Ct. App. 2/6 B192752 Los Angeles County Super. Ct. No. KA056346. Court: Superior County: Los Angeles Judge: Wade Olson, Temporary Judge*fn1
The opinion of the court was delivered by: George, C. J.
Defendant Jesse Feyrer was charged with assault by means of force likely to produce great bodily injury, an offense punishable either as a felony or a misdemeanor - commonly known as a "wobbler." It also was alleged defendant personally inflicted great bodily injury upon the victim of the assault, his father. The parties negotiated a plea agreement pursuant to which defendant would plead no contest to felony assault by means of force likely to produce great bodily injury and admit the enhancement allegation of personal infliction of great bodily injury in the commission of a felony. In return, defendant would serve six months in county jail as a condition of five years' formal probation. The plea agreement did not specify whether probation would be granted by suspending imposition of defendant's sentence, or instead by suspending the execution of that sentence. The trial court approved the plea agreement, accepted defendant's plea of no contest to the charged felony and his admission of the enhancement allegation, and granted probation - by suspending the imposition of any sentence.
Three years after defendant was placed on probation, the trial court, at the request of the probation department, ordered early termination of probation and subsequently granted defendant's application to set aside his plea and dismiss the charges. The trial court declined, however, to grant defendant's request to declare his offense to be a misdemeanor, because under the express terms of the plea agreement, defendant had pleaded no contest to, and admitted an enhancement for, a felony. The Court of Appeal reversed the latter ruling. Without considering the effect of the original plea agreement, the appellate court construed the statute that governs the treatment of a wobbler offense as permitting the trial court upon termination of probation to declare the offense to be a misdemeanor (and in effect, to annul the felony enhancement), because probation had been granted by suspending imposition of any sentence.
The plea agreement specified that defendant would not contest his commission of the charged felony and of conduct constituting an enhancement to that felony, and that the prosecutor would consent to defendant's being placed on probation. We granted review to consider the effect, if any, of the plea agreement upon the applicability in this case of the statutory provision authorizing a trial court, when probation originally was granted by suspending imposition of sentence, to subsequently declare a wobbler offense to be a misdemeanor.
As we shall explain, the plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler offense to be a misdemeanor, where the court initially granted probation by suspending the imposition of a sentence. Accordingly, we affirm the judgment rendered by the Court of Appeal.
In order to ascertain the terms of the plea agreement and the underlying intent of the parties, we relate in some detail the circumstances under which defendant entered his plea. On March 15, 2002, a complaint was filed alleging that on March 13, 2002, defendant committed felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and that in committing this felony, he personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)). The latter allegation qualified the offense as a violent and serious felony under the Three Strikes law. (Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).)*fn2
On the day the complaint was filed, the parties negotiated a plea agreement pursuant to which defendant would plead no contest to felony assault by means of force likely to produce great bodily injury and admit the allegation that he personally inflicted great bodily injury in the commission of a felony, thereby rendering him subject to a potential maximum sentence of seven years in state prison. In return, defendant would serve six months in county jail as a condition of five years' formal probation. The plea agreement did not specify the manner in which probation would be granted: by suspending imposition of a sentence or by imposing sentence and suspending its execution.
On that same date, at the arraignment hearing, defendant waived formal reading of the complaint and recital of his constitutional rights, and stipulated the complaint would be deemed an information. Noting the abbreviated nature of the proceedings, the trial court stated: "All right. I'm willing to go along with the disposition at this time. It's an early stage in the proceedings. That's why you're probably getting the break that you're getting on this, Mr. Feyrer. [¶] So I want you to listen to the District Attorney. He's going to go through your rights with you one more time and make sure you understand the deal in your case."
The prosecutor proceeded to explain that defendant was charged with a violation of section 245, subdivision (a)(1), "a felony," with an enhancement allegation under section 12022.7, subdivision (a), for "great bodily injury," and could be sentenced to a maximum term of seven years in state prison if he "went to trial and lost." Under the plea agreement, however, defendant would be granted five years' formal probation, a condition of which was that he serve 180 days in county jail. The prosecutor advised defendant of the possible consequences of pleading guilty, obtained a waiver of defendant's constitutional rights, and received his acknowledgement that any violation of probation might result in a state prison term. The prosecutor also advised defendant, and received his acknowledgement that "this - plea in this count as well as an admission to the special allegation[,] should you be convicted of a felony in the future[,] will be used to enhance any sentence that you receive in the future," that it "will be a strike under California law," and that "you will have this one strike for any future sentencing purposes." Defendant acknowledged his signature and initials on a form that recorded his no contest plea to felony assault and his admission of the enhancement, and that specified a maximum prison sentence of four years for the aggravated assault and three years for the enhancement. The trial court suspended imposition of sentence, and placed defendant on five years' probation on conditions that included his serving 180 days in county jail.
Defendant performed well during the term of his probation. On July 21, 2005, at the request of the probation department, the trial court ordered early termination of defendant's period of probation. (§ 1203.3, subd. (a).)*fn3 The trial court denied without prejudice defendant's contemporaneous requests to set aside his no contest plea and dismiss the charges, and to declare the charged offense to be a misdemeanor.
The following year, defendant renewed his application for an order setting aside his plea of no contest and dismissing the charges (§ 1203.4, subd. (a)),*fn4 and declaring the offense to be a misdemeanor (§ 17, subd. (b)(3)).*fn5 On May 17, 2006, the trial court ordered the no contest plea set aside and vacated, a plea of not guilty entered, and the complaint dismissed. The court denied, as in excess of its authority, the request to declare the offense a misdemeanor, because defendant had inflicted great bodily injury upon the victim.
Defendant appealed from the order to the extent it denied his request to declare the offense to be a misdemeanor.*fn6 The Court of Appeal reversed the order and remanded the case, concluding that the trial court was authorized not only to terminate probation, vacate the no contest plea, and dismiss the charges, but also in its discretion to declare the offense to be a misdemeanor. The Court of Appeal reasoned that because the trial court originally granted probation by suspending the imposition of sentence rather than imposing and suspending the execution of a sentence, "no judgment [was] then pending against the probationer, who [was] subject only to the terms and conditions of the probation." Accordingly, when in subsequent proceedings the trial court ordered early termination of defendant's probation, the court retained its discretion to declare the offense to be a misdemeanor notwithstanding defendant's admission that he had inflicted great bodily injury upon the victim. The Court of Appeal also held that when a trial court declares a wobbler to be a misdemeanor, any enhancement that is applicable solely to felonies "is simply not imposed and ceases to have any significance. (People v. Kunkel (1985) 176 Cal.App.3d 46, 55.)"
The Attorney General petitioned for rehearing on the ground that the Court of Appeal had analyzed the issue strictly in terms of the statutory authority conferred upon the trial court to terminate the period of probation and discharge the person held, to vacate the no contest plea and dismiss the action, and to declare the offense a misdemeanor, without taking into account the negotiated plea agreement or ...