Rodriguez

BLEASE, Acting P. J.—

This case tenders the question whether the substantive criminal street gang offense, Penal Code section 186.22, subdivision (a), which concerns the active participation of a person in the criminal activity of a gang, applies to an attempted robbery by a member of a criminal street gang acting alone. [2]

Section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act, also known as the "STEP Act." (§ 186.20.) Section 186.22 contains two relevant provisions, a substantive offense in subdivision (a), and a sentence enhancement in subdivision (b)(1). The two subdivisions are meant to do different work. As we shall explain, much of the confusion in the case law construing subdivision (a) arises from a failure to distinguish the subject matters of the two subdivisions. Not all gang conduct is covered by subdivision (a); what is not covered by subdivision (a) is generally covered by subdivision (b)(1).

The defendant was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 211, 664; count I) and active participation in a criminal street gang (§ 186.22, subd. (a); count III). The jury found true an enhancement that he…