APPEAL from a judgment of the Superior Court of San Diego County, and petition for writ of habeas corpus, Louis R. Hanoian, Judge. (Super. Ct. No. SCE283062)
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Judgment affirmed; petition denied.
Brandishing a hammer is a misdemeanor offense (Pen. Code, § 417, subd. (a)); however, California hate crimes statute (Pen. Code, § 422.7) elevates a crime that would otherwise be punishable as a misdemeanor to a felony under certain circumstances. (Undesignated statutory references are to the Penal Code.) In the published portion of this opinion, we conclude that the trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony as defined by section 1192.7, subdivision (c)(23) (section 1192.7(c)(23)) because the conduct that made the prior conviction a felony differed from the conduct that made the prior conviction a serious felony.
In the unpublished portion of this opinion, we reject defendant's assertion that the trial court erred in giving the revised version of CALCRIM No. 220 regarding reasonable doubt, and summarily deny defendant's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
We omit the facts underlying Morgan's convictions as they are not relevant to resolving the issues that he raised on appeal, or in the petition for habeas corpus.
In August 2000, William Morgan pleaded guilty to brandishing a hammer (§ 417, subd. (a)(1)) with a hate crime enhancement allegation (§ 422.7, subd. (a)). At the time of his plea, Morgan understood that the conviction could be used to increase his punishment for future offenses. Specifically, Morgan entered the plea based on the assumption that his conviction would be a "serious/violent felony."
In 2008, William Morgan cut the victim's hand with a knife during an argument. A jury found him guilty of assault with a deadly weapon, and found true the allegation that he personally used a deadly weapon. It also found him guilty of failing to appear, and found true the allegation that he committed the crime while released on bail. In a bifurcated proceeding, the trial court found true the allegation that Morgan had suffered a prior conviction that qualified as a serious felony, and a strike. Based on its findings, the trial court added a five-year sentence enhancement and doubled the base terms for the assault and failure to appear convictions. It sentenced Morgan to a total term of 12 years four months in prison.
Morgan appeals the judgment, and has filed a separate petition for writ of habeas corpus. We join Morgan's petition for writ of habeas corpus with his direct appeal and consider the issues in this opinion. (People v. Pope (1979) 23 Cal.3d 412, 426, fn. 17.)
Prior to trial in the instant case, Morgan moved to dismiss the allegations that his prior conviction constituted a prior serious felony. He asserted that because his prior conviction was not a "serious felony," it could not be used to enhance his sentence. The prosecution disagreed, arguing that the prior conviction met the definition of a prior serious felony under section 1192.7(c)(23), because it fell within the language of that provision defining a serious felony as "any felony in which the defendant personally used a dangerous or deadly weapon." Based on the preliminary hearing testimony which was used as the factual basis for Morgan's guilty plea, the prosecution argued that Morgan had "personally used a dangerous or deadly weapon" during the commission of that felony within the ...