.
Although generally, when a life sentence is imposed, the minimum period of parole eligibility is seven years (§ 3046, subd. (a)), when a section 186.22(b) gang allegation has been found true in connection with a conviction of kidnapping for the purposes of robbery for which a life sentence is imposed, section 186.22(b)(5) provides that the defendant “shall not be paroled until a minimum of 15 calendar years have been served.” (See People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14 [section 186.22(b)(5) “raises the seven-year minimum eligible parole date” otherwise provided for an ordinary life term].) That is the punishment the court purported to stay.
On appeal, appellant contends (1) the evidence was insufficient to support the true findings on the section 186.22(b) gang allegations; (2) the abstract of judgment incorrectly states the sentence imposed on count 1 and must be corrected; (3) the court erroneously stayed, rather than struck, the punishment prescribed for the count 1 gang allegation; and (4) the court erred in imposing restitution and parole revocation restitution fines in excess of $10,000.
In making this argument, appellant, pursuant to California Rules of Court, rule 8.200(a)(5), joins in the sufficiency-of-the-evidence challenge to the true findings on the gang allegations raised by his codefendant, Heriberto Rogelio Botello, in Botello’s opening and reply briefs in his appeal, also filed in this court, People v. Botello (F058331). We take judicial notice of those briefs in the instant appeal. (Evid. Code, §§ 452, subd. (d), 459.)
We will vacate the sentence imposed on count 1, order stricken the restitution and parole revocation restitution fines, remand for further proceedings, and in all other respects, affirm.
FACTS
The Instant Offenses
Justin Hawkins testified that he and Jesus Salazar are members of the “Bulldog gang” and that the “enemies” of the Bulldog gang include the “Nortenos.”
On May 19, 2007, Hawkins and Salazar were walking down an alley in the City of Tulare when they encountered appellant and Heriberto Botello. Appellant and Botello asked Hawkins and Salazar who they were and where they were from. Salazar responded that they were members of the Bulldog gang from Laton, at which point Botello and appellant pulled out guns. Hawkins ran off, hid behind a car, and called the police on his cell phone.
Salazar testified appellant and Botello “beat [him] up” and then forced him into the back seat of a car. The car belonged to Adrian Vasquez. Vasquez drove off; he testified appellant sat next to him, and Botello and Salazar sat in the back. Salazar testified that while in the car, he was struck multiple times with a gun. At some point, Salazar’s belongings―including an earring, a knife, and a necklace―were taken from him. The earring was taken from him when he was in the alley, before he was forced into the car.
Vasquez testified to the following: He drove “out to the countryside....” As he drove, appellant, “[a]t some points, ” pointed a gun at Salazar, and “once or twice” struck Salazar in the face with it. Botello struck Salazar in the face with his hand multiple times.
Hawkins testified to the following: After calling the police, he placed a call to Salazar’s cell phone. Somebody else answered, and stated Hawkins and Salazar were “mutts” and that they had “screwed up” because they were in Norteno “territory.”
Gang Evidence
City of Tulare Police Officer Jesus Guzman qualified as an expert on criminal street gangs and testified in that capacity as follows:
The group known as the Nortenos “began in the prison system” and expanded “from the prisons to the streets.” The group has 500 to 800 members in the City of Tulare, and it “identif[ies] with a common name, ” viz., “Northers, ” and with the following “symbols”: the “huelga bird, ” the number 14, and the color red. Primary activities of the group include robbery, carjacking, homicide, attempted homicide, witness intimidation, and felonious assault.
In 2005, Ruben Valdez, a Norteno gang member, shot a “suspected” rival gang member. The crime was “part of the pattern of Norteno criminal street gang activity in the County of Tulare.” Also in 2005, another Norteno gang member, Lupe Doporto, made a death threat to a witness in the Valdez case. This crime was also part of the pattern of Norteno gang activity in Tulare County.
The Nortenos’ rivals “would be the southern gang members, Surenos, Bulldogs.” The Bulldogs are a criminal street gang. The term “mutt” is a derogatory term used by members of the Nortenos to describe a Bulldog gang member. Some members of the Nortenos identify themselves as “being part of” the group known as the “West Side Tula gang” (WST), which Officer Guzman characterized as a “clique” of the Nortenos. Cliques, such as the WST, “follow orders” from the Nortenos.
A poster found on the refrigerator in appellant’s home bore the letters “R I P E N E.” Officer Guzman testified that the letters “R-I-P” stand for “rest in peace, ” and the letters “E-N-E” signified the Spanish word for the letter “N, ” which stands for Norteno. A compact disc case found in appellant’s home had written on it, among other things, the roman numeral XIV, the words “East Side Tula, ” and the notation “WST, ” which stands for West Side Tula, with the letter “S” crossed out. The letter “N” is the fourteenth letter of the alphabet, and, according to Officer Guzman, the number 14, or XIV, constitutes “gang indicia.”
Officer Guzman testified that Botello is a member of “a northern affiliated gang” in Tulare, and that “West Side Tula” is the “specific gang in the City of Tulare that … he is affiliated with or a member of[.]” The Nortenos “claim” the entire City of Tulare as their territory, and the WST claim “anything [in] the west side of Tulare.”
City of Tulare Police Officer Matt Machado testified that he made contact with Botello in December 2005, at which time Botello, who was wearing a red cloth belt, stated he was a member of the WST.
In response to a hypothetical question, Officer Guzman testified to the following: The offenses described in the question were “part of a pattern of the Norteno criminal street gang activity[.]” Such offenses would be committed “to benefit the... Norteno gang” because pointing a gun at a rival gang member, forcing him into a car, taking his belongings, and then driving him out to the country would be interpreted as “putting a rival gang member down.” The perpetrators would “gain... respect from the Norteno criminal street gang for that activity[.]”
The hypothetical question posited the following: Two “active Bulldog gang members” are walking down a particular alley in the direction of a specified address in the City of Tulare. Two men (assailants) “confront” them and ask “where are you from, do you bang[?]” One of the Bulldog gang members (BGM 1) responds, “Laton dog.” The assailants “pull out guns, stick them at [BGM 1]” and his companion (BGM 2) “takes off running.” The assailants “proceed to take the property of [BGM 1] and put him into a car and transport him out into the county [sic].” The assailants “pistol whip [the victim], rob him of his phone while he is... out in the county [sic] area....” During the course of the car ride, BGM 2 places a call to BGM 1’s cell phone, and one of the assailants answers and calls BGM 2 a “mutt or bull frog.” Items bearing gang indicia about which the officer had testified earlier were found the next day in the house at the address referred to above. One of the assailants admits he is a WST member.
DISCUSSION
Gang Allegations
Establishing the truth of the section 186.22(b) gang allegation requires a two-part showing. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) The prosecution must establish the underlying crime was “[1] committed for the benefit of, at the direction of, or in association with any criminal street gang, [2] with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22(b)(1).) Appellant’s challenge is directed at the first prong of section 186.22(b)(1). He argues the evidence was insufficient to establish the instant offenses were committed for the benefit of a criminal street gang. We disagree.
Appellant does not challenge the sufficiency of the evidence as to the specific intent prong of section 186.22(b)(1).
“‘When considering a challenge to the sufficiency of the evidence..., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence―that is, evidence that is reasonable, credible, and of solid value―from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’” (People v. D’Arcy (2010) 48 Cal.4th 257, 293.) “This standard applies to... gang enhancement findings.” (People v. Villalobos, supra, 145 Cal.App.4th at pp. 321-322.)
The first prong of section 186.22(b)(1) can be viewed as consisting of two elements: (1) whether the underlying offense was committed for the benefit of, at the direction of, or in association with a certain group, and (2) whether that group is a criminal street gang. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846 [“The existence of a criminal street gang is unquestionably an element of the street gang enhancement”].) Appellant’s argument focuses on the second of these elements. In order to establish that a group is a criminal street gang within the meaning of section 186.22(b), the People must prove the group “‘(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.) The evidence relevant to the determination of whether the Nortenos are a criminal street gang is set out at length above, and we need not repeat it here. Appellant does not dispute, and we conclude, the evidence was sufficient to establish that the Nortenos are a criminal street gang within the meaning of section 186.22(b). We conclude further, as appellant also does not dispute, that Officer Guzman’s expert testimony that, in his opinion, the instant offenses were committed to benefit the Nortenos was sufficient to establish that point. No more is required. Substantial evidence supports the conclusion that appellant committed the instant offenses for the benefit of a criminal street gang, viz., the Nortenos.
Appellant contends this analysis focuses on the wrong group. He argues that although the evidence was sufficient to support a finding that the Nortenos are a criminal street gang within the meaning of section 186.22(b), the evidence was not sufficient to establish that the WST qualified as a criminal street gang, and therefore the true findings on the gang allegations must be reversed. He bases this contention chiefly on this court’s opinion in People v. Williams (2008) 167 Cal.App.4th 983 (Williams).
The defendant in that case was convicted of the substantive offense of active participation in a criminal street gang, in violation of section 186.22(a), and the court found true a gang-related special circumstance allegation (§ 190.2, subd. (a)(22)). This court defined the issue as “the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang.” (Williams, supra, 167 Cal.App.4th at p. 985.) The prosecution presented evidence of a larger group, known as the Peckerwoods, and a smaller group known as the Small Town Peckerwoods (STP). Specifically, an expert witness opined that the Peckerwoods qualified as a criminal street gang and that smaller groups, such as the STP, “are all factions of the Peckerwood organization.” (Id. at p. 988.) The defendant argued that although there was evidence he was an active participant in the smaller group, “there was insufficient evidence of a connection between members of the Small Town Peckerwoods and [the larger group].” (Id. at p. 987.)
Section 186.22(a) provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” Section 190.2, subdivision (a)(22), creates a special circumstance applicable to the sentence imposed for murder where the murder kills the victim “while the [murder] was an active participant in a criminal street gang.” The term criminal street gang is defined in subdivision (f) of section 186.22. The definition set forth there applies to both subdivisions (a) and (b) of section 186.22 (§ 186.22(f)), and to the gang special circumstance (§ 190.2, subd. (a)(22)).
This court agreed with the defendant, and held that in considering whether the criminal street gang element of the offense had been established, the trier of fact could not consider evidence relating to the larger Peckerwoods group because the People had not established a sufficient connection between the smaller group and the larger group. “[S]omething more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang. Instead, some sort of collaborative activities or collective organizational structure must be inferable from the evidence, so that the various groups reasonably can be viewed as parts of the same overall organization.... On the record before us, however, it would be speculative to infer that the Small Town Peckerwoods and greater Peckerwood gang shared more than an ideology....” (Williams, supra, 167 Cal.App.4th at pp. 988-989.)
Williams is inapposite. As indicated above, the issue in that case was whether it could be established that the smaller group was a criminal street gang based on the extent of its connection with the larger group. (Williams, supra, 167 Cal.App.4th at p. 985 [“we... address the relationship that must exist before a smaller group can be considered part of a larger group for purposes of determining whether the smaller group constitutes a criminal street gang”].) That issue is not before us here; we need not decide whether the smaller group―the WST―qualified as a criminal street gang in its own right because (1) regardless of what the evidence established regarding the status of the WST, the evidence was sufficient to establish that the Nortenos are a criminal street gang, independent of any connection(s) between that gang and its smaller affiliated groups, and (2) appellant does not challenge the sufficiency of the evidence that his conduct benefitted the Nortenos or that he acted with requisite specific intent. Therefore, we will not disturb the true findings on the gang allegations.
Even if the issue here was whether the evidence was sufficient to establish that a connection existed between the WST and the Nortenos that would justify treating the two groups as “[part] of the same overall organization” (Williams, supra, 167 Cal.App.4th at p. 988), we would reject appellant’s argument. As indicated above, such relationship is established if the two groups have “some sort of... collective organizational structure” from which the requisite “overall organization” is “inferable.” (Ibid.) Officer Guzman’s testimony that cliques of the Nortenos, such as the WST, “follow orders” from the Nortenos was sufficient to establish the requisite “collective organizational structure.” (Ibid.)
The instant case is similar to People v. Ortega (2006) 145 Cal.App.4th 1344 (Ortega). In that case, the defendant argued there was “insufficient evidence to sustain a finding of the existence of criminal street gang, ” for purposes of the gang-related substantive offense (§ 186.22(a)) and special circumstance (§ 190.2, subd. (a)(22)). (Id. at p. 1355.) In rejecting this argument, the appellate court held the evidence was sufficient to establish that the Nortenos were a criminal street gang, based on evidence of the thousands of Norteno gang members in the Sacramento area, symbols associated with the Nortenos, the primary activities of the Nortenos, and the requisite two predicate offenses committed by the Nortenos. (Id. at p. 1356.)
The prosecution also presented evidence that the Sacramento-area Nortenos were “a criminal street gang made up of 20 to 25 different subsets, ” and that the defendant was a member of one of those subsets. (Ortega, supra, 145 Cal.App.4th at p. 1354.) The appellate court “reject[ed] defendant’s assertion that the prosecution had to prove precisely which subset was involved in the present case.” (Id. at pp. 1356-1357.) The court explained: “No evidence indicated the goals and activities of a particular subset were not shared by the others. There was sufficient evidence that [the Nortenos were] a criminal street gang, that the murder was related to activity of that gang, and defendant actively participated in that gang. There is no further requirement that the prosecution prove which particular subset was involved here.” (Id. at p. 1357.)
Here, as in Ortega, it is of no moment that the Nortenos are affiliated with smaller groups. Nor does it matter that appellant’s codefendant was a member of one of those groups. As in Ortega, appellant’s challenge to the sufficiency of the evidence supporting the gang element fails because the evidence was sufficient to establish that the larger group―the Nortenos―is a criminal street gang, and there was no evidence indicating the goals and activities of the WST differed from the Nortenos.
Staying of the Count 1 Gang Enhancement
“Unless a statute says otherwise, an enhancement may be imposed or stricken, but... may not be stayed; to do so is an illegal sentence. [Citation.]” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231.) Based on this principle, appellant contends, and the People concede, that the court erred in staying the punishment imposed as a result of the true finding on the count 1 gang allegation. We agree.
The parties do not agree as to the proper disposition. Appellant argues that this court must simply strike the true finding on the count 1 gang allegation, pursuant to section 1385. The People contend the matter must be remanded because the trial court (1) lacked statutory authorization to stay the enhancement and (2) “did not state the circumstances that supported its decision.” We agree with the People that remand is the proper disposition.
Section 1385, subdivision (a), provides, in relevant part: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.” This statute authorizes a trial court to dismiss section 186.22(b) gang allegations. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [California Supreme Court has “held that the power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing”]; cf. People v. Bonnetta (2009) 46 Cal.4th 143, 145 (Bonnetta) [“discretion... conferred [by section 1385] on the trial courts includes the discretion to dismiss or strike an enhancement in the furtherance of justice”].)
In Bonnetta, the trial court, at sentencing, struck several enhancements, and stated its reasons for doing so. (Bonnetta, supra, 46 Cal.4th at p. 148.) The trial court’s decision was reduced to an order entered upon the minutes, but the written order did not set forth any of the court’s reasons for striking the enhancements. (Ibid.) Our Supreme Court held the striking of the enhancements was ineffective, because of the absence of compliance with the statutory requirement that the reasons for the dismissal be set forth in the court’s minutes. The high court ordered remand to the trial court, refusing to “adopt[]... a new rule allowing a reviewing court to examine the transcripts of the oral proceedings for a trial court’s reasons for its decision to dismiss, so that a court’s failure to comply with the letter of Penal Code section 1385 might be deemed harmless error....” (Id. at p. 150.) The court stated: “Having concluded Penal Code section 1385 states a mandatory requirement, we have no reason to consider whether a violation of its provisions might be deemed harmless. Nonetheless, ... we find it useful again to note that the purpose for the requirement is to allow review of the trial court’s reasons for ordering dismissal. ‘[W]e are dealing not with a pure question of law but with the exercise of a trial court’s discretion. It would be incongruous for an appellate court, reviewing such order, to rely on reasons not cited by the trial court. Otherwise, we might uphold a discretionary order on grounds never considered by, or, worse yet, rejected by the trial court. And, if the appellate court is free to scour the record for other reasons to support the dismissal, or accept reasons suggested by the defendant, there was no reason for the Legislature to require that the lower court record the basis for the dismissal in the first instance.” (Id. at pp. 151-152.)
The reasoning of Bonnetta applies with equal, if not greater force here, where, defense counsel “request[ed] [that] the Court... exercise its discretion” under section 1385 to stay the increased punishment under section 186.22(b)(5) and the court apparently purported to do so, but stated no reasons. Under Bonnetta, we may not simply strike the true finding on the gang allegation; rather, we must remand the matter to the trial court with directions that the trial court either impose sentence in accordance with section 186.22(b)(5) or exercise its discretion to strike the allegation pursuant to, and in compliance with, section 1385, subdivision (a).
Abstract of Judgment
Some indeterminate sentences expressly include a minimum prison term. For example, the punishment for second degree murder is ordinarily “a term of 15 years to life.” (§ 190, subd. (a)). Other statutes, including section 209, subdivision (b)(1), do not mention a minimum term. The term prescribed by that statute for appellant’s count 1 kidnapping conviction is simply “imprisonment... for life with the possibility of parole.” (§ 209, subd. (b)(1)). For any life term, section 3046, subdivision (a)(1), specifies the minimum term a defendant must serve before becoming eligible for parole. Specifically, the statute provides that a defendant “imprisoned under a life sentence” may not be released on parole until he or she has served “[a] term of at least seven calendar years, ” unless a longer minimum period of parole ineligibility (MPPI) is prescribed by subdivision (a)(2) of section 3046. An example of a longer MPPI is found in section 186.22(b)(5), which provides that a person, like appellant, sentenced to life for kidnapping for purposes of robbery, may not be released on parole until he or she has served 15 years if a gang allegation has been found true in connection with the kidnapping conviction.
Here, notwithstanding the absence of a statutorily specified minimum term, the trial court, at the sentencing hearing, characterized appellant’s sentence on count 1 as “7 years to life, ” and box 6(c) on the printed abstract of judgment form for appellant’s indeterminate term (IT abstract) is marked, indicating a sentence of “7 years to Life... with the possibility of parole[.]” The court’s reference to “7 years” was apparently based on the MPPI set forth in section 3046, subdivision (a)(1).
Appellant contends the IT abstract is incorrect, and that the box on the IT abstract that should have been marked is box 5, which could have been marked to indicate a sentence of “LIFE WITH THE POSSIBILITY OF PAROLE on count[] [1].” The People do not contend otherwise. Appellant argues that this court should simply order the abstract amended. The People counter that “the trial court should order the [IT abstract] be corrected when the matter is remanded.”
Given that the matter is being remanded for the purpose of allowing the trial court to either impose sentence on count 1 under the alternate penalty provision of section 186.22(b)(5), or strike the true finding on the count 1 gang allegation, and we cannot presume how the court will exercise its discretion, it would not be appropriate for this court to order the abstract amended. We offer no opinion as to how the court should exercise its discretion, but for the guidance of the trial court on remand, we note that we agree with the parties that when a life sentence is imposed pursuant to a statute, like section 209, subdivision (b)(1), that does not specify a minimum term, and the seven-year MPPI under section 3046, subdivision (a)(1), is applicable, the abstract of judgment should indicate simply that a life sentence, rather than a sentence of seven years to life, was imposed.
Restitution and Parole Revocation Restitution Fines
As indicated above, the court imposed a restitution fine pursuant to section 1202.4 in the amount of $10,200 and a parole revocation restitution fine in the same amount. Appellant contends, and the People concede, each of these fines exceeded the applicable statutory maximum. We agree.
Section 1202.4, subdivision (b), mandates, subject to a qualification not relevant here, the imposition of a restitution fine in every case in which a person is convicted of a crime. If the defendant is convicted of a felony, the fine shall be no less than $200 and no more than $10,000, and “shall be set at the discretion of the court and commensurate with the seriousness of the offense....” (§ 1202.4, subd. (b)(1).) Section 1202.45 mandates, in every case in which a person is convicted of a crime, the sentence for which includes a period of parole, the imposition of “an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4, ” which “shall be suspended unless the person’s parole is revoked.” Thus, as the parties agree, the maximum amount for each of the fines at issue here is $10,000.
Appellant argues the fines must be stricken. The People contend each fine must be reduced to the statutory maximum of $10,000. We will strike the fines and direct the trial court, on remand, to impose these fines in accordance with the applicable statutes.
DISPOSITION
The sentence imposed on count 1 is vacated, the restitution fine and the parole revocation restitution fine are stricken, and the matter is remanded to the trial court. On remand, the trial court is directed to either impose sentence on count 1 under Penal Code section 186.22, subdivision (b)(5), or strike the true finding on the count 1 gang allegation in accordance with law and impose sentence accordingly. The trial court is further directed to impose a restitution fine and a parole revocation restitution fine pursuant to, and in compliance with, respectively, Penal Code sections 1202.4, subdivision (b), and 1202.45. The court is further directed to issue an amended indeterminate term abstract of judgment, consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.