P.

FACTS

According to the preliminary hearing transcript, on July 30, 2011, Albert Sanchez was in a restaurant to pick up an order of pizza. Defendant was part of a group of eight to ten who gave Sanchez “a couple [of] good stare downs.” Defendant approached Sanchez three times, aggressively telling Sanchez this was his neighborhood and mentioning his gang. Sanchez feared that a fight was going to occur and was concerned for his safety and the safety of his three children. Police were called due to the threat of violence. A detective testified defendant is a gang member and expressed the opinion that the offense of making a criminal threat was for the purpose of benefiting a criminal street gang.

All statutory references are to the Penal Code unless otherwise stated.

DISCUSSION

Our independent review of the record revealed that the offer from the district attorney to defendant, which included a “stay” of the gang enhancement, resulted in an unauthorized sentence. Section 186.22, subdivision (b)(1)(B) provides that any person who is convicted of a serious felony (§ 1192.7) “committed for the benefit of, at the direction of, or in association with any criminal street…