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Name: People v. Ulloa
Case #: B201072
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 06/26/2009

A misdemeanor conviction that is punished as a felony under section 186.22, subdivision (d) (street gang alternative sentencing provision) is not a serious felony for purposes of Penal Code section 1192.7, subdivision (c)(28). Appellant was convicted of numerous offenses with the court also finding that he had suffered a prior serious felony conviction under the Three Strikes law. The only evidence as to the prior conviction was a prison packet containing an abstract of judgment stating that appellant was convicted of “PC 186.22 (D).” Section 1192.7, subdivision (c)(28) defines a serious felony as any felony offense, which would also constitute a felony violation of section 186.22. Subdivision (a) of section 186.22 is a serious felony which qualifies as a “strike.” Subdivision (b)(1) of the street gang statute, specifying felony, also is a “strike.” Subdivision (d), however, is an alternative sentencing provision that can apply to an offense that is either a misdemeanor or a felony. Because (c)(28) specifies felony offense, it precludes a misdemeanor offense punished as a felony. In this case, the evidence failed to specify if the offense for which appellant received felony punishment under the alternative sentencing provision of 186.22, subdivision (d) was a felony or misdemeanor. Because it could be either, it must be presumed that it was a misdemeanor (People v. Banuelos (2005) 130 Cal.App.4th 601, 607) and, therefore, there was insufficient evidence to sustain the finding. The matter was remanded to permit the People to present any additional evidence that the offense was a felony for purposes of the “strike” sentence.