California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County No. INF1300853. William S. Lebov, Judge. (Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
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Paul E. Zellerbach, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Amanda Fates, under appointment by the Court of Appeal, for Defendant and Respondent.
The complaint in this case alleged that defendant Ricardo Alonso Chaides had a prior felony conviction under Penal Code former section
12025, subdivision (b)(3) and that this conviction constituted a strike for purposes of the three strikes law.
Penal Code former section 12025, subdivision (b)(3) elevates the offense of carrying a concealed firearm (Pen. Code, former § 12025, subd. (a)), which would otherwise be a misdemeanor, to a felony when the defendant has also committed active gang participation in violation of Penal Code section 186.22, subdivision (a). Active gang participation is a “wobbler, ” i.e., it can be punished as a felony or as a misdemeanor.
One of the ways a prior conviction can qualify as a strike is if it is a conviction for a “felony offense, which would also constitute a felony violation of Section 186.22....” (Pen. Code, § 1192.7, subd. (c)(28), italics added; see id., § 667, subds. (d)(1), (e).)
The trial court sustained a demurrer to the strike prior allegation; it ruled that defendant’s prior conviction constituted only a misdemeanor violation of Penal Code section 186.22, subdivision (a).
The People appeal. We will hold that the trial court erred. In ruling on the demurrer, it had to accept the allegations of the complaint as true; those allegations indicated that defendant had been convicted of an offense that would also constitute a felony violation of Penal Code section 186.22, subdivision (a). On remand, however, the evidence may show that Defendant’s offense of carrying a concealed firearm would constitute only a misdemeanor violation of Penal Code section 186.22, subdivision (a). In that event, defendant would be entitled to have the strike prior allegation found not true.