Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge, Super. Ct. No. F06906680
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Dallas Lamont Primm was convicted by jury of possessing a concealed dirk or dagger in violation of Penal Code section 12020. After declining defendant’s request that the wobbler offense be declared a misdemeanor, the trial court stayed a two-year middle term commitment to prison, placing defendant on three years of formal probation. On appeal, defendant contends the court abused its discretion by refusing to declare the offense a misdemeanor. We affirm.
FACTS
During the late evening of August 31, 2006, Fresno police officers stopped to talk to defendant, who was walking near stores closed for business; he appeared to be looking into the store windows. Defendant immediately cooperated, asking the police to help him determine the safety of his mother, described by him as a drug addict. He walked toward the officers, took off his backpack and agreed to talk further with them. Wearing a shirt that covered the waistband of his pants, he consented to a pat-down search. One of the officers lifted defendant’s shirt and saw the handle of a knife, previously not visible, sticking out of his back pocket. The knife had a serrated, sharp-tipped blade that was about four-and-one-half inches long. Defendant told the officers he was carrying the knife for his protection.
Defendant testified that, when he walked over to talk to the police due to concern about his mother, he had forgotten he possessed in his back pocket a steak knife he had found in an alley about five hours earlier; he planned on cleaning this knife and keeping it. Defendant feared for his safety as he had previously been assaulted in this neighborhood. For his protection, he was carrying a pocket knife attached to his belt, an item that also was seized by the officers. The testifying officer’s recollection differed: the pocket knife was among the items found in defendant’s backpack.
DISCUSSION
Penal Code section 17, subdivision (b), authorizes that wobbler offenses (those offenses punishable by custody in state prison or county jail) become misdemeanors rather than felonies when so expressly declared by the court, upon the court’s granting probation without the imposition of sentence. The decision to order this reduction rests solely in the trial court’s discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) In exercising its discretion, the court is guided by the same considerations as apply in sentencing, including the nature and circumstances of the instant offense, the defendant’s appreciation and attitude toward the offense, his traits and character and his criminal history. (Id. at pp. 978-979.)
In Alvarez, the trial court had reduced the defendant’s conviction of possession of methamphetamine to a misdemeanor, even though he had admitted four prior serious felony convictions under the three strikes law. The Court of Appeal, in issuing a peremptory writ of mandate, directed the trial court to vacate this order. Describing this as a “close question” and giving deference to the trial court’s exercise of discretion, the Supreme Court majority found the trial court’s decision “tolerable,” reversing the Court of Appeal and noting that “any exercise of that authority must be an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration; and the record must so reflect.” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 981-982.)
Citing Alvarez, defendant here argues the trial court took into consideration only defendant’s history. The record reflects to the contrary.
While the court did note that defendant had committed five or six misdemeanors since 2001, three of which were wobblers reduced to misdemeanors, it also commented during the sentencing hearing that defendant’s conduct was influenced by his drug use and homelessness, and that the present crime was not the “crime of the century.” In ruling on defendant’s request for reduction, the court decided to keep the present offense a felony because defendant already had received the benefit of three previous reduction orders; however, because his drug abuse seemed the core of his problem, if he successfully completed probation, he could then petition the court for reduction. A court’s focus on certain factors does not mean it considered only those factors. (People v. Meyers (1999) 69 Cal.App.4th 305, 310.)
Defendant additionally argues that because the trial court erroneously believed that defendant could petition the court for reduction of the offense to a misdemeanor in the future, the matter must be remanded for the court’s proper exercise of discretion. Defendant correctly asserts, citing People v. Wood (1998) 62 Cal.App.4th 1262, 1264, that once the trial court imposes a felony sentence, it cannot reduce the felony to a misdemeanor.
We note there is some conflicting information in the record as to whether the trial court here has in fact imposed a felony sentence. The clerk’s transcript states that a prison commitment to the middle term is “stayed,” and further recites, “Imposition of judgment and sentence is suspended.” In the reporter’s transcript, the court states, “No other judge is going to have a chance to modify that stay because I’ve already imposed the term.” If in fact the court had suspended imposition of judgment, then the court’s statement that defendant could petition the court for reduction to a misdemeanor upon successful completion of probation would be accurate.
Reading the totality of the record, we are convinced that the action of the court here was to suspend the execution of judgment, rather than to suspend the imposition of judgment. Courts, attorneys and court staff should take great care in not using these underlined terms interchangeably, as they have different meanings and impacts, as this case demonstrates.
Yet even assuming that the felony sentence here has been imposed and the court misspoke about the potential of a future reduction to a misdemeanor, we see no reason to remand the matter for reconsideration by the trial court. The court made it clear that it had no present intention to reduce the offense to a misdemeanor, largely because defendant had been given this break three times previously. The court expressed the hope that defendant would enter in-patient drug rehabilitation and successfully complete a three-year term of probation. To encourage defendant, the court noted defendant could petition the court for a reduction of the offense should he successfully complete probation. In a sense the court saw the possibility of reduction to a misdemeanor as a reward for defendant only should he succeed in his future conduct.
We additionally note that defendant possesses a right under Penal Code section 1203.4 to petition the court to set aside his guilt upon successful completion of probation. Thus, there would be no reason to remand the matter because there is a potentially greater benefit should defendant rehabilitate himself than that which the court mistakenly advised.
The court did not abuse its discretion in denying defendant’s request that his offense be reduced to a misdemeanor.
DISPOSITION
The judgment is affirmed.