People v. Statum

• Decision Date: 25 July 2002
• Docket Number: No. S097715.,S097715.
• Citation: 50 P.3d 355,122 Cal.Rptr.2d 572,28 Cal.4th 682
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Appellant, v. Russell Hubert STATUM, Defendant and Respondent.

122 Cal.Rptr.2d 572

28 Cal.4th 682

50 P.3d 355

The PEOPLE, Plaintiff and Appellant, v. Russell Hubert STATUM, Defendant and Respondent.

No. S097715.

Supreme Court of California.

July 25, 2002.

Gil Garcetti and Steve Cooley, District Attorneys, George M. Palmer, Brentford J. Ferreira, Patrick D. Moran and Phyllis C. Asayama, Deputy District Attorneys, for Plaintiff and Appellant.

Dennis A. Fischer, Santa Monica, under appointment by the Supreme Court; and R. Charles Johnson, Petaluma, under appointment by the Court of Appeal, for Defendant and Respondent.

BAXTER, J.

Defendant Russell Hubert Statum was convicted of violating Vehicle Code section 2800.2, an alternative felony/misdemeanor offense. An alternative felony/misdemeanor, also known as a "wobbler," is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b). (In re Jorge M. (2000) 23 Cal.4th 866, 880, 98 Cal.Rptr.2d 466, 4 P.3d 297.) The sentencing court here, over the People's objections, reduced the conviction to a misdemeanor and imposed a county jail term. The People appealed, asserting that the superior court had abused its discretion. May the People appeal the superior court's decision to sentence defendant as a misdemeanant? We find that the appeal is authorized by Penal Code section 1238, subdivision (a)(6),¹ and therefore reverse the Court of Appeal, which had dismissed the People's appeal.

I BACKGROUND

The evidence at the preliminary hearing showed the following: Around 7:00 p.m. on September 26, 1999, an unidentified woman flagged down Los Angeles County Deputy Sheriff Joseph Garrida in the area of 103d Street and Western Avenue to report that her purse had been stolen. She pointed the officer to defendant and the beige 1984 Buick Skylark he was driving. The car was only 30 feet away. Garrida yelled at defendant to stop, but defendant instead "blew" through a red light and sped away. Sounding his siren and flashing his lights, Garrida pursued defendant for six or seven miles. Defendant proceeded in a very erratic and unsafe manner. He drove at least 40 miles per hour on residential streets, between 40 and 45 miles per hour in the alleys, and 65 miles per hour on Western Avenue. He nearly collided with a minor who was crossing a residential street and with numerous vehicles, including another patrol unit participating in the pursuit. He ran red lights and stop signs. He bumped into a curb-side and almost went onto the front lawn of a residence. The chase ended when defendant crashed into a vehicle that was parked along a residential street. Defendant exited the car and ran. He was caught while trying to jump over a fence.

The Los Angeles County District Attorney charged defendant with reckless driving while fleeing a police officer "in violation of Vehicle Code section 2800.2(a), a Felony" and alleged six prior strike convictions—first degree burglary, forcible rape, oral copulation with a minor, attempted first degree burglary, and two robberies— and two prior prison term enhancements. On the date set for trial, defendant entered an "open plea" to "a violation of Vehicle Code section 2800.2(a), a felony" based on the superior court's indication of an intent to strike five of the six priors and sentence him to eight years in prison.

The parties convened in chambers prior to the sentencing hearing. Although the sentencing judge had been "expecting to conclude the plea bargain that was originally entertained," he was now "very seriously leaning towards exercising the discretion I have under section 17 and making this a misdemeanor and sentencing appropriately"—even though the defense had not made a motion to reduce the offense to a misdemeanor at the preliminary hearing or at any other time. The apparent basis for the court's change of heart was its assessment of "the actual driving" by defendant, without reference to the officer's "conjectural" and "conclusionary" statements and without consideration of "what the man's record is." (Cf. People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979, 60 Cal.Rptr.2d 93, 928 P.2d 1171 [decision to reduce a wobbler to a misdemeanor "should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant's criminal history"].) In open court, and over the People's objections, the judge announced he was "going to reduce the charge to a misdemeanor." The court sentenced defendant to 365 days in the county jail, awarded credits of 355 days, and imposed a $500 restitution fine.

The People appealed, contending that the sentencing court had abused its discretion in reducing the conviction to a misdemeanor, but the appeal was dismissed. The Court of Appeal rejected the People's reliance on section 1238, subdivision (a)(10), which authorizes the People to appeal from the imposition of "an unlawful sentence," defined as "a sentence not authorized by law" or "a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction." "Here, the People do not and cannot claim that a misdemeanor sentence is never authorized for a violation of Vehicle Code section 2800.2, subdivision (a) or that a trial court's order sentencing a wobbler as a misdemeanor is always unlawful when the defendant has suffered prior serious or violent felony convictions within the meaning of the three strikes law.... [¶] Rather, the People contend that the trial court `refused' to consider all relevant factors, including respondent's extensive criminal history, in determining respondent's sentence. This, however, is simply a claim that the trial court abused its discretion in sentencing respondent's Vehicle Code violation as a misdemeanor under the facts of this case. It does not present a pure question of law." In a petition for rehearing, the People for the first time sought to justify their appeal under section 1238, subdivision (a)(6) (hereafter section 1238(a)(6)). The petition was denied without comment.

We granted review and now reverse.

II

This is not the first time we have considered whether the People may obtain appellate review of a sentencing court's exercise of discretion under section 17, subdivision (b) (hereafter section 17(b)).

In People v. Superior Court (Alvarez), supra, 14 Cal.4th 968, 60 Cal.Rptr.2d 93, 928 P.2d 1171, we addressed the People's petition for writ of mandate, authorized by section 1238, subdivision (d), to review a grant of probation and orders underlying the grant of probation when the court suspended imposition of sentence and granted misdemeanor probation for a wobbler offense. Our discussion included reference to well-established canons governing the exercise of judicial discretion: "`[t]he courts have never ascribed to judicial discretion a potential without restraint.'... `[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (People v. Superior Court (Alvarez), supra,14 Cal.4th at p. 977,60 Cal.Rptr.2d 93,928 P.2d 1171.) We therefore "reject[ed] defendant's argument that a trial court's exercise of discretion under the authority of section 17(b) should be unreviewable" (id. at p. 976, 60 Cal.Rptr.2d 93,928 P.2d 1171) and found "no authority immunizing a trial court's discretionary decisionmaking from some level of review, however deferential" (id. at p. 977, 60 Cal.Rptr.2d 93,928 P.2d 1171). On this point, we cited with approval People v. Dent (1995) 38 Cal. App.4th 1726, 45 Cal.Rptr.2d 746, which sustained the People's appeal of the sentencing court's exercise of section 17(b) discretion when (as in the case here) probation was not granted. (People v. Superior Court (Alvarez), supra,14 Cal.4th at p. 977,60 Cal.Rptr.2d 93,928 P.2d 1171.)

In People v. Douglas (1999) 20 Cal.4th 85, 82 Cal.Rptr.2d 816, 972 P.2d 151 (Douglas), we permitted the People to appeal when the sentencing court reduced a wobbler to a misdemeanor after suspending imposition of judgment and granting probation. We relied on section 1238, subdivision (a)(5), which authorizes an appeal from an "`order made after judgment, affecting the substantial rights of the people.'" (Douglas, supra, at p. 90, 82 Cal.Rptr.2d 816, 972 P.2d 151.) Although not part of our holding, we did observe that the reduction of a wobbler to a misdemeanor even without a grant of probation "has also been held appealable by the People," citing People v. Trausch (1995) 36 Cal.App.4th 1239, 1243, footnote 5, 42 Cal.Rptr.2d 836. (Douglas, supra, 20 Cal.4th at p. 92, fn. 7, 82 Cal.Rptr.2d 816, 972 P.2d 151.)

The absence of a grant of probation distinguishes this case from Douglas and from People v. Superior Court (Alvarez). Thus, as the People concede, neither subdivision (a)(5) nor subdivision (d) of section 1238 would authorize review by appeal or by writ of the superior court's decision here to sentence defendant to 365 days in jail. Although dicta in both cases assumed that appellate review was nonetheless available in this circumstance, we are also mindful that "[t]he People have no right of appeal except as provided by statute." (Douglas, supra, 20 Cal.4th at p. 89, 82 Cal.Rptr.2d 816, 972 P.2d 151.) Having reviewed the statutory scheme, we conclude that the statutory authority for the People's appeal in this case can be found in section 1238(a)(6).

A

Section 1238(a)(6) authorizes the People to take an appeal from "[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense." The People contend, persuasively, that the superior court's reduction of defendant's felony conviction to a misdemeanor was an "order modifying the verdict ... by ... modifying the offense to a lesser offense."

Defendant entered a plea of guilty² to violating ...