Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara Super. Ct. No. CC753183
Mihara, Acting P.J.
Petitioner Jesse Andrew Amaya entered into a plea agreement with real party the People of the State of California (the People) under which he would plead no contest to misdemeanor vandalism (Pen. Code, § 594) and admit a gang allegation (Pen. Code, § 186.22, subd. (d)) in exchange for a sentence of 180 days in jail with all but 45 days of the jail term suspended. After the trial court had accepted Amaya’s plea and admission, but before sentencing, the People moved to vacate the plea and admission on the ground that the agreed sentence was illegal. The trial court granted the People’s motion, and Amaya filed this petition for a writ of mandate in which he seeks to overturn the trial court’s ruling. We conclude that the trial court erred in granting the People’s motion because the agreed sentence could be lawfully imposed. Accordingly, we issue a peremptory writ of mandate.
I. Background
In July 2007, Amaya was charged by information with a single count of felony vandalism (Pen. Code, § 594, subds. (a), (b)(1)). The information also alleged a gang enhancement under Penal Code section 186.22, subdivision (b)(1)(A).
Subsequent statutory references are to the Penal Code.
At a September 28, 2007 hearing, the trial court began by stating that it was its “understanding” that “there’s a settled disposition in this matter . . . .” The court recited that the agreement was that the People would be amending the information to “allege a misdemeanor[,]” and Amaya would be pleading no contest to that count “and would be admitting the enhancing allegation.” The plea would be entered in exchange for the court “imposing six months and suspending all but 45 days . . . .” Amaya’s trial counsel and the prosecutor both agreed that this was the disposition with the clarification that “the gang enhancement would be changed to a 186.22(d) as a misdemeanor” and that “the maximum time would be one year.” The court characterized the amended gang allegation as “the misdemeanor enhancing allegation.”
Amaya waived his rights, and the court granted the People’s motion to amend the information. Amaya then entered a no contest plea to the misdemeanor vandalism count, and admitted the section 186.22, subdivision (d) allegation “as a misdemeanor.” The court accepted Amaya’s plea and admission, and agreed to the plea agreement’s sentencing provisions. Sentencing was scheduled for November 2. The sentencing hearing was apparently subsequently postponed.
On November 26, the People moved to vacate Amaya’s plea and admission. The People asserted that “the offer to the defendant of a plea to a misdemeanor 186.22(d) with misdemeanor probation would constitute an illegal sentence.” The People argued that section 186.22, subdivision (d) “elevates the underlying crime, which could be a misdemeanor into a felony.” “186.22(d) is not a crime and therefore cannot be reduced to a misdemeanor.” Amaya countered that section 186.22, subdivision (d) permits misdemeanor sentencing. He claimed that the plea agreement was lawful and should be enforced.
The trial court granted the People’s motion on the ground that “there was never a true meeting of the minds in this matter. [¶] I cannot enforce something that intent was not present at the time. Obviously, both sides had different responses to it.” The court set aside Amaya’s plea and admission. Amaya’s trial counsel told the court that he intended to file a writ to challenge the court’s decision, and this mandate petition followed. After obtaining informal opposition from the People, we issued an order to show cause why Amaya should not be granted the relief he seeks. The People adopted their informal opposition as their return.
II. Discussion
The vandalism count to which Amaya pleaded no contest is ordinarily a misdemeanor punishable by a county jail term of no more than a year, a fine, or both a jail term and a fine. (§ 594, subd. (b)(2).) “[S]ection 186.22(d) prescribes an alternate penalty when the underlying offense is committed under specified circumstances.” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900 (Robert L.).) “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that 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, subd. (d).)
Amaya contends that the trial court erred because (1) there was a meeting of the minds, (2) the agreed sentence was lawful, and (3) it was not necessary for him to be advised of the possibility of felony sentencing because the plea agreement precluded felony sentencing. The People do not attempt to argue that the trial court’s ruling may be upheld on the ground that there was no meeting of the minds. Instead, the People argue that the plea agreement was illegal because section 186.22, subdivision (d) “allows a court to impose felony punishment” and precludes a sentence of “misdemeanor probation.” The People contend: “[T]he consequences of petitioner’s plea to misdemeanor vandalism with the gang-enhancement . . . subjects him to the possibility of felony probation” under section 186.22, subdivision (d), which “cannot be reduced to a misdemeanor” under section 17, subdivision (b).
The People’s contentions are difficult to parse. It seems as if the People are contending that the plea agreement was illegal because section 186.22, subdivision (d) precludes misdemeanor sentencing. If this is the People’s argument, it is meritless.
Section 186.22, subdivision (d) provides that, where the specified gang allegation is proved, the underlying crime “shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that 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 . . . .” (§ 186.22, subd. (d).) Section 186.22, subdivision (d) also provides that any grant of probation must be conditioned on “the defendant serv[ing] 180 days in a county jail.” (§ 186.22, subd. (d).)
The only logical interpretation of these sentencing provisions is that they provide a court with three alternatives. The court may (1) impose a misdemeanor sentence of six months or more in jail, (2) impose a prison sentence, or (3) grant probation conditioned on service of six months in jail. Although these provisions permit a court to impose a felony sentence of either prison or felony probation, they do not preclude a court from imposing a misdemeanor sentence of six months in jail.
The People appear to contend that the imposition of a six-month jail sentence for a misdemeanor vandalism offense under section 186.22, subdivision (d) would not make the vandalism offense a misdemeanor, because an offense sentenced under section 186.22, subdivision (d) cannot fall within the provisions of section 17, subdivision (b). This contention also fails.
“When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison.” (§ 17, subd. (b).) Under section 186.22, subdivision (d)’s alternate penalty provisions, Amaya’s “crime” of misdemeanor vandalism would have been “punishable, in the discretion of the court,” by either prison or jail. Had the trial court imposed the agreed sentence of six months in jail, the “judgment” would have been one “imposing a punishment other than imprisonment in the state prison.” Thus, under the plea agreement, Amaya’s crime would have been a misdemeanor.
The People argue that section 17, subdivision (b) would not apply because section 186.22, subdivision (d) is a sentencing provision, not a crime. It is true that section 186.22, subdivision (d) is a sentencing provision, not a crime, but that circumstance is irrelevant to the application of section 17, subdivision (b). Where section 186.22, subdivision (d) applies and replaces the sentencing provisions otherwise applicable to an underlying offense, section 186.22, subdivision (d)’s sentencing provisions state the “punishment” for the underlying “crime.” Hence, Amaya’s misdemeanor vandalism “crime” was “punishable” by a jail sentence or a prison sentence within the meaning of section 17, subdivision (b).
The agreed punishment would have been a “judgment” within the meaning of section 17, subdivision (b) even though it incorporated a partially suspended jail term. “A court has no power to suspend a sentence except as an incident to granting probation. [Citations.] Therefore, when a court after pronouncing the judgment and sentence of imprisonment does order all or part of the sentence to be suspended such order is considered to be an ‘informal’ grant of probation [citation] said to be ‘the equivalent of a formal order.’” (Oster v. Municipal Court (1955) 45 Cal.2d 134, 139, italics added.) The disposition to which Amaya agreed was that the court would impose a 180-day sentence and then suspend all but 45 days of that sentence. Where sentence is imposed and only execution of the sentence or a portion thereof is suspended, judgment has been entered. (People v. Howard (1997) 16 Cal.4th 1081, 1087.)
The People’s reliance on People v. Arroyas (2002) 96 Cal.App.4th 1439 (Arroyas) is misplaced. An amended information alleged that Arroyas had committed vandalism and asserted that the crime was a felony under section 186.22, subdivision (d). Arroyas pleaded guilty to vandalism and admitted the section 186.22, subdivision (d) gang allegation. The trial court placed Arroyas on formal probation conditioned on a six-month jail term. (Arroyas, at p. 1442.) On appeal, Arroyas contended that the misdemeanor vandalism count could not be charged as a felony under section 186.22, subdivision (d). The Court of Appeal disagreed. “Although vandalism with less than $5,000 in damage is a misdemeanor, vandalism may become a felony for sentencing purposes under subdivision (d) of section 186.22.” (Arroyas, at p. 1444, italics added.) Once Arroyas pleaded guilty and admitted the gang allegation, “vandalism, regardless of the amount of damage, became subject to felony sentencing at the discretion of the trial judge.” (Arroyas, at p. 1444, italics added.)
Nothing in Arroyas supports the People’s contention that the plea agreement here would have subjected Amaya to felony punishment. Arroyas’s guilty plea and admission were entered to an information that charged a felony. Arroyas did not enter his plea and admission pursuant to a plea agreement under which the bargain was that he would receive misdemeanor punishment. Under those circumstances, a misdemeanor vandalism offense that was subject to section 186.22, subdivision (d)’s alternate punishment provisions could be punished as a felony. In contrast, Amaya’s plea agreement contemplated that he would enter his plea and admission to an amended information that explicitly charged only a misdemeanor, and the plea agreement restricted the penalty to misdemeanor punishment. The court in Arroyas never stated or even suggested that a misdemeanor vandalism conviction accompanied by a section 186.22, subdivision (d) gang finding can be punished only as a felony. Arroyas merely acknowledged that felony sentencing is one of the available punishment options under section 186.22, subdivision (d). Here, the plea agreement, endorsed by both Amaya and the People, and approved by the trial court, required misdemeanor punishment, which is explicitly permitted by section 186.22, subdivision (d).
The plea agreement also did not run afoul of section 186.22, subdivision (d)’s requirement that the defendant “shall not be eligible for release . . . until he or she has served 180 days” or its requirement that any grant of probation be conditioned on “the defendant serv[ing] 180 days in a county jail.” Trial courts are explicitly statutorily authorized by section 186.22, subdivision (g) to disregard these requirements. “Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.” (§ 186.22, subd. (g), italics added.) Consequently, the trial court could have lawfully imposed the agreed sentence by making the necessary findings.
III. Disposition
Let a peremptory writ of mandate issue directing the Superior Court of Santa Clara County to vacate its order granting the People’s motion to vacate Amaya’s plea and admission, and enter a new order denying that motion and reinstating Amaya’s plea and admission.
WE CONCUR: McAdams, J., Duffy, J.