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Name: People v. Chaides
Case #: E059517
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 09/17/2014

Trial court erred when it granted demurrer to prior strike allegation because complaint indicated that defendant’s offense of unlawfully carrying a concealed firearm constituted a felony violation of Penal Code section 186.22, subdivision (a). A complaint filed against Chaides alleged that he had a prior felony conviction under Penal Code section 12025, subdivision (b)(3), and that this prior conviction constituted a strike for purposes of the Three Strikes law. Section 12025, subdivision (b)(3) elevates the offense of carrying a concealed firearm, which would otherwise be a misdemeanor, to a felony when a defendant has also committed a violation of section 186.22, subdivision (a), which is a wobbler offense. A felony violation of section 186.22 qualifies as a strike. The trial court here sustained a demurrer to the prior strike allegation based on Chaides’ representation that he had pleaded guilty to active gang participation as a misdemeanor. The People appealed. Held: Reversed. The trial court was required to accept the allegations of the complaint as true, and those allegations were that the Chaides had been convicted of unlawfully carrying a concealed firearm and that active gang participation, which elevated the concealed firearm offense to a felony, was either admitted or found true. A wobbler is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court. Here, the complaint did not allege that the charge had been reduced to a misdemeanor, and the trial court could not consider Chaides’ representation when ruling on the demurrer. The court noted that, on remand, the evidence may show that appellant’s prior conviction was a misdemeanor. Then he would be entitled to have the prior strike allegation found not true.