Superior Court has no pre-trial authority to reduce a felony wobbler to a misdemeanor

People v. Superior Court of Ventura County (Cal. Ct. App., Aug. 16, 2023, No. 2D CIV. B326653) 2023 WL 5258663, at *1

Summary: Penal Code section 1238, subdivisions (a)(1) and (a)(8) permit the People to appeal a superior court’s post-preliminary hearing, pretrial order reducing a felony “wobbler” to a misdemeanor because the order is unauthorized and equivalent to a dismissal of the felony offense.

A “wobbler” is “an offense which may be charged and punished as either a felony or a misdemeanor ….” (Davis v. Municipal Court (1988) 46 Cal.3d 64.) A “felony wobbler” is a wobbler charged as a felony offense.

In People v. Bartholomew (2022) 85 Cal.App.5th 775, 778, this court’s majority opinion acknowledged, “ ‘No provision of section 17, subdivision (b), authorizes the superior court judge to [determine a wobbler to be a misdemeanor] prior to judgment or a grant of probation.’ ” But the majority opinion held that “the People have no authority to appeal” the superior court’s pretrial order reducing a felony wobbler to a misdemeanor. The majority rejected the People’s claim that section 1238, subdivision (a)(6) authorizes such an appeal. The People did not raise the issue of whether an appeal is authorized under section 1238, subdivisions (a)(1) and (a)(8). A dissenting opinion contended that an appeal is permissible under these two subdivisions. The court concluded the dissenting opinion is correct and disapproved of the holding in Bartholomew.

Here, the People petitioned for a writ of mandate directing the superior court to vacate its post-preliminary hearing, pretrial order reducing a felony wobbler to a misdemeanor. The People also filed an appeal.  Because the superior court’s order is both unauthorized and appealable, the court issued the requested writ and dismissed the appeal as moot.
Procedural Background

Mitchell, real party in interest, was held to answer at a preliminary hearing. The People filed a two-count information. The first count charged him with a felony wobbler – resisting an executive officer in violation of section 69, subdivision (a). The information alleged that he had previously been convicted of a serious or violent felony within the meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The second count charged defendant with a straight misdemeanor – possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)

On the day that a jury trial was scheduled to begin, the superior court reduced the felony wobbler to a misdemeanor. The court said the reduction was pursuant to section 17, subdivision (b) (section 17(b)) and  “over the People’s strong objection.” Mitchell did not enter a plea to the reduced charge, and the court continued the matter.

The Court of Appeal stayed further proceedings in the superior court and issued an order to show cause why the relief prayed for in the People’s petition should not be granted.

The Superior Court Lacked Authority to Reduce the Felony Wobbler to a Misdemeanor

Section 17(b) provides in relevant part: “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

 (3) When the court grants probation to a defendant 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.

 (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”

Here, “the court’s order reducing the [felony wobbler] to [a] misdemeanor[ ] was unauthorized under section 17(b). No judgment, entry of a plea, or finding of guilt had occurred to bring subdivisions (b)(1) or (b)(3) into play. Nor did subdivision (b)(5) apply; the preliminary examination had already taken place and [defendant] had been held to answer pursuant to section 872.” (People v. Superior Court (Jalalipour) (2015) 232 Cal.App.4th 1199, 1205 (Jalalipour).)

There is no other statutory authority for the superior court’s order reducing the felony wobbler to a misdemeanor over the People’s objection. “[I]f [at the preliminary hearing] the magistrate finds the People have appropriately charged the defendant with a felony, the defendant is held to answer for the felony charge. Thereafter, [until sentencing] only the prosecution may reduce the charge, because the executive alone is entrusted with ‘[t]he charging function’ and has the sole ‘prerogative to conduct plea negotiations.’ ” (Jalalipour, supra, 232 Cal.App.4th at pp. 1208-1209; [“No provision of section 17, subdivision (b), authorizes the superior court judge to [reduce a felony wobbler to a misdemeanor] prior to judgment or a grant of probation”].)

Jalalipour held “that, unless the People consent to a reduction of the charged offense, the establishment of defendant’s guilt, whether by plea or trial, must precede a court’s reduction of a wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(3).”

Section 1238, subds. (a)(1) and (a)(8) Permit an Appeal from the Order Reducing the Felony Wobbler to a Misdemeanor

Mitchell argues that the People have no right to appeal the superior court’s prejudgment order reducing the felony wobbler to a misdemeanor.

When the superior court reduced the felony wobbler to a misdemeanor, it actually set aside or terminated a “portion” of the information or action. The “portion” set aside or terminated was the wobbler’s felony attributes. But in Williams, supra, 35 Cal.4th at p. 830, the California Supreme Court held that a magistrate’s order reducing a felony wobbler to a misdemeanor under section 17(b)(5) is not appealable because it does not set aside or terminate a portion of the complaint or action within the meaning of section 1238, subdivisions (a)(1) or (a)(8). The Supreme Court reasoned: “The magistrate’s order under section 17(b)(5) did not preclude the People from prosecuting the wobbler offenses charged against defendant; it simply determined that these offenses were misdemeanors rather than felonies.”

Generally, the People may not seek extraordinary writ relief “when there is no right to appeal.

If section 1238, subdivisions (a)(1) and (a)(8) authorize an appeal from the order reducing the felony wobbler to a misdemeanor, there is no impediment to the People’s petition for a writ of mandate. Subdivision (a)(1) provides that the People may appeal from “[a]n order setting aside all or any portion of the indictment, information, or complaint.” Subdivision (a)(8) provides that the People may appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action ….”

Here, the magistrate’s [section 17(b)(5)] order is not a setting aside, dismissal, or otherwise a termination of any portion of the felony complaint or action because it did not preclude the People from prosecuting the wobbler offenses charged against defendant.

There is no reason why the proceedings should be allowed to continue as a misdemeanor prosecution when the superior court clearly did not have the authority to reduce the felony wobbler to a misdemeanor. The superior court’s unauthorized order reducing the felony wobbler to a misdemeanor would be reversed on appeal even if the Court denied the petition.

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