Opinion
E074080
05-08-2020
THE PEOPLE, Plaintiff and Respondent, v. SCOTT DAVID JOHNSON, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB 17004828) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed in part, remanded with directions in part. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2017, defendant and appellant Scott David Johnson assaulted and threatened his wife with a gun after she confronted him about his inappropriate behavior with a female student at a school where he worked. Defendant eventually pleaded guilty to three felony and three misdemeanor offenses. In return, the trial court imposed a suspended sentence of six years and granted defendant three years of probation on various terms and conditions.
In 2019, defendant requested early termination of probation and reduction of his felony wobbler offenses to misdemeanors. The trial court denied both requests. On appeal, defendant contends the trial court abused its discretion when it refused to reduce his wobbler convictions to misdemeanors because the court incorrectly believed it lacked the authority to do so. The People agree, explaining "the court may have failed to appreciate that, as of January 1, 2019, it had the authority to reduce wobbler convictions to misdemeanors even where, as here, the court imposed a suspended sentence." The People therefore concede that the case should be remanded to allow the trial court to exercise its discretion on the issue. For the reasons explained, we agree and remand the matter. In all other respects, we affirm the judgment.
The defendant filed a request for judicial notice on February 19, 2020. That request is hereby granted.
II
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, in April 2017, defendant was accused of engaging in inappropriate behavior with a female student at a high school where he worked. On April 21, 2017, defendant's wife, Jane Doe, learned that defendant had a party in one of his classes and invited the alleged female student to his classroom. The following morning, on April 22, 2017, at around 7:00 a.m., Jane confronted defendant about the allegations. Defendant became angry and started throwing items in their bedroom. He then pushed Jane towards their bathroom with both hands, grabbed her by the arm, and got in her face "'really, really close.'"
Once Jane was inside the bathroom, defendant retrieved a semiautomatic handgun from a gun safe located under the bed. He then pointed the gun under Jane's chin and told her, "'I'll show you what pain is. I'll show you what alone means.'" Defendant also grabbed Jane by her neck, squeezed her neck, and asked Jane why she did not believe him and why she would accuse him. Thereafter, he placed the gun to his own forehead and tried to grab Jane's arms several times to have her pull the trigger on the gun. After about 20 minutes Jane escaped, but defendant continued to follow her around the house and threw chairs in the kitchen. Defendant told Jane that he would hurt her in other ways. He then went into his room, retrieved all his firearms, and left the residence. Due to defendant's actions, Jane became fearful and took her daughter to her brother's house.
Around 5:00 p.m. on April 22, 2017, defendant called Jane about 15 times and left messages telling her that she needed to call him and come back home. Jane did not respond. Around 6:00 p.m., defendant went to Jane's father's senior living home and made her father call Jane from her father's cell phone. When Jane answered her phone and discovered defendant on the other end of the line, she hung up. Shortly thereafter, Jane's father called again and informed Jane that defendant had told him to say goodbye to Jane because defendant was going to Jane's son's residence to "cause some damage." Jane called her son and told him to leave his residence. At 10:00 p.m., defendant sent Jane a text message saying she had better come home because he was going to throw all her pets and belongings out into the street. At that point, Jane called the police and reported that she was terrified of defendant.
At 12:45 a.m. the next morning, April 23, 2017, officers called defendant and asked him to come outside to speak with them. Defendant agreed to come outside but refused to do so without his firearms. Officers attempted to reason with defendant for over an hour, during which time he made suicidal statements. Officers were able to see defendant inside the home pacing back and forth with what appeared to be a long gun in his hands. SWAT and Emergency Negotiations were subsequently called to the scene. Finally, at 5:19 a.m., defendant was taken into custody.
Officers retrieved defendant's safe, took it outside, and asked defendant to open it. As he was about to do so, he asked the officers if their hands were on their revolvers. Defendant then stated, "'You better be careful,' because he would 'pull that gun out, pull the clip out, and load it.'" After defendant opened the safe, he dropped his hand down as if he were about to reach inside the safe. Officers pushed defendant's hands aside and defendant said, "'Almost. Almost. That was a little scary wasn't it?'"
On April 24, 2017, Jane called the police to report that defendant had tried calling her twice from jail in violation of the Emergency Protective Order issued the day before. Officers noted that Jane's voice sounded "shaky and appeared fearful."
On November 21, 2017, defendant pleaded guilty to three felony offenses: false imprisonment (Pen. Code, § 236, count 1); assault with a firearm (§ 245, subd. (a)(2); count 2); and making a criminal threat while armed with a firearm (§§ 422, 12022.5, subd. (a); count 3). Defendant also pleaded guilty to three misdemeanor offenses: one count of domestic battery (§ 243, subd. (e)(1); count 4) and two counts of violating a protective order (§ 273.6, subd. (a); counts 5 & 6). In return, the trial court suspended imposition of a six-year sentence and placed defendant on probation for a period of three years on various terms and conditions.
All future statutory references are to the Penal Code unless otherwise stated. --------
On March 5, 2018, the Riverside County Superior Court ordered defendant's probation transferred to the San Bernardino County Superior Court pursuant to section 1203.9, and the San Bernardino County Superior Court accepted jurisdiction over defendant.
On May 24, 2018, the San Bernardino County Superior Court held a transfer-in hearing and modified defendant's probationary terms and conditions.
On August 30, 2019, defendant filed a request to calendar the case for the trial court to consider an early termination of probation.
On September 9, 2019, the trial court referred defendant's request for early termination of probation to the San Bernardino County Probation Department for a memorandum and recommendation.
On October 3, 2019, the probation officer recommended defendant's convictions be reduced to misdemeanors pursuant to section 17, subdivision (b), and that defendant be granted summary probation. The probation officer opined that defendant was "not eligible for early termination of probation per PC1203.97" but "is el[ig]ible for Summary Probation and a reduction to a misdemeanor pursuant to PC17b." The probation officer explained that defendant had committed no violations of probation, completed a required 52-week domestic violence program, and completed the required 20 hours of community service at a church.
On October 7, 2019, the trial court took defendant's request for early termination of probation under submission.
On October 8, 2019, the trial court issued an order denying defendant's request for early termination of probation "due to the nature and circumstances of the offense." The court also denied defendant's request to reduce his felony wobbler offenses to misdemeanors under section 17, subdivision (b), "due to Defendant having been sentenced to 6 years State Prison suspended on this case."
On November 8, 2019, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant argues the trial court prejudicially erred in denying his request to reduce his felony wobbler offenses to misdemeanors because the court did not "appreciate[] its discretion under recently enacted AB 1941" in violation of his constitutional right to due process. The People contend "the court may have failed to appreciate that, as of January 1, 2019, it had the authority to reduce wobbler convictions to misdemeanors even where, as here, the court imposed a suspended sentence." The People therefore agree the case should be remanded to allow the trial court to exercise its discretion on the matter.
We review a trial court's discretionary ruling on a motion to reduce a felony to a misdemeanor pursuant to section 17, subdivision (b) (hereinafter section 17(b)), for abuse of discretion. (People v. Mullins (2018) 19 Cal.App.5th 594, 611.) "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) Where the court's ruling on such a motion presents a question of law, we exercise independent review. (People v. Willis (2013) 222 Cal.App.4th 141, 144.)
A wobbler is an offense that is "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), italics added.) Wobblers are by definition punishable by a state prison term (as a felony) or by imprisonment in the county jail and/or by a fine (as a misdemeanor). (Ibid.; People v. Tran (2015) 242 Cal.App.4th 877, 885 (Tran).) "'"A wobbler offense charged as a felony is regarded as a felony for all purposes until imposition of sentence or judgment. [Citations.] If state prison is imposed, the offense remains a felony; if a misdemeanor sentence is imposed, the offense is thereafter deemed a misdemeanor. [Citations.]"' [Citation.]" (Tran, at p. 885.) It is undisputed that defendant's three felony convictions for false imprisonment, assault with a firearm, and making a criminal threat are wobbler offenses. (See §§ 236, 245, subd. (a)(2) & 422.)
When a trial court grants probation, it can either suspend imposition of a sentence or impose a sentence and suspend its execution. (People v. Segura (2008) 44 Cal.4th 921, 932; People v. Howard (1997) 16 Cal.4th 1081, 1084.) If the trial court suspends imposition of a sentence and later revokes the defendant's probation, the court may choose from all of the initially available sentencing options. (People v. Howard, at p. 1084.) However, if the trial court imposes a sentence and suspends its execution and later revokes the defendant's probation, the court lacks the power to change the previously imposed sentence. (Id. at p. 1088.)
Section 17(b) governs the reduction of wobbler offenses to misdemeanors. Prior to January 1, 2019, where a defendant was granted felony probation, a trial court could only exercise its discretion to reduce a felony to a misdemeanor under section 17(b), if the court had suspended imposition of sentence at the time it granted probation. If the court imposed a felony sentence and suspended execution thereof, the law prevented the defendant from applying for, and the court from granting, a reduction of that conviction to a misdemeanor.
Previously, section 17(b) provided: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence 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." (Stats 2018, ch. 18, § 1 (AB 1941), italics added.)
Effective on January 1, 2019, section 17(b) now provides: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (3) When 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."
The amendment to section 17(b) omitted the language "without imposition of sentence." (See § 17(b)(3).) Thus, the amendment to section 17 currently provides that trial courts can now reduce a felony conviction to a misdemeanor regardless of whether imposition of sentence was suspended or if the sentence was imposed but its execution was suspended. (Stats 2018, ch. 18, § 1 (AB 1941).) However, reduction to a misdemeanor is not automatic. The trial court, after considering the circumstances of an offense and a defendant's characteristics including his or her performance on probation, has discretion to reduce the offenses to misdemeanors under subdivision (b)(3) of section 17. (Tran, supra, 242 Cal.App.4th at p. 885; Alvarez, supra, 14 Cal.4th at p. 978.) Under subdivision (b)(3) of section 17, a defendant is not entitled to relief simply because he or she successfully completes probation. (Tran, at pp. 891-892 ["A convicted defendant is not entitled to the benefits of section 17(b) as a matter of right. Rather, a reduction under section 17(b) is an act of leniency by the trial court."].) Reduction under subdivision (b)(3) is not automatic; "a wobbler becomes a 'misdemeanor for all purposes' under section 17(b)(3) only when the court takes affirmative steps to classify the crime as a misdemeanor." (Park, supra, 56 Cal.4th at p. 793; People v. Glee (2000) 82 Cal.App.4th 99, 103 ["a felony can never be converted automatically to a misdemeanor under" subdivision (b)(3) of section 17].)
"As a general matter, the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler 'in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon.' [Citation.]" (Park, supra, 56 Cal.4th at p. 790.) But "'[b]ecause each case is different, and should be treated accordingly, . . . we repose confidence in the discretion of the court to impose a sentence that is appropriate in light of all relevant circumstances.'" (Tran, supra, 242 Cal.App.4th at p. 887, italics omitted, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1393.)
Defendant claims the matter should be remanded because the record shows the trial court misapprehended the scope of its sentencing discretion when it denied his section 17(b) motion to reduce his felony convictions to misdemeanors. The People concede the matter should be remanded in light of the probation officer's recommendation that defendant's convictions should be reduced to misdemeanors. We also agree.
Here, the trial court denied defendant's request to reduce his three felony offenses to misdemeanors "due to Defendant having been sentenced to 6 years State Prison suspended on this case." It appears the trial court applied the prior version of section 17(b)(3). Therefore, the court mistakenly believed it lacked the authority to reduce defendant's three felony convictions to misdemeanors because at the original sentencing the court had previously imposed a suspended sentence.
"Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d. 335, 348, fn. 8.) "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
In this case, remand is necessary because, although the record indicates that the court may have appropriately denied defendant's section 17(b) motion based on the circumstances of the offenses, the record also indicates that the court mistakenly believed it did not have discretion to reduce defendant's felony offenses to misdemeanors because it had imposed a suspended sentence of six years. However, as the People point out, in light of the probation officer's recommendation that defendant's offenses be reduced to misdemeanors, the court may have reduced defendant's convictions to misdemeanors had it understood that it had discretion to do so under section 17(b)(3). (People v. Lee (2017) 16 Cal.App.5th 861, 874-875 [felony sentence vacated and matter remanded with directions to exercise discretion whether to reduce felony convictions to misdemeanors where record showed court erroneously believed it lacked discretion under section 17(b) to reduce the felony convictions to misdemeanors]; cf. People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so."].)
Based on the foregoing, we remand the matter to allow the trial court to exercise its discretion under the current version of section 17(b).
IV
DISPOSITION
The matter is remanded to the trial court with direction to exercise its discretion and determine whether to reduce defendant's three felony convictions to misdemeanors. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.