In this case, we address the scope of trial courts' sentencing discretion pursuant to Penal Code section 17, subdivision (b), to reduce to a misdemeanor an offense originally charged as a felony under the three
I. FACTUAL AND PROCEDURAL BACKGROUND
The current problems began for real party in interest, Steven Alvarez (defendant), shortly after noon on December 25, 1994, when Long Beach Police Officer Timothy O'Hara observed him "on the wrong side of the street riding a skateboard." A subsequent consensual search of a nylon bag in defendant's possession produced drug paraphernalia as well as a "baggie" containing 0.41 grams of powdered methamphetamine.
Based on this evidence, the prosecution charged defendant with a felony violation of Health and Safety Code section 11377, subdivision (a). The complaint further alleged four prior serious felony convictions within the meaning of the three strikes law. (§§ 667, subd. (d), 1170.12, subd. (b).) The matter went to jury trial. At the close of the People's case, defendant moved to have the charge declared a misdemeanor;
The probation report recommended against probation. At the sentencing hearing, the trial court reviewed the circumstances of the crime as well as defendant's criminal history. Although uncertain whether it had authority to dismiss any of the prior convictions (§ 1385), the court decided it still retained discretion to declare the charge to be a misdemeanor, and indicated its intention to do so because "that's for sure what it was."
The People petitioned for writ review. The Court of Appeal determined the trial court had abused its discretion because the reduction failed sufficiently to take into account defendant's criminal past with its implications for public safety. Moreover, in declining to punish defendant as a recidivist under the three strikes law, the trial court had judicially substituted its views of proper sentencing policy for that of the Legislature and electorate. We granted defendant's petition for review, and now reverse.
A. Continuing Discretion Under the Three Strikes Law
Neither version of the three strikes law speaks directly to the continuing vitality of this discretionary authority. Rather, each provides that a three strikes sentence must be imposed "[n]otwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined ...." (§§ 667, subd. (c), 1170.12, subd. (a).) Thus, regardless of qualifying prior convictions, the initial sentencing determinant is whether the defendant "has been convicted of a felony" in the current proceeding. (Trausch, supra, 36 Cal. App.4th at p. 1245.)
As to whether a guilty plea or verdict constitutes a "conviction" for purposes of section 667, subdivision (c), the court in Trausch properly concluded "that section 17 is sui generis. It specifically leaves the determination of the nature of the conviction to the discretion of the judge to be determined at sentencing. It applies only to `wobblers' and to no other crimes. It also provides that once the court has imposed a misdemeanor sentence, the offense becomes a misdemeanor `for all purposes.'" (Trausch, supra, 36 Cal. App.4th at p. 1246.) "Accordingly, until the trial court pronounces sentence on the new offense, it cannot be determined if a predicate current `felony' exists for application of the three strikes laws." (Id. at p. 1247.) It follows that "where the trial court has exercised its discretion to impose a punishment other than imprisonment in state prison, which by operation of law renders the conviction a misdemeanor, the three strikes law is not triggered." (Ibid.) The same rationale applies to a grant of probation pursuant to section 17(b)(3). (Perez, supra, 38 Cal. App.4th at pp. 363-364.)
The overarching intent "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses" (§ 667, subd. (b); Ballot Pamp., text of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 64) does not alter this conclusion. Although presumptively aware of preexisting law, including sections 17(b)(1) and 17(b)(3) (see People v. Hernandez (1988) 46 Cal.3d 194, 201 [249 Cal.Rptr. 850, 757 P.2d 1013]), neither the Legislature nor the electorate "specifically limit[ed] the court's power under these provisions in regard to determining the nature of the current conviction in the three strikes law. And, nothing in the language or history of the three strikes legislation
We thus turn to the question at issue here: the scope of the trial court's discretion when a wobbler is initially filed under the three strikes law.
B. Scope of Section 17(b) Discretion in Three Strikes Cases
Initially, we reject defendant's argument that a trial court's exercise of discretion under the authority of section 17(b) should be unreviewable, either as a matter of parity with the prosecutor's unreviewable decision to charge a wobbler as a felony or misdemeanor (see People v. Adams (1974) 43 Cal.App.3d 697, 708 [117 Cal.Rptr. 905]) or as a matter of constitutional mandate under the separation of powers doctrine. (Id. at pp. 706-707.)
Nor is the separation of powers doctrine implicated, because review of a trial court's exercise of discretion pursuant to section 17(b) does not involve "the prosecutor's consent to the disposition of a criminal charge pending before the court...." (Romero, supra, 13 Cal.4th at p. 512.) Rather, any finding of abuse is a further exercise of judicial power by the appellate court.
In determining the scope of the trial court's authority, our first referent is the statutory language conferring it. Some statutes contain express qualifications delineating, and thereby restricting, the particular exercise of discretion. For example, in ordering an action dismissed, the court must act "in furtherance of justice." (§ 1385; see Romero, supra, 13 Cal.4th at pp. 530-531.) Under some circumstances, the court may grant probation only in "unusual cases where the interests of justice would best be served" according to established criteria. (§ 1203, subd. (e); see People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830-831 [7 Cal.Rptr.2d 177].)
Citing People v. Warner, supra, 20 Cal.3d 678, 689, the People contend that in a three strikes case public safety is the sentencing "imperative" and that the defendant's recidivist status requires "[t]he paramount concern must be the protection of society. The interests of the defendant are of legitimate but secondary concern." In finding the trial court abused its discretion, the Court of Appeal also relied substantially on this language in Warner as well
This sentencing discretion is not without limitation. In Dent, supra, 38 Cal.App.4th 1726, the Court of Appeal charted at least one sector of the forbidden zone. There, the trial court indicated the defendant's current offense, albeit a wobbler, warranted a substantial prison term but not the 25-year-to-life sentence mandated by the three strikes law. (Id. at p. 1729.) Assessing its options, the court concluded the latter "`offends my conscience more than it does to give you a break, which you really don't deserve. [¶] The only way that I can avoid this law is to find this to be a misdemeanor, which I do....'" (Ibid., italics omitted.)
On the basis of this record, the reviewing court properly found an abuse of discretion. "Although the court was aware of defendant's background and the nature of his present offenses, these individualized considerations were shunted into the background in an effort to avoid the court's otherwise clear expression that a felony sentence was appropriate." (Dent, supra, 38 Cal. App.4th at p. 1731.) The determination to reduce a wobbler under section 17(b) "can be properly made only when the sentencing court focuses on considerations that are pertinent to the specific defendant being sentenced, not an aversion to a particular statutory scheme." (Dent, supra, at p. 1731; see People v. Bolton, supra, 23 Cal.3d at p. 216; cf. People v. Orin (1975) 13 Cal.3d 937, 947 [120 Cal.Rptr. 65, 533 P.2d 193] [cautioning against "liberal use of section 1385 to avoid criminal prosecutions where probable cause exists to believe conviction is warranted"].) Although "a reasoned consideration of defendant's background and circumstances would [not] preclude the determination that his offenses were misdemeanors," the record must demonstrate such "reasoned consideration." (Dent, supra, at p. 1731.)
C. Application to This Case
The prosecution alleged and defendant admitted four prior convictions for residential burglary, which it appears he committed to support a drug habit. His criminal record also included four misdemeanor convictions. He received a seven-year prison term for one of the burglaries and violated his parole on several occasions. Viewing these circumstances in isolation, the Court of Appeal's skeptical reaction to the reduction of defendant's present crime is understandable. That limited perspective is, however, incompatible with the very nature of sentencing discretion; the entire picture must remain exposed. (See People v. Benn, supra, 7 Cal.3d at pp. 534-535.)
Regardless of the results, the record does not evidence a purposeful intent to evade a three strikes sentence solely because of personal antipathy to the law. The trial court acknowledged defendant's substantial criminal history with its implications for public safety, but accorded that factor less weight than the fact it considered his current offense "for sure" a misdemeanor. (See People v. Vessell, supra, 36 Cal. App.4th at p. 295.) Defendant was cooperative with law enforcement. The burglary priors were relatively old and did not involve violence. (Ibid.) In addition, the court had observed defendant during the course of the trial, including his testimony he had been caring for a disabled friend. (Ibid.)
Applying the extremely deferential and restrained standard by which appellate courts are bound in these matters, we find the trial court did not abuse its discretion. Whatever conclusions other reasonable minds might draw, on balance we find the decision tolerable given the court's broad latitude.
The judgment of the Court of Appeal is reversed. The cause is remanded to the Court of Appeal with directions to vacate the order that a writ of mandate issue and to deny the People's petition.
George, C.J., Mosk, J., Werdegar, J., and Chin, J., concurred.
I agree that the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) has no impact on the power of a magistrate or judge to rule that an offense which may be either a felony or a misdemeanor, a so-called "wobbler," should be tried or sentenced as a misdemeanor. Penal Code section 17, subdivision (b)(1) and (3) (section 17(b)), expressly confers that power on the court and nothing in the three strikes law limits that power.
I dissent from the judgment directing that the petition for writ of mandate be denied, however. I would affirm the judgment of the Court of Appeal directing that a writ of mandate issue, but would direct the trial court to reconsider the sentencing decision in light of Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628]).
Since 1986, Penal Code section 1238, subdivision (a)(1), has authorized an appeal by the People from the imposition of an unlawful sentence, and subdivision (d) of that section has permitted a petition for writ of mandate by the People to review a grant of probation, including review of any order underlying the grant of probation. The Legislature has to that extent removed former restrictions (see People v. Superior Court (Stanley) (1979) 24 Cal.3d 622 [156 Cal.Rptr. 626, 596 P.2d 691]; People v. Gallardo (1953) 41 Cal.2d 57 [257 P.2d 29]) on the jurisdiction of the appellate courts to review sentences at the instance of the People. When, as here, such review is undertaken, the reviewing court must recognize that the People as well as the defendant now have the right to informed sentencing.
At the close of the People's case the judge denied a motion for acquittal. (Pen. Code, § 1118.1.) She then declined to rule on defendant's motion to reduce the offense to a misdemeanor, taking the motion under submission and postponing her decision until the jury could reach a verdict. She ruled that the matter would go to the jury as a felony.
The defense presented no evidence that might have moved the court toward leniency. The contrary appears true. Defendant testified that at the time he was stopped by police he swallowed a marijuana cigarette he had been holding, and that he was aware that an arrest warrant had been issued for him on a charge of marijuana possession. He testified that the subsequent consensual search revealed, in addition to the methamphetamine underlying the current charge, a syringe and a glass pipe. He denied using other drugs, however, and testified that he did not know where the baggie of methamphetamine in his backpack came from. He admitted that he was under the influence of marijuana when arrested.
The judge's comments at the probation and sentencing hearing demonstrate to my satisfaction that the potential three strikes sentence, not just the circumstances of the current offense, influenced her decision to treat the offense as a misdemeanor. She stated for the record:
"[T]his is a very small case, it's not very much methamphetamine. Certainly he came up to the two cops, cooperative, whatever it was. He wasn't traipsing around the neighborhood doing burglaries because he — but he was going over to his friend's house.
"Mr. Alvarez has a mighty lengthy background, some of it is in his juvenile years as well he was in California Youth Authority, [has] numerous first degree burglaries, they are all thefts, nobody ever was harmed in anything he did, which is not to condone what Mr. Alvarez does because I
"Back in '87 was his last burglary. I don't know what this misdemeanor back in '91 [was]. He's a drug addict that commits burglaries. He's 34 years old. This case does not rise to the level of sending a person like Mr. Alvarez 25 years to life and that's my dilemma." (Italics added.)
The prosecutor then asserted that the court had no discretion to sentence the defendant to less than the 25-year-to-life term specified in Penal Code sections 667 and 1170.12 since the priors had been proved and the voters had taken away the judge's discretion. It was then that the judge stated: "Well, there is still an unpublished case that's before the supreme court stating that doesn't state anything. Don't know whether judges have discretion in this case or not.
"I know that I have discretion in making this a misdemeanor and that's for sure it was." [Sic.]
The ensuing colloquy between court and counsel was limited to the question of whether the three strikes law precluded the exercise of discretion under section 17(b) when the defendant had prior convictions.
It is clear to me from the judge's remarks that uncertainty as to her power to strike one or more of the defendant's priors for sentencing purposes, led her to utilize the power she believed the court did retain to sentence under section 17(b) rather than impose a term of twenty-five years to life, the only other alternative she was certain was available to her.
Because the court erroneously elected to impose a misdemeanor sentence without considering whether a felony sentence without three strikes enhancement would be appropriate, I would affirm the judgment of the Court of Appeal as modified to direct that the petition for writ of mandate be granted with directions to set aside the judgment and reconsider the sentence.
Kennard, J., concurred.
Petitioner's application for a rehearing was denied March 12, 1997. Kennard, J., and Baxter, J., were of the opinion that the application should be granted.
As this language demonstrates, section 17(b) outlines the procedural mechanisms by which a trial court may classify an offense as a misdemeanor (see People v. Banks (1959) 53 Cal.2d 370, 380-381 [1 Cal.Rptr. 669, 348 P.2d 102]), whereas the sentencing discretion itself derives from the various charging statutes that provide alternative felony or misdemeanor punishment. (See, e.g., §§ 245, subd. (a)(1), 489; Health & Saf. Code, §§ 11357, subd. (a), 11363; Veh. Code, §§ 10851, subd. (a), 20001, subd. (b)(2).) For convenience, however, courts will sometimes conflate procedure and substance and refer generically to the exercise of "section 17(b) discretion" when discussing general principles. (See, e.g., People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 356 [45 Cal.Rptr.2d 107]; People v. Dent (1995) 38 Cal.App.4th 1726, 1729-1730 [45 Cal.Rptr.2d 746].)