Ct.App. 4/1 D056619 Super. Ct. No. SCD210936 Court: Superior County: San Diego Judge: Francis M. Devaney
The opinion of the court was delivered by: Cantil-sakauye, C. J.
When the trial court sentenced defendant Aaron Sung-Uk Park for his crimes in the present proceeding, it imposed an additional term of five years under Penal Code section 667, subdivision (a), based upon defendant's previously having been convicted of a serious felony.*fn1 The prior offense that triggered application of the five-year sentence enhancement was a conviction for assault with a deadly weapon that had originally been charged as a felony. After defendant had pleaded guilty to that charge, the court had suspended imposition of sentence and granted probation. Thereafter, but before defendant committed the current crimes, the trial court had reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3), and then dismissed it pursuant to section 1203.4, subdivision (a)(1). The Court of Appeal held that the conviction remained a prior serious felony for purposes of sentence enhancement under section 667, subdivision (a), notwithstanding its reduction to a misdemeanor, and affirmed the five-year sentence enhancement imposed by the court. We conclude that when the court in the prior proceeding properly exercised its discretion by reducing the assault with a deadly weapon conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence. We therefore reverse the judgment of the Court of Appeal insofar as it upheld imposition of the five-year enhancement.
I. Facts and Procedural Background
In 2003, defendant pleaded guilty to a charge of felony assault with a deadly weapon in violation of section 245, subdivision (a)(1). The court suspended imposition of sentence and placed defendant on three years' probation with various conditions. In 2006, after defendant successfully completed the terms of his probation, the court reduced the offense to a misdemeanor in accordance with the procedures in section 17, subdivision (b)(3). Soon after that, the court dismissed the charge altogether under section 1203.4, subdivision (a)(1).
In September of the following year, defendant and his friends were involved in a fight outside a taco shop in San Diego County. A group of passersby briefly intervened to try to separate the participants and break up the fight, then continued on their way. Defendant left the fight and pursued the passersby, confronting them with a nine-millimeter semiautomatic handgun and demanding to know who had pushed him down. When Eric Joseph stepped forward, defendant shot him in the hip, thigh, and calf, causing serious injury. In connection with this incident, defendant was charged with attempted premeditated murder and assault with a firearm. (§§ 664, subd. (a)/187, subd. (a); § 245, subd. (a)(1).) For sentencing purposes, it was alleged, in relevant part, that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a) (hereafter section 667(a)), and the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12).
A jury acquitted defendant of attempted murder, finding him guilty of the lesser offense of attempted voluntary manslaughter. (§§ 664/192, subd. (a).) It also found defendant guilty as charged of assault with a firearm, and found true the associated allegations that defendant personally used a firearm and caused great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) After those verdicts were rendered, defendant waived jury trial on the prior conviction allegations and admitted having suffered a prior serious felony conviction. Both defendant and his counsel informed the court, however, that the prior conviction had been reduced to a misdemeanor.
The court accepted defendant's admission of the prior serious felony allegations and sentenced him to a total term of 24 years, which included a second-strike sentence of 12 years for the assault conviction and a five-year sentence enhancement under section 667(a), based on defendant's previously having been convicted of a serious felony.*fn2
The Court of Appeal affirmed the judgment. In the part of its opinion that is relevant here, the Court of Appeal upheld imposition of the five-year enhancement, concluding that the prior assault remained a serious felony conviction for purposes of section 667(a), notwithstanding its having been reduced to a misdemeanor pursuant to section 17, subdivision (b)(3) in 2006 and thereafter dismissed altogether. We granted review to decide whether a defendant adjudged guilty of a serious felony that has been reduced to a misdemeanor under section 17, subdivision (b)(3), and then dismissed pursuant to section 1203.4, subdivision (a)(1), is subject to sentence enhancement under section 667(a) in a subsequent criminal proceeding for having previously been convicted of a serious felony.*fn3
Our analysis begins with an overview of the history of section 17 and the decisions explaining its operation and effect. We then examine the language and history of section 667(a) to determine the electorate's intent regarding the interplay between that sentence enhancement provision and the operation of section 17. Finally, we consider the effect of section 1203.4.
A. Classification of crimes pursuant to section 17
It is the Legislature's function " 'to define crimes and prescribe punishments . . . .' [Citation.]" (People v. Anderson (2009) 47 Cal.4th 92, 119.) The Legislature has classified most crimes as either a felony or a misdemeanor, by explicitly labeling the crime as such, or by the punishment prescribed. "A felony is a crime that is punishable with death, [or] by imprisonment in the state prison . . . . Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions." (§ 17, subd. (a).) There is, however, a special class of crimes involving conduct that varies widely in its level of seriousness. Such crimes, commonly referred to as "wobbler[s]" (People v. Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3), are chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor; that is, they are punishable either by a term in state prison or by imprisonment in county jail and/or by a fine. (§ 17, subd. (b); People v. Feyrer (2010) 48 Cal.4th 426, 430, 433, fn. 4 (Feyrer).)*fn4
Assault with a deadly weapon, the crime upon which the section 667(a) enhancement was based in this case, is a wobbler because it is punishable by "imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." (§ 245, subd. (a)(1); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 (Alvarez) [a court's sentencing discretion to classify a wobbler as a misdemeanor derives from the charging statutes that provide felony or misdemeanor punishment].)
When a fact finder has found the defendant guilty of, or the defendant has pleaded no contest or guilty to, a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17, subdivision (b) (hereafter section 17(b)) govern the court's exercise of discretion to classify the crime as a misdemeanor. As relevant to the issue here, section 17(b)(3) provides that "[w]hen a crime is punishable, in the discretion of the court, either by imprisonment in the state prison . . . or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor."
As a general matter, the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler "in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon." (In re Anderson (1968) 69 Cal.2d 613, 664-665.) The court's authority to exercise discretion in this regard is a long-established component of California's criminal law. For purposes of the issue presented in this case, the proper interpretation and application of section 17(b)(3) is best understood, therefore, by a brief review of the history of the pertinent provisions of section 17 relating to wobblers generally.
The statutory authorization for a trial court's exercise of discretion to determine whether a wobbler should be treated as a felony or a misdemeanor first appeared in 1874. (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355-356.)*fn5 As enacted, the provision of section 17 relating to the misdemeanor classification of wobblers applied only upon imposition of sentence and a judgment imposing that punishment, and did not address the scenario presented here, in which a trial court suspends imposition of sentence and grants probation. (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 137.) In light of the statutory language then in existence, the relevant decisions held that unless and until the court imposed a sentence other than commitment to state prison, a wobbler was deemed a ...