Robert L. v. Superior Court

At the March 7, 2000 Primary Election, the California electorate passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. Section 4 of Proposition 21 added Penal Code, section 186.22, subdivision (d) (section 186.22(d)), 1 which provides that “[a]ny person who is convicted of a public offense punishable as a felony or a misdemeanor,” committed for the benefit of a criminal street gang, shall be punished by imprisonment in the county jail, or by imprisonment in the state prison for one, two, or three years. In this case, we decide two issues: (1) whether section 186.22(d) is a sentence enhancement, an alternate penalty provision, or a substantive offense; and (2) whether section 186.22(d) applies to all misdemeanors and all felonies or only to “wobblers”; namely, those public offenses that are punishable, in the alternative, as a misdemeanor or a felony. 2 The Court of Appeal concluded that section 186.22(d) was an alternate penalty provision that applied to all misdemeanors and all felonies. We agree and affirm the judgment of the Court of Appeal.

*898 I. Factual and Procedural Background

The Orange County District Attorney’s Office filed an…

Subdivision (d) of Penal Code section 186.22 1 provides that any person “convicted of a public offense punishable as a felony or a misdemeanor,” which was committed to benefit a criminal street gang, may be sentenced to prison, and must serve at least six months in county jail. Does this provision apply to all felonies and all misdemeanors, or only to “wobblers,” a class of offenses that may be prosecuted as either felonies or misdemeanors? According to the majority, it applies to all felonies and misdemeanors. I disagree.

I

Section 186.22, enacted in 1989 and operative in 1993, is part of the California Street Terrorism Enforcement and Prevention Act of 1988. Some of its complex provisions have in recent years been addressed by this court. (See People v. Sengpadychith (2001) 26 Cal.4th 316 [ 109 Cal.Rptr.2d 851 , 27 P.3d 739 ]; People v. Robles (2000) 23 Cal.4th 1106 [ 99 Cal.Rptr.2d 120 , 5 P.3d 176 ]; People v. Castenada (2000) 23 Cal.4th 743 [ 97 Cal.Rptr.2d 906 , 3 P.3d 278 ]; People v. Zermeno (1999) 21 Cal.4th 927 [ 89 Cal.Rptr.2d 863 , 986 P.2d 196 ]; People v. Loeun (1997) 17 Cal.4th 1 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; People v. Gardeley (1996) 14 Cal.4th 605 [ 59…

Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.

At the March 7, 2000 Primary Election, the California electorate passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. Section 4 of Proposition 21 added Penal Code, section 186.22, subdivision (d) (section 186.22(d)), [1] which provides that "[a]ny person who is convicted of a public offense punishable as a felony or a misdemeanor," committed for the benefit of a criminal street gang, shall be punished by imprisonment in the county jail, or by imprisonment in the state prison for one, two, or three years. In this case, we decide two issues: (1) whether section 186.22(d) is a sentence enhancement, an alternate penalty provision, or a substantive offense; and (2) whether section 186.22(d) applies to all misdemeanors and all felonies or only to "wobblers"; namely, those public offenses that are punishable, in the alternative, as a misdemeanor or a felony. [2] The Court of Appeal concluded that section 186.22(d) was an alternate penalty provision that applied to all misdemeanors and all felonies. We agree and affirm the judgment of…