Filed 12/23/14 P. v. Rosales CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
DENNIS ALFREDO ROSALES,
Defendant and Appellant. B251389
(Los Angeles County Super. Ct. No. TA126989)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Sean D. Coen, Judge. A ffirmed in part and reversed and remanded in part.

Kimberly Howland Meyer, under appoi ntment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

__________________2 In a four-count amended information f iled by the Los Angeles District Attorney, defendant and appellant Dennis Alfredo Rosale s was charged as follows: In count I, defendant was charged with making criminal th reats in violation of Penal Code section 422, subdivision (a), 1 a serious felony within the meanin g of section 1192.7. In count II, he was charged with dissuadin g a witness from reporting a crime, in violation of section 136.1, subdivision (b)(1), a serious felony within the meaning of section 1192.7, subdivision (c)(37). It was further alleged as to count II, inter alia, that a principal used a firearm, within the meaning of section 120 22.53, subdivision (b), and that the offense was committed for the benefit of a gang, pursua nt to section 186.22, subdivision (b)(4). In count III, defendant was charge d with assault with a firear m, in violation of section 245, subdivision (a)(2). And, in count IV , defendant was charged with attempted extortion, in violation of secti on 524. It was further alleged as to counts I, III, and IV that defendant personally used a fi rearm, within the meaning of section 12022.5, subdivision (a), causing the offenses to become serious fe lonies (§ 1192.7, su bd. (c)(8)) and violent felonies (§ 667.5, subd. (c)(8)), and that the offenses were committed for the benefit of a gang pursuant to section 186. 22, subdivision (b)(1)(B). It wa s further alleged pursuant to section 186.22, subdivision (b)(1)(C), as to al l counts that the offenses were committed to benefit a gang. 2 Defendant pleaded not guilty and denied the special allegations. Trial was by jury. Defendant was fo und guilty as charged and the special allegations were found true.
Defendant’s motion for a new trial was denied. Defendant was sentenced to serve a total of 32 years four months in state pris on and a consecutive term of life in prison,

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Section 186.22, subdivisions (b)(1)(B) and (C) set forth alternate punishments for persons convicted of a felony committed for the benefit of a gang. Under subdivision (b)(1)(B), “If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.” Under subdivision (b)(1)(C), “If the felony is a violen t felony, as defined in subdivision (c) of Section 667.5, the person sh all be punished by an ad ditional term of 10 years.”3 calculated as follows: (1) Count I: The mi dterm of two years, plus 14 years, which included 10 years for the section 186.22, subdiv ision (b)(1)(C), finding and four years for the section 12022.5, subdivision (a), finding, with the sentence as to count I stayed pursuant to section 654; (2) Count II: Life in state prison pursuant to section 186.22, subdivision (b)(4), plus 10 years pursuant to section 12022.53, subdivision (b), with the
sentence to be served consecuti ve to the term imposed as to count III; (3) Count III: The midterm of three years in prison, plus four years pursuant to secti on 12022.5, subdivision (a); and (4) Count IV: A consecutive five year s four months in prison, consisting of eight months (one-third of the midterm of 24 months ), plus one year four months (one-third of the midterm) pursuant to section 12022.5, su bdivision (a), plus three years four months (one-third of the midterm) pursuant to sect ion 186.22, subdivision (b)(1)(C). Defendant was given 458 days of custody credits, which included 399 da ys of actual custody and 59 days of good time/work time. Defendant timely appealed. On appeal, he argues: (1) The trial court erred in denying his motion for a new trial based upon the admission of gang evidence; (2) The true findings on the gang enhancement are ba sed upon insufficien t evidence; (3) The
consecutive life sentence on count II base d upon the true finding on the gang enhancement constitutes cruel and unusual p unishment; (4) Defendant’s conviction on count II for violation of section 136.1, s ubdivision (b)(1), does not qualify for a life sentence under section 186.22, subdivision (b )(4); (5) Defendant’s conviction on count II does not qualify for the 10-year enhancement under section 12022.53, subdivision (b); and (6) The sentence enhancements on count s I, III, and IV under section 12022.5, subdivision (a), and section 186.22, subdiv ision (b)(1)(C), violate the prohibition under section 1170.1, subdivision (f), against imposi ng two or more enhanc ements for using a firearm in the commission of a single offense. We agree with defendant that there were sentencing errors. Defendant’s sentence
on all counts is reversed and the matter is remanded for resentencing. In all other respects, we affirm.4 FACTUAL AND PROCED URAL BACKGROUND
I. Prosecution Evidence A. Evidence of the Charged Crimes Luis Reynoso (Reynoso) lived across the street from the 107th Street Elementary School. Gang graffiti was on th e walls in front of the sc hool, and MS-13 tagging was also on the trees and ground in the gang’s territory. One wall had “Travieso” written on it. Also on the wall was “Centrales,” a clique of the MS-13 gang. On the sidewall of the elementary school was graffiti, which re ad: “MS-13, Centrales, Travieso.” Reynoso, his mother (Victoria Tapia (Tap ia)), and his brothers (17-year-old J., 14- year-old F., and seven-year-old E.) had all lived together in the house for seven years. Reynoso and J. did not really get along because when J. was 16 years old, he started hanging out with people from the “MS gang.” Reynoso knew from watching
documentaries on television that “MS” stood for “Mara Salvatrucha.” Reynoso was not in a gang, but had been asked many times to be part of a gang. He had previously come across about nine MS-13 gang members in the neighborhood. J. was not a member of the gang, but once he started hanging out with ga ng members, he treated Reynoso like “some sort of a punk, like scared.” Reynoso attended John Muir Continuation School in Inglewood and he worked carpeting at his “Auntie’s friend.” He was paid by the job. On the night of July 7, 2012, Reynoso was away from ho me with his girlfriend. Tapia, F., and E. were also not at home. When Reynoso retu rned home, sometime between 9:00 p.m. and 10: 00 p.m., it was dark. But, he no ticed J. sitting with defendant
and another male across the street at the el ementary school. Defendant was known as “Travieso” and “Menace,” and the names meant “troublemaker, like a menace to society.” Defendant had previously told Reynoso that he was from the MS gang. Reynoso had previously observed defendant pull up his shirt and flash to Reynoso an identifying “M.S.” gang tattoo on his stomach. Reynoso had seen the tattoo several times on prior occasions. And, Rey noso had heard defenda nt say that he was a member of the5 Centrales clique in the MS-13 gang. Moreov er, prior to that night, Reynoso had seen defendant with a gun “a bunch of times.” Reynoso then heard defendant yell his na me. Reynoso did no t turn around; he opened the front gate to his yard and ente red the front yard. The three males then approached him and entered the front yard. As he approached the back door of the house and was standing in the back driveway, de fendant turned Reynos o around and asked, “Don’t you hear me calling you?” Reynoso rep lied that he did not want to listen or talk
to him. Defendant then told Reynoso to go to the front of the house. Reynoso was scared and complied with defe ndant’s directions. As they went to the front yard, defenda nt said he was from J.’s gang and asked Reynoso what was wrong with him, why he was acting differe ntly, referring to the fact that Reynoso was ignoring them and not looki ng or paying attention to them. Reynoso responded that he did not want any part of what they were doing. At that point, defendant was directly in Reynoso’s face, ab out a foot away; J. was on defendant’s right side, and the third male was on defendant’s le ft side. Defendant became angry, pulled out a gun in his left hand, pointed it, pr essed it against Reynoso’s chest, and then threatened that if Reynoso di d not give him $100 by Monday, he would kill him. J. said nothing and did not look scared. Defendant said that if Rey noso called the police or told his mother or anyone, he would kill him. The gun was black metal and looked like a .45- caliber gun, like the kind of we apon police officers carry. Defendant said that he was “taxing” Reyno so because “this [was] his hood” or this was “MS hood,” repeating that Reynoso ha d “better have the money by Monday” and that if he told anyone, he would kill him. Defendant pointed the gun and pressed it to Reynoso’s chin. Defendant lifted his shirt, di splayed an MS-13 gang tattoo and said that he “ain’t playing.” 3 Defendant held the gun to Reyn oso’s chin for about three minutes. 4

3 On redirect examination, Reynoso tes tified that his testimony at the preliminary hearing (that he did not see the tattoo on this occasion) was untrue a nd that he did see it that night for “a couple of second s when [defendant] flashed it.”6 Reynoso was scared for his life and believed that defendant would kill him if he told anyone or if he failed to gi ve him the money by Monday. With his right hand, defendant searched through Reynoso’s pockets. He removed Reynoso’s wallet and saw that there was no m oney in it. He grabbed Reynoso, removed and held up Reynoso’s identif ication, and said, “‘I’m going to need this.’” Defendant
then returned the wallet to Reynoso’s pocket. Although Re ynoso believed that defendant took his identification card, he later discovere d that his identification had been put back
into his wallet. Meanwhile, J. and the other male we re quietly looking at Reynoso. When defendant was finished, he, J., and th e third male went back across the street to the elementary school. Reynoso went inside the house. He was te rrified and did not know what to do. He
called his mother and asked her to “come home as soon as [she could].” Reynoso did not call the police; he was scar ed and “they were right in the front.” Tapia returned home ab out 30 minutes later. He told her what had happened. He told her about the gun and ho w it had been placed against his chest. Tapia called the police. B. Initial Police Interview with Reynoso The police arrived 15 to 20 minutes later. When they arrived, Tapia went outside and Reynoso remained in the kitchen. The police then entered the home and spoke to Reynoso for about eight minutes. Reynoso told the police everything that had happened. As he spoke to them, he could see that defendan t, J., and the other male had left. After he finished talking to the police, Reynos o was “still scared fo r [his] life.” C. Defendant Returns to Reynoso On Monday, Reynoso was home with Tapia a nd his brothers F. and E. At around noon, Reynoso was inside the house when he saw defendan t walking across the street,

4 On redirect examination, Reynoso testif ied that he could be mistaken about how long the gun was poin ted at his face.7 around the school. He did not have the $100 to give to defendant. 5 He was scared. Tapia called the police. Reynoso was so scared that he did not leav e the house for about four days. He did
not see his brother J. until over a month later. D. Detective’s Interview with Reynoso About a week later, Detective Freddy Lilomaiava of the Los Angeles Police Department went to the house and spoke to Reynoso. Reynoso told him what had happened on July 7, 2012. At that time, Reynoso gave mo re information than he had given to the police originally, including the names defendant went by and an address
where defendant lived at the time. Detective Lilomaiava showed Reynoso a set of photographs. Reynoso could not identify th e person who had threat ened him from any of the first set of photographs and so told the detective. Det ective Lilomaiava returned two days later with another set of photographs and admonished Reyno so. Reynoso circled defendant’s photograph and wrote, “I was s hown line-up 270253 and I picked number 3. He threatened to kill me with a gun.” E. Reynoso Appears in Court In October 2012, Reynoso appeared in cour t to testify in response to a subpoena. He did not want to go to court to testify because he did not want his family to get hurt. Reynoso also appeared in court to tes tify in November 2012. He testified truthfully for about half of a day. After that , he did not want to te stify again because he was told that he was finished testifying and because he was scared about what happens to
a “snitch” or a “rat” who testif ies. Reynoso was asked to retu rn to court in January. He did not want to go and went to his auntie’s house in Palmda le for about a month. He hoped that it would all be over by then and that he could then return home. While in Palmdale, Tapia tried to convince Reynoso to te stify. He did not want to go to court.

5 On redirect examination, Reynoso testif ied that he saw defendant again that same evening. He was walking around and looking directly at Reynoso’s house.8 After January 2013, Reynoso returned home. He learned that he was needed back in court to testify, when he was arrested fo r a “body attachment.” Reynoso remained in jail for 15 days until he testif ied at defendant’s trial. F. Briefing of Police Officers On July 27, 2012, Los Angeles Police Officers Kenneth Price and David Sanchez
were briefed at the station about defendant. Gang detectives told them about a man who
had committed the crime of criminal threats. Later, Detective Romero followed up by showing them a booking photo of defendant and providing a “b asic physical description,” including a “prominent tattoo on his abdomen with the M.S. and also a moniker that he used at the time, Travieso.” They were also given the address of an area where he might
be found. After the briefing, the officers left the st ation and saw two male Hispanics, one of whom met the description given at the briefi ng. They approached the two men and asked
them to turn around. While sweeping defendant’s back, O fficer Price asked whether he had any tattoos and whether he was affiliated with a gang. Defendant admitted that he was affiliated with the MS-13 ga ng and said that his gang moniker was “little Downer.”
Officer Price asked defendant if he also went by the gang moniker “Travieso,” and defendant replied that he did. 6 Defendant was then placed in handcuffs. He had “M.S.” tattooed on his abdomen. The other susp ect detained with defendant was J. G. Gang Evidence Los Angeles Police Department Officer Edga r Muro testified as a gang expert. He stated that the MS-13 gang was one of the prim ary gangs he was assigned to monitor. It commits murders, attempted mu rders, extortions, robberies , human trafficking, drug sales, drug possession, and gun possession. The gang benefits by individual gang members committing crimes. The primary purpo se of the MS-13 gang is to expand its territory and to make money by selling drugs and committing ex tortion, signature crimes of this gang. Some of the money obta ined by individual gang members committing

6 Gang members usually have more than one gang moniker.9 crimes is shared by the gang as a whole, and ev entually a third of it is supposed to go to the Mexican Mafia, a prison-based gang. MS -13 uses its share of the money to buy weapons and additional drugs to sell. Some gang members have jobs, while others rely on the gang for support. Unlike other gang s, the MS-13 gang has no alliances and has fought over territory with every other gang.
“M.S.” stands for “Mara Salvatrucha.” Mara is supposed to stand for “large crowd,” “Salva” refers to El Salvador or El Salvadorian, and “Trucha” means “being on the look-out” or aware of your surroundings. The “13” in the gang name stands for the 13th letter of the alphabet, “M,” which refe rs to the Mexican Mafia. The MS-13 gang historically had a violent war with the 18th Street gang, and the Mexican Mafia brokered a peace agreement whereby the two gangs sp lit up MacArthur Park and the drug sales.
There are thousands of memb ers of MS-13. The majority of its members are from
El Salvador. Some were raised in Los Angeles. There are many cliques in the MS-13 gang. “Putting in work” for th e MS-13 gang incl uded committing diffe rent crimes. Crimes were committed by ga ng members in order to prove oneself and earn respect. Gang members wanted to be feared. O fficer Muro explained that it was important to the gang that community members fear th em “because they’re less likely to call the police or report” crime. Fear could be generated by anything from graffiti to actual
threats to assault or murde r. Officer Muro had seen a gang member follow through on
such threats. Officer Muro testified that taxing was a nother word for extortion, and that MS-13 was known for taxing people. Next, Officer Muro stated that defenda nt was a documented member of the MS-13 gang. He had an MS tattoo on his stomach, a rosary tattoo on the back of his hand and down his middle finger with a small “13” alon gside it, an “L.A.” tattoo on his left upper arm, and a tattoo reading “So What.” Th e “S” and “W” when looked at upside down
looked like the letters “MS.”10 Finally, when given a hypothetical of th e facts of the instan t case, Officer Muro opined that the crimes were committed for the benefit of the MS-13 gang.
II. Defense Evidence Defendant did not testify.
DISCUSSION I. The trial court properly denied defendant’s motion for a new trial
Defendant contends that th e trial court erred by (1) a llowing Reynoso to testify about his knowledge of the MS-13 gang, an d (2) permitting the prosecution’s expert witness to offer expert testimony about gangs and the MS-13 gang.
A. Standard of Review We review a trial court’s order denyi ng a motion for new trial for abuse of discretion. ( People v. Guerra (2006) 37 Cal.4th 1067, 1159 , overruled in part on other grounds in People v. Rundle (2005) 43 Cal.4th 76, 151, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.) B. Reynoso’s Testimony The trial court did not err in admitting Reynoso’s testimony. As detailed above, Reynoso testified about what he knew of the MS-13 gang, gang culture, and defendant. This testimony was relevant as it related to the gang enhancements charged and to Reynoso’s credibility, bias, and fear. ( People v. Farnam (2002) 28 Cal.4th 107, 153.) Thus, there was no error. C. Expert Witness Testimony The gang expert’s testimony was also prop erly admitted. Again, defendant was charged with enhancements, and a qualified gang expert may testify to a wide variety of matters. ( People v. Ochoa (2001) 26 Cal.4th 398, 438–4 39.) Gang culture and habits, which were relevant issues in this case, ar e matters not within the common knowledge of a jury; thus, they were matters proper for expert testimony. ( People v. Gardeley (1996) 14 Cal.4th 605, 617.) As set forth above, that is exactly the sort of evidence that Officer Muro offered.
It follows that the trial court did no t err in admitting his expert testimony.11 D. Harmless Error Even if the trial court had erred by allowi ng either Reynoso’s testimony or Officer Muro’s testimony, or both, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 and Chapman v. California (1967) 386 U.S. 18, 24. As set forth above, there was overwhelming evidence of defenda nt’s gang membership; their testimonies were relevant to the enhancement and charges; and the jury was prop erly instructed. It
follows that even if there had been error, such error was harmless. ( People v. Jablonski (2006) 37 Cal.4th 774, 823.)
E. Due Process Finally, we reject defendant’s due process argument. It is well-settled that “the admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair.” ( People v. Partida (2005) 37 Cal.4th 428, 436.) There is
no indication here that defendant’s tr ial was “fundamentally unfair.” ( Ibid .)
II. The gang enhancement is sup ported by sufficient evidence Defendant argues that, despite his claim a bout the prejudicial nature of the gang evidence admitted, there was in sufficient evidence to support the true finding on the gang
enhancement.
A. Standard of Review As the parties agree, we review th e record for substa ntial evidence. ( People v.
Albillar (2010) 51 Cal. 4th 47, 59–60.)
B. Sufficient Evidence As set forth above, there was overwhe lming evidence that defendant committed his crimes to further benefit his gang. He identified himself as a gang member and attempted to use his gang status when dema nding money from Reynoso. This evidence, coupled with the gang expert’s testimony, wa s more than enough to support the true finding on the gang enhancement.
III. The matter must be remanded for resentencing on count II In count II, defendant was charged with dissuading a witness in violation of section 136.1, subdivision (b)(1). The info rmation also alleged a gang enhancement,12 under section 186.22, subdivis ion (b)(4). The jury convicte d defendant of the charged offense and found true the gang enhancement. He was sentenced to life in prison plus 10 years, with the sentence to be served consecutive to the te rm imposed on count III. On appeal, defendant contends that his convictio n of section 136.1, subdivision (b)(1), does not qualify for a life sentence under section 186.22, subdivision (b)(4), because he was neither charged with or convicted of making a threat of force to Reynoso. We agree. Section 186.22, subdivision (b )(4), provides that “[a]ny pe rson who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the sp ecific intent to promote, further, or assist in any criminal c onduct by gang members, shall, upon conviction of that felony,
be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of : [¶] . . . [¶] (C) Imprisonment in the state prison for seven years, if the felony is . . . threats to vic tims and witnesses, as
defined in Section 136.1.” Here, the trial court relied on section 1 86.22, subdivision (b)(4 ), to impose a life sentence. Imposition of this sentence is perm issible only if defendant was convicted of “threats to victims and witnesses, as defi ned in Section 136.1.” (§ 186.22, subd. (b)(4)(C).) Defendant maintains he was c onvicted only of attempting to dissuade a witness from testifying, not of attempting to do so with threats. The Attorney General asserts that the phrase “threats to victims and witnesses” refe rs to section 136.1 generally, and that any conviction under this statut e permits imposition of the indeterminate

sentence. Section 136.1 defines cert ain offenses involving pe rsuading, preventing or attempting to persuade or prevent a witness or victim from reporting a crime or testifying at trial. Section 136.1, subdivision (a), prohibits a person from knowingly and maliciously preventing or dissuading a witne ss or victim from attending or testifying at trial, or attempting to do so . Subdivision (b) prohibits pr eventing or dissuading a witness or victim from (1) reporting a crime, (2) ca using an accusatory plea ding to be sought and prosecuted, or (3) arresting or seeking the arrest of any person in connection with the13 crime. Both subdivisions (a) and (b) offenses are “wobblers, ” i.e., permitting either a jail or prison sentence. Subdivisions (a) and (b ) each carves out subdivision (c) as an exception to its provisions. Section 136.1, subdivision (c), necessari ly elevates a violation of either subdivision (a) or (b) into a fe lony if “(1) . . . the act is accompanied by fo rce or by an express or implied threat of force or violen ce, upon a witness or victim or any third person or the property of any vic tim, witness, or any third person.” A violation of section 136.1, subdivision (a) or (b) is a lesser offe nse of subdivision (c), because subdivision (c) requires a violation of subdivision (a) or (b) plus the use of force or threat. ( People v. Upsher (2007) 155 Cal.Ap p.4th 1311, 1321; People v. Brenner (1992) 5 Cal.App.4th 335, 340–341.) “[A] defendant who attempts to dissuade a witness from testifying is guilty of either a misdemeanor or a felony, but [when that] a ttempt is accompanied by an express or implied threat of force, [the defe ndant] is guilty of a felo ny with an increased term of imprisonment.” ( People v. Lopez (2012) 208 Cal.App.4th 1049, 1064 ( Lopez ).)
“The Sixth and Fourteenth Amendments to the United States Constitution preclude a trial court from imposing a sentence above the statutory maximum based on a fact, other than a prior conviction, not found to be true by a jury. ( Cunningham v. California (2007) 549 U.S. 270, 274–275 [127 S.Ct. 856, 166 L.Ed .2d 856]; Blakely v. Washington (2004) 542 U.S. 296, 303–304 [1 24 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] [( Apprendi )].) Whether a defendant used an express or im plied threat of force when attempting to dissuade a witness from testifying is a question of fact that subjects the defendant to a greater sentence. Accordingly, Apprendi and its progeny require th e jury find this fact true beyond a reasonable doubt.” ( Lopez , supra , 208 Cal.App.4th at p. 1064.) Here, defendant was charged with violation of section 136.1, subdivision (b). The jury was not asked to find, and therefore did no t find, that he used force or violence (or threatened to use force or violence) in th e commission of the offense. Section 186.22, subdivision (b)(4)(C), permits imposition of a life sentence only when the underlying offense is a felony involving “threats to vi ctims and witnesses, as defined in Section14 136.1.” Absent a jury finding of an express or implied threat of force pursuant to section 136.1, subdivision (c), defendant’s convicti on does not qualify for a life sentence under section 186.22, subdivision (b)(4)(C). ( Lopez , supra , 208 Cal.App.4th at p. 1065; see
also People v. Anaya (2013) 221 Cal.App.4th 252, 269–270.) Relying on People v. Neely (2004) 124 Cal.App.4th 1258 ( Neely ), the Attorney General argues that the reference to “sec tion 136.1” in secti on 186.22, subdivision (b)(4)(C), is not limited to any particular subdi vision of that statute, and should be construed as including all the offenses set forth in section 136.1. We disagree. In Neely
, the defendant argued that a prior conviction of violating section 136.1, subdivision (a)(2), did not qualify as a serious fe lony under section 1192.7, su bdivision (c)(37). Section 1192.7, subdivision (c)(37), defi nes “intimidation of victims or witnesses, in violation of Section 136.1” as a serious felony. Noti ng that no specific offense in section 136.1 mentions “intimidation,” Neely concluded that the phrase “i ntimidation of victims or witnesses” in section 1192.7, subdivision (c)(37), merely described the entirety of section 136.1. ( Neely , at p. 1266.) But section 186.22, subdivision (b)(4)(C), di ffers from section 1192.7, subdivision (c)(37). We conclude that the requirement of force or threat in section 136.1 is specifically limited to violations of subdivi sion (c), which explicitly and unambiguously creates a statutory distinction between offenses that require force or threat and offenses that do not. We recognize that at least one court has found that, in enacting section 186.22, subdivision (b)(4), the Legislature intended dramatically to increase punishment for all gang-related offenses, including the “wobbler” of ordinary attempted witness
dissuasion. 7 ( People v. Galvez (2011) 195 Cal.App.4th 12 53, 1256.) But we cannot ignore the clear language of sections 186.22, subdivision (b)(4)(C) and 136.1.

7 In People v. Galvez
, supra , 195 Cal.App.4th 1253, the defendant was convicted of attempted witness dissuasion (§ 136.1, subd .(b)(1)), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and the ju ry found both offenses were committed for the benefit of or in associati on with a criminal stre et gang (§ 186.22, subds. (b)(1), (b)(4)(C)). ( Galvez , at pp. 1256–1257.) There, in contrast with the instant15 In addition, as we observed above, any other interpretati on of these statutes raises problems under Apprendi , which requires that “any fact th at increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt.” ( Blakely v. Washington, supra, 530 U.S. at p. 409.) The jury was not asked if defendant violated section 136.1, subdivision (c). In Apprendi ’s terms, subdivision (c) does not describe a sent encing factor applicable to a violation of subdivision (a). Rather, section 136.1, su bdivision (c), describes a greater offense and provides for a more severe punishment th an is authorized fo r a conviction under subdivision (a). The trial court relied on section 186.22, subdiv ision (b)(4), when it imposed a term of life on count II. That sent ence was permissible only if defendant was convicted “of attempting to dissu ade a witness by use of an implied or express threat of force pursuant to section 136. 1, subdivision (c)(1).” ( Lopez , supra , 208 Cal.App.4th at p. 1065.) Defendant was not co nvicted of violating section 136.1 subdivision (c)(1). It follows that the trial court erred in imposin g a sentence under secti on 186.22, subdivision (b)(4)(C), because that secti on does not apply to the crim e of which defendant was convicted, and was based on a fact that the jury did not find true.
The matter must be remanded to the tr ial court for resentencing on count II. 8

action, the attempted witness dissuasion involv ed a physical assault by the defendant and other gang members, who punched the victim in the face, and kick ed him in the head, side and leg. ( Id . at p. 1257.) Galvez did not address the issue here, whether section 186.22, subdivision (b)(4)(C), wa s limited to violations of section 136.1 involving force or threat. Rather, the only legal question ra ised was whether section 136.1, subdivision (b)(1), was intended only to cover the pr evention or dissuasion of someone from reporting a crime of which they were a victim. ( Galvez , at p. 1258.) It is axiomatic that a case is not authority for a proposition it does not address. (See People v. Knoller (2007) 41 Cal.4th 139, 155 [“‘An appella te decision is not authority for everything said in the court’s opinion but only “for the points actua lly involved and actu ally decided.”’”].)

8 It follows that we need not address defendant’s contention that his sentence on count II is an unconstitutional cruel and/or u nusual punishment. We also do not address defendant’s argument that the trial court e rred when it imposed a 10-year enhancement on count II.16 IV. The matter must be remanded for re sentencing as to counts III and IV Defendant argues that the sentences im posed on counts I, III, and IV must be
reversed because the substantive offenses in those counts were not violent felonies; they only became violent felonies because of the true findings on the section 12022.5, subdivision (a), firearm use e nhancement. Because he was therefore punished “under two different sentence enhancement provisions for use of a firearm in a single offense,” defendant argues that his sentence violates the prohibition against such dual use under section 1170.1, subdivision (f). The People agree with defe ndant as to counts III and IV , and so do we. Because the trial court imposed and executed sentence s pursuant to sections 12022.5, subdivision (a), and 186.22, subdivision (b)(1), based upon his personal firearm use, these counts must be remanded for resentencing. 9 (See People v. Rodriguez (2009) 47 Cal.4th 501, 509.)
V. The matter must be remanded for resentencing as to count I As set forth above, the trial court stay ed defendant’s senten ce as to count I pursuant to section 654. In so doing, the tr ial court stated that “[t]he stay would be permanent upon successf ul completion of the sentence in count” II. 10 Because we are reversing defendant’s sentence on counts II, III, and IV and remanding the matter for resentencing, we likewise reverse and remandthe matter for resentencing on count I.

9 We decline the People’s request to simp ly modify the sentence on appeal. There are sentencing options availabl e, including under section 12022.5, subdiv ision (a), or section 186.22, subdivisions (b)(1)(B) or (C), or both. Because the trial court has discretion to restructure defendant’s sentence, remand is appropriate. ( People v. Rodriguez
, supra , 47 Cal.4th at p. 509.)

10 We note that the trial court’s minutes i ndicate that the sentence as to count I was stayed and that the stay w ould “become permanent upon successful completion of the sentence in counts” II and IV.17 DISPOSITION The sentence imposed on all counts is re versed, and the matter is remanded for resentencing. In all other resp ects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________ ___________________, J. ASHMANN-GERST

We concur:

________________ ______________, P. J. BOREN

___________________ __________, J. HOFFSTADT