Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF145011, Helios (Joe) Hernandez, Judge.
Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
Gaut, J.
Defendant Langston Harold Garrett was charged with two felony charges of grand theft (Pen. Code, § 487, subd. (a)), for withdrawing approximately $6,000 from his account after inserting empty deposit envelopes at an ATM. While his trial was trailing due to lack of available courtrooms, the court granted defendant’s motion to reduce the felony charges to misdemeanors, pursuant to section 17, subdivision (b), over the People’s objection. The defendant immediately pled guilty to the two counts and was placed on probation, without further objection by the People.
All further statutory references are to the Penal Code, except where otherwise stated.
The trial court did not specify the subdivision or particular ground under which it exercised discretion, other than to state it was acting under “17(b).”
The People appeal from the judgment, asserting that (a) the trial court lacked authority to reduce the felonies to a misdemeanor prior to accepting defendant’s guilty plea, and (b) the court abused its discretion by reducing the felonies to misdemeanors based on the trial court’s prejudice against the victim bank. Because the orders reducing the offenses to misdemeanors and placing defendant on probation are nonappealable, we dismiss the appeal as to the order reducing the offenses to misdemeanors. However, because the probation order omitted to include mandatory victim restitution, we remand the matter to the superior court to modify the conditions of probation.
BACKGROUND
On January 8, 2008, the corporate fraud investigator for Wachovia Bank reported unusual deposits into the account of defendant. The bank reported that it had received three empty envelope deposits through an ATM, two of which occurred on September 4, 2007, and the third deposit occurring on September 9, 2007. The first two deposits were for $1,000 each, and were credited to defendant’s account before the deposits could be verified. Defendant immediately withdrew the amounts from the ATM. On September 9, 2007, a third empty deposit envelope was submitted at an ATM, purporting to deposit $4,000 into defendant’s account. Again, Wachovia Bank credited defendant’s account with the amount of the deposit, and again defendant withdrew almost the entire amount from his account shortly thereafter.
An information was filed on September 19, 2008, alleging two counts of grand theft. (§ 487, subd. (a).) On November 26, 2008, the parties appeared in the trial department and answered ready for trial. Because there were no courtrooms available, the matter trailed over several days. On December 15, 2008, while the case was still trailing, the defendant made an oral motion to reduce the two felony counts to misdemeanors, pursuant to section 17, subdivision (b). When asked what the People’s position was, the prosecutor stated simply, “Object.” The trial court granted the defense motion to deem the two counts to be misdemeanor. In stating its reasons, the court stated, “Because the banking industry is at the height of stupidity and incompetence, I’m going to 17(b) this.”
Immediately after the felony charges were reduced to misdemeanors, the defendant pled guilty to both counts. The plea was “to the court,” in that the prosecutor was not a party to a plea bargain, but the People did not object to the guilty plea. Defendant requested immediate sentence and was placed on summary probation, without objection from the People. On February 11, 2009, the People appealed.
DISCUSSION
The People’s appeal raises two issues: (1) The “calendar” court lacked authority to reduce defendant’s felony crimes to misdemeanor offenses, and (2) the “calendar” court abused its discretion by reducing the felonies to misdemeanors based on prejudice toward a victim, rather than based on the facts and circumstances of defendant’s acts. However, before we may address the merits of the arguments, we must determine if the order or judgment is appealable. (§ 1238.) At our request, the parties have submitted supplemental briefing on this issue.
1. Appealability of the Judgment or Order.
The People argue that the judgment is appealable because the court’s order reducing the felonies to misdemeanors was tantamount to a dismissal of the felony charges, which may be appealed under section 1238, subdivisions (a)(1) [authorizing an appeal from an order setting aside an indictment, information or complaint], and (a)(8) [authorizing an appeal from an order or judgment dismissing or otherwise terminating all or any portion of the action]. The People rely on the holding of People v. Booker (1994), 21 Cal.App.4th 1517, 1520-1521, in support of this position. We conclude that Booker is inapposite, and the order reducing the felony charges to misdemeanors was not appealable.
The People have no right to appeal except as provided by statute. (People v. Douglas (1999), 20 Cal.4th 85, 89.) The People may appeal from an order setting aside all or part of an indictment, information, or complaint. (§ 1238, subd. (a)(1); People v. Alice (2007), 41 Cal.4th 668, 680.) This subdivision permits review of an order granting a motion to dismiss, pursuant to section 995, or any other order that has the purpose and ultimate effect of setting aside all or any portion of the indictment, information, or complaint. (See People v. McClaurin (2006), 137 Cal.App.4th 241, 247.)
The People may also appeal from a judgment or order dismissing or otherwise terminating all or any portion of an action. (§ 1238, subd. (a)(8).) This section applies where a trial court rules that the prosecution is barred by the statute of limitations (People v. Lopez (1997), 52 Cal.App.4th 233, 250), or dismisses an action after the People have announced they were unable to proceed in light of a pretrial ruling. (People v. Chacon (2007), 40 Cal.4th 558, 564-565.) However, not every reduction of a wobbler from a felony to a misdemeanor is appealable as a dismissal of the action within the meaning of section 1238, subdivision (a), subsections (1) and (8). Except where the order reducing a wobbler to a misdemeanor is made after a determination of guilt, the court’s exercise of discretion does not preclude the People from prosecuting the offenses charged against a defendant, and does not terminate the action. Such an exercise of discretion is not appealable. (People v. Williams, supra, 35 Cal.4th at p. 830.)
Offenses that are punishable by imprisonment either in the county jail or in state prison are called “wobblers.” (People v. Williams (2005), 35 Cal.4th 817, 820; People v. Terry (1996), 47 Cal.App.4th 329, 332.)
However, the People are prohibited by statute from appealing from an order granting probation (§ 1238, subd. (d)), and instead are limited to review by way of extraordinary writ because of the unfairness that could result to a defendant who, while the People’s appeal from his probation grant is being considered and decided, might serve all or a substantial part of the probationary period, only to be resentenced to a full state prison term if the judgment is reversed. (People v. Douglas, supra, 20 Cal.4th at pp. 92-93, 94; see People v. Alice, supra, 41 Cal.4th at p. 682.) Further, the People may not appeal a magistrate’s order reducing a wobbler to a misdemeanor at or before the preliminary hearing. (§ 17, subd. (b)(5); People v. Alice, supra, at pp. 681-682.) Instead, the People must seek review by way of a pretrial petition for extraordinary relief. (People v. Williams, supra, 35 Cal.4th at pp. 833-834.)
In their supplemental letter brief, the People argue they are authorized “to appeal a court’s unlawful reduction of a felony information to a misdemeanor when such an act occurs outside of the procedure authorized by Penal Code section 17, subdivision (b).” No authority is cited for this proposition, although the People again refer to the holding of People v. Booker, supra, 21 Cal.App.4th 1517, which is not on point. There, the defendants were charged with felony violations of Unemployment Insurance Code section 2101, subdivision (a), the making of a false statement or concealment to obtain unemployment benefits. That offense is not a wobbler, so the defendants’ motions to reduce the crimes to misdemeanors were not made under section 17, subdivision (b). Instead, they requested that the People be compelled to prosecute them under Unemployment Insurance Code section 2117, which defines a misdemeanor violation.
In that case, because the offense with which the defendants were charged did not include punishment as a misdemeanor, the order compelling prosecution under the misdemeanor provisions of Unemployment Insurance Code section 2117, where the defendants had been charged with a felony violation of section 2101, subdivision (a), necessarily resulted in a dismissal of the felony charge. The orders were thus appealable as from an order dismissing an information or terminating part of the criminal action. (People v. Booker, supra, 21 Cal.App.4th at pp. 1520-1521.) However, because the defendants in that case had not sought a reduction under section 17, subdivision (b), Booker is not authority for the proposition that a reduction of a “wobbler” felony to a misdemeanor constitutes a dismissal or other termination of the action which is appealable.
Neither of the statutory provisions (§ 1238, subd. (a)(1) & (8)) relied upon the People authorizes an appeal in this case. An order reducing a felony to a misdemeanor does not constitute an order setting aside all or part of the accusatory pleading, or a dismissal of all or part of an action, within the meaning of Penal Code section 1238, subdivisions (a)(1) or (a)(8), because the lower court’s order did not preclude the People from prosecuting the wobbler offenses charged against defendant. (See People v. Williams, supra, 35 Cal.4th at p. 830.) A reduction of a felony offense to a misdemeanor may result in a modification of a judgment, but it does not dismiss the greater offense or otherwise terminate a prosecution. (Id. at p. 831.) An order modifying an offense prior to trial is not appealable. (Id. at p. 832.) It was the entry of defendant’s plea of guilty and the order granting probation that terminated the prosecution by the People, but while the People did not join in the plea to the court, they did not object to the plea or to the judgment, or seek leave to file a petition for extraordinary relief prior to the judgment.
We are aware that in People v. Silva (1995), 36 Cal.App.4th 231, Division One of the Fourth Appellate District reversed an order made at the time of defendant’s arraignment on the information—after the preliminary hearing and bindover to superior court—on the ground that the magistrate had lost jurisdiction over the charges. In that case, prior to making the order holding defendant to answer on the felony charge in superior court, defense counsel informed the court that he wanted to make a motion to reduce the offense to a misdemeanor but that he had not had time to prepare the motion. The magistrate informed defense counsel that it would reserve the ruling on the motion until the date of the arraignment. The information was subsequently filed, and later the court granted the defendant’s motion to reduce the offense to a misdemeanor, pursuant to section 17, subdivision (b)(5). (Id. at pp. 233-234.)
On appeal, the reviewing court did not discuss the appealability of the order. However, it determined that a magistrate loses jurisdiction after it issues an order holding the defendant to answer on a felony charge and that the trial court lacked authority to reduce the charge to a misdemeanor pursuant to section 17, subdivision (b)(5) after the information has been filed. It referred to the plain language of that subdivision which limits the magistrate’s authority to reduce the offense at or before the preliminary hearing, or before the bind-over to superior court. (People v. Silva, supra, 36 Cal.App.4th at p. 235.)
We agree that a trial court lacks authority to reduce a wobbler to a misdemeanor pursuant to section 17, except as specified by statute. But the fact that the trial court may have acted in excess of its jurisdiction does not, in itself, enlarge the right of appeal by the People. (People v. Smith (1983), 33 Cal.3d 596, 599-600.) The People should have filed a petition for extraordinary relief prior to the entry of the guilty plea and the order granting probation. The reduction of the wobbler offense to a misdemeanor is not appealable unless accompanied by a dismissal of all or a portion of the action, or is made at the time judgment is pronounced where the sentence is unauthorized. Here, the trial court’s order did not terminate the action, and the challenged order was not made “after judgment.” (§ 1238, subd. (a)(5).)
We must therefore dismiss the appeal from the order reducing the offenses to misdemeanors.
2. Unauthorized Sentence.
In granting probation the court orally ordered defendant to pay a restitution fine (§ 1202.4, subd. (b)), a probation revocation restitution fine [which was stayed] (§ 1202.44), a booking fee (Gov. Code, § 29550), and a court security fee. (§ 1465.8.) The court directed defendant to report to financial services within two business days to “work out that restitution and any payment plan you need for your fines and fees.” The minute order includes an additional condition that defendant pay victim restitution in any amount determined by and payable to the court, as directed by financial services. However, the sentencing memorandum setting forth the conditions of probation does not mention victim restitution.
In his supplemental letter brief, defendant asserts that the order directing defendant to report to financial services to “work out that restitution” was an order for payment of victim restitution. Because the word “that” refers to the court’s preceding sentence in which it ordered payment of a restitution fine, we disagree with this interpretation.
As a general rule, a record that is in conflict will be harmonized if possible. (People v. Harrison (2005), 35 Cal.4th 208, 226.) Where this is not possible, however, that part of the record will prevail which, because of its origin and nature, is entitled to greater credence. (People v. Smith, supra, 33 Cal.3d at p. 599.) Here, although the clerk’s minutes and the sentencing memorandum include a notation including victim restitution as a condition of probation, the trial court did not actually order it in the oral pronouncement of judgment.
To the extent the defendant’s probation conditions do not include victim restitution, the order was unauthorized. Article I, section 28, subdivision (b), of the California Constitution, guarantees that all persons who suffer losses as a result of criminal activity shall have the right of restitution from the person convicted of the crimes for losses they suffer. Thus, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim in an amount established by court order, based on the amount of loss claimed by the victim or any other showing to the court. (§ 1202.4, subd. (f).) Restitution to the victim is mandatory, although the court retains discretion as to the amount. (People v. Akins (2005), 128 Cal.App.4th 1376, 1382.)
Because the court failed to order victim restitution as a condition or probation, the matter must be remanded to the lower court to determine the amount of restitution and make the appropriate order.
DISPOSITION
The appeal is dismissed and the matter remanded to the trial court to determine the amount of victim restitution to be paid to the victim, Wachovia Bank.
We concur: Richli, Acting P. J., King, J.