Supreme Court of California Justia
Citation 48 Cal. 4th 426, 226 P.3d 998, 106 Cal. Rptr. 3d 518

People v. Feyrer

Filed 3/25/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S154242
v.
Ct.App. 2/6 B192752
JESSE FEYRER,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. KA056346
____________________________________)

Defendant Jesse Feyrer was charged with assault by means of force likely
to produce great bodily injury, an offense punishable either as a felony or a
misdemeanor — commonly known as a “wobbler.” It also was alleged defendant
personally inflicted great bodily injury upon the victim of the assault, his father.
The parties negotiated a plea agreement pursuant to which defendant would plead
no contest to felony assault by means of force likely to produce great bodily injury
and admit the enhancement allegation of personal infliction of great bodily injury
in the commission of a felony. In return, defendant would serve six months in
county jail as a condition of five years‟ formal probation. The plea agreement did
not specify whether probation would be granted by suspending imposition of
defendant‟s sentence, or instead by suspending the execution of that sentence. The
trial court approved the plea agreement, accepted defendant‟s plea of no contest to
the charged felony and his admission of the enhancement allegation, and granted
probation — by suspending the imposition of any sentence.
Three years after defendant was placed on probation, the trial court, at the
request of the probation department, ordered early termination of probation and
1


subsequently granted defendant‟s application to set aside his plea and dismiss the
charges. The trial court declined, however, to grant defendant‟s request to declare
his offense to be a misdemeanor, because under the express terms of the plea
agreement, defendant had pleaded no contest to, and admitted an enhancement for,
a felony. The Court of Appeal reversed the latter ruling. Without considering the
effect of the original plea agreement, the appellate court construed the statute that
governs the treatment of a wobbler offense as permitting the trial court upon
termination of probation to declare the offense to be a misdemeanor (and in effect,
to annul the felony enhancement), because probation had been granted by
suspending imposition of any sentence.
The plea agreement specified that defendant would not contest his
commission of the charged felony and of conduct constituting an enhancement to
that felony, and that the prosecutor would consent to defendant‟s being placed on
probation. We granted review to consider the effect, if any, of the plea agreement
upon the applicability in this case of the statutory provision authorizing a trial
court, when probation originally was granted by suspending imposition of
sentence, to subsequently declare a wobbler offense to be a misdemeanor.
As we shall explain, the plea agreement did not render inoperative the
statute conferring upon the court discretionary authority to declare a wobbler
offense to be a misdemeanor, where the court initially granted probation by
suspending the imposition of a sentence. Accordingly, we affirm the judgment
rendered by the Court of Appeal.
I
In order to ascertain the terms of the plea agreement and the underlying
intent of the parties, we relate in some detail the circumstances under which
defendant entered his plea. On March 15, 2002, a complaint was filed alleging
that on March 13, 2002, defendant committed felony assault by means of force
likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and that in
committing this felony, he personally inflicted great bodily injury on the victim
2
(Pen. Code, § 12022.7, subd. (a)). The latter allegation qualified the offense as a
violent and serious felony under the Three Strikes law. (Pen. Code, §§ 667.5,
subd. (c)(8), 1192.7, subd. (c)(8).)1
On the day the complaint was filed, the parties negotiated a plea agreement
pursuant to which defendant would plead no contest to felony assault by means of
force likely to produce great bodily injury and admit the allegation that he
personally inflicted great bodily injury in the commission of a felony, thereby
rendering him subject to a potential maximum sentence of seven years in state
prison. In return, defendant would serve six months in county jail as a condition
of five years‟ formal probation. The plea agreement did not specify the manner in
which probation would be granted: by suspending imposition of a sentence or by
imposing sentence and suspending its execution.
On that same date, at the arraignment hearing, defendant waived formal
reading of the complaint and recital of his constitutional rights, and stipulated the
complaint would be deemed an information. Noting the abbreviated nature of the
proceedings, the trial court stated: “All right. I‟m willing to go along with the
disposition at this time. It‟s an early stage in the proceedings. That‟s why you‟re
probably getting the break that you‟re getting on this, Mr. Feyrer. [¶] So I want
you to listen to the District Attorney. He‟s going to go through your rights with
you one more time and make sure you understand the deal in your case.”
The prosecutor proceeded to explain that defendant was charged with a
violation of section 245, subdivision (a)(1), “a felony,” with an enhancement
allegation under section 12022.7, subdivision (a), for “great bodily injury,” and
could be sentenced to a maximum term of seven years in state prison if he “went
to trial and lost.” Under the plea agreement, however, defendant would be granted

1
All further statutory references are to the Penal Code unless otherwise
indicated.
3


five years‟ formal probation, a condition of which was that he serve 180 days in
county jail. The prosecutor advised defendant of the possible consequences of
pleading guilty, obtained a waiver of defendant‟s constitutional rights, and
received his acknowledgement that any violation of probation might result in a
state prison term. The prosecutor also advised defendant, and received his
acknowledgement that “this — plea in this count as well as an admission to the
special allegation[,] should you be convicted of a felony in the future[,] will be
used to enhance any sentence that you receive in the future,” that it “will be a
strike under California law,” and that “you will have this one strike for any future
sentencing purposes.” Defendant acknowledged his signature and initials on a
form that recorded his no contest plea to felony assault and his admission of the
enhancement, and that specified a maximum prison sentence of four years for the
aggravated assault and three years for the enhancement. The trial court suspended
imposition of sentence, and placed defendant on five years‟ probation on
conditions that included his serving 180 days in county jail.
Defendant performed well during the term of his probation. On July 21,
2005, at the request of the probation department, the trial court ordered early
termination of defendant‟s period of probation. (§ 1203.3, subd. (a).)2 The trial
court denied without prejudice defendant‟s contemporaneous requests to set aside
his no contest plea and dismiss the charges, and to declare the charged offense to
be a misdemeanor.

2
Section 1203.3, subdivision (a) provides: “The court shall have authority at
any time during the term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence. The court may at any time
when the ends of justice will be subserved thereby, and when the good conduct and
reform of the person so held on probation shall warrant it, terminate the period of
probation and discharge the person so held.” Subdivision (b)(1)(B) provides: “As
used in this section, modification of sentence shall include reducing a felony to a
misdemeanor.”
4


The following year, defendant renewed his application for an order setting
aside his plea of no contest and dismissing the charges (§ 1203.4, subd. (a)),3 and
declaring the offense to be a misdemeanor (§ 17, subd. (b)(3)).4 On May 17,
2006, the trial court ordered the no contest plea set aside and vacated, a plea of not
guilty entered, and the complaint dismissed. The court denied, as in excess of its

3
Section 1203.4, subdivision (a) provides that a defendant who has been
discharged on early termination of probation “shall” be permitted by the trial court
to withdraw his or her plea of guilty or no contest and enter a plea of not guilty.
The court “shall thereupon dismiss” the information and, “except as noted,” the
defendant “shall thereafter be released from all penalties and disabilities resulting
from the offense of which he or she has been convicted . . . . However, in any
subsequent prosecution of the defendant for any other offense, the prior conviction
may be pleaded and proved and shall have the same effect as if probation had not
been granted or the accusation or information dismissed. . . .” The dismissal “does
not permit a person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Section 12021 [felon in possession
of a firearm].”
4
Section 17, subdivision (a) classifies crimes according to their punishment,
defining a felony as a crime “punishable with death or by imprisonment in the state
prison,” and a misdemeanor as every other crime except those offenses classified as
an infraction. Subdivision (b) provides, as relevant here, that when a crime is
punishable in the court‟s discretion “by imprisonment in the state prison or by . . .
imprisonment in the county jail, it is a misdemeanor for all purposes under the
following circumstances: [¶] (1) After a judgment imposing punishment other
than imprisonment in the state prison. [¶]. . . . [¶] (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 . . . .” (Italics added.) Subdivision (b)
“outlines the procedural mechanisms by which a trial court may classify an offense
as a misdemeanor [citation], 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), . . .)” (People v. Superior Court
(Alvarez)
(1997) 14 Cal.4th 968, 974, fn. 4 (Alvarez).)
5


authority, the request to declare the offense a misdemeanor, because defendant had
inflicted great bodily injury upon the victim.
Defendant appealed from the order to the extent it denied his request to
declare the offense to be a misdemeanor.5 The Court of Appeal reversed the order
and remanded the case, concluding that the trial court was authorized not only to
terminate probation, vacate the no contest plea, and dismiss the charges, but also
in its discretion to declare the offense to be a misdemeanor. The Court of Appeal
reasoned that because the trial court originally granted probation by suspending
the imposition of sentence rather than imposing and suspending the execution of a
sentence, “no judgment [was] then pending against the probationer, who [was]
subject only to the terms and conditions of the probation.” Accordingly, when in
subsequent proceedings the trial court ordered early termination of defendant‟s
probation, the court retained its discretion to declare the offense to be a
misdemeanor notwithstanding defendant‟s admission that he had inflicted great

5
Section 1237 provides that a defendant may appeal: “(a) From a final
judgment of conviction . . . . A sentence [or] an order granting probation . . . shall
be deemed to be a final judgment within the meaning of this section. . . . [¶] (b)
From any order made after judgment, affecting the substantial rights of the party.”
An order pursuant to section 1203.3 that modifies an order suspending the
imposition or execution of a sentence (that is, an order granting probation) is
appealable as an order following a final judgment that affects the substantial rights
of the defendant. (See People v. Douglas (1999) 20 Cal.4th 85, 91; In re Bine
(1957) 47 Cal.2d 814, 817; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
Section 1203.3 expressly defines modification of a sentence as including the
reduction of a felony to a misdemeanor. (Id., subd. (b)(1)(B).) Upon termination
of probation, an order that denies a request pursuant to section 1203.4 for release
from disabilities and penalties is appealable. (People v. Romero (1991) 235
Cal.App.3d 1423, 1425-1426; see People v. Hawley (1991) 228 Cal.App.3d 247,
248, fn. 2; People v. Chandler (1988) 203 Cal.App.3d 782, 787.) An order
granting relief pursuant to section 1203.4 but denying relief pursuant to section 17,
subdivision (b)(3) would not be treated differently. (See Alvarez, supra, 14 Cal.4th
at pp. 976-977.) The Attorney General has not challenged the appealability of the
order denying the request to declare the offense a misdemeanor.
6


bodily injury upon the victim. The Court of Appeal also held that when a trial
court declares a wobbler to be a misdemeanor, any enhancement that is applicable
solely to felonies “is simply not imposed and ceases to have any significance.
(People v. Kunkel (1985) 176 Cal.App.3d 46, 55.)”
The Attorney General petitioned for rehearing on the ground that the Court
of Appeal had analyzed the issue strictly in terms of the statutory authority
conferred upon the trial court to terminate the period of probation and discharge
the person held, to vacate the no contest plea and dismiss the action, and to declare
the offense a misdemeanor, without taking into account the negotiated plea
agreement or considering the substance of defendant‟s no contest plea. The Court
of Appeal denied the request for rehearing.6
The Attorney General petitioned for review on the ground that defendant‟s
plea of no contest to assault as a felony and admission of the felony enhancement
allegation pursuant to a plea agreement precluded any subsequent reduction of the
offense to a misdemeanor pursuant to section 17, subdivision (b)(3). We granted

6
Although the Court of Appeal, in its opinion as modified upon denial of
rehearing, noted that the parties had entered into a plea agreement, the court in
essence viewed the original plea disposition — in which defendant pleaded no
contest to a felony assault and admitted the sentence enhancement allegation, and
the trial court granted probation by suspending imposition of any sentence — as
having been offered and procured by the trial court. A trial court may provide the
defendant an “indicated sentence” if he or she pleads guilty or no contest to all
charges and admits all allegations. (People v. Turner (2004) 34 Cal.4th 406, 419.)
When “the defendant pleads „guilty to all charges . . . so all that remains is the
pronouncement of judgment and sentencing‟ [citation], „there is no requirement
that the People consent to a guilty plea. [Citation.]‟ ” (Id. at pp. 418-419.) In
contrast in the present case, it is clear from the record, quoted above, that it was the
prosecution rather than the trial court that negotiated the plea agreement with the
defense, conferring upon defendant formal felony probation in lieu of a prison
term; this is a situation in which the trial court gave its approval to the parties‟
agreement rather than unilaterally negotiating a permissible agreement with
defendant.
7


review and held this case pending our decision in People v. Segura (2008) 44
Cal.4th 921 (Segura). (Cal. Rules of Court, rule 8.512(d)(2).) After that decision
became final, we directed the parties to file briefs in order to consider the
application of the holding in Segura to the present case.
II
A
The Attorney General contends that because defendant entered into a plea
agreement not to contest the charge of felony assault and to admit the allegation of
personal infliction of great bodily injury, in exchange for a term of probation in
lieu of service of a term in state prison, neither defendant‟s subsequent good
conduct, nor the trial court‟s resulting modification of the consequences of
defendant‟s offense — by terminating probation early, vacating the no contest plea
and entering a plea of not guilty, and dismissing the action — authorized the court
to declare the offense to be a misdemeanor over the People‟s objection. The
Attorney General notes that in Segura, supra, 44 Cal.4th 921, we held the trial
court‟s general statutory authority to modify probation conditions pursuant to
section 1203.3 did not authorize it unilaterally to alter a material term of the
parties‟ plea agreement — one requiring the defendant to serve a year in county
jail as a condition of his probation — by reducing the jail term in order to avert the
defendant‟s deportation. (Segura, supra, at pp. 925, 935-936.) The Attorney
General urges that the rule should not be different when a party requests the trial
court to modify a material provision of the plea agreement pursuant to section 17,
subdivision (b)(3) rather than section 1203.3, subdivision (a), and that accordingly
the trial court properly denied defendant‟s request.
In response, defendant asserts that his agreement not to contest the charge
of felony assault by means likely to produce great bodily injury and the allegation
of infliction of great bodily injury, in exchange for a grant of probation, did
nothing to alter the statutory classification of the substantive offense as a
wobbler — unless and until he were to be sentenced as a felon by the trial court.
8
According to defendant, because the court originally granted probation by
suspending the imposition of any sentence, the court was authorized by section 17,
subdivision (b)(3) in its discretion to reduce the offense to a misdemeanor in view
of defendant‟s subsequent conduct during the period of probation. In defendant‟s
view, had the prosecutor intended to define the permanent character and use of the
offense in any future proceedings, the prosecutor would have been required to
specify as a material term of the negotiated plea that probation would be granted
by imposing a felony sentence and suspending the execution of that sentence.
The parties do not dispute that in view of defendant‟s good conduct on
probation, the trial court properly exercised its authority to terminate defendant‟s
probation early, to vacate defendant‟s no contest plea and enter a plea of not
guilty, and to dismiss the charges — subject to the statutory exception that in a
subsequent prosecution the conviction would not be considered to have been set
aside and could be pleaded and proved. It is disputed whether, in view of the plea
agreement, the court also properly could exercise its discretionary authority to
reduce the felony to a misdemeanor.
In Segura, a case in which the trial court imposed a sentence and suspended
its execution, we considered whether the requirement that the defendant serve a
specified period in the county jail — an express condition of granting probation —
constituted a material term of the plea agreement, and therefore was not subject to
later modification by the trial court as a matter of its general statutory authority to
modify probation in light of subsequent events. In the present case, it is evident
that defendant‟s plea of no contest to an enhanced felony was a material term of
the plea agreement. The question we consider here is the efficacy of that term of
the agreement in fixing the status of the offense for all purposes, even though
probation — also a material term of the plea agreement — is designed to afford
(and, as granted here, otherwise would provide) the trial court with discretionary
authority to reduce the offense to a misdemeanor based upon the probationer‟s
good conduct.
9
As we explained in Segura, “[p]lea negotiations and agreements are an
accepted and „integral component of the criminal justice system and essential to
the expeditious and fair administration of our courts.‟ [Citations.] Plea
agreements benefit that system by promoting speed, economy, and the finality of
judgments. [Citations.]” (Segura, supra, 44 Cal.4th at p. 929.) A plea agreement
“is a tripartite agreement which requires the consent of the defendant, the People
and the court.” (People v. Yu (1983) 143 Cal.App.3d 358, 371; see People
v. Turner, supra, 34 Cal.4th at p. 418.) “Acceptance of the agreement binds the
court and the parties to the agreement.” (Segura, supra, at p. 930.)
In determining whether the Attorney General is correct in asserting that
defendant‟s request properly was declined because reduction of the offense to a
misdemeanor would in effect modify a material term of the plea agreement, we
commence with the applicable rules of construction. “Because a „negotiated plea
agreement is a form of contract,‟ it is interpreted according to general contract
principles.” (Segura, supra, 44 Cal.4th at p. 930, quoting People v. Shelton (2006)
37 Cal.4th 759, 767 (Shelton).) “ „The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties. (Civ. Code,
§ 1636.) . . . . [Citation.]‟ „The mutual intention to which the courts give effect
is determined by objective manifestations of the parties‟ intent, including the
words used in the agreement, as well as extrinsic evidence of such objective
matters as the surrounding circumstances under which the parties negotiated or
entered into the contract; the object, nature and subject matter of the contract; and
the subsequent conduct of the parties. [Citations.]‟ ” (Shelton, supra, at p. 767.)
In the present case it is reasonably clear the parties to the plea agreement
intended to facilitate the early disposition of the case without trial, perhaps in view
of the familial relationship between defendant and the victim, who was
defendant‟s father. To that end, defendant pleaded no contest to a felony assault
and admitted a fact related to its commission that would result in a prison term if a
sentence were to be imposed, in exchange for defendant‟s being placed on five
10
years‟ formal probation subject to a comparatively short term of incarceration of
six months in county jail, in contemplation of the possibility of rehabilitation. It
also is clear the parties intended to ensure that if defendant committed any future
offense, his conviction for the current offense could be treated as a “strike” under
the Three Strikes law.
There is no clear indication, however, that the parties also intended to
provide that the felony could not be reduced to a misdemeanor under any
circumstances, regardless of defendant‟s conduct during the period of probation.
The terms of the plea agreement do not state that this is the case. Nor do the terms
of that agreement abrogate the provisions of section 17, subdivision (b)(3), or
other statutes applicable during (or upon the conclusion of) a successful term of
probation.
Although the Attorney General asks that we imply such a term based upon
defendant‟s express plea of no contest to a felony and his admission of the alleged
felony enhancement, we are mindful of the rule that every term of a plea
agreement should be stated on the record. (See People v. West (1970) 3 Cal.3d
595, 609-610; People v. James (1989) 208 Cal.App.3d 1155, 1169.) Application
of this rule to the present case is essential to ensure not only that defendant was
not made subject to a term of which he was not made fully aware prior to giving
his consent to the proposed plea, a term foreclosing any possible reduction of his
offense, but also that the trial court was made aware of a term purporting to limit
its sentencing authority — a restriction that if known might have caused it to
refuse to accept the proposed plea agreement. Accordingly, we should not, and do
not, imply such a term purporting to restrict the sentencing authority of the court.
The parties‟ plea agreement did expressly provide that defendant would be
placed on formal probation — without a stipulation or qualification that this would
be done only by imposing and then suspending a felony sentence. We also note
that when the trial court proceeded to suspend the imposition of sentence instead
11
of imposing and then suspending execution of sentence, there was no objection by
the prosecutor.
In view of the parties‟ express agreement that defendant would be placed
on formal probation, and their mutual silence concerning the form in which it
would be granted, we briefly consider the underlying purpose and effect of a grant
of probation when the underlying conviction is of a wobbler offense and the trial
court proceeds without first imposing a sentence. “An integral and important part
of the penological plan of California is the discretionary retention in the trial court
of jurisdiction over the defendant and the cause of action against him [or her] . . .
by virtue of the probation procedures.” (People v. Banks (1959) 53 Cal.2d 370,
383, italics omitted (Banks).) A verdict or plea of guilty is not a final conviction,
in part because it may be nullified, “except for expressly defined purposes, when
jurisdiction and control over the defendant and the cause of action have been
retained in the court under the probation law (with or without pronouncement of
sentence) and the probation procedures have been fully executed.” (Ibid.)
When a defendant is convicted (whether by a guilty plea or a no contest
plea, or at a trial) of a wobbler offense, and is granted probation without the
imposition of a sentence, his or her offense is “deemed a felony” unless
subsequently “reduced to a misdemeanor by the sentencing court” pursuant to
section 17, subdivision (b). (People v. Statum (2002) 28 Cal.4th 682, 685, italics
added; see In re Jorge M. (2000) 23 Cal.4th 866, 879; Banks, supra, 53 Cal.2d at
pp. 381-382; People v. Holzer (1972) 25 Cal.App.3d 456, 460; Meyer v. Superior
Court (1966) 247 Cal.App.2d 133, 137 (Meyer); 1 Witkin, Cal. Criminal Law
(3d ed. 2000) Introduction to Crimes, § 73, p. 119.)
A trial court that grants probation upon a defendant‟s conviction of a
wobbler offense is assumed to have acted “with discriminating appreciation of the
effect of the form of [the court‟s] order upon defendant‟s activities and status,”
having in mind the rule that the charge remains a felony until a contrary
pronouncement of judgment occurs. (Banks, supra, 53 Cal.2d at p. 387.) If
12
ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from
that point on, but not retroactively: “Thus, when [the court] suspends
pronouncement of sentence for an alternatively punishable offense, it is to be
assumed that while [the court] did not wish to deprive the defendant of his [or her]
civil rights and thereby unnecessarily hamper defendant‟s efforts to rehabilitate
himself [or herself] (by stigmatizing him [or her] even temporarily as one against
whom a judgment of conviction of felony and sentence to prison had been entered)
the [court] also did not wish to classify the defendant as a mere mis[de]meanant
whose offense would not be available, for example, to increase defendant‟s
punishment if defendant should thereafter prove himself [or herself] a recidivist.”
(Id. at pp. 387-388.) When probation is granted without imposition of a sentence,
a defendant remains under the jurisdiction of the court “not only in relation to his
[or her] probationary status but also in relation to the character of the offense of
which he [or she] has been convicted.” (Meyer, supra, 247 Cal.App.2d at p. 136.)
A grant of probation is intended to afford the defendant an opportunity to
demonstrate over the prescribed probationary term that his or her conduct has
reformed to the degree that punishment for the offense may be mitigated or
waived. Thus, under favorable circumstances, when punishment has not been
imposed, the offense (with certain exceptions) may be reclassified or nullified.
(See Banks, supra, 53 Cal.2d at pp. 386-388; Meyer, supra, 247 Cal.App.2d at
pp. 139-140.) When a trial court grants probation without imposing a sentence,
sections 17 and 1203.4, read together, express the legislative purpose “that an
alternatively punishable offense remains a felony . . . until the statutory
rehabilitation procedure has been had, at which time the defendant is restored” to
his or her former legal status in society, subject to use of the felony for limited
purposes in any subsequent criminal proceeding. (Banks, supra, at p. 391.)
As we have discussed, the probation statutes confer upon the trial court
jurisdiction and authority over a defendant during the term of probation. These
statutes are intended to afford the defendant an opportunity to demonstrate his or
13
her rehabilitation in order to obtain early termination of probation, reclassification
of the offense, or dismissal of the action, and — in certain cases — all such forms
of leniency. In view of the operation and purpose of probation, the parties here
could not have reasonably understood a plea agreement that designated the offense
as a felony, but that also provided for a grant of probation without any restriction
on the form of the probation ordered, as fixing the status of the offense as a felony
for all purposes and for all time. Had the prosecution sought to ensure that,
regardless of defendant‟s subsequent conduct on probation, the offense would
remain a felony, it should have expressed an understanding (subject to acceptance
by the court) that probation would be granted by imposing and suspending the
execution of a felony sentence or that the felony would not be subject in the future
to reduction pursuant to section 17, subdivision (b)(3).
The Attorney General suggests that, as a matter of policy, the prosecutor
should not be obligated to influence the manner in which probation is granted
merely to foreclose the possibility that the trial court subsequently will act on its
authority during probation to reclassify the offense as a misdemeanor, when the
offense has been designated a felony under the parties‟ plea agreement. The
Attorney General suggests that imposing such an obligation would reduce the
flexibility of the trial court and the prosecutor in plea negotiations, because
imposition and suspension of execution of a sentence would be the sole form of
probation ensuring that the offense viewed by the prosecutor as a felony
subsequently is treated as a felony by the court.
In offering probation in exchange for a defendant‟s plea of guilty or no
contest, however, the prosecutor is providing the defendant with an opportunity
and an incentive to alter the consequences of his or her conviction in exchange for
securing the conviction itself. The fundamental feature of probation is that good
conduct on the part of the probationer may invite mitigation of punishment and (in
the case of a wobbler) reclassification of the offense. If there is to be any
14
curtailment of those routinely available options, such a restriction should be made
an express term of the plea agreement.
In Segura, we recognized that the term of the plea agreement conditioning
the defendant‟s placement on probation upon his service of 365 days in the county
jail was an express negotiated term “integral to the granting of probation in the
first place . . . .” (Segura, supra, 44 Cal.4th at p. 936.) By contrast, in the present
case, the terms of the plea agreement conditioning defendant‟s placement on
probation on his plea of no contest to a felony and admission of a felony
enhancement allegation did not incorporate or reflect a negotiated condition
purporting to restrict or deprive the court of its jurisdiction and authority to
subsequently determine the ultimate character of the offense in light of
defendant‟s success at rehabilitation — an incentive that constitutes one of the
principal objectives of probation. (See People v. Olguin (2008) 45 Cal.4th 375,
380-381.)
B
In the alternative, the Attorney General contends that because defendant
pleaded no contest to a “wobbler” assault and admitted personally inflicting great
bodily injury in the commission of a felony, in effect he pleaded no contest to a
“straight felony.” According to the Attorney General, section 17, subdivision
(b)(3) thus would not, and did not, authorize the trial court to declare the offense
to be a misdemeanor, and the court properly denied defendant‟s request.7

7
Defendant contends that we should not reach this issue raised by the
Attorney General, because it is not fairly included in the issue upon which we
granted review. (Cal. Rules of Court, rule 8.516(b)(1); People v. Alice (2007)
41 Cal.4th 668, 677-678; In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388, fn.
6; People v. Estrada (1995) 11 Cal.4th 568, 580.) Defendant points out that the
Attorney General sought review of the question whether a trial court has the
authority, over the People‟s objection, “to unilaterally rewrite and reduce an
agreed-upon material term of a plea bargain after it has accepted the agreement.”
Defendant urges that the issue upon which review was granted does not encompass
(Footnote continued on next page.)
15


As we have noted, section 17, subdivision (b) applies solely to a crime
“punishable, in the discretion of the court, by imprisonment in the state prison or
by fine or imprisonment in the county jail.” That statute does not confer upon the
trial court the authority to reduce a straight felony to a misdemeanor. (People
v. Mauch (2008) 163 Cal.App.4th 669, 674-675 (Mauch); People v. Douglas
(2000) 79 Cal.App.4th 810, 813; People v. Superior Court (Feinstein) (1994) 29
Cal.App.4th 323, 329-330 (Feinstein).) “ „Fixing the penalty for crimes is the
province of the Legislature, which is in the best position to evaluate the gravity of
different crimes and to make judgments among different penological approaches.‟
[Citation.] Phrased differently: „The definition of crime and the determination of
punishment are foremost among those matters that fall within the legislative
domain.‟ [Citations.]” (Mauch, supra, 163 Cal.App.4th at p. 674.) When the
Legislature has classified an offense as a felony without providing for an alternate
punishment, a trial court exceeds its jurisdiction “in purporting to reduce the
offense to a misdemeanor.” (Ibid.)

(Footnote continued from previous page.)
the potential impact that admission of a felony sentence enhancement allegation
might have upon the character of the offense as a wobbler, and thus does not
invoke the applicability of the statute conferring authority upon the trial court to
reduce a wobbler offense to a misdemeanor.

The Attorney General responds that defendant pleaded no contest to a
wobbler as a felony and admitted the truth of a factual allegation applicable to a
felony, based upon the parties‟ mutual understanding that the conviction was and
would remain a straight felony as a matter of law. The Attorney General suggests
that his argument is merely an alternative argument made in support of the general
contention that under the terms of the plea agreement, defendant pleaded no contest
to an enhanced felony that could not subsequently be reduced to a misdemeanor
pursuant to section 17, subdivision (b)(3). The nature of the assault that comprises
the subject of the plea agreement, including any factual allegations, appears to be
fairly encompassed within the issue whether the terms of the plea agreement
restricted the court‟s statutory authority. Accordingly, we address the Attorney
General‟s claim on the merits.
16


Although assault by means likely to produce great bodily injury is
punishable either as a felony or a misdemeanor, defendant also admitted the
factual allegation that he personally inflicted great bodily injury, for which the
Legislature has prescribed a felony sentence enhancement.8 In Feinstein, supra,

8
That term of the plea agreement far more likely and logically reflects the
prosecutor‟s intent to perfect the strike status of defendant‟s current conviction,
should he reoffend in the future, than to render section 17, subdivision (b)
inapplicable to the current conviction, should defendant be placed on probation by
the trial court‟s suspending the imposition of a sentence.

In and of itself, the wobbler offense of assault by any means of force likely
to produce great bodily injury (§ 245, subd. (a)(1)), when a felony sentence is
imposed, does not constitute a “serious felony” (§ 1192.7, subd. (c)(8)) for
purposes of the Three Strikes law, which requires that a serious felony or a violent
felony (§ 667.5, subd. (c)(8)) be the basis for a prior felony conviction to be
counted as a strike and on that basis to be used to increase the sentence for a
current felony conviction. (§§ 667, subds. (b), (d)(1), (e), 1170.12, subds. (b)(1),
(c); People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Glee (2000)
82 Cal.App.4th 99, 102; see People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
When “the additional element of personal infliction” of great bodily injury is found
present, however (Delgado, supra, at p. 1065), then for purposes of the Three
Strikes law, the offense of assault by means of force likely to produce great bodily
injury constitutes a serious felony, and a prior conviction of that offense constitutes
a “prior felony conviction.” (Rodriguez, supra, at pp. 261-262.)

In requiring that a “serious felony” or a “violent felony” be the basis for a
“prior felony conviction” qualifying as a strike, the Three Strikes statutes also
specify that “[t]he determination of whether a prior conviction is a prior felony
conviction for purposes of [the statute‟s relevant provisions] shall be made upon
the date of that prior conviction
and is not affected by the sentence imposed unless
the sentence automatically, upon the initial sentencing, converts the felony to a
misdemeanor.” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1), italics added.) Nor is
that determination affected by dispositions such as the suspension of imposition of
a sentence or suspension of execution of a sentence.

In the present case, the prosecutor, by obtaining defendant‟s plea of no
contest to the offense of assault by means of force likely to produce great bodily
injury, and his admission of the allegation of inflicting great bodily injury, ensured
that defendant‟s current conviction would thus qualify as a “prior felony
conviction” within the meaning of the Three Strikes law, in the event defendant
were to commit and suffer conviction of any felony in the future, regardless of the
(Footnote continued on next page.)
17


29 Cal.4th at pages 329-330, the court concluded that although false imprisonment
(§ 237) is alternatively punishable as a felony or a misdemeanor and thus
constitutes a wobbler offense, when an additional finding is made that the offense
was “committed by violence, menace, fraud, or deceit” the statute in question
prescribes a sentence to state prison, and thus with that finding the offense is a
straight felony that may not be reduced to a misdemeanor in the court‟s discretion
under section 17, subdivision (b)(3). Analogizing to Feinstein, the Attorney
General asserts that because defendant pleaded no contest to an aggravated assault
and admitted the personal infliction of great bodily injury, the offense was
converted to a straight felony.9

(Footnote continued from previous page.)
eventual disposition of the conviction in the present case. (See, e.g., People v.
Modiri
(2006) 39 Cal.4th 481, 485-486, 489 [the jury‟s true finding of the
allegation that the defendant personally inflicted great bodily injury in the course of
an assault was obtained for the purpose of making “the assault conviction a „serious
felony‟ for purposes of punishment in a future conviction”]; In re Jose H. (2000)
77 Cal.App.4th 1090, 1096 [in sustaining current charges of battery with serious
bodily injury, the juvenile court could not (and did not) impose a separate sentence
based upon an enhancement for inflicting great bodily injury, but properly denied a
defense motion to strike the enhancement, which was alleged to “ „qualify and
perfect the offense for treatment as a “strike” in the future‟ ”].)
9
Ordinarily, section 1192.7 prohibits plea negotiation in any case in which
the indictment or information charges a serious felony (such as assault by any
means likely to produce great bodily injury with personal infliction of great bodily
injury (id., subd. (c)(8)), unless the evidence is insufficient to prove the
prosecution‟s case, the “testimony of a material witness cannot be obtained, or a
reduction or dismissal would not result in a substantial change in sentence” (id.,
subd. (a)(2)). Similarly, section 1203, subdivision (e)(3) ordinarily precludes
granting probation to any person who willfully inflicted great bodily injury in
committing the crime of which he or she has been convicted, “[e]xcept in unusual
cases where the interests of justice would best be served if the person is granted
probation . . . .” (See also id., subd. (f).)

Nonetheless, defendant‟s conviction of assault by means likely to produce
great bodily injury, enhanced by his personal infliction of great bodily injury, was
(Footnote continued on next page.)
18


The analogy is inapt. In Feinstein, supra, 29 Cal.4th 323, the court
reviewed the crime of false imprisonment (§ 237, subd. (a)), which is punishable
either by a fine not exceeding $1,000 or by imprisonment in county jail for not
more than one year or both. The additional factual finding made in Feinstein was
that the offense was “committed by violence, menace, fraud, or deceit,” for which
the same statute, defining a substantive offense, specifies a sentence to state
prison. In the present case, by contrast, section 245, subdivision (a), insofar as it
defines the substantive offense here at issue (assault by any means of force likely
to produce great bodily injury) does not specify that the additional factual finding
of actual personal infliction of great bodily injury, if made, will cause the offense
to be punished by a sentence to state prison.10
As we explained above, a trial court may not reduce to a misdemeanor an
offense that has been determined by the Legislature to be a straight felony.
(Mauch, supra, 163 Cal.App.4th at p. 674.) Nor may the trial court effectively

(Footnote continued from previous page.)
the product of a plea agreement that included a grant of probation. It may be
inferred from defendant‟s familial relationship with the victim (the defendant‟s
father) that the prosecutor, viewing this as an unusual case, negotiated the plea
because of a perceived deficiency in the available evidence or difficulty in
obtaining the victim‟s testimony, and offered to accept a grant of probation for
reasons related to the family relationship.
10
By comparison, the Legislature specified in section 245, subdivision (c) that
“[a]ny person who commits an assault . . . by any means likely to produce great
bodily injury upon the person of a peace officer or firefighter” with actual or
imputed knowledge the victim is a peace officer or firefighter engaged in the
performance of his or her duties “shall be punished by imprisonment in the state
prison for three, four, or five years.” It is clear that, had the Legislature intended
the offense of assault by means of force likely to produce great bodily injury, when
accompanied by actual infliction of great bodily injury, to be a felony in all cases,
the Legislature would have designated such conduct as a substantive offense
punishable solely as a felony, as it did in the form of the type of assault described
in subdivision (c).
19


“felonize” a crime designated by the Legislature as a wobbler, by declining to
apply section 17, subdivision (b)(3) solely because an additional factual finding
related to sentencing is present. (See People v. Kunkle (1985) 176 Cal.App.3d 46,
54-55.)11 But as we have seen, section 17, subdivision (b)(3) authorizes a trial
court to reduce a wobbler offense from a felony to a misdemeanor and thus enable
a defendant to avoid many — but not all — of the consequences of his or her
conviction, notwithstanding vacation of the plea and dismissal of the charges
pursuant to section 1203.4. It is evident that the court‟s reduction of such an
offense will not alter the status of the offense as a prior felony conviction for
purposes of the Three Strikes law (ante, fn. 9) in the event the defendant were to
commit a felony offense in the future. In the present case, this consequence was
noted specifically by the prosecutor in entering into the plea agreement and clearly
was within the contemplation of the parties.
Because the statute setting forth defendant‟s substantive offense does not
prescribe a state prison sentence whenever the additional factual allegation (here
in the form of a separate punishment enhancement) has been established,
defendant‟s admission of that allegation did not automatically convert his offense
to a straight felony. Accordingly, defendant‟s offense remained within the class of

11
The circumstance that a defendant has admitted an enhancement allegation
that would apply solely to a felony sentence has not been understood to
automatically eliminate the trial court‟s authority to reduce the underlying wobbler
conviction to a misdemeanor. (See Alvarez, supra, 14 Cal.4th at pp. 974-980
[approving the court‟s reduction of a wobbler conviction (after jury verdict),
despite the defendant‟s admission of an allegation he had suffered four prior felony
convictions within the meaning of the Three Strikes law]; People v. Trausch (1995)
36 Cal.App.4th 1239, 1243-1247 [same, in the context of a guilty plea to a wobbler
offense].) Thus, in the present case, upon reduction of defendant‟s offense to a
misdemeanor, the admitted enhancement allegation had significance only for future
purposes of the Three Strikes law and not for the present offense.
20


offenses that are subject to reduction upon the occurrence of various events
specified in section 17.
III
The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

21

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Feyrer
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 151 Cal.App.4th 506
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S154242
Date Filed: March 25, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Wade Olson, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Richard Jay Moller, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Lawrence M. Daniels, James William Bilderback II, Lance E.
Winters, Kristofer Jorstad and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.

*Pursuant to California Constitution, article VI, section 21.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard Jay Moller
So‟Hum Law Center of Richard Jay Moller
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199

J. Michael Lehmann
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2371


Petition for review after the Court of Appeal vacated an order in a criminal case. The court ordered briefing deferred pending decision in People v. Segura (S148536), which presents the following issues: (1) Did the trial court have the power, over the People's objection, to rewrite and reduce an agreed-upon material term of a plea agreement that imposed a probationary term on defendant? (2) Did the trial court have the power to reduce the one-year term in county jail imposed pursuant to the plea agreement after defendant had already served the term?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 03/25/201048 Cal. 4th 426, 226 P.3d 998, 106 Cal. Rptr. 3d 518S154242Review - Criminal Appealsubmitted/opinion due

PEOPLE v. SEGURA (S148536)


Parties
1The People (Plaintiff and Respondent)
Represented by J. Michael Lehmann
Office of the Attorney General
300 S. Spring Street, Suite 5000
Los Angeles, CA

2Feyrer, Jesse (Defendant and Appellant)
Represented by Richard Jay Moller
Attorney at Law
P.O. Box 1669
Redway, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Dockets
Jul 9 2007Petition for review filed
  The People, Respondent Deputy Attorney Genreral J. Michael Lehmann
Jul 10 2007Record requested
 
Jul 17 2007Received Court of Appeal record
  file jacket
Aug 24 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including October 5, 2007, or the date upon which review is either granted or denied.
Sep 12 2007Review granted/briefing deferred (8.512(d)(2) criminal case)
  Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Segura, S148536 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Oct 1 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Richard Moller is hereby appointed to represent appellant on the appeal now pending in this court.
Jan 14 2009Briefing ordered in previously Held case
  The petition for review was granted in this matter on September 12, 2007, and further action was deferred pending this court's consideration and disposition of a related issue in People v. Segura, S148536. The decision in that matter has been filed. (People v. Segura (August 4, 2008) 44 Cal.4th 921.) Respondent in the present case is now directed to serve and file, within 30 days of the filing of this order, an opening brief on the merits. Within 30 days of the filing of that brief, appellant shall serve and file an answer brief. Within 20 days of the filing of that brief, respondent may file a reply brief to appellant's answer. (Cal. Rules of Court, rule 8.520.) George, C.J., was absent and did not participate.
Feb 10 2009Request for extension of time filed
  to file opening brief to March 15, 2009. Deputy Attorney General J. Michael Lehmann, for respondent
Feb 20 2009Extension of time granted
  On application of Respondent and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including March 15, 2009.
Mar 12 2009Opening brief on the merits filed
  Deputy Attorney General J. Michael Lehmann for The People
Mar 27 2009Request for extension of time filed
  By appellant requesting a 30-day extension to and including May 11, 20009 to file appellant's answer brief on the merits. by Richard Jay Moller, counsel
Apr 2 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including May 11, 2009.
Apr 27 2009Answer brief on the merits filed
Defendant and Appellant: Feyrer, JesseAttorney: Richard Jay Moller  
Apr 29 2009Counsel fee request received
  Atty Moller
May 8 2009Request for extension of time filed
  By respondent requesting a 30-day extension to and including June 16, 2009 to file respondent's reply brief on the merits. by J. Michael Lehmann, DAG
May 15 2009Extension of time granted
  On application of the Attorney General and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including June 16, 2009.
Jun 10 2009Compensation awarded counsel
  Atty Moller
Jun 15 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: J. Michael Lehmann  
Dec 2 2009Case ordered on calendar
  to be argued on January 6, 2010, at 9:00 a.m., in San Francisco.
Jan 6 2010Cause argued and submitted
 
Mar 24 2010Notice of forthcoming opinion posted
  To be filed on Thursday, March 25, 2010 at 10 a.m.

Briefs
Mar 12 2009Opening brief on the merits filed
 
Apr 27 2009Answer brief on the merits filed
Defendant and Appellant: Feyrer, JesseAttorney: Richard Jay Moller  
Jun 15 2009Reply brief filed (case fully briefed)
Plaintiff and Respondent: The PeopleAttorney: J. Michael Lehmann  
Brief Downloads
application/pdf icon
60437739.pdf (75915 bytes) - Opening Brief on the Merits
application/pdf icon
supreme-RB-John.pdf (180889 bytes) - Answer Brief on the Merits
application/pdf icon
50457194.pdf (189450 bytes) - Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 28, 2010
Annotated by amromero

Facts and Procedural Posture:

The defendant, Joseph Feyrer, pleaded no contest to assault by means of force likely to produce great bodily injury upon the victim, his father. This offense is referred to as a “wobbler” because it is punishable either as a felony or a misdemeanor. Feyrer also admitted the enhancement allegation of personal infliction of great bodily injury in the commission of a felony. Pursuant to the plea agreement, Feyrer agreed to serve six months in county jail as a condition of five years’ formal probation. The plea agreement did not include express terms about the manner in which Feyrer would be granted probation: by suspending imposition of a sentence or by imposing the sentence and suspending its execution. Three years after Feyrer was placed on probation, the trial court ordered early termination of his probation and then granted Feyrer’s application to set aside his plea and dismiss the charges against him. The trial court declined, however, to grant Feyrer’s request to declare his offense to be a misdemeanor pursuant to section 17(d)(3) of the California Penal Code. The Court of Appeal reversed the trial court’s decision not to declare Feyrer’s offense a misdemeanor.

Holding:

The terms of the plea agreement conditioning Feyrer’s probation on his plea of no contest and admission of a felony enhancement did not incorporate a negotiated condition restricting or depriving the trial court of its authority to determine the ultimate character of Feyrer’s offense. Further, the statute setting forth Feyrer’s substantive offense does not prescribe a state prison sentence upon establishment of a separate punishment enhancement. Therefore, the Court found that the trial court retains its authority to declare Feyrer’s offense a misdemeanor.

In reaching these conclusions, the Court first applied the holding in People v. Segura to this case, and then considered whether Feyrer’s admission of the enhancement automatically converted the offense into a straight felony. The Segura holding was that the trial court’s general statutory authority to modify probation conditions pursuant section 1203.3 of the California Penal Code did not authorize the trial court to unilaterally alter a material term of a plea agreement by reducing the jail term to avoid the defendant’s deportation. The Court analyzed the terms of the Feyrer plea agreement according to traditional contractual interpretation. There was no clear indication in the terms of the plea agreement that the parties intended to provide that a trial court could not, under any circumstances, reduce the felony to a misdemeanor regardless of Feyrer’s conduct during his probation.

The Court then noted that the purpose of granting probation is to allow the defendant the chance to demonstrate that during the probationary period his conduct had reformed to the degree that punishment for the offense may be mitigated or waived. The Court stated that the prosecution could have included express terms in the plea agreement stating that probation would be granted by imposing and suspending the execution of a felony sentence or that the felony would not be subject to future reduction pursuant to section 17(d)(3). In light of the prosecution’s failure to include these express terms and the purpose of granting probation, the Court held that the trial court retained the authority to determinate the ultimate character of Feyrer’s offense given his success at rehabilitation.

The Court went on to consider the whether Feyrer’s admission of an enhancement to assault for personal infliction of great bodily injury in the commission of a felony automatically converted the offense into a straight felony. The Court noted that the enhancement term of the plea agreement likely reflected the prosecution’s intent to perfect Feyrer’s status under California’s Three Strikes law should Feyrer reoffend in the future. Additionally, the operative criminal statute does not specify that an additional factual finding of persona infliction of great bodily injury will cause the offense to be punished by a sentence to state prison. Therefore, the Court found the offense remained within the class of offenses—wobblers—that are subject to reduction under section 17.

Issue Tags:

admission, Assault, bodily injury, condition, contest, contest plea, contractual interpretation, county jail, criminal law, declare, discretion, enhancement, felony, felony conviction, imprisonment, infliction, intended, means of force, misdemeanant, misdemeanor, negotiated, parties’ intent, plea agreement, probation, prosecutor, punishable, reduction, sentence, sentencing, state prison, straight felony, suspending, suspension, Three Strikes law, wobbler

Annotation Author: Ashley Romero