Opinion
A129325
11-04-2011
THE PEOPLE, Plaintiff and Respondent, v. PRUDENCIO RODRIGUEZ SANDOVAL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H27463A)
The trial court denied appellant Prudencio Rodriguez Sandoval's petition to dismiss his 1999 conviction for felony possession of methamphetamine for sale. (Pen. Code, §§ 17, subd. (b), 1203.4; former Health & Saf. Code, § 11378 [Stats. 1991, ch. 294, § 3, p. 1826].) Sandoval appeals, contending that his conviction was a wobbler in 1999, giving the trial court discretion to treat it as a misdemeanor and dismiss it because of his successful completion of probation. We affirm the trial court's denial order.
All statutory references are to the Penal Code unless otherwise indicated.
Sandoval has been before our court twice before. In 2000, he challenged his 1999 conviction. That appeal was dismissed because he was unable to obtain a certificate of probable cause from the trial court. In 2007, he petitioned for habeas corpus, challenging his detention by federal immigration officials. We denied the petition.
I. FACTS
Significant parts of the 1999 criminal case file are not available to us, nor were they available to the trial court. The county clerk was unable to provide a copy of Sandoval's 1999 abstract of judgment. Sandoval moved to augment the record with copies of the September 14, 1999 transcript of his guilty plea, one page of the 1999 probation officer's report and a felony disposition summary. We granted the motion to augment.
--------
In August 24, 1999, a highway patrol officer made a traffic enforcement stop of a vehicle driven by appellant Prudencio Rodriquez Sandoval. The officer noticed an odor, questioned Sandoval and a passenger, and obtained consent to search the vehicle. In the trunk, he found a plastic-wrapped bundle containing slightly more than one pound of methamphetamine. He was arrested and charged with transportation of a controlled substance and possession of a controlled substance for sale. (Former Health & Saf. Code, §§ 11378, 11379 [Stats. 1991, ch. 294, §§ 3-4, pp. 1826-1827].) Both counts were enhanced by an allegation that he possessed for sale 28.5 grams or more of methamphetamine. (Former § 1203.073, subd. (b)(2) [Stats. 1991, ch. 224, § 1, pp. 1565-1566].) At some point, a federal immigration hold was placed on Sandoval, who was in this country illegally and was to be deported.
Initially, Sandoval pled not guilty to the charges. In September 1999, he changed his plea to no contest to the possession for sale charge and admitted the truth of a weight enhancement. (Former Health & Saf. Code, § 11378; see former § 1203.073, subd. (b)(2).) The transportation charge and its weight enhancement was dismissed on the People's motion.
A finding that Sandoval had possessed 28.5 grams or more of methamphetamine precluded a grant of probation, except in an unusual case in which probation would serve the interests of justice. (Former § 1203.073, subds. (a), (b)(2).) The prosecution asked the trial court to find that exceptional circumstances warranted a grant of probation rather than a prison term because Sandoval had no prior record and was to be deported. (Ibid.) At sentencing, the trial court agreed. It suspended imposition of sentence and granted Sandoval a five-year term of probation. (See former § 1203.073, subd. (a).) One condition of probation was that he serve a year in county jail, which the trial court required because of the amount of methamphetamine found. Sandoval completed his jail term in 2000 and successfully completed his term of probation in 2004. No violations of the terms of his probation were filed against him, and since he completed probation, he has not been charged with any California criminal offenses. B. Petition for Dismissal
In March 2010, Sandoval petitioned the trial court to dismiss his 1999 conviction. He asserted that his conviction for possession of methamphetamine for sale was a felony that could be reduced to a misdemeanor. (Former Health & Saf. Code, § 11378.) He asked that the trial court reduce this offense to a misdemeanor and that he be allowed to withdraw his guilty plea because he had fulfilled the terms of his probation. (See §§ 17, subd. (b)(1), 1203.4.) In May 2010, the trial court granted his request to be allowed to withdraw his guilty plea pursuant to section 1203.4, but denied his section 17 motion to reduce the 1999 felony offense to a misdemeanor. The court found that it had no discretion to reduce a conviction for felony possession of methamphetamine for sale to a misdemeanor.
II. DISCUSSION
Sandoval challenges the trial court's denial of his request to reduce his 1999 felony conviction for possession of methamphetamine to a misdemeanor. His claim of error turns on his assertion that the grant of probation for this felony offense converted it into a wobbler and gave the trial court discretion to reduce his felony conviction to a misdemeanor. Thus, he asserts that the trial court erred in concluding that it could not exercise its discretion to grant his motion for reduction. (See former Health & Saf. Code, § 11378.) To assess this claim of error, we undertake a brief review of the differing degrees of criminal offenses.
Other than minor infractions, California law specifies three different types of criminal offenses. A crime punishable by death or incarceration in state prison is a felony. All other non-infractions are misdemeanors. (§ 17, subd. (a).) An offense that may be punishable as either a felony or misdemeanor, in the trial court's discretion, has come to be known as a "wobbler." (§ 17, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974; People v. Myers (2009) 170 Cal.App.4th 512, 516; see People v. Statum (2002) 28 Cal.4th 682, 685.)
An offense originally charged as a felony is reduced to a misdemeanor by operation of law if a misdemeanor sentence is imposed or if the offense is declared to be a misdemeanor when probation is granted. (§ 17, subd. (b)(1), (3).) This provision allows a trial court to reduce a wobbler from a felony to a misdemeanor and thus enable a defendant to avoid many of the consequences of a felony conviction. (People v. Feyrer (2010) 48 Cal.4th 426, 444; see People v. Mauch (2008) 163 Cal.App.4th 669, 674 (Mauch).) However, section 17, subdivision (b) applies only to a wobbler offense that is punishable by specific alternatives—either by a state prison term or by a fine or county jail term. It does not confer on a trial court the authority to reduce what is described as a "straight felony"—an offense for which no alternative punishment to state prison or death is specified—to a misdemeanor. (People v. Feyrer, supra, 48 Cal.4th at pp. 441-442, 444; People v. Myers, supra, 170 Cal.App.4th at p. 516; Mauch, supra, 163 Cal.App.4th at pp. 674-675, 677.)
The rationale for this rule derives from our constitutional separation of legislative and judicial powers. (See Cal. Const., art. III, § 3.) Defining a crime and fixing a penalty for it is a legislative function, not a judicial one. When the Legislature classifies an offense as a felony without providing for an alternate punishment of a fine or a jail term, a trial court has no authority to reduce the offense to a misdemeanor. (People v. Feyrer, supra, 48 Cal.4th at p. 442; Mauch, supra, 163 Cal.App.4th at p. 674.)
On appeal, Sandoval argues that by its grant of probation pursuant to former section 1203.073 and the one-year jail term imposed as a condition of probation, the 1999 court effectively redefined the felony offense of possession of methamphetamine for sale to be a misdemeanor by creating an alternative sentence for this offense, which was punishable by a term in state prison. (Former Health & Saf. Code, § 11378.) Others have made similar arguments, without success. (See, e.g., Mauch, supra, 163 Cal.App.4th at pp. 673-677; People v. Myers, supra, 170 Cal.App.4th at pp. 516-517.)
We find that Mauch controls our case. In Mauch, the trial court accepted a guilty plea to a Health and Safety Code section 11358 charge of marijuana cultivation, which it purported to reduce to a misdemeanor. The defendant was granted probation and ordered to pay a fine as a condition of probation. (Mauch, supra, 163 Cal.App.4th at p. 673.) On a People's appeal, the appellate court reversed, finding that the trial court had no authority to reduce felony cultivation of marijuana to a misdemeanor. The applicable statute described a felony—an offense that must be punishable by a state prison term. (Health & Saf. Code, § 11358; see § 17, subd. (a).) As the Legislature had classified this offense as a felony without providing for any alternative punishment to imprisonment, the appellate court held that the trial court had no power to reduce that offense to a misdemeanor. (Mauch, supra, 163 Cal.App.4th at p. 674.)
The same reasoning applies to the case before us. Section 11378 of the Health and Safety Code prohibits the possession of a controlled substance for sale and provides that this offense must be punishable by a state prison term. Like Health and Safety Code section 11358, this provision describes a straight felony that does not allow for an alternative misdemeanor punishment. Sandoval's reliance on section 17, subdivision (b) is misplaced. That provision does not itself authorize alternative punishment for any particular felony; it merely identifies the circumstances when a trial court may reduce a felony to a misdemeanor when the Legislature has authorized such a reduction for a specified offense. (Mauch, supra, 163 Cal.App.4th at p. 675.) As section 11378 does not allow for an alternative punishment, section 17, subdivision (b) does not apply to his case.
We also reject Sandoval's reliance on section 1203.073. That provision did not alter the Legislature's description of his underlying offense as a felony punishable by imprisonment without specifying an alternate, misdemeanor punishment. (See Mauch, supra, 163 Cal.App.4th at p. 676.) Under this provision, Sandoval was granted probation. His jail term was not imposed as punishment, but as a condition of probation. (See id. at p. 677; see also League of Women Voters of California v. McPherson (2006) 145 Cal.App.4th 1469, 1481.) A trial court's discretion to suspend imposition of sentence does not constitute a reclassification of the underlying felony to a misdemeanor. (Mauch, supra, 163 Cal.App.4th at p. 677.) As a matter of law, the trial court had no discretion to grant Sandoval's motion to reduce his conviction to a misdemeanor.
The order is affirmed.
Reardon, J. We concur: Ruvolo, P.J. Sepulveda, J.