How does a “gang enhancement” applied to a misdemeanor work under Penal Code Section 186.22(d)?
I. IT IS AN ALTERNATE PENALTY PROVISION
Penal Code Section 186.22(d) is not a substantive offense, nor a sentencing enhancement, but is an alternate penalty provision which gives the Judge the discretion to treat the offense as a misdemeanor or a felony for sentencing. (Robert L. v. Superior Court (Cal. 2003) 30 Cal.4th 894, 900; See also People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.)
- THE JUDGE MAY IMPOSE LESS THAN ONE YEAR, OR, ONE YEAR-TWO YEARS-THREE YEARS
- The language of Section 186.22(d) contemplates the Judge treating the offense in one of four ways: as a misdemeanor with up to one year in county jail; as a felony with a grant of probation; as a felony with an execution of sentence suspended, or as a felony with a determinate sentencing range of 1-2-3 years state prison.
- IT APPEARS THAT THE JUDGE MUST IMPOSE AT LEAST 180 DAYS OF COUNTY JAIL IN TREATING THE CHARGE MISDEMEANOR OR AS A CONDITION OF A GRANT OF FELONY PROBATION
- On its face Section 186.22(d) appears to require the Judge to order defendants to serve a minimum of 180 days in the County Jail before they become eligible for release when treating the offense as a misdemeanor or as a felony with a grant of probation or with an execution of sentence suspended.
- A PRIOR CONVICTION IS NOT A STRIKE
- Although the language defining a serious felony suggests that a misdemeanor treated as a felony under the alternate penalty provisions of Section 186.22(d) would be a strike, cases have held that in fact such an offense is not a strike. (People v. Ulloa (2009) 175 Cal.App.4th 405, 413)
- THIS SECTION IS NOT LIMITED IN APPLICATION TO “WOBBLERS”
- A wobbler is a crime which may be charged as a Felony or as a Misdemeanor. Section 186.22(d) is not limited to “wobblers” and Courts have held that it can apply to a pure misdemeanor. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.)
- THE SENTENCING ENHANCEMENT UNDER SECTION 186.22(b)(1) CANNOT BE BOOTSTRAPPED UPON SECTION 186.22(d).
- Although the language of Section 186.22(b)(1) and Section 186.22(d) appear to overlap in referring to felonies, Courts have held that on offense which is treated as a felony for sentencing under Section 186.22(d) is not therefore subject to a sentencing enhancement under Section 186.22(b)(1). (People v. Briceno (2004) 34 Cal.4th 451, 465)(providing that a misdemeanor sentenced as a felony under section 186.22, subdivision (d), may not be bootstrapped into the enhancement provision for felonies in subdivision (b)(1).)
This means that the Prosecution cannot use both the Alternate Penalty Provision of Section 186.22(d) to be treated as a Felony, and then add a Felony Gang Enhancement on top of it, or “bootstrapping” to add more time in custody.
If you or someone you care about is being charged with a gang charge or enhancement applied to either a misdemeanor or a felony, consult an attorney who is qualified to handle these special situations.