Arroyas

After the trial court overruled appellant’s demurrer for failure to state a public offense, appellant pled guilty to vandalism, a felony, pursuant to Penal Code section 186.22, subdivision (d), and admitted the street gang enhancement allegation under section 186.22, subdivision (b)(1). Appellant was placed on formal probation for three years, with the condition he serve 180 days in the county jail. The trial court also ordered appellant to pay $200 in restitution.

On appeal, appellant contends that the trial court erred in overruling his demurrer for failure to state a public offense because (1) a misdemeanor cannot be charged as a felony when it is alleged pursuant to section 186.22, a gang enhancement penalty provision, and (2) the prosecution improperly used subdivision (d) to make vandalism with less than $400 damage a felony, enabling the prosecution to attach the special sentencing enhancement allegation, section 186.22, subdivision (b)(1).

We affirm the trial court’s ruling denying appellant’s demurrer, because the crime of vandalism with less than $400 in damage is a public offense, regardless of the effect of section 186.22, subdivision (d). With respect to…