Yarra, Kharazi, Clason & Aniotzbehere, H. Ty Kharazi and Nicholas E. Aniotzbehere, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F03900061-3)
THE COURT APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Yarra, Kharazi, Clason & Aniotzbehere, H. Ty Kharazi and Nicholas E. Aniotzbehere, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
Defendant Jorge Alberto Garcia was convicted by no contest plea of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) with a firearm enhancement (Pen. Code, § 12022, subd. (a)(1) (12022(a)(1)). Many years after that felony conviction, defendant moved to reduce the conviction to a misdemeanor under section 17, subdivision (b)(3) (17(b)(3)), so he could seek to end immigration proceedings against him. On appeal, he contends the trial court erred in denying the motion. We affirm.
All statutory references are to the Penal Code unless otherwise noted.
Section 17, subdivision (b) (17(b)) provides:
"(b) 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.
"(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.
"(3) When the court grants probation to a defendant without imposition of sentence 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.
"(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
"(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." (Italics added.)
On December 4, 2002, defendant assisted his codefendant in the stealing of a vehicle at gunpoint.
On February 20, 2003, defendant was charged with carjacking (§ 215, subd. (a); count 1) and receiving a stolen vehicle (§ 496d, subd. (a); count 2).
In the probation report prepared for a June 27, 2003 hearing, the probation officer recommended that the court deny probation and sentence defendant to prison for five years.
On October 16, 2003, trial judge Alan Simpson presided over a change of plea hearing. Count 1 was amended and count 2 dismissed. Defendant initialed and signed a plea waiver form noting a "straight up" plea to unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 1) with a "vicarious" firearm enhancement (§ 12022(a)(1)).
At the hearing, the prosecutor stated:
" ... Judge, in this case the People's offer at this time is [Vehicle Code section] 10851 and [section] 12022(a)(1), for a four year exposure on the condition that the defendant would waive time all time credits for all purposes on this case. I understand the Court has made an indicated [sentence]."
Defense counsel added:
"Your Honor, I have submitted a signed Change of Plea and Waiver of Rights form indicating that [defendant] would be entering a no contest plea. The way I wrote it was Count 1 as amended from the violation of Penal Code section 215 to a violation of Vehicle Code section 10851. Also admitting a vicarious arming enhancement pursuant to Penal Code section 12022(a)(1). It's a straight up plea, conditioned on a waiver of time credits. Remaining count dismissed. The Court has indicated a NISP [(no initial state prison)]. And, actually, staying a four year term on this case and a consecutive eight [month] term in [another] case ...." (Italics added.)
The trial court advised defendant of his rights and took his plea. Then the court advised defendant as follows:
"THE COURT: [Sentencing] day will be November the 12th, 2003, at 8:30 here in this department, Department 95. And your matter's referred for Report of the Probation Office. [¶] That day, sir, it's likely that you will be released from custody right after your sentence. But you'll have a stayed prison term of some four years and eight months. In other words, if you are placed on probation and violate the terms and conditions of probation, you could have your stayed term lifted and you'd go to prison for four years and eight months. Do you understand all of that?
"THE DEFENDANT: Yes.
"THE COURT: And on your Change of Plea form it indicates that the maximum sentence that you could receive as a result of your plea includes four years, eight months in state prison. In reality, you'd wind up with more exposure than that because you'd get your four years and eight months, plus you've already served 480 some odd days in custody. So it's more like five years, which is beyond the maximum, the statutory maximum for the crimes to which you pled. You understand that, sir?
"THE DEFENDANT: Yes.
"THE COURT: That's only if your stay is lifted, though, I want you to be clear. You understand all of that?
"THE DEFENDANT: Yes. [¶] ... [¶]
"THE COURT: Do you have any questions about anything that you've done today with your Change of Plea form in the case or anything that I've mentioned to you about the consequences of your plea or your sentence?
"THE DEFENDANT: No." (Italics added.)
On November 12, 2003, the same judge presided over the sentencing hearing. The reporter's transcript of this hearing has been destroyed in the normal course of business (Gov. Code, § 69955, subd. (e)), and our record regarding this hearing contains only the previously prepared probation officer's report, the supplemental probation officer's report, and the clerk's minute order.
In the supplemental probation report prepared for the November 12, 2003 sentencing hearing, the probation officer noted that "[a]lthough the plea substantially changes the defendant's eligibility for probation," the officer recommended that the court deny probation and sentence defendant to prison for the midterm of two years, plus a one-year consecutive enhancement under section 12022(a)(1).
The minute order of the November 12, 2003 sentencing hearing contains the following notations. Under the local commitment heading, the clerk noted an upper term of three years, plus a one-year firearm enhancement. Below this, the clerk noted "= 4 yrs stayed." Below that, the clerk checked the box for "Exec of sent stay," and noted after it "4 yrs." On the next line, the clerk did not check the box for "IMPOS of jdg/sent susp," but nevertheless noted after it "4 yrs." On the same line, the clerk noted "4 yrs" of formal probation, and on the next line, a 365-day jail commitment. In a handwritten note, the clerk wrote: "Agg[ravated] term selected due to [defendant's] criminal record & sophistication & planning of current offense." (Italics added.)
On July 27, 2004, the probation department created a report in preparation for the contested restitution hearing regarding the stolen vehicle. The report stated:
"Disposition last hearing: On 11/12/03, [defendant] was committed to CDC for four years, 8 months. However, the commitment was stayed and [defendant] was placed on four years['] probation. Restitution was reserved. It should be noted that according to the plea agreement, remaining counts were dismissed with right to comment and restitution." (Italics added.)
Almost 12 years later, on June 16, 2016, defendant filed a motion to reduce his felony conviction to a misdemeanor pursuant to section 17(b)(3). Defendant's written motion argued that section 17(b)(3) applied because, in 2003, the trial court had not imposed a prison sentence before granting probation: "[Defendant] was merely sentenced to county jail and probation; there was no imposition of sentence in state prison."
The prosecution's response to the motion stated only that the section 12022(a)(1) firearm enhancement prevented the application of section 17(b). The response did not mention imposition of sentence.
Defendant replied, arguing that case law established section 17(b) could apply despite a sentence enhancement, citing People v. Feyrer (2010) 48 Cal.4th 426.
At the hearing on the motion on August 8, 2016, the trial court did not address defendant's argument, but denied the motion as follows:
"Motion's denied. The [Vehicle Code section] 10851 [violation] is not a wobbler in so much as it was enhanced pursuant to Penal Code Section 12022(a)(1), person armed in a commission or attempt of a felony, so he's not eligible for reduction. Thank you."
On August 25, 2016, defendant filed a notice of appeal.DISCUSSION
Vehicle Code section 10851, subdivision (a) is a "wobbler" offense that may, in the trial court's discretion, be punished as either a felony or a misdemeanor. (Veh. Code, § 10851, subd. (a); § 17 (b); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 (Alvarez) [listing Veh. Code, § 10851, subd. (a), as a statute that provides for "alternative felony or misdemeanor punishment"]; People v. Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3.)
The trial court has the sole discretion, under section 17(b), to treat a wobbler as a felony or a misdemeanor for sentencing purposes. (Alvarez, supra, 14 Cal.4th at p. 977.) "By its terms, [section 17(b)] sets a broad generic standard." (Ibid.) "[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.410]." (Id. at p. 978, fn. omitted.) "As a general matter, the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler 'in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, [felony punishment].' " (People v. Park (2013) 56 Cal.4th 782, 790.)
All references to rules are to the California Rules of Court.
As a threshold matter, the People concede, and we agree, that the section 12022(a)(1) firearm enhancement did not affect the trial court's discretion to reduce the wobbler to a misdemeanor under section 17(b). (See People v. Feyrer, supra, 48 Cal.4th at pp. 435-444; People v. Lee (2017) 16 Cal.App.5th 861; People v. Kunkel, supra, 176 Cal.App.3d at p. 55 [sentence enhancement made possible by § 12022 applies, on its face, only to felonies or attempted felonies; if magistrate or judge deems offense to have been a misdemeanor, § 12022 allegation would be "of no moment"].) Thus, we agree with the parties that the trial court erred in denying defendant's motion on this basis in 2016.
The People, however, assert that the trial court lacked discretion to reduce the conviction to a misdemeanor for another reason—a prison sentence had already been imposed in 2003 and thus the conviction was a felony that could not thereafter be reduced to a misdemeanor under section 17(b)(3).
Defendant replies that the People failed to raise this issue below, and the change of plea and sentencing records disclose no negotiations or discussions regarding it. Furthermore, defendant contends the record fails to support the conclusion that the trial court imposed sentence before granting probation. He asserts the record is ambiguous and incomplete and, if anything, shows that the court suspended imposition of sentence in 2003, such that section 17(b)(3) allowed reduction of the offense to a misdemeanor in 2016.
First, we observe that, as defendant points out, in 2016, the People did not address this issue and the trial court did not litigate or decide this issue when it denied the motion, although defendant did raise it as the ground for his motion. Regardless, we believe the record contains sufficient factual evidence about the 2003 change of plea and sentencing hearings to allow us to decide the legal issue of whether section 17(b)(3) allowed reduction of the felony to a misdemeanor in 2016.
Second, we note that our task on appeal "is to 'review the correctness of the challenged ruling, not of the analysis used to reach it.' [Citation.] ' " 'If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " ' " (People v. Hughes (2012) 202 Cal.App.4th 1473, 1481.) The fact that the trial court relied on a different, or incorrect, ground for its ruling is immaterial. The scope of our review is not limited to an evaluation of the trial court's reasoning or the theory underlying its decision. An appellate court reviews judicial action, not judicial reasoning. (El Centro Grain Co. v. Bank of Italy, etc. (1932) 123 Cal.App. 564, 567.) " '[I]t is what the court did, and not what the judge of the court stated ... that determines the course of our inquiry upon this appeal, as there is a vital distinction between what the judge of a trial court may say and what the trial court actually does.' " (Diaz v. Schultz (1947) 81 Cal.App.2d 328, 332.) If the ultimate result arrived at by the trial court is correct on any theory of the law relevant to the case, it must be affirmed. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.) It is thus immaterial what course of reasoning led the trial court to deny defendant's motion. The judicial action under scrutiny here is the order denying the motion, not the mental process by which the trial court arrived at the decision to deny the motion. (People v. Selz (1955) 138 Cal.App.2d 205, 210; Diaz v. Schultz, supra, at p. 332.) Thus, if the record provides a theory to support the trial court's denial of the motion, we must affirm the order denying the motion.
The issue before us hinges on the difference between (1) the imposition of sentence followed by suspension of its execution, and (2) the suspension of imposition of sentence. A trial court may do either before granting probation. (People v. Segura (2008) 44 Cal.4th 921, 932.) But the consequences are significantly different. "Imposition of a prison term, whether or not suspended, render[s] the offense a felony." (People v. Wood (1998) 62 Cal.App.4th 1262, 1267 (Wood).) And once sentence has been imposed, the trial court lacks authority to reduce the felony to a misdemeanor under section 17(b)(3), even after a defendant's good performance on probation. (Wood, supra, at p. 1271.) Furthermore, if probation is revoked and terminated, the court is bound by the previously imposed sentence and must order that sentence executed. (§ 1203.2, subd. (c) [upon revocation of probation, if sentence was originally suspended, court may pronounce judgment, but if sentence was originally imposed, prior judgment shall be in full force and effect]; rule 4.435 [if imposition of sentence was previously suspended, the judge must impose judgment and sentence, but if execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect]; People v. Howard (1997) 16 Cal.4th 1081, 1088; Wood, supra, at p. 1271.) Before granting probation, the court may wish to "emphasize the seriousness of [the defendant's] situation by imposing, and suspending, prison terms, thus locking in that particular sentence." (Wood, at p. 1271.)
We turn to the record to determine whether the trial court in this case imposed sentence before granting probation. At the change of plea hearing on October 16, 2003, the court explained to defendant that upon his release after sentencing, he would have a stayed prison term of four years eight months; and if he violated probation, the stay on the term could be lifted and he would go to prison for four years eight months. The court repeated that defendant would get four years eight months, and it confirmed that defendant understood and had no questions. These statements demonstrate that the court intended to impose sentence, and was advising defendant that upon revocation of his probation, the previously imposed sentence would be ordered executed. The court's remarks make no sense if the court intended to suspend imposition of sentence, in which case there would be no term, no stay on the term that could be lifted, and no term that could later be executed.
We note that the record repeatedly refers to a "stayed" term, but in the context of a grant of probation, a sentence is imposed and its execution is "suspended," not stayed. "There is a legal distinction between 'suspending' a sentence and 'staying' it. In the criminal sentencing context, the phraseology 'stay of execution' is utilized where full execution of sentence is prohibited by law and must be avoided. (See, e.g., § 654 [multiple punishment prohibited]; § 1170.1, subd. (a) [computation of consecutive terms]; § 1170.1, subd. (g) [double the base term limitation]; [citations].) In contrast, the words 'suspension of execution' are employed in conjunction with a grant of probation, a conditional and revocable release into the community. [Citations.] While at one time the terms may have been used indiscriminately [citation], they have developed into terms of art." (People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8, overruled on another point in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3.) When we refer to "stayed," as used in the record, we intend it to mean "suspended."
In the minute order from the November 12, 2003 sentencing hearing, the clerk noted a stayed four-year term, checked a box for execution of sentence stayed, and explained the trial court's reasons for selecting the upper term. These facts all indicate the court imposed sentence and complied with the requirements of section 1170, subdivision (b) (1170(b)) in doing so. Section 1170(b) stated that "[a] term of imprisonment shall not be specified if imposition of sentence is suspended." Here, the trial court specified a term of imprisonment. The court had no reason to select a term if not imposing sentence, and doing so would have violated section 1170(b). Section 1170(b) also stated that "[t]he court shall set forth on the record the reasons for imposing the upper or lower term." Here, the court stated it was selecting the upper term due to defendant's criminal record and the sophistication and planning involved in the current offense, again because the court was imposing sentence. As a whole, the minute order supports the conclusion that the court imposed sentence, despite the single inconsistent notation of "4 yrs" following the unchecked box for "IMPOS of jdg/sent susp," which we conclude was the result of either the court's misstatement or the clerk's error.
In 2003, section 1170(b) provided in relevant part: "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer's report, or to present additional facts. In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended." (Italics added.) --------
Finally, the probation report for the 2004 contested restitution hearing stated defendant was committed to CDC for four years eight months and then the commitment was stayed and defendant was granted probation. We are confident commitment to the CDC for a specific term refers to imposition of a prison sentence, and stay of that commitment refers to suspension of the execution of the prison sentence.
In sum, the record in its entirety overwhelmingly demonstrates that the trial court imposed a sentence of four years (plus eight months on another case) and suspended execution of that sentence before granting probation.
Defendant argues in his reply brief that he "did not give up his right to seek reduction of the felony to a misdemeanor" in his felony plea waiver form or at the change of plea hearing. "Neither the change-of-plea form, nor the plea colloquy at the hearing, make mention that [he] was pleading no contest to a straight felony rather than a wobbler, or that he gave up his right under section 17, subdivision (b)(3), to ask the court to reduce the conviction to a misdemeanor." Citing the sentencing minute order, he explains that the trial court suspended imposition of sentence for four years, and placed him on probation for four years with the condition that he serve 365 days in jail. He argues that the minute order appears to both suspend imposition of sentence for four years and suspend execution of sentence for four years.
As we have mentioned, we agree that the minute order contains a single inconsistent notation. However, nothing else in the record even vaguely suggests that imposition of sentence was suspended. Moreover, defendant was fully advised by the trial court at the change of plea hearing that he was going to be sentenced to four years in prison (plus eight months in another case), and that if he violated probation and the suspension on his sentence were lifted, he would then serve four years eight months in prison. In other words, his imposed sentence would be executed. Although the court did not specifically advise defendant that the conviction could not thereafter be reduced to a misdemeanor, at least on the record before us, it was clear the court was imposing a felony sentence, and the court advised defendant that revocation of probation risked significant consequences because of that felony sentence. Furthermore, based on the record, defendant had absolutely no reason to believe the court viewed his offense as trivial enough to warrant a current or future reduction to misdemeanor status.
The record establishes the trial court intended to and did impose sentence before granting probation in 2003. As a result, defendant's motion to reduce the felony to a misdemeanor under section 17(b)(3) was properly denied in 2016. We must affirm.