If a court strikes a gang enhancement and a vicarious use of a firearm during a gang-related crime enhancement, what is the appropriate procedure for both?

prohibits the imposition of both a gang enhancement and a vicarious use of a firearm during a gang-related crime enhancement. Where, as here, the gang enhancement is barred by an overriding statutory prohibition, "[t]he correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence [under] . . . rule 4.447" (People v. Lopez (2004) 119 Cal.App.4th 355, 364) and not section 654. Although the court also had discretion to strike the gang enhancement under section 186.22, subdivision (g) "'where the interests of justice would best be served . . ."' (People v. Sinclair (2008) 166 Cal.App.4th 848, 855), it declined to do so with respect to the above counts. Should the court on remand again decide not to strike the gang enhancements related to counts 2, 3, 7, 8, 11, 14, 21, 22, 25, 26, 29, 32, 33, 34, and 37, the enhancements should be stayed under rule 4.447 rather than section 654.

Finally, the court erred in sentencing defendant to a three-year concurrent middle term on count 4 and staying the gang enhancement under section 654. As we determined in our prior opinion, the trial court did not have discretion to stay the gang enhancement under section 654 where the underlying count is not stayed but rather must run the terms concurrently unless the enhancement is stricken under section 186.22, subdivision (g). (People v. Mustafaa, supra, 22 Cal.App.4th at pp. 1310-1311.) If, on remand, the court imposes a concurrent term on count 4 and does not strike the gang enhancement related to that count, the gang enhancement for count 4 should be imposed concurrently rather than stayed under section 654.

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