Opinion
A147874
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SPENCER SMITH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. H55167)
After defendant pled no contest to charges of felony fleeing the scene of an accident and misdemeanor vehicular manslaughter, the trial court placed him on five years' felony probation with one year in county jail. When he brought a motion to reduce his felony conviction to a misdemeanor under Penal Code section 17, subdivision (b) (hereafter section 17(b)), the court granted the motion based on defendant's agreement to a condition providing that if defendant violated his probation, the court would reinstate the felony conviction. After defendant later admitted to a probation violation, the trial court reinstated the felony conviction. Defendant appeals, contending the trial court lacked jurisdiction to reimpose the felony sentence and the trial court's sentence was the result of an unenforceable judicial plea bargain. We conclude the trial court's action was unauthorized by law and remand for reconsideration of defendant's motion to reduce his offense to a misdemeanor.
I. BACKGROUND
We set forth only the facts relevant to resolution of this appeal. When driving late at night, defendant struck a man walking with his bicycle on the side of a four-lane road. Defendant did not stop to render aid or call for help, and the man died. On June 26, 2012, defendant was charged with felony fleeing the scene of an accident which resulted in death (Veh. Code, § 20001, subd. (a)) and misdemeanor vehicular manslaughter (Pen. Code, § 192, subd. (c)(2)). In September 2015, he pled no contest to both charges in an "open plea" to the court. Two weeks later, the trial court placed defendant on five years' felony probation, including one year in county jail, with the first 30 days to be served in physical custody. Defendant was allowed to apply to the court to have the balance of his one-year jail term served by electronic monitoring. The trial court denied defendant's section 17(b) motion to have his felony reduced to a misdemeanor, but suggested he might renew the motion in two weeks.
An open plea is one in which there is no plea agreement with the prosecution and the defendant " 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.' " (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)
On October 9, 2015, the trial court modified the terms of defendant's probation to impose the electronic monitoring first and allow defendant to serve the 30 days in custody at the end of his one-year jail term. The court also "conditionally" granted defendant's section 17(b) motion, reducing his felony conviction to a misdemeanor on the condition that if defendant violated the terms of his probation, the trial court would reinstate the conviction as a felony. In explaining its order, the court said: "I am proposing that I will grant your motion in a fashion that I believe will satisfy the court [regarding] the concerns that the court has." The court continued: "You're a person who's capable of, in the court's eyes, rehabilitating and being successful on probation. I think you're the kind of case where the court should consider giving you a chance to demonstrate your ability to perform and succeed. If I—if you don't want to go to do the jail sentence now, I am going to say I will reduce it to a misdemeanor now so you could work, but the hook is going to be if during the year you violate probation, you don't succeed, you don't do whatever it is you've got to do in terms of the terms and conditions of probation, the court—you're going to have to agree and give up your rights—you have certain rights not to have this happen. I will grant the 17(b) today, but if you don't stay out of trouble for the year then the hook is going to come, and if the D.A. files a petition to revoke probation the court will have the flexibility under this agreement I am making with you today, that I've never made before and I don't know if I ever will make it again, but that you would agree you'd be back on felony probation and would be exposed to, I think it's what, two years, three years, or four years in prison?" Defendant agreed to the court's proposal.
In December 2015, the district attorney filed a petition to revoke defendant's probation based on a positive drug test. Defendant admitted the probation violation. On February 11, 2016, the trial court reinstated defendant's Vehicle Code section 20001, subdivision (a) conviction as a felony, and ordered him to serve one year in county jail and five years' felony probation. Defendant timely appealed that order.
II. DISCUSSION
Defendant contends the trial court acted "in excess of jurisdiction" when it increased his sentence to a felony after he violated probation. He also contends the trial court engaged in impermissible judicial plea bargaining when it essentially negotiated with defendant over his sentence. The Attorney General agrees the trial court erred by reducing defendant's conviction to a misdemeanor on the condition it could be reinstated as a felony if defendant failed to comply with probation, and contends the order resulted in an unauthorized sentence that may be corrected at any time.
We note defendant's briefs on appeal are not a model of clarity and fail to comply with basic standards for appellate review. In support of his argument the trial court "lacked jurisdiction" to increase his felony sentence, for example, defendant sets forth multiple pages of authorities reciting general propositions of case law but fails to discuss how any of the cases or legal principles apply to the facts of this case. The only indication of the gist of his argument is contained in the heading "Assuming Arguendo That Defendant's Incarceration Was A Condition Of Probation the Court Acted In Excess of Its Jurisdiction When It Increased Defendant's Sentence From A Misdemeanor To A Felony." These deficiencies are sufficient reason to reject defendant's argument. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must "support each point by argument"]; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179-180.) In light of the purely legal nature of the issue and the Attorney General's concession the trial court's order was unauthorized by law, however, we consider defendant's claim on its merits.
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) "In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal.4th 849, 852.)
Here, defendant filed a motion seeking reduction of his felony conviction to a misdemeanor under section 17(b). Section 17(b) gives a trial court discretion to reduce an offense charged as a felony to a misdemeanor if the offense is a "wobbler," i.e. chargeable either as a felony or as a misdemeanor, upon imposition of a punishment other than state prison (§ 17, subd. (b)(1)) or by declaration as a misdemeanor after a grant of probation (id., subd. (b)(3)). (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Once a court declares a wobbler a misdemeanor or imposes a misdemeanor sentence, the offense becomes a misdemeanor for all purposes (unless the Legislature has specifically directed otherwise). (§ 17, subd. (b); People v. Park (2013) 56 Cal.4th 782, 793 [discussing § 17, subd. (b)(3)]; People v. Trausch (1995) 36 Cal.App.4th 1239, 1244, 1246 [discussing § 17, subd. (b)(1)].) Under these provisions, the trial court could either grant the motion and reduce the conviction to a misdemeanor, in which case it would remain a misdemeanor "for all purposes" thereafter (§ 17, subd. (b)), or it could deny the section 17(b) motion and maintain the conviction as a felony. Nothing in the statutory language, however, permits the trial court to reduce the conviction to a misdemeanor while retaining the discretion to later redesignate it as a felony. (See, e.g., People v. Park, at p. 801 ["When the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment, and its consequences, are not appropriate for that particular defendant."].) Accordingly, we conclude the trial court exceeded its jurisdiction and imposed an unauthorized sentence by conditionally granting defendant's section 17(b) motion subject to reimposition of the felony sentence. (See., e.g., People v. Neal (1993) 19 Cal.App.4th 1114, 1120 [sentence which is not authorized exceeds jurisdiction of court].)
It is unclear from the record whether the trial court granted defendant's section 17(b) motion under subdivision (b)(1) or (b)(3). The Attorney General suggests the trial court declared the offense a misdemeanor under subdivision (b)(3), while on reply, defendant contends the court imposed a misdemeanor sentence of one year in custody at the October 9, 2015 hearing. Neither party supports their argument on this point with citations to relevant portions of the record, and the trial court's comments from the October 9, 2015 hearing and the trial court's minute order are ambiguous on this point. Because we conclude the trial court's order conditionally reducing defendant's offense to a misdemeanor was unauthorized under either subdivision of section 17, however, we find it unnecessary to resolve the factual issue.
Indeed, the trial court apparently acknowledged the lack of authority for its order on the record. At the October 9 hearing, the court observed its proposal was not requested in defendant's motion and it was "something made up to see if we can put you in a position where you can succeed . . . ." Further, the court said, "[Y]ou're agreeing that if I reduce it today I can turn it back into a felony, which generally is not done by law."
On reply, defendant contends the Attorney General cannot challenge the trial court's October 9, 2015 order conditionally reducing the felony to a misdemeanor because it failed to timely appeal the order. It is well established, however, that an unauthorized sentence may be corrected at any time, and the Attorney General may raise the issue of an unauthorized sentence on defendant's appeal. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Vizcarra (2015) 236 Cal.App.4th 422, 431.) Defendant further asserts the trial court may not reconsider the section 17(b) motion because it would subject defendant to double jeopardy. We likewise find this argument unpersuasive, as an unauthorized sentence is an exception to the rule precluding imposition of a more severe sentence following a defendant's successful appeal of a criminal conviction. (See People v. Vizcarra, at pp. 431-432; In re Ricky H. (1981) 30 Cal.3d 176, 191 [unauthorized sentence may be corrected whenever error comes to attention of court, even if it creates possibility of more severe punishment]; see also People v. Statum (2002) 28 Cal.4th 682, 692-694 [Attorney General's appeal of trial court's reduction of wobbler to misdemeanor does not implicate double jeopardy concerns].)
Because we conclude the trial court's October 9, 2015 order conditionally reducing the felony to a misdemeanor was an act in excess of jurisdiction and unauthorized by law, we find it unnecessary to address defendant's argument the trial court engaged in impermissible judicial plea bargaining.
We reverse and remand for the trial court to reconsider defendant's motion to reduce the felony to a misdemeanor, and to either grant or deny the motion in the sound exercise of its discretion. (See 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Judgment, § 162, p. 204 [if judgment of conviction is proper but sentence is unauthorized, conviction should be affirmed but the case remanded for proper sentencing]; Alvarez, supra, 14 Cal.4th at pp. 976-977, 981 [trial court's decision whether to reduce felony to misdemeanor under § 17(b) is reviewed for abuse of discretion].)
Defendant also requests that we assign the case to another judge on remand. We see nothing in this record that would support such an order. (Code Civ. Proc., § 170.1, subd. (c); People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1230-1231 [mere judicial error does not establish bias and normally is not a proper ground for disqualification, particularly in cases of sentencing error]; Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256 [with respect to sentencing error appellate court must exercise its power to disqualify a judge sparingly and only when the interests of justice require it].)
Defendant argues the trial court precluded him from investigating the reliability of the drug test that formed the basis of his probation violation, and "[w]ithout the ability to retest the drug results, [defendant] admitted to the probation violation allegation." As the colloquy between the court and defense counsel on this subject reflects, however, the drug test results had already been retested and defense counsel conceded she would not have requested retesting had she known that. Further, defendant admitted the violation and accepted responsibility without objecting to the test results. In any event, neither the fact that the trial court refused retesting, nor the trial court's error in proposing to conditionally reduce the felony to a misdemeanor, supports disqualification of the judge. --------
III. DISPOSITION
We vacate the trial court's October 9, 2015 order conditionally reducing defendant's conviction to a misdemeanor, and remand for reconsideration of defendant's section 17(b) motion.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.