Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS070617
ELIA, J.Every person who violates Penal Code section 288.2 [distributing or exhibiting harmful matter to a minor] "is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail." (Pen. Code, § 288.2, subd. (a).)
In this appeal, we are asked to decide whether, as a condition of probation, a defendant convicted of one misdemeanor count of violating section 288.2 can be sentenced to 365 days in county jail. For reasons that follow, we reverse.
All unspecified statutory references are to the Penal Code.
The facts underlying the different counts with which appellant was charged are not relevant to this appeal. Accordingly, we detail only the proceedings below.
On August 29, 2007, appellant Nicolas Alcala was charged by information in Monterey County with one felony count of lewd and lascivious act on a minor (§ 288, subd. (a), count one), one felony count of contributing to the delinquency of a minor (§ 272, count two), and two felony counts of exhibiting harmful matter to a minor (§ 288.2, counts three and four).
Subsequently, on May 29, 2008, the prosecutor made an oral motion to amend the information to add a charge of sexual battery (§ 243.4) as count five. The court granted the motion.
At the same time, the court noted that the prosecutor had made a motion to amend count two and change it from a felony to a misdemeanor.
Thereafter, on April 29, 2010, the prosecutor amended the information again, deleting the word "felony" in count four and inserting the word "misdemeanor." Subsequently, appellant entered a plea of no contest to count four—a misdemeanor violation of section 288.2, subdivision (a). The dismissal of the remaining counts was continued until time of sentencing. Before he entered his plea, appellant signed a form entitled "WAIVER OF RIGHTS PLEA OF 'GUILTY' OR 'NO CONTEST' " in which he was informed that his maximum sentence would be "1 year in jail...."
At the sentencing hearing, defense counsel argued that pursuant to section 19 the maximum county jail term that the court could impose was six months since section 288.2, subdivision (a) does not prescribe a specific term for a misdemeanor violation of the statute. The court disagreed. The court categorized section 288.2 as a "wobbler" and concluded that it was authorized to impose a one year term pursuant to section 18.
Initially, the court denied probation and sentenced appellant to 365 days in county jail with a surrender date of December 8, 2010. However, after the prosecutor expressed concern that the court could lose jurisdiction in the event that appellant did not appear, the court, in an "excess of caution, " changed the sentence to one year probation on the condition that appellant serve 365 days in county jail with credit for time served of 129 days. Appellant accepted probation on those terms after the court explained that the alternative was denial of probation and immediate remand to custody so that he could serve out his term. The court stated that probation would terminate upon "successful completion of the jail term."
Appellant filed a timely notice of appeal. The notice of appeal was amended on November 24, 2010.
On appeal, appellant maintains that the one year jail term imposed by the trial court must be reversed because the maximum possible term to which he was exposed was six months.
Discussion
Appellant asserts "Without doubt, the trial court erred in imposing a jail term of 365 days." He contends that by the express terms of section 19 his punishment may not exceed six months.
Section 19 provides, "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both." Appellant asserts that because section 288.2 does not specify the punishment if the offense is charged as a misdemeanor, section 19 controls the punishment to which he was exposed. The Attorney General asserts that this case is controlled by section 18.
When a statute makes an offense punishable by imprisonment in the state prison but does not state a sentence range, then the determinate sentence range is 16 months, two or three years. (§ 18.) Specifically, section 18 provides: "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both." (Italics added.) As noted, section 288.2 does specify alternate sentencing to the county jail.
When a statute makes an offense punishable by imprisonment in the state prison or by imprisonment in the county jail, then the offense is a "wobbler" that can be punished as a felony or as a misdemeanor. (§ 17, subd. (b).)
For a wobbler, the offense is treated as a misdemeanor upon the occurrence of one of certain statutorily specified events: (1) upon a judgment imposing punishment other than imprisonment in the state prison; (2) when the defendant is committed to the Youth Authority and the court designates the offense to be a misdemeanor; (3) when the court grants probation without the imposition of sentence and then, or on subsequent application of the defendant or the probation officer, declares the offense to be a misdemeanor; (4) when the prosecutor specifies the offense to be a misdemeanor and files a complaint in a court having jurisdiction over misdemeanors (as happened in this case); or (5) when, at or before the preliminary hearing and before filing an order holding the defendant to answer, the magistrate determines that the offense is a misdemeanor. (§ 17, subd. (b).)
The Attorney General asserts that section 18 applies to this situation according to its plain language, whether the offense is a felony reduced to a misdemeanor at the time of sentencing or at the time of plea. Appellant counters that both the plain language of section 18 and existing case law are to the contrary.
Appellant argues that on its face section 18 declares "the punishment for two types of felonies: (1) those punishable by 'imprisonment in a state prison;' and (2) those punishable 'by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail....' " Appellant relies on People v. Isaia (1989) 206 Cal.App.3d 1558 (Isaia) for the proposition that section 18 applies only to felonies.
In Isaia, the defendant contended section 18 extends the option of misdemeanor treatment to all felonies that do not specify a term or range of years in the state prison as punishment. (Isaia, supra, 206 Cal.App.3d at p. 1563.) As noted, the first clause of section 18 fixes a range of 16 months or two or three years as the term for felonies that do not otherwise identify a determinate prison sentence. As the Isaia court explained, the "provided however" language that commences the second clause of section 18 has a limiting function, restricting the availability of the second clause's misdemeanor option to felonies that do not specify a period for state prison incarceration but provide for a fine as alternate punishment. (Id. at p. 1564.) Thus, section 18, by its terms, simply "does not apply to felonies... that do not contain an alternative punishment of a fine." (Ibid. [the defendant there possessed drugs in a prison camp, violating § 4573.6].)
The court in Isaia explained the "provided however" language must be construed as having a limiting function to avoid rendering the phrase "surplusage." (Isaia, supra, 206 Cal.App.3d at p. 1564, [noting that constructions that would make part of the statute surplusage should be avoided].) The word "however" would be superfluous if the Legislature intended the second clause's misdemeanor option to apply unreservedly to the category of felonies identified in the first clause, i.e., "those offenses 'declared to be a felony, or to be punishable by imprisonment in the state prison.' " (Ibid.) The word "however" thus points to a narrowing of this first category of felony offenses, a narrowing the second clause accomplishes by specifying that only those "felonies 'punishable by imprisonment in any of the state prisons or by a fine' " are eligible for county jail diversion as misdemeanors. (Ibid.) In Isaia, the Attorney General noted that the Legislature had deleted a comma in a former version of section 18's second clause, lending support to the conclusion the Legislature intended the clause to apply to felonies that included state prison incarceration or a fine as alternative punishments. (See Isaia, supra, 206 Cal.App.3d at pp. 1562–1563.) Thus, the Attorney General observed: " 'It is not without significance that a comma is omitted in section 18 after the word "prisons" in the clause, "provided, however, every offense which is prescribed by any law of the State to be a felony punishable by imprisonment in any of the state prisons or by a fine... [.]" Following general rules of punctuation, the punishments of imprisonment in the state prisons and fine are to be read as alternative punishments to the same offense; that is, the proviso clause is limited to offenses punishable in the alternative by imprisonment in a state prison or by fine and has no application to those offenses punishable solely by imprisonment in the state prisons. While punctuation rules are not controlling in the face of obvious legislative intent to the contrary, they are properly used to construe otherwise ambiguous expressions.... ' " (Id. at p. 1562.)
Thus, "section 18 authorizes a reduction to a misdemeanor for certain felonies even though the Legislature did not provide for misdemeanor treatment in the statutory provisions defining those particular crimes. Because the Legislature has not elsewhere expressly declared any of these particular felonies may qualify as misdemeanors, section 18 creates, to coin a phrase, 'stealth wobblers.' Section 18's misdemeanor option, however, is limited to felonies the Legislature has specified are punishable by imposition of a fine as an alternative to state prison. [Citation.] Crimes falling in this category are relatively rare, but they exist. (See, e.g., §§ 107 [escape from a reformatory or state hospital]; 148.3, subd. (b) [false report of an emergency]; 337b [point shaving in an athletic contest].)" (People v. Mauch (2008) 163 Cal.App.4th 669, 675.)
Certainly, the first clause of section 18 applies to crimes that are felonies and the second clause applies to crimes that are felonies, but can be treated as misdemeanors even though the Legislature has not provided for misdemeanor treatment in a particular statute. The question is when the Legislature has provided for misdemeanor treatment, should section 18 apply? For reasons that follow, we determine that it should not.
"A legislative enactment should be construed in accordance with the ordinary meaning of the language used and it should be assumed that the Legislature knew what it was saying and meant what it said. [Citations.]" (People v. Rodriquez (1963) 222 Cal.App.2d 221, 227.)
Section 17 deals with wobblers. Thus, when a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor "for all purposes" when charged as a misdemeanor. (§ 17, subd. (b)(4).) Here, as noted, the prosecutor charged appellant with a misdemeanor violation of section 288.2. As such it was a misdemeanor for "all purposes" including the catch-all provision of section 19 limiting county jail time to six months for those misdemeanors that do not have a different punishment prescribed by law. Section 288.2 does not have a different punishment prescribed for a misdemeanor violation of the statute. To hold that section 18 controls in this case would require this court to ignore the plain language of section 17 that when the prosecutor charges a wobbler as a misdemeanor, "it is a misdemeanor for all purposes." We must presume that when the Legislature enacted section 288.2 without prescribing the limits of the punishment for a misdemeanor violation of the statute, the Legislature was aware of both section 19's catch-all provision and section 17's treatment of wobblers as misdemeanors in certain circumstances. (See People v. Overstreet (1986) 42 Cal.3d 891, 897 [the Legislature is deemed to be aware of existing laws in effect at the time legislation is enacted].)
Section 19 is a "catchall provision" that applies to misdemeanors when a specific punishment is not otherwise stated. (3 Witkin and Epstein, California Criminal Law (3d ed. 2000) § 244, pp. 326-327.)
The Attorney General notes that section 313.1 is likely a lesser included offense of section 288.2 and argues that since section 313.1 carries a one year jail term, section 288.2 must carry at least a one year sentence for a misdemeanor conviction. It is well within the Legislature's prerogative to punish a less serious offense with a greater punishment. For example section 243.1 provides for felony punishment for battery on a custodial officer without injury, but section 243, subdivision (c)(1) provides that battery on a custodial officer with injury can be a misdemeanor. (See People v. Wilkinson (2004) 33 Cal.4th 821, 832-841 [rejecting an equal protection challenge to the claimed irrational disparity in punishment for the two battery offenses.].)
Accordingly, the court erred in sentencing appellant to 365 days in county jail.
Disposition
The judgment is reversed and the matter is remanded for resentencing.
WE CONCUR: RUSHING, P. J., PREMO, J.