Appellant was convicted of second degree murder and active participation in a criminal street gang. At resentencing, the trial court imposed an upper term of three years on the gang conviction to run concurrently with the 15-years-to-life murder sentence. The Court of Appeal agreed with appellant that both convictions were based on the same felonious conduct, and that Penal Code section 654 therefore prohibited multiple punishment. The court vacated the sentence and remanded for resentencing, directing the trial court to exercise its discretion under section 654 to determine which sentence to stay.