People v. Super. Ct. (Mitchell)

Filed 8/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Civil No. B326653
(Super. Ct. No. 2018009315)
Petitioner, (Ventura County)
v.
THE SUPERIOR COURT OF
VENTURA COUNTY,
Respondent;
RICHARD ALLEN
MITCHELL,
Real Party in Interest.
We hold that 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
tantamount to a dismissal of the felony offense.1 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, 70.) 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.’” (Bracketed material in original.) 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. (Ibid.) 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. (Bartholomew, supra,
at pp. 780-785, dis. opn. of Yegan, J.) We conclude the dissenting
opinion is correct. We disapprove 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. (People v. Mitchell, B326598.) Because the
superior court’s order is both unauthorized and appealable, we
issue the requested writ. By separate order, we dismiss the
appeal as moot.
1 Unless otherwise specified, all statutory references are to
the Penal Code.
2
Procedural Background
Richard Allen Mitchell, real party in interest, hereafter
“defendant,” was held to answer at a preliminary hearing. The
People filed a two-count information. The first count charged
defendant 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)). The court noted that the reduction was “over
the People’s strong objection.” Defendant did not enter a plea to
the reduced charge, and the court continued the matter.
We stayed further proceedings in the superior court. We
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
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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. [Citation]. 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; see also People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 973, fn. 2 (Alvarez) [“No
provision of section 17, subdivision (b), authorizes the superior
4
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).” (Jalalipour, supra, 232 Cal.App.4th at pp.
1201-1202.) Jalalipour also held “that, in the absence of the
People’s consent, the court’s [pretrial] reduction of the charged
felonies to misdemeanors, and then allowing defendant to plead
guilty to the misdemeanors, constituted an unlawful judicial plea
bargain.” (Id. at p. 1202.)
Section 1238, subds. (a)(1) and (a)(8) Permit an Appeal from
the Order Reducing the Felony Wobbler to a Misdemeanor
In his return to the petition, defendant argues that the
People have no right to appeal the superior court’s prejudgment
order reducing the felony wobbler to a misdemeanor. Therefore,
“the People should not . . . be permitted to resort to extraordinary
writ review to circumvent the very appeal which the Legislature
has denied to them.”
“[A]s a general rule the People may not seek” extraordinary
writ relief “when there is no right to appeal . . . .” (People v.
Williams (2005) 35 Cal.4th 817, 833-834 (Williams); see People v.
Superior Court (Howard) (1968) 69 Cal.2d 491, 498 (Howard)
[“The restriction on the People’s right to appeal is not merely a
procedural limitation allocating appellate review between direct
appeals and extraordinary writs but is a substantive limitation
on review of trial court determinations in criminal trials”]; id., at
p. 499 [“To permit the People to resort to an extraordinary writ to
review where there is no right to appeal would be to give the
5
People the very appeal which the Legislature has denied to
them”].)
“The prosecution in a criminal case has no right to appeal
except as provided by statute.” (Williams, supra, 35 Cal.4th at p.
822.) If section 1238, subdivisions (a)(1) and (a)(8) authorize an
appeal from the instant 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.” (Italics added.)
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 . . . .” (Italics added.)
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, our 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.”
(Williams, supra, at p. 830.) The dissenting opinion observed,
“[T]he majority’s thesis is that 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
6
preclude the People from prosecuting the wobbler offenses
charged against defendant.’” (Id. at p. 836, dis. opn. of Baxter, J.)
The majority opinion in Williams concluded that “People v.
Booker (1994) 21 Cal.App.4th 1517 [(Booker)], . . . upon which the
People rely, is distinguishable.” (Williams, supra, 35 Cal.4th at
p. 830.) Here, in contrast, Booker supports the People’s position
that the superior court’s order is appealable. In Booker the
information charged defendants with felony violations of
Unemployment Insurance Code section 2101, subdivision (a).
Based on defendants’ argument that a violation of this statute is
punishable only as a misdemeanor, the trial court granted their
pretrial motion to declare the charged offenses to be
misdemeanors. The People appealed the trial court’s order.
Defendants insisted that the order was not appealable under
section 1238.
The Court of Appeal determined that the trial court had
“misinterpreted the controlling punishment statutes.” (Booker,
supra, 21 Cal.App.4th at p. 1521.) A violation of Unemployment
Insurance Code section 2101, subdivision (a) is not punishable
only as a misdemeanor. Such violations “may be charged as
either felonies or misdemeanors at the discretion of the district
attorney.” (Booker, at p. 1524.) Since the district attorney had
charged the violations as felonies, they “must continue to be
considered felonies unless designated misdemeanors upon
imposition of judgment by the trial court.” (Ibid.)
The Court of Appeal continued: “The trial court’s decrees
that the charged offenses must be prosecuted as misdemeanors
were tantamount to dismissal of the felony charges against the
defendants . . . and, accordingly, may be appealed by the People
[under section 1238, subdivisions (a)(1) and (a)(8)]. [Citation.]
7
We further believe that the trial court’s orders effectively usurped
the charging prerogative of the prosecutor, lacked underlying
statutory authority, and must be reversed.” (Booker, supra, 21
Cal.App.4th at p. 1521, fn. omitted.)
In distinguishing Booker, our Supreme Court explained:
“The superior court in Booker . . . made an error of law in ruling
that a violation of Unemployment Insurance Code section 2101
could not be charged as a felony because it was a straight
misdemeanor. The Court of Appeal held that this ruling was
without statutory authority and, therefore, was tantamount to a
dismissal of the felony charges. It was not, as in the present
case, a [statutorily authorized] determination [by a magistrate]
under section 17(b)(5) that a wobbler offense charged as a felony
is a misdemeanor.” (Williams, supra, 35 Cal.4th at p. 831, italics
added, fn. omitted.)
Here, as in Booker and unlike Williams, the superior
court’s order was without statutory authority. Booker concluded
that the pretrial orders declaring felony wobblers to be straight
misdemeanors were “tantamount to dismissal of the felony
charges” because the orders “effectively usurped the charging
prerogative of the prosecutor [and] lacked underlying statutory
authority . . . .” (Booker, supra, 21 Cal.App.4th at p. 1521.) The
same conclusion should be drawn as to the pretrial order here.
Section 17, subdivision (b) “specifically leaves the determination
of the nature of the conviction to the discretion of the [trial] judge
to be determined at sentencing,” not before the adjudication of the
defendant’s guilt. (People v. Trausch (1995) 36 Cal.App.4th 1239,
1246.)
Williams “express[ed] no view upon[] the correctness of the
holding in . . . Booker, supra, 21 Cal.App.4th 1517, 1521, that an
8
order without a statutory basis that a charged felony offense
must be prosecuted as a misdemeanor is tantamount to a
dismissal.” (Williams, supra, 35 Cal.4th at p. 831, fn. 10.) But
the Booker holding is well-founded, and there is no reason to
depart from it. The trial court’s order in Booker, as well as the
order here, nullified the People’s sole discretion to determine
whether a wobbler should be charged as a felony or a
misdemeanor. “The California Constitution (art. III, § 3)
provides that ‘[t]he powers of state government are legislative,
executive, and judicial. Persons charged with the exercise of one
power may not exercise either of the others except as permitted
by this Constitution.’ [¶] It is well settled that the prosecuting
authorities, exercising executive functions, ordinarily have the
sole discretion to determine whom to charge with public offenses
and what charges to bring. [Citations.] This prosecutorial
discretion to choose, for each particular case, the actual charges
from among those potentially available arises from ‘“the
complex considerations necessary for the effective and efficient
administration of law enforcement.”’ [Citations.] The
prosecution’s authority in this regard is founded, among other
things, on the principle of separation of powers, and generally is
not subject to supervision by the judicial branch.” (People v.
Birks (1998) 19 Cal.4th 108, 134.)
Thus, the superior court’s order here was not only
unauthorized; it was also unconstitutional because it violated the
separation of powers clause. The order was especially egregious
because it invalidated the information’s allegation of one prior
strike within the meaning of California’s “Three Strikes” law. (§§
667, subds. (b)-(i), 1170.12, subds. (a)-(d).) “[W]obblers classified
9
as misdemeanors . . . do not trigger increased penalties.”
(Alvarez, supra, 14 Cal.4th at p. 979.)
“[T]he Three Strikes law . . . requires a second strike
defendant [such as the defendant herein] to be sentenced to
double the otherwise applicable prison term for his or her current
felony conviction.” (People v. Gallardo (2017) 4 Cal.5th 120, 125.)
If in a felony action the court dismisses a strike, “[t]he reasons for
the dismissal shall be stated orally on the record” and “in an
order entered upon the minutes if requested by either party.”
(§ 1385, subd. (a).) By its pretrial order reducing defendant’s
felony wobbler to a misdemeanor, the superior court in effect
dismissed the strike without the necessity of stating its reasons
for doing so.
“Our fundamental task in construing a statute is to
ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.” (Day v. City of Fontana (2001) 25 Cal.4th
268, 272.) Surely, the Legislature did not intend to deny the
People the right to seek review, on direct appeal, of the superior
court’s unauthorized order. As previously explained, where an
appeal is barred, it is questionable whether the People may seek
appellate review by way of an extraordinary writ. (See the
discussion, ante, at pp. 5-6.)
Even if extraordinary writ review were available, this
would not be a substitute for review as a matter of right by way
of an appeal. “Unlike appeals, which are heard as a matter of
right, relief through writ review is deemed extraordinary,
equitable and completely discretionary. Thus, even if a trial court
ruling is incorrect, the appellate court is not required to grant
immediate writ review . . . .” (Eisenberg et al., Cal. Practice
Guide: Civil Appeals & Writs (The Rutter Group, Nov. 2021
10
update) Ch. 15-A, ¶ 15:1.2 (Eisenberg); see Howard, supra, 69
Cal.2d at p. 497 [“Ordinarily the granting of this relief [issuance
of an extraordinary writ] lies in the discretion of the court”].)
Thus, “counsel should never assume an erroneous nonappealable
ruling will routinely be subject to writ relief upon request.”
(Eisenberg, supra, at ¶ 15:1.3; see also this court’s discussion
under the heading, “Relief by Way of Extraordinary Writ—Why It
Is Hard to Get, and Why We Initially Denied the Petition,” in
Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d
1266, 1271-1274.)
The Legislature must have known that “the People’s ability
in a criminal proceeding to obtain extraordinary relief is severely
restricted where there is no right to appeal.” (Fadelli Concrete
Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th
1194, 1201.) “[T]he Legislature is presumed to know about
existing case law when it enacts or amends a statute . . . .” (In re
W.B. (2012) 55 Cal.4th 30, 57.)
In construing a statute, “[w]e must . . . avoid a construction
that would produce absurd consequences, which we presume the
Legislature did not intend.” (People v. Mendoza (2000) 23 Cal.4th
896, 908.) Prohibiting a People’s appeal here would lead to
absurd consequences that the legislature could not have
intended. The superior court’s order would have been appealable
had it waited until the time of sentencing: “[A] superior court’s
order at the time of sentencing reducing a felony conviction for a
wobbler offense to a misdemeanor [is] appealable under section
1238, subdivision (a)(6), as ‘[a]n order modifying the verdict or
finding by reducing the degree of the offense or the punishment
imposed or modifying the offense to a lesser offense.’” (Williams,
supra, 35 Cal.4th at p. 831.) The order also would have been
11
appealable under section 1238, subdivision (a)(5) had “the trial
court declare[d] the wobbler to be a misdemeanor after
suspending the imposition of judgment and granting probation.”
(People v. Statum (2002) 28 Cal.4th 682, 692; see People v.
Douglas (1999) 20 Cal.4th 85, 88, 90-91.) Section 1238,
subdivision (a)(5) provides that the People may appeal from “[a]n
order made after judgment, affecting the substantial rights of the
people.” It would be absurd to allow an appeal from the superior
court’s statutorily authorized order reducing a felony wobbler to a
misdemeanor at the time of sentencing or after suspending the
imposition of judgment and granting probation, but to bar an
appeal from the court’s unauthorized pretrial order
accomplishing the same result. Barring an appeal in these
circumstances could encourage a court to take the unauthorized
route in order to evade appellate review. There is no reason “why
the Legislature would have wanted to allow an appeal in one
circumstance [the authorized route] but not the other [the
unauthorized route].” (Statum, supra, at p. 692.)
Accordingly, we construe section 1238, subdivisions (a)(1)
and (a)(8) as permitting the People to appeal from the superior
court’s post-preliminary hearing, pretrial order reducing the
felony wobbler to a misdemeanor because the unauthorized order
was tantamount to a dismissal of the felony offense. (Booker,
supra, 21 Cal.App.4th at p. 1521.)
Defendant claims “the alleged error – the untimely
discretionary reduction of a felony to a misdemeanor – is
reviewable following the adjudication of guilt and the imposition
of probation.” Defendant is referring to section 1238, subdivision
(d), which provides: “Nothing contained in this section shall be
construed to authorize an appeal from an order granting
12
probation. Instead, the people may seek appellate review of any
grant of probation . . . by means of a petition for a writ of
mandate or prohibition which is filed within 60 days after
probation is granted. The review of any grant of probation shall
include review of any order underlying the grant of probation.”
(Italics added.) After a defendant has been granted probation,
the above-italicized language authorizes extraordinary writ
review of a post-preliminary hearing, pretrial order reducing a
felony wobbler to a misdemeanor. (Jalalipour, supra, 232
Cal.App.4th at p. 1204.) “The court’s order . . . underlies its
probation grant within the meaning of section 1238, subdivision
(d).” (Ibid.)
Because of the appellate review available under section
1238, subdivision (d), defendant maintains that “the risk of
harassment to [him if this court grants the writ] far outweighs
any error complained of by the People.” Defendant explains: “[I]f
this court denies the writ, the People will only be deprived of
appellate review if [he] is found not guilty of” the felony wobbler
that was reduced to a misdemeanor. Thus, “the prejudice to the
prosecution [will be] slight” if the writ is denied. “In contrast, the
harassment to [defendant] by granting the writ is very real.
Presently, the case is stayed and he is unable to resolve the case
by either settlement or trial.”
We perceive no justification for denying the People’s
petition for extraordinary relief. If we deny the petition and
defendant is found guilty, there is no assurance that the superior
court will grant probation. Section 1238, subdivision (d) applies
only if probation is granted. (Jalalipour, supra, 232 Cal.App.4th
at p. 1207 [section 1238, subdivision (d) “permits the prosecution
only to petition for writ relief from a probation grant”].)
13
Moreover, 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 continuation of the
misdemeanor prosecution would result in “a waste of ever-more-
scarce judicial resources.” (In re Z.N. (2009) 181 Cal.App.4th 282,
300.) Finally, in view of the People’s valid appeal, the superior
court’s unauthorized order reducing the felony wobbler to a
misdemeanor would be reversed on appeal even if we denied the
petition.
Disposition
The People’s petition is granted. Let a peremptory writ of
mandate issue directing the Superior Court of Ventura County to
vacate its order reducing the felony wobbler to a misdemeanor
and to reinstate the felony charge. By separate order, the related
appeal is dismissed as moot.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
14
David R. Worley, Judge
Superior Court County of Ventura
______________________________
Erik Nasarenko, District Attorney, Miriam R. Arichea,
Deputy District Attorney, for Petitioner and Appellant.
No appearance for Respondent.
Claudia Bautista, Public Defender, William Quest, Snr.
Deputy, for Real Party in Interest.