The Court held that for felonies not punishable by an indeterminate term, the gang statute’s requirement of a finding by the trier of fact on the group’s primary activities is a “fact that increases the penalty” for the charged crime, and therefore an element of the Penal Code section 186.22 enhancement under Apprendi v. New Jersey (2000) 530 U.S. 466. Therefore, a trial court’s failure to instruct the jury on the necessity of such a finding is federal constitutional error which must be evaluated under Chapman v. California (1967) 386 U.S. 18. The gang statute does not, however, increase the maximum term for felonies punishable by life imprisonment. Therefore, the failure to instruct on the primary activities requirement does not violate the federal constitution. Therefore, in that situation Apprendi does not apply, and it is a matter of state law error, subject to the test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. Here, the jury convicted appellant of attempted murder, committed to benefit a street gang, punishable by an indeterminate term. It also convicted him of discharging a firearm, which is among the felonies for which the gang enhancement sets forth an additional determinate term. For this offense the trial court’s instructional error was federal constitutional error, and therefore remand to the Court of Appeal was required to determine whether the instructional error was harmless under Chapman.