Filed 12/23/14 P. v. Rosales CA2/2 

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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 Superior Court of Los Angeles County. 

Sean D. Coen, Judge. Affirmed in part and reversed and remanded in part. 

 Kimberly Howland Meyer, under appointment 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 filed by the Los Angeles District Attorney, 

defendant and appellant Dennis Alfredo Rosales was charged as follows: In count I, 

defendant was charged with making criminal threats in violation of Penal Code section 

422, subdivision (a),1 a serious felony within the meaning of section 1192.7. In count II, 

he was charged with dissuading 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 12022.53, subdivision (b), and that the offense 

was committed for the benefit of a gang, pursuant to section 186.22, subdivision (b)(4). 

In count III, defendant was charged with assault with a firearm, in violation of section 

245, subdivision (a)(2). And, in count IV, defendant was charged with attempted 

extortion, in violation of section 524. It was further alleged as to counts I, III, and IV that 

defendant personally used a firearm, within the meaning of section 12022.5, subdivision 

(a), causing the offenses to become serious felonies (§ 1192.7, subd. (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 was further alleged pursuant to 

section 186.22, subdivision (b)(1)(C), as to all 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 found 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 prison 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 violent felony, as defined in subdivision (c) of 

Section 667.5, the person shall be punished by an additional term of 10 years.” 
3

calculated as follows: (1) Count I: The midterm of two years, plus 14 years, which 

included 10 years for the section 186.22, subdivision (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 consecutive to the term imposed as to count III; (3) Count III: The 

midterm of three years in prison, plus four years pursuant to section 12022.5, subdivision 

(a); and (4) Count IV: A consecutive five years 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, subdivision (a), plus three years four months 

(one-third of the midterm) pursuant to section 186.22, subdivision (b)(1)(C). Defendant 

was given 458 days of custody credits, which included 399 days 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 based upon insufficient evidence; (3) The 

consecutive life sentence on count II based upon the true finding on the gang 

enhancement constitutes cruel and unusual punishment; (4) Defendant’s conviction on 

count II for violation of section 136.1, subdivision (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 counts I, III, and IV under section 12022.5, 

subdivision (a), and section 186.22, subdivision (b)(1)(C), violate the prohibition under 

section 1170.1, subdivision (f), against imposing two or more enhancements 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 PROCEDURAL 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 the walls in front of the school, 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 read: “MS-13, Centrales, Travieso.” 

 Reynoso, his mother (Victoria Tapia (Tapia)), 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 gang 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 home with his girlfriend. 

Tapia, F., and E. were also not at home. When Reynoso returned home, sometime 

between 9:00 p.m. and 10:00 p.m., it was dark. But, he noticed J. sitting with defendant 

and another male across the street at the elementary 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, Reynoso had heard defendant say that he was a member of the 
5

Centrales clique in the MS-13 gang. Moreover, prior to that night, Reynoso had seen 

defendant with a gun “a bunch of times.” 

 Reynoso then heard defendant yell his name. Reynoso did not turn around; he 

opened the front gate to his yard and entered 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, defendant turned Reynoso around and asked, 

“Don’t you hear me calling you?” Reynoso replied 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 defendant’s directions. 

 As they went to the front yard, defendant said he was from J.’s gang and asked 

Reynoso what was wrong with him, why he was acting differently, referring to the fact 

that Reynoso was ignoring them and not looking 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, about a foot away; J. was on defendant’s right 

side, and the third male was on defendant’s left side. Defendant became angry, pulled 

out a gun in his left hand, pointed it, pressed it against Reynoso’s chest, and then 

threatened that if Reynoso did not give him $100 by Monday, he would kill him. J. said 

nothing and did not look scared. Defendant said that if Reynoso 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 weapon police officers carry. 

 Defendant said that he was “taxing” Reynoso because “this [was] his hood” or this 

was “MS hood,” repeating that Reynoso had “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, displayed an MS-13 gang tattoo and said that 

he “ain’t playing.”3 Defendant held the gun to Reynoso’s chin for about three minutes.4 

3 On redirect examination, Reynoso testified that his testimony at the preliminary 

hearing (that he did not see the tattoo on this occasion) was untrue and that he did see it 

that night for “a couple of seconds 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 give 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 money in it. He grabbed Reynoso, removed 

and held up Reynoso’s identification, and said, “‘I’m going to need this.’” Defendant 

then returned the wallet to Reynoso’s pocket. Although Reynoso believed that defendant 

took his identification card, he later discovered that his identification had been put back 

into his wallet. 

Meanwhile, J. and the other male were quietly looking at Reynoso. 

When defendant was finished, he, J., and the third male went back across the street 

to the elementary school. 

Reynoso went inside the house. He was terrified 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 scared and “they were right in the front.” 

Tapia returned home about 30 minutes later. He told her what had happened. He 

told her about the gun and how 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 defendant, J., and the other male had left. After he 

finished talking to the police, Reynoso was “still scared for [his] life.” 

C. Defendant Returns to Reynoso 

On Monday, Reynoso was home with Tapia and his brothers F. and E. At around 

noon, Reynoso was inside the house when he saw defendant walking across the street, 

 

4 On redirect examination, Reynoso testified that he could be mistaken about how 

long the gun was pointed 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 leave 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 more 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 the person who had threatened him from any of 

the first set of photographs and so told the detective. Detective Lilomaiava returned two 

days later with another set of photographs and admonished Reynoso. Reynoso circled 

defendant’s photograph and wrote, “I was shown 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 court 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 testify in November 2012. He testified 

truthfully for about half of a day. After that, he did not want to testify 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 testifies. Reynoso was asked to return to court in January. He 

did not want to go and went to his auntie’s house in Palmdale 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 testify. He did not want to go to court. 

5 On redirect examination, Reynoso testified 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 for a “body attachment.” Reynoso remained in 

jail for 15 days until he testified 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 “basic 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 station and saw two male Hispanics, one of 

whom met the description given at the briefing. They approached the two men and asked 

them to turn around. While sweeping defendant’s back, Officer 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 gang 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 suspect detained with defendant was J. 

G. Gang Evidence 

 Los Angeles Police Department Officer Edgar Muro testified as a gang expert. He 

stated that the MS-13 gang was one of the primary gangs he was assigned to monitor. It 

commits murders, attempted murders, extortions, robberies, human trafficking, drug 

sales, drug possession, and gun possession. The gang benefits by individual gang 

members committing crimes. The primary purpose of the MS-13 gang is to expand its 

territory and to make money by selling drugs and committing extortion, signature crimes 

of this gang. Some of the money obtained 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 eventually 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 gangs, 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 refers 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 split up MacArthur Park and the drug sales. 

 There are thousands of members 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 the MS-13 gang included committing different crimes. 

Crimes were committed by gang members in order to prove oneself and earn respect. 

 Gang members wanted to be feared. Officer Muro explained that it was important 

to the gang that community members fear them “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 murder. Officer Muro had seen a gang member follow through on 

such threats. 

 Officer Muro testified that taxing was another word for extortion, and that MS-13 

was known for taxing people. 

 Next, Officer Muro stated that defendant 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” alongside it, an “L.A.” tattoo on his left upper 

arm, and a tattoo reading “So What.” The “S” and “W” when looked at upside down 

looked like the letters “MS.” 
10

 Finally, when given a hypothetical of the facts of the instant 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 the trial court erred by (1) allowing Reynoso to testify 

about his knowledge of the MS-13 gang, and (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 denying 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 properly 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, 438–439.) Gang culture and habits, 

which were relevant issues in this case, are 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 not err in admitting his expert testimony. 
11

 D. Harmless Error 

 Even if the trial court had erred by allowing 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 defendant’s gang membership; their testimonies 

were relevant to the enhancement and charges; and the jury was properly 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 trial was “fundamentally unfair.” (Ibid.) 

II. The gang enhancement is supported by sufficient evidence

 Defendant argues that, despite his claim about the prejudicial nature of the gang 

evidence admitted, there was insufficient evidence to support the true finding on the gang 

enhancement. 

 A. Standard of Review 

 As the parties agree, we review the record for substantial evidence. (People v. 

Albillar (2010) 51 Cal.4th 47, 59–60.) 

 B. Sufficient Evidence 

 As set forth above, there was overwhelming 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 demanding money from Reynoso. This evidence, 

coupled with the gang expert’s testimony, was 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 information also alleged a gang enhancement, 
12

under section 186.22, subdivision (b)(4). The jury convicted 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 term imposed on count III. On 

appeal, defendant contends that his conviction 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 person 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 specific intent to promote, further, 

or assist in any criminal conduct 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 victims and witnesses, as 

defined in Section 136.1.” 

Here, the trial court relied on section 186.22, subdivision (b)(4), to impose a life 

sentence. Imposition of this sentence is permissible only if defendant was convicted of 

“threats to victims and witnesses, as defined in Section 136.1.” (§ 186.22, subd. 

(b)(4)(C).) Defendant maintains he was convicted 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” refers to section 136.1 generally, 

and that any conviction under this statute permits imposition of the indeterminate 

sentence. 

Section 136.1 defines certain offenses involving persuading, 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 witness or victim from attending or testifying at 

trial, or attempting to do so. Subdivision (b) prohibits preventing or dissuading a witness 

or victim from (1) reporting a crime, (2) causing an accusatory pleading to be sought and 

prosecuted, or (3) arresting or seeking the arrest of any person in connection with the 
13

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), necessarily elevates a violation of either 

subdivision (a) or (b) into a felony if “(1) . . . the act is accompanied by force or by an 

express or implied threat of force or violence, upon a witness or victim or any third 

person or the property of any victim, witness, or any third person.” A violation of section 

136.1, subdivision (a) or (b) is a lesser offense 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.App.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] attempt is accompanied by an 

express or implied threat of force, [the defendant] is guilty of a felony 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 [124 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 implied 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 the 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 not find, that he used force or violence (or 

threatened to use force or violence) in the 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 victims and witnesses, as defined in Section 
14

136.1.” Absent a jury finding of an express or implied threat of force pursuant to section 

136.1, subdivision (c), defendant’s conviction 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 “section 136.1” in section 186.22, subdivision 

(b)(4)(C), is not limited to any particular subdivision 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 felony under section 1192.7, subdivision (c)(37). Section 

1192.7, subdivision (c)(37), defines “intimidation of victims or witnesses, in violation of 

Section 136.1” as a serious felony. Noting that no specific offense in section 136.1 

mentions “intimidation,” Neely concluded that the phrase “intimidation 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), differs 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 subdivision (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 1253, 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 jury found both offenses were 

committed for the benefit of or in association with a criminal street gang (§ 186.22, 

subds. (b)(1), (b)(4)(C)). (Galvez, at pp. 1256–1257.) There, in contrast with the instant 
15

In addition, as we observed above, any other interpretation of these statutes raises 

problems under Apprendi, which requires that “any fact that 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 sentencing factor applicable to a violation of 

subdivision (a). Rather, section 136.1, subdivision (c), describes a greater offense and 

provides for a more severe punishment than is authorized for a conviction under 

subdivision (a). The trial court relied on section 186.22, subdivision (b)(4), when it 

imposed a term of life on count II. That sentence was permissible only if defendant was 

convicted “of attempting to dissuade 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 convicted of violating section 136.1 subdivision (c)(1). It 

follows that the trial court erred in imposing a sentence under section 186.22, subdivision 

(b)(4)(C), because that section does not apply to the crime 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 trial court for resentencing on count II.8

 

action, the attempted witness dissuasion involved a physical assault by the defendant and 

other gang members, who punched the victim in the face, and kicked 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), was limited to violations of section 136.1 involving force 

or threat. Rather, the only legal question raised was whether section 136.1, subdivision 

(b)(1), was intended only to cover the prevention 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 appellate decision is not authority for everything said in the 

court’s opinion but only “for the points actually involved and actually decided.”’”].) 

8 It follows that we need not address defendant’s contention that his sentence on 

count II is an unconstitutional cruel and/or unusual punishment. We also do not address 

defendant’s argument that the trial court erred when it imposed a 10-year enhancement 

on count II. 
16

IV. The matter must be remanded for resentencing as to counts III and IV 

 Defendant argues that the sentences imposed 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 enhancement. 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 defendant as to counts III and IV, and so do we. Because 

the trial court imposed and executed sentences 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 stayed defendant’s sentence as to count I 

pursuant to section 654. In so doing, the trial court stated that “[t]he stay would be 

permanent upon successful 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 remand the matter for resentencing on count I. 

9 We decline the People’s request to simply modify the sentence on appeal. There 

are sentencing options available, including under section 12022.5, subdivision (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 indicate that the sentence as to count I was 

stayed and that the stay would “become permanent upon successful completion of the 

sentence in counts” II and IV. 
17

DISPOSITION 

The sentence imposed on all counts is reversed, and the matter is remanded for 

resentencing. In all other respects, the judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 _____________________________, J. 

 ASHMANN-GERST 

We concur: 

______________________________, P. J. 

BOREN 

_____________________________, J. 

 HOFFSTADT