Opinion
A157912
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL RAY HOLMES, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Case No. SCUKCRCR18-96493)
Defendant Daniel Ray Holmes, Jr., argues that the trial court abused its discretion in denying his Penal Code section 17, subdivision (b) motion to reduce his conviction for possession of a firearm by a prohibited person from a felony to a misdemeanor. Defendant contends the event in question was a suicide attempt and that, in denying his motion, the court failed to take into account the nature of the event and his history of trauma. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Although certain details about the events leading to defendant's arrest remain unclear, the fundamental facts are not. On October 6, 2018, defendant was at long-time friend Daniel Olmstead's house. While in the house, defendant retrieved Olmstead's firearm from a kitchen shelf. Upon entering the kitchen, Olmstead saw defendant with the firearm, a struggle ensued, and the firearm discharged multiple times. Defendant was struck in the leg by five of the rounds.
Defendant was charged with felony possession of a firearm by a prohibited person, pursuant to section 29805, subdivision (a). He ultimately entered a plea of nolo contendere. He filed a section 17, subdivision (b) motion to reduce the felony to a misdemeanor at sentencing, which the court denied. The court suspended imposition of sentence and placed defendant on three years of formal probation.
The information alleged that Holmes had suffered a prior conviction for misdemeanor battery.
DISCUSSION
I. Sentencing Discretion
A. "Wobbler" Offenses and Section 17 , Subdivision (b)
A "wobbler" offense gives a trial court discretion to determine whether the offense should be punished as a felony or a misdemeanor. (People v. Tran (2015) 242 Cal.App.4th 877, 885.) Because the conduct underlying these offenses varies in severity, "wobbler" offenses are punishable " 'either by a term in state prison or by imprisonment in county jail and/or by a fine.' " (Ibid.) In determining whether the offense should be classified as a felony or misdemeanor, "the court considers the facts surrounding the offense and the characteristics of the offender." (Ibid.)
Section 17, subdivision (b) provides additional discretion to a trial court. Under that statute, "[w]hen a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail . . . , or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) [a]fter a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail . . . , [or] [¶] (3) [w]hen the court grants probation to a defendant and at the time of granting probation, . . . the court declares the offense to be a misdemeanor." Thus, section 17, subdivision (b) allows a court to reduce a conviction on a "wobbler" offense from a felony to a misdemeanor "upon imposition of a punishment other than state prison [citation] or by declaration of a misdemeanor after the grant of probation." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).)
B. Section 29805 , Subdivision (a)
The language of section 29805, subdivision (a) demonstrates that it is a "wobbler." That statute provides that any person who is in possession or control of a firearm within 10 years of a prior misdemeanor violation under section 242, "is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine . . . , or by both that imprisonment and fine." As section 29805, subdivision (a) provides a court discretion to sentence a defendant to a term in state prison or county jail, defendant's offense of conviction is a "wobbler," allowing the trial court to designate it as either a felony or misdemeanor. II. Defendant's Section 17 , Subdivision (b) Motion
A. Standard of Review
Well-established case law provides that while a court has discretion in determining whether a felony or misdemeanor conviction is appropriate, the discretion is not boundless. "The term [discretion] is a broad and elastic one [citation] which we have equated with 'the sound judgment of the court, to be exercised according to the rules of law.' " (People v. Russel (1968) 69 Cal.2d 187, 194.) "The courts have never ascribed to judicial discretion a potential without restraint." (Ibid.) Rather, "all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (Id. at p. 195.)
On appeal, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.' " (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Discretionary authority concerning a section 17, subdivision (b) motion is contextual and guided by common sentencing factors. (Alvarez, supra, 14 Cal.4th at p. 978.) These factors include " 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, [former] rule 410." (Ibid.) While section 17, subdivision (b) grants the court broad discretion, "a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest 'exceeds the bounds of reason.' " (Ibid.)
California Rules of Court, rule 4.410 (former rule 410), states: "(a) General objectives of sentencing include: [¶] (1) Protecting society; [¶] (2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses; [¶] (4) Deterring others from criminal conduct by demonstrating its consequences; [¶] (5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration; [¶] (6) Securing restitution for the victims of crime; [¶] (7) Achieving uniformity in sentencing; and [¶] (8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices. [¶] (b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case." --------
B. The Trial Court Addressed the Nature of the Offense and the Characteristics of the Defendant
The trial court did not abuse its discretion in denying defendant's motion. Defendant contends the court abused its discretion by maintaining his felony conviction as a means of providing supervision through felony probation. We are unpersuaded. During the sentencing proceedings, the court heard conflicting stories as to the nature of the event, as well as undisputed facts regarding the defendant's six prior misdemeanor convictions and struggles with alcohol. In ruling on the motion, the court provided an individualized and reasoned basis for its decision to uphold defendant's felony conviction, concluding, "I would think that felony probation would be in the best interest of the defendant in preserving his life and making sure that he's free of alcohol and the like." While we are sympathetic to the defendant's situation, the court followed the appropriate sentencing factors and made a reasoned decision in exercising its discretion to issue a sentence that it deemed to be in the best interest of defendant and the public. The court's denial of defendant's motion was in no way "irrational or arbitrary." (Alvarez, supra, 14 Cal.4th at p. 977.)
DISPOSITION
The judgment is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.