P. v. Palomino

Filed 12/6/02 P. v. Palomino CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ELADIO LARRY PALOMINO,
Defendant and Appellant.
F039025
(Super. Ct. No. 00-63590)
O P I N I O N
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Ronn M.
Couillard, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and Rachelle A.
Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
* Before Dibiaso, Acting P.J.; Levy, J.; and Cornell, J.

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STATEMENT OF THE CASE
Appellant, Eladio Larry Palomino, was charged with brandishing a firearm (Pen.
Code,1 § 417, subd. (a)) and possession for sale of a controlled substance (Health & Saf.
Code, § 11378). It was alleged with respect to the brandishing charge that the offense
was committed for the benefit of a criminal street gang (§ 186.22, subd. (d)). It was
further alleged with respect to the possession charge that appellant was ineligible for
probation (§ 1203.073, subd. (b)(2)) and was personally armed with a firearm (§ 12022,
subd. (c)).
Appellant filed a demurrer claiming that the section 186.22, subdivision (d),
enhancement could not apply to the brandishing charge because the base offense was a
misdemeanor rather than a “wobbler.” Upon the denial of this motion, appellant pleaded
not guilty to the charges and denied the allegations.
Appellant thereafter pleaded nolo contendere to felony brandishing a weapon, and
an amended charge of possession of methamphetamine while armed with a firearm
(Health & Saf. Code, § 11370.1). These pleas were entered with the understanding that
appellant would be sentenced to probation from the outset and would maintain his right to
appeal the applicability of section 186.22, subdivision (d), to misdemeanor charges.
Appellant was sentenced to three years’ probation. The court also ordered appellant to
pay a restitution fee and fine, register pursuant to section 186.30 and Health and Safety
Code section 11590, participate in a substance abuse counseling program, and not to
associate with known gang members or wear gang indicia.
STATEMENT OF FACTS
Because appellant pleaded nolo contendere to the charges against him and raises a
purely legal issue, we need not dwell long on the underlying facts of his case. In brief,
1 All further statutory references shall be to the Penal Code unless specified otherwise.

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appellant and two other members of a gang affiliated with the Northern California sect of
gangs challenged two juveniles to fight, shouting Northern California gang slogans and
derogatory remarks about Southern California gangs. Appellant brandished a firearm
during this confrontation. Investigating officers established appellant’s identity as one of
the assailants and discovered he was on probation. A subsequent search of appellant’s
bedroom produced a handgun, gang paraphernalia, and a bag containing 78.49 grams of
methamphetamine.
DISCUSSION
Appellant contends sentencing pursuant to section 186.22, subdivision (d), must
be reversed as a matter of law. He argues this provision applies only where the
underlying offense is a “wobbler,” i.e., a crime that can be punished either as a felony or
as a misdemeanor. Appellant claims his conviction for brandishing a firearm is only a
misdemeanor and, therefore, the gang enhancement of section 186.22, subdivision (d),
cannot apply to his conviction. Respondent argues the language used in section 186.22,
subdivision (d), indicates its provisions are not limited to wobblers and thus may properly
be applied to ordinary misdemeanors. We find merit to appellant’s contention and will
reverse the finding on the gang enhancement.
Section 186.22, subdivision (d), dictates that anyone convicted of “a public
offense punishable as a felony or a misdemeanor” for the benefit of a criminal street gang
is subject to certain sentencing minimums. This dispute therefore centers on the meaning
to be attributed to the words “public offense punishable as a felony or a misdemeanor,” as
used in subdivision (d), to which this subdivision declares itself to be applicable.
A wobbler is a special class of crime that can be classified and punished as a
felony or misdemeanor depending upon the severity of the facts surrounding its
commission. (People v. Williams (1996) 49 Cal.App.4th 1632, 1639.) Wobbler offenses
are punishable by imprisonment either in the county jail or in the state prison. The

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characterization of the crime is dependent upon the actual punishment that is imposed.
When a defendant is sentenced to state prison, the offense is a felony; when the defendant
is sentenced to county jail, the offense is a misdemeanor. (People v. Terry (1996) 47
Cal.App.4th 329, 331-332.)
The structure of section 186.22 indicates subdivision (d) was intended to apply
only to wobbler offenses and not to ordinary misdemeanors. Subdivision (b)(1) of
section 186.22 applies to felonies. If the intent of the drafters of subdivision (d) was to
have it apply to misdemeanors, they could have described a qualifying subdivision (d)
offense as a misdemeanor. They did not do so. Instead, the drafters employed language
typically used in wobbler statutes. The only rational distinguishing feature between
subdivision (b)(1) felonies and subdivision (d) felonies is that subdivision (d) felonies are
subject to lesser punishment by virtue of their wobbler status. Reading the statute in this
manner gives meaning to both subdivisions of the statute. Respondent’s proposed
interpretation would render superfluous or inoperative the reference to felonies either in
subdivision (d) or the entirety of subdivision (b)(1), in violation of a basic rule of
statutory construction. (See Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260,
1269.)2
Thus, it appears the intent of the statutory drafters was for subdivision (d) of
section 186.22 to apply only to wobbler offenses and not to ordinary misdemeanors. We
therefore find as a matter of law that the violation of section 417 does not qualify
appellant for an enhancement pursuant to subdivision (d) of section 186.22.
2 We recognize that the California Supreme Court is currently considering the
applicability of section 186.22, subdivision (d) to ordinary misdemeanors. (Robert L. v.
Superior Court (2001) 90 Cal.App.4th 1414, review granted Oct. 24, 2001, S100359.)

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DISPOSITION
The section 186.22, subdivision (d), enhancement is stricken. The matter is
remanded to the trial court for resentencing. In all other respects, the judgment is
affirmed.

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