20 Cal.4th 784A, People v. Douglas

Decision Date08 March 1999
Docket NumberNo. S068395,S068395
Citation82 Cal.Rptr.2d 816,20 Cal.4th 85
CourtCalifornia Supreme Court
PartiesA, 20 Cal.4th 85, 972 P.2d 151, 99 Cal. Daily Op. Serv. 1724, 1999 Daily Journal D.A.R. 2207 The PEOPLE, Plaintiff and Appellant, v. William R. DOUGLAS, Defendant and Respondent

Glen Mowrer, Public Defender, and Michael C. McMahon, Assistant Public Defender, for Defendant and Respondent.

WERDEGAR, J.

This case calls on us to interpret Penal Code section 1238, 1 which governs appeals by the People in criminal cases. Specifically, we must determine whether, under that statute, the People were authorized to appeal a superior court's order, made immediately after imposition of sentence was suspended and probation granted, declaring an alternative felony-misdemeanor offense (i.e., a "wobbler" to be a misdemeanor under section 17, subdivision (b)(3).) We conclude that, under the circumstances of this case, the appeal was authorized as from "[a]n order made after judgment, affecting the substantial rights of the people." (§ 1238, subd. (a)(5).) We further conclude that where, as here, the People do not challenge the validity of the court's grant of probation or seek its reversal, their appeal is not barred by the statutory prohibition on a People's appeal "from an order granting probation." (Id., subd. (d).) We will therefore reverse the judgment of the Court of Appeal, which dismissed the People's appeal, and remand to that court for consideration of the merits of the appeal.

PROCEDURAL BACKGROUND

Defendant was charged with one count each of obtaining by a false declaration more than $400 in health care benefits for which he was ineligible (count 1; Welf. & Inst.Code, § 14014 and grand theft from the State of California (count 2; § 487, subd. (a)), both charged as felonies. 2 He pled no contest to both counts. According to the change of plea form and colloquy, defendant's plea was based on representations from the trial court that it would treat both offenses as misdemeanors pursuant to section 17 and would place him on three years' probation with no additional jail time.

The prosecutor, contending that a violation of Welfare and Institutions Code section 14014 involving more than $400 in payments is a straight felony rather than a wobbler, objected to the court's intended treatment of the offense as a misdemeanor under section 17. That objection was noted on the change of plea form, which the prosecutor, presumably because of his objection, did not sign; the objection was also made, and overruled, in open court. The prosecutor did not object to the proposed grant of probation itself.

After taking defendant's pleas, the court proceeded without interruption to pronounce judgment. First, the court suspended imposition of judgment and ordered defendant placed on probation for three years, with stated conditions. The trial judge signed the probation order and gave it to the bailiff for defendant to sign. The court then explained its disagreement with the prosecutor's argument against declaring the Welfare and Institutions Code offense a misdemeanor and formally did so declare: "By sentencing Mr. Douglas, I've left it a felony simply by suspending it. [p] I now declare under section 17(b) that it is a misdemeanor...." The court then retrieved the probation order from the bailiff and noted thereon its misdemeanor declaration as to both counts. Finally, defendant signed the probation order.

The People 3 filed a timely notice of appeal "from the judgment in Count 1 (14014 W & I) on the grounds that the Court acted without authority by reducing the charge to a Misdemeanor pursuant to Penal Code Section 17(b)." In their opening brief below, the People characterized the appeal as seeking review of "the trial court's order purporting to make a misdemeanor of the [Welfare and Institutions Code] offense...." They contended the order was appealable under either subdivision (a)(1) (order setting aside the information) or subdivision (a)(5) (order after judgment) of section 1238, and that it was not made nonappealable by subdivision (d) of that statute. They did not attack the validity of the probation order itself or urge its reversal.

The Court of Appeal agreed the order was of a type generally appealable under subdivision (a)(1) of section 1238, but held the appeal was nonetheless barred under subdivision (d) of the statute, which, in the lower court's view, requires all orders "underlying" a grant of probation to be reviewed by petition for writ of mandate rather than by appeal. The Court of Appeal therefore dismissed the appeal without reaching the question of whether count 1 of the information charged a straight felony or a wobbler.

We granted the People's petition for review, limited to the question of appealability.

DISCUSSION

The People have no right of appeal except as provided by statute. (People v. Smith (1983) 33 Cal.3d 596, 600, 189 Cal.Rptr. 862, 659 P.2d 1152.) Section 1238, the text of which is set out in full in the margin, governs the People's appeals from orders or judgments of the superior courts. 4 As can To repeat, the People sought to appeal from the order, made pursuant to section 17, subdivision (b)(3) (hereafter section 17(b)(3)), declaring count 1 to be a misdemeanor, not from the grant of probation. We agree with the People that their appeal, under the circumstances of this case, was authorized by subdivision (a)(5) of section 1238, which permits appeal from "[a]n order made after judgment, affecting the substantial rights of the people."

[972 P.2d 154] be seen, subdivision (a) of section 1238 authorizes appeals in a number of specified circumstances, while subdivision (d) limits that authorization by prohibiting the People's appeals from orders granting probation. Whether the appeal lies in the current case, therefore, depends on whether it is authorized by subdivision (a) and, if so, whether it is nevertheless barred by subdivision (d).

In the closely related context of defendants' appeals, an order suspending imposition of sentence and granting probation is considered a final judgment (§ 1237, subd. (a)), with the consequence that orders made after the grant of probation are generally appealable by the defendant as "[f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b); see In re Bine (1957) 47 Cal.2d 814, 817, 306 P.2d 445 [order modifying probation appealable]; People v. Romero (1991) 235 Cal.App.3d 1423, 1425-1426, 1 Cal.Rptr.2d 468 [order denying motion for early termination of probation and relief under 1203.4 appealable]; People v. Chandler (1988) 203 Cal.App.3d 782, 787, 250 Cal.Rptr. 730 [order denying relief under section 1203.4 appealable].) No reason appears why a different construction should be given the substantially identical language of section 1238, subdivision (a)(5).

Here, as explained, the court first suspended imposition of judgment and granted probation. Only after the court had orally pronounced the judgment granting probation and signed the probation order did it formally proceed to the section 17(b)(3) declaration. At that time, the court, referring to the Welfare and Institutions Code offense, stated: "By sentencing Mr. Douglas, I've left it a felony simply by suspending it. [p] I now declare under section 17(b) that it is a misdemeanor...." At defense prompting, the court then clarified it was declaring both offenses to be misdemeanors, and so noted on the probation order. The section 17(b)(3) order was thus made "after" the judgment granting probation; it was, therefore, appealable under section 1238, subdivision (a)(5).

To be sure, at the time probation was granted all parties anticipated the court would reduce the charged felonies to misdemeanors: the order granting probation and the section 17(b)(3) declaration were both conditions of defendant's prearranged plea. Nevertheless, the court's decision to defer formal action on the section 17 matter until after it granted probation was not necessarily an arbitrary choice. By keeping the two decisions formally separate, the court made a clear record of the limited prosecutorial objection, which went only to the felony-to-misdemeanor reduction and not to the grant of probation.

That the section 17(b)(3) declaration was made in the same hearing as, and immediately after, the grant of probation does not make it any less an order "after judgment." 5

                [972 P.2d 155] This court and the Courts of Appeal have considered orders to be appealable by the People under section 1238, subdivision [20 Cal.4th 92] (a)(5) even when made immediately after the rendition of judgment.  (See People v. Warner (1978) 20 Cal.3d 678, 682 & fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237 [following imposition of sentence, execution was suspended and probation granted;  no suggestion of separate hearing or significant passage of time]; 6  People v. Minjarez (1980) 102 Cal.App.3d 309, 312, 162 Cal.Rptr. 292 [sentence imposed, then custody credits ordered];  People v. Holly (1976) 62 Cal.App.3d 797, 800-801, 133 Cal.Rptr. 331 [sentence imposed, then stayed pursuant to section 654].) 7
                

Having determined the People's appeal of the superior court's section 17(b)(3) declaration was authorized under subdivision (a) of section 1238, we must go on to decide whether it was nonetheless barred by subdivision (d) of the same statute.

Subdivision (d) of section 1238 provides, in full: "Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60...

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