People v. Chaides

The complaint in this case alleged that defendant Ricardo Alonso Chaides had a prior felony conviction under Penal Code former section 12025, subdivision (b)(3) and that this conviction constituted a strike for purposes of the three strikes law.

Penal Code former section 12025, subdivision (b)(3) elevates the offense of carrying a concealed firearm (Pen. Code, former § 12025, subd. (a)), which would otherwise be a misdemeanor, to a felony when the defendant has also committed active gang participation in violation of Penal Code section 186.22, subdivision (a). Active gang participation is a “wobbler,” i.e., it can be punished as a felony or as a misdemeanor.

One of the ways a prior conviction can qualify as a strike is if it is a conviction for a “felony offense, which would also constitute a felony violation of Section 186.22.” (Pen. Code, § 1192.7, subd. (c)(28), italics added; see id., § 667, subds. (d)(1), (e).)

The trial court sustained a demurrer to the strike prior allegation; it ruled that defendant’s prior conviction constituted only a misdemeanor violation of Penal Code section 186.22, subdivision (a).

The People appeal. We will hold that the trial court…