Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PA015177 Cynthia L. Ulfig, Judge. .
Law Offices of Anthony D. Zinnanti and Anthony D. Zinnanti for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Matthew Todd Shields appeals from an order denying his motion to reduce his felony conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b). We affirm.
Penal Code section 17, subdivision (b), states in relevant part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison. [¶]... [¶] (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.”
The facts of the underlying offense are not in dispute and not the basis for the appeal.
On February 24, 1994, defendant pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a)). On April 7, 1994, he was granted probation for a period of three years with the conditions he (1) serve 180 days in county jail, and (2) participate in a drug and alcohol rehabilitation program. The minute order noted that upon successful completion of probation, the court would consider reducing the charge to a misdemeanor.
All further statutory references are to the Penal Code.
On July 14, 1994, defendant was found to be in violation of probation and on August 11, 1994, he was ordered to serve 90 days in jail. On February 2, 1995, defendant was again found in violation of probation and probation was revoked. He was sentenced to two years in state prison.
On July 3, 2010, defendant filed a motion to reduce his felony conviction to a misdemeanor. He contended that he had undertaken considerable life changes and that his status as a felon adversely affected his successful bee business regarding licensing, bonding and contracting.
The People opposed the motion indicating that once a state prison sentence was imposed, the charge became a felony and the trial court did not have jurisdiction to grant relief. The People pointed out that defendant had not performed well on probation, which he violated twice, resulting in his state prison sentence.
The trial court denied the motion to reduce the charge from a felony to a misdemeanor. The court noted that at the initial grant of probation, it was stated that it would consider reducing the charge to a misdemeanor upon successful completion of probation. The court determined that defendant did not complete his probationary term and denied the motion.
DISCUSSION
Initially, the People contend that the trial court lacked jurisdiction to reduce defendant’s felony conviction to a misdemeanor. In support of their contention, the People rely on People v. Wood (1998) 62 Cal.App.4th 1262. In Wood, the defendant pled guilty to wobblers and was sentenced to state prison, with execution suspended. The defendant performed well on probation and requested early termination of her probation and reduction of her offenses to misdemeanors. While the trial court granted early termination, it ruled that the imposition of prison terms precluded the reduction of the offenses to misdemeanors. (Id. at pp. 1264-1268.) The appellate court, in affirming the trial court’s ruling, stated: “We hold that the trial court properly determined that section 17, subdivision (b)(3), precludes the court from reducing felonies to misdemeanors where a prison sentence has been imposed before probation was granted.” (Wood, supra, at p. 1264.)
In the instant case, defendant was initially placed on probation before he was given a state prison sentence after failing on his grant of probation. While the facts in the instant case are distinguishable from Wood, it would appear that if a reduction to a misdemeanor is precluded where the sentence has been imposed but execution suspended, it would also preclude a reduction where the defendant was initially placed on probation, but failed on probation and a state prison sentence was imposed. Even if we assume that the trial court had the discretion to consider defendant’s request, however, the trial court did not abuse its discretion in denying defendant’s motion for a reduction.
Defendant contends that the trial court abused its discretion when it failed to take into consideration his post-parole success, applicable rules of court and case law. Defendant concedes that the abuse of discretion standard is high.
In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, the Supreme Court explained: “[S]ection 17[, subdivision ](b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’ By its terms, the statute sets a broad generic standard. [Citation.] The governing canons are well established: ‘This discretion... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ [Citation.] ‘Obviously the term 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.” [Citation.]’ [Citation.]” (Alvarez, supra, at p. 977.) Thus, “‘a decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Id. at p. 978.)
Defendant also submits that his character and progress since completing parole are relevant to the exercise of discretion. As Alvarez sets forth, “since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘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.]’” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) The California Rules of Court pertaining to sentencing are equally invoked, to wit, California Rules of Court, rule 4.410(a)(3), which sets a goal of “[e]ncouraging the defendant to lead a law-abiding life in the future and deterring him... from future offenses.”
Nonetheless, the trial court was well within its discretion when it denied defendant’s motion to reduce his offense to a misdemeanor. The trial court reviewed defendant’s motion, the prosecutor’s opposition, reviewed the court file, and heard arguments by the parties. The trial court noted that defendant had violated probation twice and been sentenced to state prison. The trial court’s comments indicate that it considered the matter fully when it denied the motion, and the denial was not arbitrary or irrational. Simply put, defendant did not keep up his part of the bargain to warrant a reduction in the offense because he did not successfully complete probation.
The rationale of a decision under section 1203.4 is instructive. Section 1203.4 applies where defendant was placed on probation and “fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation....” In People v. Bradus (2007) 149 Cal.App.4th 636, the court stated: “‘[A] defendant moving under... section 1203.4 is entitled as a matter of right to its benefits upon a showing that [she] “has fulfilled the conditions of probation for the entire period of probation.” It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant.’ [Citations.] ‘“The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation.” [Citation.]’ [Citation.]” (Bradus, supra, at p. 641.)
Had defendant completed his probation and demonstrated good character and progress thereafter, reducing his felony conviction to a misdemeanor would have been warranted. (Cf. People v. Bradus, supra, 149 Cal.App.4th at p. 641.) Clearly defendant did not fulfill the conditions of his probation, by being violated twice, and ultimately being sentenced to state prison when probation was not successful. While we understand defendant’s position that the existing felony conviction may be an impediment to his business, and appreciate the fact that he has done well since being released from prison and completing parole, there clearly was no abuse of discretion in the trial court’s decision not to reduce defendant’s offense to a misdemeanor. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.)
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J.WOODS, J.