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Name: People v. Morgan
Case #: D056444
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/07/2011

A misdemeanor which is elevated to a felony by application of a hate crime statute, may constitute a serious felony within the meaning of Penal Code section 1192.7. Appellant pled guilty to brandishing a hammer in 2000. He also admitted a hate crime allegation (Pen. Code, § 422.7, subd. (a)). In 2008, a jury found appellant guilty of assault with a deadly weapon and found true personal use of a knife. In a bifurcated proceeding, the court found appellant’s 2000 prior qualified both as a prior serious felony enhancement and a strike. The court imposed a five year enhancement to appellant’s sentence, which had been doubled under the strikes law. Appellant argued his brandishing conviction was not a prior serious felony under Penal Code section 1192.7, subdivision (c)(23) because section 1192.7 does not reference this sentencing enhancement. The Court of Appeal found appellant’s act of brandishing a hammer for the purpose of interfering with the civil rights of another person elevated his misdemeanor offense to a felony. When appellant pleaded guilty he acknowledged as much and was aware this felony would be a “serious/violent” offense that could be used to increase his punishment for future offenses. Further, the preliminary hearing transcript revealed that appellant personally used a dangerous weapon when he committed the prior, as the “use” of a weapon may include brandishing. Therefore, the trial court properly found the prior to be a serious felony. Appellant’s argument that the same conduct is being improperly used to elevate his offense to a felony and as a prior serious felony is unavailing because the conduct that made his prior a felony (i.e., interfering with the civil rights of another person), is different from the conduct rendering the prior a serious felony (personally using a deadly or dangerous weapon – §1192.7, subd. (c)(23).)