California Court of Appeal, Second District, Fourth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio Barreto, Jr., Judge. Reversed and remanded with directions. (No. TA114951)
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
The issue in this case is whether the trial court validly exercised its authority in sentencing defendant Brandon Dionte Willis for a " wobbler" offense. Defendant appeals from the court's judgment that extended his probation beyond three years from the beginning of his original summary probation period. He contends that in an earlier proceeding, the trial court classified his conviction as a misdemeanor, which limits probation to three years. Respondent argues that defendant's conviction was not classified as a misdemeanor, but remained a felony, which would allow the probation extension. We conclude that the earlier court treated defendant's offense as a misdemeanor and thus the trial court lacked authority to extend his probation period beyond three years. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On October 25, 2010, defendant Willis pled guilty to a charge of unlawful possession of a controlled substance, phencyclidine (PCP),Health and Safety Code section 11377. The court placed him on deferred entry of judgment (DEJ) for 18 months, which began a series of extensions, [165 Cal.Rptr.3d 602] revocations, and reinstatements due to his failure to provide proof of enrollment in a DEJ program. First, defendant failed to provide proof of enrollment on December 21, 2010, so the court resumed criminal proceedings. On February 2, 2011, the court reinstated his DEJ. Then the court twice extended the time for him to provide proof of enrollment in a program: a 10-day extension granted on February 25, and a continuance granted on March 15, 2011. On April 25, 2011, the court terminated his DEJ, once again for failure to provide proof of enrollment.
On August 9, 2011, the trial court ordered the imposition of a suspended sentence, with summary probation for 36 months. The order of summary probation included conditions: defendant was to serve 12 days in county jail, not possess illegal drugs or paraphernalia, avoid areas where known drug users congregate, not possess or use deadly weapons, consent to searches at any time by law enforcement or probation officers, obey all laws and court orders, and provide fingerprints, cheek swab samples, and blood specimens
pursuant to Penal Code section 296. On February 23, 2012, the court revoked defendant's summary probation.
At a probation violation hearing on August 17, 2012, the court found by clear and convincing evidence that defendant had violated the probation conditions. The evidence demonstrated that he had been in receipt of stolen property, a violation of the condition that he obey all laws. As a result, the court reinstated the August 2011 probation grant, but modified it from summary probation to formal probation for ...