PEOPLE v. ROCHA

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Matthew ROCHA, Defendant and Appellant.

No. H008607.

Decided: May 29, 1992

Stephen Gibbs, Santa Clara (Under appointment by the Court of Appeal), for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver and David H. Rose, Deputy Attys. Gen., for plaintiff and respondent.

Matthew Rocha pleaded guilty to being an accessory to an assault with a deadly weapon.  (Pen.Code, §§ 32, 245.)   After a court trial, an enhancement for gang-related activity was imposed.  (Pen.Code, § 186.22, subd. (b)(1).)   Rocha was sentenced to two years for the assault and to a two year consecutive term for the enhancement.

We conclude that there was insufficient evidence to establish a “pattern of gang activity” as required under Penal Code section 186.22, subdivision (b)(1).1  For this reason, we reverse the trial court's finding on the criminal gang enhancement.   In all other respects, the judgment is affirmed.

Facts and Procedural Background

On February 9, 1991, at approximately 12:20 a.m., a black Cadillac entered the parking lot of the San Miguel Mini–Market.   Rocha was driving;  Jose Padilla was a passenger.   Both Rocha and Padilla were members of the Salinas East Market Street (SEM) gang.   SEM, a subset of the Northerners gang, claims the color red and the number 14.

Rocha and Padilla confronted Omar Farrias, Stephen Orozco, Jesse Ramirez, and Raymond Ybanez Garcia, who were present at the mini-market.   Farrias was a member of the Vagos gang.   The Vagos, a subset of the Southerners gang, claim the color blue and the number 13.   Orozco was wearing a blue jacket and blue jeans.   His blue car was parked at the mini-market.

Rocha asked Garcia where he was from.   He also asked if Garcia was a “Scrapa, Sureno,” meaning a Southerner.   Rocha described the blue car as a Sureno car and threatened to kill Garcia's family.   He poked Garcia in the chest and stated, “I am a Norteno,” meaning a Northerner.   According to Ramirez, Rocha stated that the Vagos were “a bunch of pussies.”   Shortly thereafter, Padilla pulled out a gun, and began firing.   Orozco was wounded.

The Cadillac sped from the scene but was stopped by police approximately ten minutes later.   Rocha was arrested.   Padilla fled from the vehicle.   On February 18, 1991, Padilla was brought into custody.   Padilla subsequently pleaded guilty to assault with a deadly weapon.

Rocha pleaded guilty to being an accessory to an assault with a deadly weapon.  (§§ 32, 245.)   Pursuant to a plea bargain, Rocha agreed to have the gang-related enhancement (§ 186.22, subd. (b)(1)) tried by the court.   The court found the enhancement to be true and sentenced Rocha to two years for the assault and to a two year consecutive term for the enhancement.

On appeal, Rocha argues the evidence was insufficient to support imposition of the enhancement.   He also claims the enhancement is unconstitutional because it is vague and overbroad.

Discussion

I. ELEMENTS OF SECTION 186.22, SUBDIVISION (b)(1)

We first review the elements of the enhancement statute, section 186.22, subdivision (b)(1).2  Section 186.22, subdivision (b)(1) applies if (1) the defendant was convicted of a felony;  (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang ;  and (3) the defendant specifically intended to promote, further, or assist in any criminal conduct by gang members.

A criminal street gang is (1) any on-going organization, association, or group of three or more persons, whether formal or informal;  (2) having as one of its primary activities the commission of certain enumerated crimes;  (3) having a common name or common identifying sign or symbol;  (4) whose members individually or collectively engage or have engaged in a pattern of criminal gang activity.  (§ 186.22, subd. (f).)

A pattern of criminal gang activity is (1) the commission, attempted commission, or solicitation of two or more of the enumerated crimes;  provided (2) at least one of the offenses occurred after the effective date of the Chapter (September 23, 1988) (3) the last of those offenses occurred within three years after a prior offense;  and (4) the offenses are committed on separate occasions, or by two or more persons.  (§ 186.22, subd. (e).)

The enumerated crimes are (1) assault with a deadly weapon or by means likely to produce great bodily injury;  (2) robbery;  (3) homicide or manslaughter;  (4) sale, possession for sale, transportation, manufacture, offer for sale or offer to manufacture controlled substances;  (5) shooting at an inhabited dwelling or occupied motor vehicle;  (6) arson;  (7) intimidation of witnesses or victims;  and (8) grand theft of any vehicle, trailer, or vessel.  (§ 186.22, subd. (e).)

II. SUFFICIENCY OF THE EVIDENCE

 Rocha argues there was insufficient evidence to support the enhancement.   In considering this claim, we review the record in the light most favorable to the judgment and presume in support of the judgment every fact which may be reasonably deduced from the evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996, 279 Cal.Rptr. 236.)   We will uphold the judgment if it is supported by substantial evidence.   Substantial evidence is evidence that is reasonable, credible, and of solid value.  (People v. Johnson;  In re Nathaniel C., both supra.)

 Rocha's evidentiary claims require that we interpret section 186.22, subdivision (b)(1).   In so doing, we must determine the legislative intent so that the law's purpose may be effectuated.  (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1002, 279 Cal.Rptr. 236;  citing People v. Aston (1985) 39 Cal.3d 481, 489, 216 Cal.Rptr. 771, 703 P.2d 111.)   To ascertain intent, the court first considers the words of the statute.   (Ibid.)  If the words are unambiguous, then there is no need for construction.  (People v. Woodhead (1987) 43 Cal.3d 1002, 1007, 239 Cal.Rptr. 656, 741 P.2d 154.)

Section 186.22 is part of the California Street Terrorism Enforcement and Protection Act.   In enacting section 186.22, the Legislature emphasized that the “State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods․”  (§ 186.21.)   The Legislature also stated that it was their intent “to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.”  (§ 186.21.)

With these principles in mind, we turn to the arguments raised by Rocha.

A. Committed for Benefit of Criminal Street Gang

Arguing there was insufficient evidence his crime (accessory to assault with a deadly weapon) was committed for the benefit of a criminal street gang (CSG), Rocha complains that the evidence only establishes a crime committed for the benefit of Padilla, who committed the assault.   Because a CSG requires three or more persons, Rocha contends the People failed to satisfy this element of section 186.22, subdivision (b)(1).

 We conclude that Rocha's interpretation of section 186.22, subdivision (b)(1) must be rejected.   First, it is based upon an overly literal reading of the statute.   Although it is true that a CSG requires the membership of three or more persons, once that showing is made the People do not have to prove that the felony was committed for the benefit of person A, person B, and person C.   All that the statute requires is that the felony be committed for the benefit of the gang.   Such a showing could include evidence of gang-related statements made prior to the crime.   It also might include evidence that the victim of the felony was a member of a rival gang.   In other words, the People clearly do not have to prove the felony was committed for the benefit of three particular people.   Evidence connecting the felony to the gang will suffice.

 Second, Rocha's construction of section 186.22, subdivision (b)(1) would frustrate the Legislature's intent.   By requiring that the crime be committed for the benefit of a CSG, the Legislature sought to target gang-related violence and patterns of gang activity as well as the organized nature of CSGs.  (§ 186.21;  see also In re Nathaniel C., supra, 228 Cal.App.3d 990, 1000, 279 Cal.Rptr. 236;  In re Leland D. (1990) 223 Cal.App.3d 251, 256, 272 Cal.Rptr. 709.)   If Rocha's interpretation of the statute was adopted, these aims could not be achieved.   The statute would rarely be applicable and therefore it would not help alleviate the state of crisis caused when CSGs “threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.”  (§ 186.21.)

 Having decided that Rocha's interpretation of section 186.22, subdivision (b)(1), must be rejected, we next consider whether there was evidence that Rocha harbored, concealed, or aided (§ 32) Padilla for the benefit of the gang.   We conclude that there was.

Officer Wilson, a Salinas Police Officer assigned to the gang unit, testified that Padilla and Rocha were members of SEM, a subset of the Northerners claiming the color red.   They were confronted by another group, including a member of a rival gang.   Also present was an individual wearing the color blue and driving a blue automobile.   Rocha asked members of this group where they were from, accused one member of driving a Southern car, and threatened to kill another member's family.   Rocha ended the discussion by stating, “I am a Norteno.”   Immediately after this conversation, which was plainly focused upon gang membership, Padilla pulled out a gun and began firing.   Padilla and Rocha then fled, with Rocha driving the Cadillac.   In short, all the events leading up to the shooting revolved around the CSGs.   In such circumstances, it is clear that Rocha's crime was committed for the “benefit of, at the direction of, or in association with” the CSG.

B. Specific Intent To Promote, Further, or Assist Gang Members' Criminal Conduct

 Rocha's next argument is related to his previous one.   Relying upon the requirement that he have the “specific intent to promote, further or assist in any criminal conduct by gang members,” Rocha claims he could only have the specific intent to promote the criminal conduct of one gang member, Padilla.   Since section 186.22, subdivision (b)(1), refers to gang members, Rocha argues his conduct is outside the statute's sweep.

Just as we rejected his previous argument, we must also reject Rocha's present contention.   Once again, Rocha relies upon an unnecessarily harsh reading of the statute.   We doubt that the Legislature intended section 186.22, subdivision (b)(1), to apply only when it is demonstrated that the defendant had the specific intent to promote, further, or assist person A, person B, and person C.   As we noted above, such a construction would frustrate the Legislative intent.   In addition, we believe Rocha is using the fact that he was convicted of being an accessory to over-complicate the statute.   As it now stands, Rocha seems to be arguing that the underlying felony must involve some type of group melee.   We are confident that this was not the Legislature's intent.  Section 186.22, subdivision (b)(1), was enacted to target crimes committed both “individually and collectively” for the benefit of a particular group, a CSG.  (§§ 186.21;  186.22, subd. (f).)  It was designed to address patterns of gang activity as well as the organized nature of street gangs.   In short, nothing about the Legislature's statement of intent supports Rocha's interpretation of section 186.22, subdivision (b)(1).

C. Accessories

 Rocha next attacks the statute's application to accessories.   Rocha points out that section 186.22, subdivision (b)(1) uses the words “with the specific intent to promote, further, or assist in any criminal conduct.”   He argues that these words describe an aider and abettor.   Because Rocha was only an accessory, he argues his conduct does not fall within the statutory sweep.

In People v. Green (1991) 227 Cal.App.3d 692, 278 Cal.Rptr. 140, the court declared that similar language meant that a person must be criminally liable as an aider and abettor.   In Green, the court construed section 186.22, subdivision (a).  Section 186.22, subdivision (a) provides that “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․”  (Emphasis added.)

In interpreting the statute, the court in Green reasoned that the words “willfully promotes, furthers, or assists in any felonious criminal conduct” were similar to CALJIC No. 3.01, which defines an aider and abettor of a crime.  (People v. Green, supra, 227 Cal.App.3d at p. 703, 278 Cal.Rptr. 140.)   Thus, the court decided, “The similarity of the relevant phrase in Penal Code section 186.22 with that employed in determining if a person is an aider and abettor means, we think, that the phrases should be viewed as synonymous.   As the Attorney General concedes, for a person to be criminally liable under Penal Code section 186.22, he or she would also have to be criminally liable as an aider and abettor to any specific crime committed by a member or members of a criminal street gang.”  (Id. at pp. 703–704, 278 Cal.Rptr. 140.)

Section 186.22, subdivision (b)(1), includes the words “with the specific intent to promote, further, or assist in any criminal conduct.”   Because these words are similar to those examined in Green, Rocha argues that a person must be liable as an aider and abettor to fall within the scope of section 186.22, subdivision (b)(1).   Rocha was only an accessory to assault with a deadly weapon and therefore he claims his conduct is not covered by the statute.

Rocha misconstrues section 186.22, subdivision (b)(1).   Although the statute uses the aiding and abetting language, it is used in reference to the gang, rather than the underlying felony.   In other words, when the defendant commits the felony, he or she must have the specific intent to promote, further or assist “any criminal conduct” by gang members.   The defendant must specifically intend to aid and abet the gang.   Although there is a measure of ambiguity in the statute, Rocha's interpretation, suggesting that the defendant must be an aider and abettor with regard to the underlying felony, ignores the “any criminal conduct” language.   If his interpretation were carried to the extreme, then the statute would only apply to aiders and abettors.   For example, the statute would not apply to a defendant convicted of assault because there would not be another defendant for the first defendant to assist, further or promote.   Certainly this was not the intent of the Legislature when enacting section 186.22, subdivision (b)(1).

By contrast, interpreting the statute to mean aiding and abetting the gang fulfills the legislative intent.   The statute was enacted to curb gang-related activities;  shootings from automobiles are frequently gang-related.   In such circumstances, like those in this case, the driver of the vehicle will often be charged as an accessory to the assault.   Because this type of activity is so frequently linked with CSGs, it seems reasonable to assume that the Legislature did not intend to exclude it from the statutory scope.

Nor does this result conflict with People v. Green, supra, 227 Cal.App.3d 692, 278 Cal.Rptr. 140.  Green dealt with section 186.22, subdivision (a).   Subdivision (a) criminalizes actively participating in a gang.   Unlike subdivision (b), subdivision (a) is not an enhancement.   Thus, it makes sense that subdivision (a) requires that the defendant's “active participation” rise to the level of aiding and abetting a specific felony.   Subdivision (b), on the other hand, is an enhancement.   There is no need to ensure the defendant's gang participation rose to the level of aiding and abetting a particular felony because an underlying felony is a prerequisite for the enhancement.

Finally, in People v. Gamez (1991) 235 Cal.App.3d 957, 286 Cal.Rptr. 894, the court implicitly adopted our conclusion by assuming subdivision (b) simply required evidence of the specific intent to promote or assist the gang.   (Id. at p. 978, 286 Cal.Rptr. 894.)   In that case, the underlying felony involved a drive-by shooting by defendant, a member of the Southside gang.   The shooting occurred in the territory of Southside's rival, the Highland Street gang.   An automobile was parked near the scene of the crime.   It was owned by a Highland Street member who had recently been involved in a Southside shooting.   The court decided this evidence was sufficient to establish that “defendant's actions were done with the intent to aid and promote Southside.”   (People v. Gamez, supra, 235 Cal.App.3d at p. 978, 286 Cal.Rptr. 894.)

In sum, we find that section 186.22, subdivision (b)(1), applies to accessories.   The statute's reference to “specific intent to promote, further, or assist” means that when the defendant committed the felony, he or she must have had the specific intent to promote, further, or assist the gang.

D. Primary Activity Commission of Enumerated Crimes

 Rocha next argues that there was insufficient evidence to establish that the gang had “as one of its primary activities the commission of one or more of the criminal acts enumerated․”  (§ 186.22, subd. (f).)

Rocha relies upon In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236.   In that case, the trial court's decision to impose section 186.22, subdivision (b)(1), was reversed on appeal.   Among other things, In re Nathaniel C. determined there was insufficient evidence to establish the “primary activity” element of the statute.   A South San Francisco police officer testified that the primary activity of all gangs in his area was criminal.  (In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236.)   The officer then listed examples of crimes committed.   However, the officer did not identify the “Family” as one of the gangs in his area even though the defendant belonged to that gang.   In addition, the officer stated that the Family's base was in San Bruno, instead of South San Francisco (the officer's jurisdiction).   After reviewing this testimony, the court reasoned, “While we consider this element to be a proper subject of expert opinion, here the opinion did not relate specifically to the Family and its activities.   Thus, the evidence failed to establish that a primary activity of the Family is commission of one or more of the offenses specified by the statute.”  (Id. at p. 1005, 279 Cal.Rptr. 236.)

Nathaniel is easily distinguishable from the circumstances here.   In Nathaniel, the officer's testimony did not connect the specific gang with the criminal activity.   In this case, no such problem exists.   Officer Wilson testified about Salinas gangs.   With respect to the SEM, of which Rocha was a member, Wilson opined that “The ultimate goal of SEM is to engage in criminal activity, whether it be narcotics, claiming their specific territory, the north from the surenos, or in general.”

Although this is the only testimony regarding the SEM gang's primary activities, viewing it in the light most favorable to the judgment, we believe it is sufficient to satisfy the statutory requirement.   Our conclusion is based upon Wilson's reference to narcotics.   Under section 186.22, subdivision (e)(4), one of the enumerated offenses is “The sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances․”  Because one of SEM's ultimate goals was to engage in criminal narcotic activity, there was sufficient evidence to support this element of the statute.   Rocha contends an ultimate goal is not the same thing as a “primary activity” but we are not persuaded by this strained attempt to sidestep the statute.   We conclude that Rocha's argument is without merit.

E. Pattern of Criminal Gang Activity

 Rocha contends there was insufficient evidence of a “pattern of criminal gang activity.”  (§ 186.22, subd. (e).)  As previously noted, a pattern of criminal gang activity means the “commission, attempted commission, or solicitation of two or more of the [enumerated crimes].”  (§ 186.22, subd. (e).)  In addition, one of the offenses must have occurred after the effective date of the Chapter (September 23, 1988);  the most recent offense must have occurred within three years of any prior offense;  and the offenses must have been committed on separate occasions, or by two or more persons.

To prove this element, the People introduced Exhibits 33 through 36, abstracts of judgment and sentencing minutes for three alleged gang members.   Rocha argues this evidence shows the dates of conviction for the gang members, but does not show when the “offenses occurred” or when the offenses were “committed.”

Our examination of the evidence discloses the following.   The abstract of judgment for Jimmy Rodriguez reveals that he was convicted of violating Health and Safety Code section 11351 (possession for sale) on June 26, 1990.   In addition, under the heading year crime committed “90” appears.   Thus, the crime occurred in 1990 and therefore, with respect to Rodriguez's conviction, this part of the statute is satisfied.

However, with respect to the convictions of the other two alleged gang members, the exhibits do not reveal when the offenses were committed.   Nonetheless, even if the People had complied with this aspect of section 186.22, subdivision (e), there is another problem with the evidence presented.   It does not connect any of these offenses to the gang.   There is no reason to believe Rodiguez's crime or the offenses of the other two individuals were related to the SEM gang.   Although the People argue this is not significant, we disagree.

People v. Gamez, supra, 235 Cal.App.3d 957, 286 Cal.Rptr. 894, supports our conclusion.   In that case, the court decided, “We agree with defendant it must be shown the predicate crimes were gang related, as section 186.22, subdivision (f) requires the prosecution to prove that the gang has ‘as one of its primary activities' the commission of one or more of the eight enumerated offenses.   To allow otherwise would be to punish defendant for the unrelated actions of people with whom he associated.”  (Id. at pp. 977–978, 286 Cal.Rptr. 894.)   After making this point, the court in Gamez found that the requirement was satisfied since there was evidence of homicides committed in rival gang territory against rival gang members in retaliation for a crime committed against the gang.

The People rely upon In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236, arguing it holds that the predicate offenses need not be gang-related.   After closely examining that decision, we disagree.

In Nathaniel C., the court referred to In re Lincoln J. (1990) 223 Cal.App.3d 322, 330, 272 Cal.Rptr. 852 for the proposition that the “pattern of criminal gang activity” must be shown by “purposeful gang activity.”   However, we doubt that “purposeful gang activity” has anything to do with requiring that the predicate offenses be gang-related.

In addition, Lincoln J. does not consider whether the predicate offenses must be gang-related.   In discussing a defendant belonging to the BTR gang, Lincoln J. merely stated, “The incident in October or November 1988, did not involve any purposeful gang activity on the part of defendant, who had been merely standing in front of a Carl's Jr. restaurant and had done nothing to provoke the drive-by shooting, and the shooting was apparently done by the Vineland Boys and not by the BTR gang.”  (In re Lincoln J., supra, 223 Cal.App.3d at p. 330, 272 Cal.Rptr. 852.)

Finally, the part of Nathaniel C. the People rely upon is consistent with Rocha's argument that the predicate offenses must be gang-related.   In Nathaniel C., the court reasoned, “Here, if there had been competent proof that one member of the Family shot another, that would have sufficed to show the second predicate offense for a pattern of criminal gang activity.   Intra-gang violence threatens public order and safety much the same as criminal conduct directed specifically against persons outside the gang.   The statute does not exempt from its scope those predicate offenses committed by gang members as part of internal gang disputes or power struggles.”  (Id. at p. 1004, 279 Cal.Rptr. 236.)

We agree with the quoted language.   Intra-gang violence is plainly gang-related and therefore meets the requirement of the statute.   Thus, despite the People's argument to the contrary, nothing in Nathaniel C. conflicts with requiring that the predicate offenses be gang-related.

In addition, when section 186.22, subdivision (b)(1), is read as a whole, it seems clear that the predicate offenses must be gang-related.   Indeed, the very use of the words “pattern of criminal gang activity” suggests there must be some connection between the crimes.   In addition, the statute refers to gang activity.   This also suggests that the crimes must have some relation to the CSG.

Besides contradicting the language of section 186.22, subdivision (b)(1), the People's theory would punish the defendant for conduct which could be entirely unrelated to the gang.  (People v. Gamez, supra, 235 Cal.App.3d at p. 977, 286 Cal.Rptr. 894.)   For example, if their approach was adopted, a gang member's involvement in a domestic dispute could be grounds for enhancing the sentence of another gang member.   This would not comport with the statute's purpose “to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs.”  (§ 186.21.)   The Legislature has recognized that CSGs, as organized entities, foment violence.   In enacting section 186.22, it hoped to eradicate the crimes growing out of the group relationships.   Allowing a sentence to be enhanced for crimes wholly unrelated to the group would not serve the Legislature's purpose.

 Accordingly, we conclude that the predicate offenses must be gang-related.   In this case, the People have failed to demonstrate that the predicate offenses were gang-related.   There is absolutely no evidence suggesting the three convictions were related to the SEM gang.3

We are not the first court to reverse a trial court's findings under section 186.22, subdivision (b)(1).   Several recent cases have reversed on the grounds that the evidence is insufficient to support imposition of the enhancement.  (In re Leland D., supra, 223 Cal.App.3d 251, 272 Cal.Rptr. 709;  In re Nathaniel C., supra, 228 Cal.App.3d 990, 279 Cal.Rptr. 236;  In re Lincoln J., supra, 223 Cal.App.3d 322, 272 Cal.Rptr. 852.)   Because the statute is relatively new, its requirements are just now being litigated.   As familiarity with the statutory requirements grows, the problems of proof associated with section 186.22, subdivision (b)(1), will likely diminish.

Finally, we note that Rocha also argues that section 186.22, subdivision (b)(1) is unconstitutionally vague and overbroad.   However, since we reverse on other grounds, we need not reach these issues.   We point out, however, that several courts have considered similar claims.   In each case, the statute has passed constitutional muster.  (People v. Gamez, supra, 235 Cal.App.3d 957, 286 Cal.Rptr. 894;  In re Alberto R. (1991) 235 Cal.App.3d 1309, 1 Cal.Rptr.2d 348;  People v. Green, supra, 227 Cal.App.3d 692, 278 Cal.Rptr. 140.)

Conclusion

The trial court's finding on the criminal gang enhancement is reversed.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   Section 186.22, subdivision (b)(1) provides, in pertinent part, “Except as provided in paragraph (2), any person who is convicted of a felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court's discretion.”

3.   The People argue that Padilla's assault can apply as one of the offenses.   We agree.   However, although Padilla's assault was clearly gang-related, it still constitutes only one of the offenses required to establish a pattern of criminal gang activity.

ELIA, Associate Justice.

CAPACCIOLI, Acting P.J., and PREMO, J., concur.