Maldonado

PROCEDURAL BACKGROUND

A jury convicted defendants Alex Maldonado and Alejandro Hernandez of two counts of attempted robbery (Pen. Code, §§ 664 & 211), two counts of kidnapping (§ 207, subd. (a)), and two counts of false imprisonment by violence (§ 236). The jury convicted defendant Maldonado alone of making a criminal threat (§ 422), and found that he had personally used a firearm in all of his crimes (§ 12022.53, subd. (b); former § 12022.5, subd. (a)(1)). As against defendant Hernandez, the jury found true the allegation in all counts that a principal had been armed with a firearm (§ 12022, subd. (a)(1)). For all of the crimes of which defendants were convicted, the jury found the criminal street gang enhancement allegation (§ 186.22, subd. (b)(1)) to be true. The court sentenced defendant Maldonado to a term of 64 years and eight months, and defendant Hernandez to a term of 17 years and four months.

In the published portion of our opinion, we hold that assault with a firearm (§ 245, subd. (a)(2)) is a predicate offense under section 186.22, subdivision (e)(1), for purposes of proving a pattern of criminal gang activity. In the unpublished portion, we strike the gang…