Sengpadychith

Step by step, this court continues its struggle through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. (Stats. 1988, ch. 1242, § 1, pp. 4127-4129; see People v. Robles (2000) 23 Cal.4th 1106 [ 99 Cal.Rptr.2d 120 , 5 P.3d 176 ]; People v. Castenada (2000) 23 Cal.4th 743 [ 97 Cal.Rptr.2d 906 , 3 P.3d 278 ]; People v. Zermeno (1999) 21 Cal.4th 927 [ 89 Cal.Rptr.2d 863 , 986 P.2d 196 ]; People v. Loeun (1997) 17 Cal.4th 1 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; People v. Gardeley (1996) 14 Cal.4th 605 [ 59 Cal.Rptr.2d 356 , 927 P.2d 713 ].) Like Gardeley , this case involves Penal Code section 186.22, subdivision (b), a sentence enhancement provision for felonies committed “for the benefit of, at the direction of, or in association with any criminal street gang.” 1 (Italics added.) The STEP Act defines a criminal street gang as “any ongoing organization, association, or group of three or more persons, whether formal or informal” that has as one of its “primary activities” the commission of one or more *320 statutorily enumerated criminal offenses and through its…

Because it apparentlyfollows from a literal reading of certain language in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 120 S.Ct. 2348 , 147 L.Ed.2d 435 ] (Apprendi), I concur in the result as to the standard of review of the trial court’s instructional error.

I write separately, however, to question the anomaly created in applying that literal reading to a sentencing enhancement such as Penal Code section 186.22 that contains a series of escalating additional penalties. Defendant’s several crimes were subject to enhanced punishment upon the jury’s finding that he committed them “for the benefit of, at the direction of, or in association with any criminal street gang” with the requisite specific intent. (Pen. Code, § 186.22, subd. (b)(1).) As the majority correctly concludes in light of Apprendi , instructional error as to that finding is reviewed under the Chapman harmless beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]) with respect to those offenses coming within section 186.22, subdivision (b)(1) and (4) because that subdivision “increases the penalty for a crime beyond the prescribed…

Step by step, this court continues its struggle through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act. (Stats.1988, ch. 1242, § 1, pp. 4127-4129; see People v. Robles (2000) 23 Cal.4th 1106 , 99 Cal.Rptr.2d 120 , 5 P.3d 176 ; People v. Castenada (2000) 23 Cal.4th 743 , 97 Cal.Rptr.2d 906 , 3 P.3d 278 ; People v. Zermeno (1999) 21 Cal.4th 927 , 89 Cal.Rptr.2d 863 , 986 P.2d 196 ; People v. Loeun (1997) 17 Cal.4th 1 , 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ; People v. Gardeley (1996) 14 Cal.4th 605 , 59 Cal.Rptr.2d 356 , 927 P.2d 713 .) Like Gardeley , this case involves Penal Code section 186.22, subdivision (b), a sentence enhancement provision for felonies committed "for the benefit of, at the direction of, or in association with any criminal street gang." [1] (Italics added.) The STEP Act defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal" that has as one of its "primary activities" the commission of one or more statutorily enumerated criminal offenses and through its members…