Superior Court had no authority to reduce a wobbler offense

People v. Superior Court of Ventura County (Cal., Dec. 12, 2024, No. S281950) 2024 WL 5100944

Summary: The Supreme Court held that: The Superior Court had no authority to reduce wobbler offense; The order reducing wobbler offense was not appealable;An unauthorized order reducing wobbler offense is act in excess of jurisdiction and is therefore reviewable by writ when balance of interests supports intervention of higher court; and The Court of Appeal’s temporary stay of all proceedings deprived Superior Court of jurisdiction to recommence proceedings at request of prosecution.

Facts: In 2018, Mitchell was charged with one felony count of resisting an executive officer (Pen. Code, § 69, subd. (a)) and one misdemeanor count of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The prosecution alleged that Mitchell had a prior “strike” conviction for battery with serious bodily injury. (Pen. Code, §§ 243, subd. (d), 667, subd. (d)(1).) Five years later, with a jury trial about to begin, the trial court ordered that the felony count be reduced to a misdemeanor,  under Penal Code section 17, subdivision (b).1 The court then granted a defense motion to continue the trial and referred the matter for screening for entry into a veterans court program.

The Ventura County District Attorney, sought review of the trial court’s order by filing both an appeal and a petition for writ of mandate in the Court of Appeal. The district attorney argued that the trial court had no statutory authority to reduce the felony charge to a misdemeanor prior to sentencing. He petitioned for a writ directing the trial court to vacate its order and reinstate the felony charge. The Court of Appeal stayed further proceedings in the trial court and issued an order to show cause why the relief sought by the district attorney should not be granted. The appeal proceeded separately.

The Court of Appeal held that the trial court’s order was unauthorized and granted the requested relief. It also held that the order was appealable by the People under two statutory provisions, either as an order setting aside a portion of the charging document or an order dismissing or otherwise terminating a portion of the action. (Id. at p. 605, 312 Cal.Rptr.3d 414; see § 1238, subd. (a)(1), (8).) Because the Court of Appeal held the order was appealable, it determined that the order was also challengeable by petition for writ of mandate in an appropriate circumstance. The Court of Appeal disagreed with an earlier opinion by the same district and division, which had held that an identical order was not appealable. (Mitchell, at p. 599, 312 Cal.Rptr.3d 414; see People v. Bartholomew (2022) 85 Cal.App.5th 775, 778, 301 Cal.Rptr.3d 704 (Bartholomew).)

Trial Court Discretion Under Penal Code Section 17

Section 17, subdivision (a) identifies three classes of criminal offenses in California: felonies, misdemeanors, and infractions. “A felony is a crime that is punishable with death, by imprisonment in the state prison, or, notwithstanding any other law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.” (§ 17, subd. (a).) “There is, however, a special class of crimes involving conduct that varies widely in its level of seriousness. Such crimes, commonly referred to as ‘wobbler[s]’ [citation], are chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor ….” (People v. Park (2013) 56 Cal.4th 782, 789 (Park).)

Section 17, subdivision (b) identifies the circumstances in which a wobbler offense will be treated as a misdemeanor. One circumstance lies within the discretion of the prosecuting attorney. Unless a defendant objects, a wobbler offense is a misdemeanor for all purposes when “the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor.” (§ 17, subd. (b)(4).) Here, the wobbler offense charged against Mitchell was identified in the complaint as a felony.

Section 17, subdivision (b)(5) authorizes a magistrate to reduce a wobbler offense charged as a felony to a misdemeanor at or before a preliminary hearing or before holding the defendant to answer on the charge. Section 17, subdivision (b)(1) and (3) authorize a trial court to order such a reduction at sentencing. Under the former, a wobbler charged as a felony will be treated as a misdemeanor for all purposes if the court “impos[es] a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.” (§ 17, subd. (b)(1).) Under the latter, a wobbler charged as a felony will be treated as a misdemeanor for all purposes if “the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” (§ 17, subd. (b)(3).) Section 17, subdivision (b)(2) authorizes a trial court to designate a wobbler offense as a misdemeanor “upon committing the defendant to the Division of Juvenile Justice

Unless the magistrate declares the offense to be a misdemeanor at the preliminary hearing, “ ‘ “[a] wobbler offense charged as a felony is regarded as a felony for all purposes until imposition of sentence or judgment. If state prison is imposed, the offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter deemed a misdemeanor.” ’ ” If probation is granted, the offense will be a misdemeanor if the trial court declares it to be so at the time of granting probation or afterward.

“No provision of section 17, subdivision (b), authorizes the superior court judge to [declare a wobbler to be a misdemeanor] prior to judgment or a grant of probation.” (Alvarez, supra, 14 Cal.4th at p. 973, fn. 2.) “ ‘[S]ection 17 is sui generis. It specifically leaves the determination of the nature of the conviction to the discretion of the judge to be determined at sentencing.’ ”

The Court of Appeal here correctly held that the trial court’s order was unauthorized as well. The preliminary hearing had already occurred, so section 17, subdivision (b)(5) was inapplicable. Any sentencing was still to come, and it was only a possibility, since Mitchell had not been convicted or pled guilty. Section 17, subdivision (b)(1) and (3) were therefore inapplicable as well. The trial court had no authority to reduce the felony charge to a misdemeanor before it was called upon to exercise its discretion at sentencing.

Appealability Under Penal Code Section 1238

“The prosecution in a criminal case has no right to appeal except as provided by statute. [ ‘The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases.  ‘Appellate review at the request of the People necessarily imposes substantial burdens on an accused, and the extent to which such burdens should be imposed to review claimed errors involves a delicate balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors.’

“Section 1238 … governs the People’s appeals from orders or judgments of the superior courts.” Section 1238, subdivision (a)(1) allows an appeal by the People from “[a]n order setting aside all or any portion of the indictment, information, or complaint.” Section 1238, subdivision (a)(8) allows an appeal by the People from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action.”

Writ Review Under Code of Civil Procedure Section 1085

Code of Civil Procedure section 1085 allows the People to seek writ review under appropriate circumstances. Writ review is available “when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.” A trial court’s unauthorized order reducing a wobbler offense charged as a felony to a misdemeanor is an act in excess of jurisdiction, and it is reviewable by writ when the balance of interests supports the intervention of a higher court.

Wrig review is available to challenge an unauthorized order reducing a wobbler offense charged as a felony to a misdemeanor where the need for review “outweighs the risk of harassment of the accused.”

The district attorney recognized in his briefing that Mitchell’s criminal prosecution “is now going on its seventh year.” The district attorney writes that he “would be open to this Court’s order, in the furtherance of justice and in the interests of fairness, barring future litigation of the charges against [Mitchell] contained in the March 2018 complaint.” Mitchell “joins in inviting this Court to exercise its discretion and dismiss the case under section 1385.” Beyond this bare reference to section 1385, however, the parties have not demonstrated that the statute empowers this court to order dismissal in this context. The statute refers to the power of a “judge or magistrate” to “order an action to be dismissed.” (§ 1385, subd. (a).) Its application in the appellate context is not apparent. While dismissal would appear to serve the interests of justice in light of the district attorney’s position, the history of this matter, and the disposition already accepted by the parties, the district attorney’s suggestion should be presented to the trial court in the first instance

The judgment of the Court of Appeal was affirmed.

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