People v. Superior Court (Perez)
Decision Date | 15 September 1995 |
Docket Number | No. D023005,D023005 |
Citation | 45 Cal.Rptr.2d 107,38 Cal.App.4th 347 |
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 Court of Appeals |
California Public Defender's Association and Ron Boyer as amicus curiae on behalf of real party in interest.
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
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:
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.
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.
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...
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