A gang enhancement under Penal Code section 186.22, subdivision (b)(1) may not be imposed when subdivision (b)(4) or (b)(5) applies instead. A jury convicted appellant of dissuading a witness (Pen. Code, § 136.1) and found true a street terrorism enhancement. The trial court imposed both a life sentence pursuant to Penal Code section 186.22, subdivision (b)(4)(C) and a stayed five-year enhancement pursuant to subdivision (b)(1)(B). Section 186.22, subdivision (b) establishes alternative methods of punishment. A subdivision (b)(1) enhancement may not be applied when subdivision (b)(4) or (b)(5) applies instead. Because dissuading a witness is specifically listed in subdivision (b)(4), the court struck the subdivision (b)(1)(B) enhancement.

The punishment for the substantive street gang offense must be stayed pursuant to Penal Code section 654 when the sentences on other crimes are enhanced with the street gang enhancement. The issue of whether a defendant can be punished for both the substantive offense of street terrorism (Pen. Code, § 186.22, subd. (a)) and another felony where the other felony is the “felonious criminal conduct” of the gang that is used to establish the charge of street terrorism has not been consistently decided and is pending in the California Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October 27, 2010, S185688. In a concurring majority opinion, the court reasoned that a determination of whether a defendant can be punished for two crimes or, alternatively, must be punished for only one depends on whether punishing the defendant for just one of the crimes “insures that the defendant’s punishment will be commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551 [alterations omitted].) Here, Penal Code section 654 prohibits punishment pursuant to Penal Code section 186.22, subdivision (a) because the defendants were already punished for the same gang aspect of the crimes when their sentences were enhanced pursuant to subdivision (b)(4)(C). The concurring majority opinion declined to follow People v. Herrera (1999) 70 Cal.App.4th 1456.

An incident that resulted in conviction for criminal threats and dissuading a witness was a single criminal act and accordingly the criminal threat sentence was stayed pursuant to Penal Code section 654.