Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF133654A Colette M. Humphrey, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., Poochigian, J.
INTRODUCTION
Ramiro Vazquez pled no contest to one count of exhibiting a deadly weapon with the intent of promoting a criminal street gang, and admitted to having been convicted of a previous strike. As part of his plea agreement, Vazquez stipulated to a two year term in prison. Vazquez contests the manner in which the sentencing judge arrived at his sentence. He argues that the crime to which he pled was strictly a misdemeanor, and thus could not be elevated to a felony for the purposes of the three strikes law as provided by Penal Code section 667. We disagree and affirm.
FACTS
On August 31, 2010, Christian M. and his friend were walking home when they encountered appellant Ramiro Vazquez and co-defendant, Moreno. Vazquez asked Christian where he was from. Christian responded that he was not involved in gangs. Vazquez pulled out a knife, and again asked where Christian was from. Before Christian could respond, Vazquez and Moreno said they were from the street gangs, “Colonia Bakers, ” and “TNK2, ” respectively. Fearful for their safety, Christian and his friend quickly walked to Christian’s house and called the police.
While being interviewed by the police, Christian observed Vazquez and Romero walking in the area. The police detained the two suspects and transported them to the victim for identification. Christian positively identified the two suspects.
Vazquez pled no contest to one count of brandishing a weapon in violation of Penal Code section 417, subdivision (a)(1) (section 417), a misdemeanor, and admitted the offense was committed for the benefit or furtherance of a criminal street gang, a violation of section 186.22, subdivision (d). In return for his guilty plea, the remaining charges were dropped, and Vazquez stipulated to a sentence of two years in a state prison. Vazquez reserved the right to litigate whether the admitted strike allegation was properly charged. If the prior strike applied, then Vazquez would be sentenced to the low term of one year, doubled under section 667, subdivision (e)(1). If the strike did not apply, then Vazquez would receive the midterm of two years.
Penal Code section 417, subdivision (a)(1) states: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.”
All further statutory references are to the Penal Code.
Section 667, subdivision (e)(1) provides: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”
At sentencing, the trial court applied the prior strike, and doubled the low term for a total sentence of two years. Vazquez appeals the manner in which the sentencing court arrived at his sentence.
DISCUSSION
Vazquez asserts that section 417 is strictly a misdemeanor offense, and although section 186.22, subdivision (d) elevates a misdemeanor into a felony for sentencing purpose, it does not elevate the misdemeanor into a felony for the purpose of three strikes.
Section 186.22, subdivision (d) provides,
“Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years ….”
Section 186.22, subdivision (d) acts as an alternative penalty by elevating otherwise misdemeanor conduct into felonious conduct when the defendant commits the substantive offense for the promotion of a street gang. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899.) “Section 186.22(d) is not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang.” (Ibid.)
While Vazquez concedes that a violation of section 417 can be punished as a felony, he argues that it is not a felony for three strikes purposes. He relies in large part on People v. Arroyas (2002) 96 Cal.App.4th 1439 (Arroyas).
In Arroyas, the defendant pled guilty to vandalism, a misdemeanor violation of section 594, and further admitted a street gang allegation. (Arroyas, supra, 96 Cal.App.4th at p. 1442.) The court held that misdemeanors elevated to felonies under section 186.22, subdivision (d) cannot be bootstrapped into felonies under section 186.22, subdivision (b)(1), which provides additional punishment for felonies committed to benefit a street gang. (Id. at p. 1449.) Vazquez argues that his plea is analogous, in that his crime was elevated to a felony, and then sentenced as a felony under the three strikes law for the same transaction.
Unlike the instant case, Arroyas received multiple punishments for the same offense. After having his sentenced elevated from a misdemeanor to a felony under section 186.22, subdivision (d), Arroyas received an additional punishment under section 186.22, subdivision (b)(1) for the same course of conduct. (Arroyas, supra, 96 Cal.App.4th at p. 1442.) In contrast, Vazquez’s sentence was elevated from a misdemeanor to a felony under section 186.22, subdivision (d). After it was determined that Vazquez had committed a felony as defined by section 186.22, subdivision (d), his prior strike conviction authorized the trial court to double his sentence as provided by section 667, subdivision (e)(1).
The recent case of People v. Morgan (2011) 194 Cal.App.4th 79 (Morgan) further supports affirmance. In Morgan the defendant contested a prior conviction for brandishing a weapon with a hate crime elevation, within the meaning of section 422.7. (Id. at pp. 81-82.) Morgan argued that brandishing the hammer, a violation of section 417, was only a misdemeanor, and that the hate crime elevation was not a substantive offense; thus, his prior conviction did not constitute a felony within the meaning of the three strikes rule. (Id. at pp. 82-83.) The Morgan court disagreed. The court explained section 422.7 is an alternative sentence that, when applied to a violation of section 417, elevates the otherwise misdemeanor conduct into a felony. (Id. at p. 83.)
Section 422.7 provides, in relevant part, “any hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in the state prison or in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her by the Constitution….”
In Morgan, the Fourth District Court of Appeal determined that a prior conviction, which had been elevated from a misdemeanor to a felony because the crime was committed within the meaning of section 422.7, constituted a strike. In the instant case, the trial court elevated the misdemeanor offense of brandishing a weapon into a felony by finding that the crime was committed to further the interests of a street gang, within the meaning of section 186.22, subdivision (d), and therefore doubled the sentence imposed pursuant to three strikes. Sections 422.7 and 186.22, subdivision (d), authorize “alternative sentences” and are nearly identical in effect; both authorize the trial court to elevate the substantive offense from a misdemeanor to a felony when they are committed within the meaning of the statute. Therefore, under the reasoning of Morgan, the trial court correctly concluded that Vazquez was convicted of a felony for three strikes purposes.
The distinction between a misdemeanor and a felony is based upon the punishment prescribed. (§ 17.) Brandishing a knife is ordinarily a misdemeanor because of the manner in which it is usually punished: by probation and/or time in the county jail. However, when a defendant has been charged with a violation of section 186.22, subdivision (d), the substantive crime of brandishing a knife can be a felony if the judge chooses the alternative sentence proscribed by section 186.22, subdivision (d). If a felony punishment is selected by the court, it is not merely punished as a felony: it is a felony. (See People v. Stevens (1996) 48 Cal.App.4th 982, 987.)
DISPOSITION
The judgment is affirmed.