Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206233, Charles R. Gill, Judge.
BENKE, Acting P. J.
Moises Ivan Velasco entered a negotiated guilty plea to vandalism causing less than $400 in property damage (Pen. Code, § 594 (a)(b)(2)(A)) and admitted he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (d)), which made the crime a felony. Under the plea term, the prosecution agreed to dismiss a second count of vandalism, to not oppose local time and to not oppose Velasco's sentence running concurrently to a sentence in another pending case.
Statutory references are to the Penal Code.
The trial court denied Velasco's motion to reduce the offense to a misdemeanor (§ 17, subd. (b)). The court suspended imposition of sentence and placed Velasco on probation for three years on various conditions, including that he serve 365 days in jail.
Velasco appeals, contending the trial court abused its discretion by denying his motion to reduce the offense to a misdemeanor.
FACTS
On July 27, 2006, San Diego police officer Phillip Franchina of the department's Graffiti Strike Force, saw graffiti on a bridge on the 2600 block of Grand Avenue. The gang monikers "Wacko" and "Maniak" were written in spray paint on the north and south sides of the bridge. Franchina recognized the graffiti as representing members of the Mission Bay Locos gang. The property damage from the graffiti was $271.54.
On August 16 Franchina noticed gang graffiti on the east side of the bridge of 2600 block of Grand Avenue. Again the gang monikers "Wacko" and "Maniak" were spray painted. Later that day, Franchina contacted Velasco, who admitted he was a member of the Mission Bay Locos gang and his moniker was "Maniak." Velasco also admitted he had written "Maniak" on the bridge. The property damage from this graffiti was $288.39.
DISCUSSION
Velasco contends that the court abused its discretion by denying his request to declare his offense a misdemeanor. Velasco points out that the extent of the vandalism was minor, he cooperated with police and offered to paint over the graffiti, and the city attorney initially filed the case as a misdemeanor before the district attorney filed the felony charge.
After the district attorney filed its case, the city attorney dismissed its misdemeanor case.
A gang-related misdemeanor may be punished as a felony under section 186.22, subdivision (d). (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897 [§ 186.22, subd. (d) is an "alternate penalty provision that applie[s] to all misdemeanors and all felonies"].) A trial court has discretion to treat a misdemeanor that is committed for the benefit of a criminal street gang as a felony for sentencing purposes. (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) Such an offense is therefore considered a wobbler offense. (Robert L. v. Superior Court, supra, at p. 902.)
Section 186.22, subdivision (d), provides: "Any person who is convicted of a public offense punishable as a felony or as a misdemeanor, which is committed for the benefit of, at the direction 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."
Pursuant to section 17, subdivision (b), the trial court has broad discretion to refuse or accept a request to reduce a wobbler offense to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) On appeal, the defendant bears the burden of showing the trial court's decision was irrational or arbitrary. (Ibid.) "In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (Id. at pp. 977-978.) In exercising its discretion under section 17, subdivision (b), a trial court should consider the nature of the offense, the circumstances surrounding the offense, the defendant's appreciation of and attitude toward the offense and the defendant's character traits as evidenced by her behavior and demeanor at the hearing. (Id. at p. 978.) A court's discretion is to be exercised in accordance with the rules of law and not moved by sympathy or prejudice. (Id. at p. 977.)
The record demonstrates that the court made a "reasoned consideration of [Velasco's] background and circumstances." (People v. Dent (1995) 38 Cal.App.4th 1726, 1731.) Velasco has not shown the court's decision was irrational or arbitrary.
The trial court conscientiously considered the charges and facts of the case, the legislative history of section 186.22, subdivision (d) and Velasco's criminal history, which was extensive as a juvenile. During a two-year period, the juvenile court found true allegations that Velasco stole a vehicle, received stolen property, committed two burglaries (including a residential burglary) and received a stolen vehicle. While on juvenile probation, Velasco violated his probation by failing to attend school regularly, testing positive for drugs, failing to complete a drug program and failing to remain law-abiding. His juvenile probation violations resulted in two commitments to Camp Barrett. As an adult, Velasco pled guilty to conspiracy to commit a battery in 2007.
Counsel argues Velasco's criminal record did not justify felony treatment given the "truly minor nature of the instant offense and his acceptance of responsibility." We disagree. The legislative history of section 186.22, subdivision (d) shows it was enacted to increase the punishment of all gang-related crime including misdemeanor crimes. (See Robert L. v. Superior Court, supra, 30 Cal.4th at pp. 905-909.)
The court acted well within its discretion in declining to reduce the offense to a misdemeanor.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.