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Name: People v. Rocco
Case #: B229861
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/16/2012

Where defendant’s misdemeanor conviction is elevated to a felony because of a section 186.22, subdivision (d) gang finding, he is subject to sentencing under the Three Strikes law. Appellant was tried for attempted murder and other offenses. He admitted a prior serious felony. A jury convicted him of simple assault (Pen. Code, § 240), with a finding the offense was committed for the benefit of a gang (Pen. Code, § 186.22, subd. (d)). The court found the gang enhancement elevated the misdemeanor to a felony and doubled the term under the strikes law. On appeal, defendant challenged the use of the gang finding to elevate the misdemeanor assault to a felony and then to apply the strikes law. Held: Affirmed. A misdemeanor may be elevated to a felony based on a section 186.22, subdivision (d) finding and a strike sentence then imposed, because the two penalty provisions are not found in the same statute and target different criminal conduct. Section 186.22, subdivision (d) focuses on greater punishment for gang-related crimes; the Strikes law prescribes longer sentences for recidivist offenders. “A defendant who is convicted of a misdemeanor offense that is sentenced as a felony under section 186.22(d) has been convicted of a felony with the meaning of the Three Strikes law.”