Wallace

Christopher Lee Wallace appeals from the judgment entered following his purported nolo contendere plea to a violation of Penal Code section 422.7. 1 Imposition of sentence was suspended, and Wallace was placed on felony probation for three years on conditions including that he serve 60 days in jail. He contends that his conviction and sentence are unlawful because section 422.7 constitutes a penalty provision and not a substantive criminal offense. We agree, although we reject Wallace’s argument that his conviction should be reduced to a misdemeanor. Accordingly, we reverse.

*1701 Facts and Procedural History

Because the only issue on appeal is a question of law, we need not recite the facts in detail. Wallace was charged by information with assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), robbery (§ 211), and battery (§ 242). It was fiirther alleged that the assault was a hate crime within the meaning of section 422.75, and that the assault and robbery were serious felonies (§ 1192.7, subd. (c)(8), (19)). Pursuant to a negotiated disposition, the prosecution orally amended the information to allege a violation of section 422.7. Wallace…