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INTRODUCTION

Appellant/defendant Anthony Endsley (defendant) and codefendant Shamir Hill were charged with count I, assault by means of force likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(1)), and count II, battery with serious bodily injury (§ 243, subd. (d)); and with the special allegations that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). They were also charged with count III, the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)). The charges were based on a brutal beating inflicted on Dennis Steward, on or about October 12, 2010. Steward was the boyfriend of Shadonna Hill, sister of both defendant and Shamir Hill. Rodney Woods and a man only known as “RJ” were also present during the beating, but they were not charged or tried in this case. After a joint jury trial, defendant and Shamir were found not guilty of counts I and II, the assault and battery on Steward, and the gang enhancements were found not true. Shamir was also found not guilty of count III, active participation in a criminal street gang. However, defendant was convicted of active participation and…