People v. Superior Court (Perez)

• Citation: 45 Cal.Rptr.2d 107,38 Cal.App.4th 347
• Decision Date: 15 September 1995
• Docket Number: No. D023005,D023005
• Parties: , 95 Cal. Daily Op. Serv. 7377, 95 Daily Journal D.A.R. 12,551 The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent. Martin PEREZ, Real Party in Interest.
• Court: California Court of Appeals

Page 107

45 Cal.Rptr.2d 107

38 Cal.App.4th 347, 95 Cal. Daily Op. Serv. 7377,

95 Daily Journal D.A.R. 12,551

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent Martin PEREZ, Real Party in Interest.

No. D023005.

Court of Appeal, Fourth District, Division 1, California.

Sept. 15, 1995.

As Modified Oct. 5, 1995.

Review Denied Dec. 21, 1995.

[38 Cal.App.4th 350] Paul J. Pfingst, District Attorney, Thomas F. McArdle and Paul M. Morley, Deputy District Attorneys, for petitioner.

No appearance for respondent.

[38 Cal.App.4th 351] Loren I. Mandel and Steven J. Carroll, Alternate Public Defenders, and Jacqueline C. Crowle, Deputy Alternate Public Defender, for real party in interest.

California District Attorneys Association and L. Douglas Pipes as amicus curiae on behalf of petitioner.

California Public Defender's Association and Ron Boyer as amicus curiae on behalf of real party in interest.

HUFFMAN, Associate Justice.

The narrow issue presented in this mandamus proceeding is whether a trial court's long-established statutory authority to declare an alternative felony, or "wobbler", a misdemeanor under PENAL CODE SECTION 17¹, subdivision (b) was abrogated by the recently enacted "three strikes" law. ² We conclude it was not and accordingly deny the People's writ petition. ³

FACTUAL AND PROCEDURAL BACKGROUND

On July 20, 1994, at about 9 a.m., San Diego police officers on routine patrol noticed a group of men congregated in front of Perez's residence, which is located in an area "known for narcotics activity." When questioned, Perez denied selling or being involved with drugs, but consented to a search of his residence. Although no drugs were found in his house, the officers found a stolen truck and car parts in his backyard, and doors from another stolen truck in his living room. Perez claimed he did not know any vehicle or parts were stolen, explaining he rented his backyard for storage to a man who ran an automotive garage. Perez said his wife had allowed the man to put the doors in their living room because he expressed concern they would get stolen or scratched in the crowded backyard.

Perez was charged by information with receiving stolen property (§ 496, subd. (a)). An amended information was later filed adding a "strike" allegation (§ 667, subds. (b)-(i)), that Perez had a prior serious felony conviction for shooting at an occupied structure (§ 246). While the testimony in the trial took less than two and one-half hours, the jury deliberated for almost two full days and requested two readbacks of witness testimony before returning a guilty verdict. Perez waived a jury trial as to the prior allegation and filed a motion which, inter alia, requested the court to reduce the felony charge to a misdemeanor under section 17, subdivision (b).

At the date set for sentencing, the court found true the prior felony conviction allegation "What troubles me about this is I'm really surprised that his counsel pled him to count two rather than negligent discharge of a firearm, quite frankly, based on what I've heard about that case and the reports I've read about that case. This is a part of this case that troubles me.

specifically finding Perez had personally fired the gun during that earlier crime, and expressed concern about that case:

"I understand that he pled pursuant to People v. West [ (1970) 3 Cal.3d 595, 611, 91 Cal.Rptr. 385, 477 P.2d 409], but when you take into consideration all the facts of [that] offense, apparently the man was intoxicated, had been drinking, and fired 32 rounds into the air, and out of those 32 one of them apparently hit a door to a residence, and that's the basis for this serious felony conviction, and that's what troubles me about this case because it elevates it to a strike for which, if I leave this crime here as a felony, he's going to serve twice the base term and 80 percent of it in state prison." ⁴

The court then asked counsel to comment on the situation. After hearing arguments on the ultimate issue of whether or not to leave the current offense a felony or to reduce it, the court stated:

"[M]y problem is that I'm between a rock and a hard place in that I cannot strike, nor will I strike, a serious felony prior. The alternative, there are two of them: I can Est[e]ybar [Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140] ... this crime, making it a misdemeanor. I'm reluctant to do that because I think he needs another felony. The alternative is for the district attorney to agree to the striking of it, in which case I will leave it a felony and sentence him accordingly.

"...

"... I'm not going to play games with it and try to strike the prior, I can't strike the prior. I agree with that law, and I have imposed that law.

"But my problem is I don't think this was an open and shut case. The jury took a considerable amount of time deliberating in this case, they asked for testimony to be read back.... So it wasn't a clear cut slam dunk receiving stolen property case. I think it was a very close case and therein lies my problem.

"...

"I do know that based on everything I've heard that he was a hard worker, he was always fully employed, provided for his family.... [F]or the serious felony of [section] 246 to get 15 days credit for time served, that has to tell you something about that crime.

"... I should tell you that I'm certainly leaning towards declaring this crime to be a misdemeanor."

The court then asked the prosecutor to consider requesting the prior be struck in the interest of justice, indicating it would likely declare the offense to be a misdemeanor if the district attorney chose not to do so. The court granted the deputy district attorney's request for a short continuance of the motion to reduce the alternative felony to a misdemeanor so he could consult with his superiors. The prosecutor then filed opposition to the motion, which reflected the position of the district attorney's office on the interpretation of section 667, subdivisions (b) through (i), arguing the court had no power to reduce the offense to a misdemeanor. ⁵

At the continued hearing the court heard further argument and commented:

"I've already stated on the record ... what my attitude about this case is. And I don't think the cases deal with [section 17, subdivision (b)(3) ], and I think that's the section that I am applying. I think the "And therefore, under [section 17, subdivision (b)(3) ], I do declare it at this time to be a misdemeanor.

cases cited by the district attorney do not stand for ... the proposition that I cannot at this time declare this crime to be a misdemeanor.

"And I'm going to sentence [Perez] as follows: I'm going to commit [him] to the ... sheriff's department for three hundred sixty-five days with ... total credits [for] two hundred and sixty-six days.

"I'm going to also place [Perez] on probation for a period of three years on the following terms and conditions: that [he] pay a fine in the amount of two hundred fifty dollars, including penalty assessments, and restitution ... [and a restitution fine.]" ⁶

DISCUSSION

The People's sole contention is the three strikes law supersedes any discretion or authority a trial court has under section 17, subdivision (b) ⁷ to reduce a current alternative felony, or wobbler, once a defendant is "convicted", or found guilty, of that crime (albeit by jury verdict, court decision or plea) and has been found to have previously suffered a conviction for a serious or violent felony conviction within the meaning of sections 667.5, subdivision (c) or 1192.7, subdivision (c). ⁸ Thus, given the uncontested facts Perez was found guilty by jury of a wobbler ⁹ and the court found he had previously suffered a felony conviction within the meaning of section 1192.7, subdivision (c)(23), which designates any felony in which the defendant personally used a "dangerous or deadly weapon" as a serious felony, the People assert the three strikes law was automatically triggered mandating the court to sentence Perez to state prison for the term prescribed by that law, i.e., under section 667, subdivision (e)(1). ¹⁰ We disagree.

Preliminarily, we note two other California Courts of Appeal have recently determined the trial court's authority under section 17 has not been superseded by the three strikes law. (See People v. Trausch (1995) 36 Cal.App.4th 1239, 42 Cal.Rptr.2d 836; People v. Vessell (1995) 36 Cal.App.4th 285, 42 Cal.Rptr.2d

                241.) 11  Although we reach the same conclusion, we do so via a slightly different route.
                

A. BASIC STATUTORY CLASSIFICATIONS OF CRIMES AND PUNISHMENTS:

We start our analysis with the basic premise it is the Legislature's function to define offenses and to prescribe punishments. (People v. Navarro (1972) 7 Cal.3d 248, 258, 102 Cal.Rptr. 137, 497 P.2d 481.) Section 16 classifies "crimes and public offenses" as felonies, misdemeanors and infractions. A felony is a crime punishable with death or by imprisonment in the state prison. (§ 17, subd. (a).) Every other crime or public offense not an infraction is a misdemeanor. (Ibid.) If a given statute, however, does not define the nature of the crime as either a felony or a misdemeanor, but merely specifies a punishment, the test of the nature or status of the offense, which only applies to this special class of felony-misdemeanor offenses or so-called wobblers, becomes the actual punishment imposed. (§ 17, subd. (a); People v. Boren (1903) 139 Cal. 210, 213, 72 P. 899; see People v. Walters (1961) 190 Cal.App.2d 98, 101-102, 11 Cal.Rptr. 597.)

For over a century, California trial courts have had discretion under section 17, subdivision (b) to determine at the time of sentencing whether such wobbler offense will be treated, i.e., punished, as a misdemeanor. (Cal.Code Amdts. 1873-74, ch. 196, § 1, p. 455.) More than 30 years ago, in response to certain problems created by the lack of authority in a wobbler case to...