Alternative Sentencing Scheme (§ 186.22, subd. (d))

Subdivision (d) of section 186.22, added by Proposition 21, created an alternative sentencing scheme for a “public offense punishable as a felony or a misdemeanor” committed to benefit a criminal street gang. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899.)

  1. Same elements as (b)(1) enhancement. Subdivision (d) applies to offenses "committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22(d).) These requirements identical to those found in the subdivision (b)(1) enhancement. The differences are subdivision (d) applies to both misdemeanors and felonies and subdivision (d) has a different penalty scheme. See discussion of elements of subdivision (b)(1)

  2. Not limited to wobblers. Despite utilizing a phrase associated with wobblers---"punishable as a felony or a misdemeanor"---the Legislature did not intend to limits its scope to wobblers. It applies to any felony or any misdemeanor. (Robert L., 30 Cal.4th at 900-909, esp. 900.)

  3. Enhancement (b) and alternative sentencing scheme (d) are mutually exclusive. A “misdemeanor, converted to a felony by [section 186.22,] subdivision (d) [is not also] subject to the felony enhancement provided in [section 186.22,] subdivision (b)(1).” (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1448-1449.)

  4. Prosecutor's Election Between (b)(1) and (d). "[W]here the crime is a wobbler, the prosecutor must elect whether to prosecute the offense under section 186.22(d) (and thus not have the option of charging the section 186.22, subdivision (b)(1) enhancement), or charge the crime as a felony and allege the section 186.22, subdivision (b)(1) enhancement." (Robert L., 30 Cal.4th at 907, fn.18.)

  5. Punishment (§ 186.22(d)): 

    1. Wobbler. "imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years" 

    2. Not a county-jail felony. The statute expressly states that the felony-length sentence shall be served "in state prison," it is not a county jail felony under the 2011 Realignment legislation. (In the original realignment bill (AB 109), the Legislature amended subdivision (d), deleting the reference to "state prison" and stating that the imprisonment would be "pursuant to subdivision (h) of Section 1170," the new subdivision creating county jail felonies. (Stats.2011, c. 15 (A.B.109), §§ 275, 276.) However, in a cleanup bill (AB 117), the Legislature deleted the reference to 1170(h) and restored the language stating that the felony-length imprisonment would be in "state prison."  (Stats.2011, c. 39 (A.B.117), §§ 6, 7.))

    3. County Jail Min. of 180 days. If sentenced to county jail, there is a minimum term of 180 days, even if the sentence is suspended: "any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail." (§ 186.22(d))

  6. Not a Serious Felony. A misdemeanor treated as a felony under section 186.22(d) is not a serious felony under section 1192.7, subdivision (c)(28). (People v. Ulloa (2009) 175 Cal.App.4th 405, 413.)