Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-075057A
NICHOLSON, J.
Defendant Miguel Garcia Romo pled no contest to four felonies: transportation of methamphetamine (Health & Saf. Code, § 11379), possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of ammunition (Pen. Code, § 12316, subd. (b)(1), and active participation in a criminal street gang (§ 186.22, subd. (c)). Defendant also pled no contest to two misdemeanor violations for driving under the influence (Veh. Code, § 23152, subd. (a)) and admitted a prior strike conviction for active participation in a street gang in violation of section 667.5, subdivision (b).
All subsequent undesignated section references are to the Penal Code.
Defendant also agreed to a term of 10 years in state prison. In exchange for his plea, numerous other charges were dismissed and defendant reserved the right to appeal the trial court’s denial of his motion to dismiss the prior strike allegation. Defendant was later sentenced in accordance with the plea agreement. Having obtained a certificate of probable cause, defendant appeals.
On appeal, defendant claims the trial court erred in refusing to dismiss the prior strike allegation because the substantive charge of active participation in a criminal street gang “does not constitute a serious felony as a matter of law.” Defendant’s claim is without merit.
In People v. Briceno (2004) 34 Cal.4th 451 (Briceno), the California Supreme Court considered the following issue: “[W]hether... section 1192.7, subdivision (c)(28) (section 1192.7(c)(28)), which adds to the list of serious felonies ‘any felony offense, which would also constitute a felony violation of Section 186.22,’ applies only to the substantive offense of active participation in a street gang defined in section 186.22, subdivision (a)..., or whether it also applies to any felony offense committed for the benefit of a criminal street gang, as defined in the section 186.22, subdivision (b)(1) (section 186.22(b)(1)) gang sentence enhancement.” (Briceno, supra, at p. 456, fn. omitted.)
After a careful analysis of the interrelated statutes, the Supreme Court then concluded that “the voters intended section 1192.7(c)(28) to define ‘serious felony’ as including any felony offense that is committed for the benefit of a criminal street gang under the section 186.22(b)(1) gang sentence enhancement.” (Briceno, supra, 34 Cal.4th at p. 464, fn. omitted.) Defendant nevertheless argues the holding in Briceno is limited to a ruling that only the gang enhancement qualifies as a serious felony and any discussion regarding the substantive charge of active participation in a criminal street gang is dicta. We disagree.
If there were any doubt but that the Supreme Court ruled in Briceno that the substantive charge of active participation in a criminal street gang (§ 186.22, subd. (a)) qualifies as a serious felony under section 1192.7, subdivision (c)(28), that doubt should have been laid to rest with its later decision in People v. Jones (2009) 47 Cal.4th 566. In People v. Jones, the Supreme Court stated: “At issue in Briceno was whether section 1192.7(c)(28) applied only to the substantive offense of street terrorism described in section 186.22’s subdivision (a), or whether it also applied to felonies that are subject to additional punishment under the latter statute’s subdivision (b)(1). We held that the statute applied to both types of felonies.” (People v. Jones, supra, at p. 573, emphasis added.)
The decision in Jones was published after defendant’s opening brief was filed, but before his reply brief was filed.
We are bound by the Supreme Court’s ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., RAYE, J.