Supreme Court of California Justia
Docket No. S193938

People v. Park


Filed 5/13/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S193938
v.
Ct.App. 4/1 D056619
AARON SUNG-UK PARK,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCD210936

When the trial court sentenced defendant Aaron Sung-Uk Park for his
crimes in the present proceeding, it imposed an additional term of five years under
Penal Code section 667, subdivision (a), based upon defendant‟s previously
having been convicted of a serious felony.1 The prior offense that triggered
application of the five-year sentence enhancement was a conviction for assault
with a deadly weapon that had originally been charged as a felony. After
defendant had pleaded guilty to that charge, the court had suspended imposition of
sentence and granted probation. Thereafter, but before defendant committed the
current crimes, the trial court had reduced the prior offense to a misdemeanor
under section 17, subdivision (b)(3), and then dismissed it pursuant to section
1203.4, subdivision (a)(1). The Court of Appeal held that the conviction remained

1
Hereafter, undesignated statutory references are to the Penal Code unless
otherwise indicated.
1



a prior serious felony for purposes of sentence enhancement under section 667,
subdivision (a), notwithstanding its reduction to a misdemeanor, and affirmed the
five-year sentence enhancement imposed by the court. We conclude that when the
court in the prior proceeding properly exercised its discretion by reducing the
assault with a deadly weapon conviction to a misdemeanor, that offense no longer
qualified as a prior serious felony within the meaning of section 667, subdivision
(a), and could not be used, under that provision, to enhance defendant‟s sentence.
We therefore reverse the judgment of the Court of Appeal insofar as it upheld
imposition of the five-year enhancement.
I. FACTS AND PROCEDURAL BACKGROUND
In 2003, defendant pleaded guilty to a charge of felony assault with a
deadly weapon in violation of section 245, subdivision (a)(1). The court
suspended imposition of sentence and placed defendant on three years‟ probation
with various conditions. In 2006, after defendant successfully completed the
terms of his probation, the court reduced the offense to a misdemeanor in
accordance with the procedures in section 17, subdivision (b)(3). Soon after that,
the court dismissed the charge altogether under section 1203.4, subdivision (a)(1).
In September of the following year, defendant and his friends were
involved in a fight outside a taco shop in San Diego County. A group of passersby
briefly intervened to try to separate the participants and break up the fight, then
continued on their way. Defendant left the fight and pursued the passersby,
confronting them with a nine-millimeter semiautomatic handgun and demanding
to know who had pushed him down. When Eric Joseph stepped forward,
defendant shot him in the hip, thigh, and calf, causing serious injury. In
connection with this incident, defendant was charged with attempted premeditated
murder and assault with a firearm. (§§ 664, subd. (a)/187, subd. (a); § 245,
subd. (a)(1).) For sentencing purposes, it was alleged, in relevant part, that
2

defendant had suffered a prior serious felony conviction within the meaning of
section 667, subdivision (a) (hereafter section 667(a)), and the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12).
A jury acquitted defendant of attempted murder, finding him guilty of the
lesser offense of attempted voluntary manslaughter. (§§ 664/192, subd. (a).) It
also found defendant guilty as charged of assault with a firearm, and found true
the associated allegations that defendant personally used a firearm and caused
great bodily injury. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) After those
verdicts were rendered, defendant waived jury trial on the prior conviction
allegations and admitted having suffered a prior serious felony conviction. Both
defendant and his counsel informed the court, however, that the prior conviction
had been reduced to a misdemeanor.
The court accepted defendant‟s admission of the prior serious felony
allegations and sentenced him to a total term of 24 years, which included a
second-strike sentence of 12 years for the assault conviction and a five-year
sentence enhancement under section 667(a), based on defendant‟s previously
having been convicted of a serious felony.2
The Court of Appeal affirmed the judgment. In the part of its opinion that
is relevant here, the Court of Appeal upheld imposition of the five-year
enhancement, concluding that the prior assault remained a serious felony

2
Defendant‟s 24-year sentence was comprised of the middle term of six
years for the assault with a firearm conviction, which the court doubled to 12 years
as a second strike. To that sentence, the court added consecutive terms of four
years for personally using a firearm, three years for causing great bodily injury,
and five years for previously having been convicted of a serious felony. Sentence
on the attempted voluntary manslaughter conviction was stayed pursuant to
section 654.
3



conviction for purposes of section 667(a), notwithstanding its having been reduced
to a misdemeanor pursuant to section 17, subdivision (b)(3) in 2006 and thereafter
dismissed altogether. We granted review to decide whether a defendant adjudged
guilty of a serious felony that has been reduced to a misdemeanor under section
17, subdivision (b)(3), and then dismissed pursuant to section 1203.4, subdivision
(a)(1), is subject to sentence enhancement under section 667(a) in a subsequent
criminal proceeding for having previously been convicted of a serious felony.3
II. DISCUSSION
Our analysis begins with an overview of the history of section 17 and the
decisions explaining its operation and effect. We then examine the language and
history of section 667(a) to determine the electorate‟s intent regarding the
interplay between that sentence enhancement provision and the operation of
section 17. Finally, we consider the effect of section 1203.4.
A. Classification of crimes pursuant to section 17
It is the Legislature‟s function “ „to define crimes and prescribe
punishments . . . .‟ [Citation.]” (People v. Anderson (2009) 47 Cal.4th 92, 119.)

3
Defendant‟s admission at trial that he had suffered a prior serious felony
conviction did not bar him from claiming on appeal that his prior offense could not
be used to increase his punishment under section 667(a). (People v. Crowson
(1983) 33 Cal.3d 623, 627, fn. 3 [a defendant‟s stipulation to a prior conviction at
trial “does not preclude a defendant from later demonstrating that the increased
punishment which he received is unwarranted because his prior conviction does
not fall within the class of convictions for which the statute authorizes such
punishment”]; see People v. Ellis (1987) 195 Cal.App.3d 334, 342 [the
defendant‟s admission of a prior federal bank robbery conviction for purposes of
enhancement under section 667(a) did not preclude him from raising on appeal the
legal question whether the prior conviction constituted a prior serious felony
within the meaning of that provision].) The Attorney General does not argue to
the contrary.
4



The Legislature has classified most crimes as either a felony or a misdemeanor, by
explicitly labeling the crime as such, or by the punishment prescribed. “A felony
is a crime that is punishable with death, [or] by imprisonment in the state
prison . . . . Every other crime or public offense is a misdemeanor except those
offenses that are classified as infractions.” (§ 17, subd. (a).) There is, however,
a special class of crimes involving conduct that varies widely in its level of
seriousness. Such crimes, commonly referred to as “wobbler[s]” (People v.
Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3), are chargeable or, in the discretion of
the court, punishable as either a felony or a misdemeanor; that is, they are
punishable either by a term in state prison or by imprisonment in county jail and/or
by a fine. (§ 17, subd. (b); People v. Feyrer (2010) 48 Cal.4th 426, 430, 433, fn. 4
(Feyrer).)4

4
A recent amendment to section 17, subdivision (b), prompted by the
Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1), clarifies that
“imprisonment in the state prison” includes imprisonment in a county jail pursuant
to section 1170, subdivision (h)(1), (2), which provides that, unless certain
enumerated exceptions apply, a defendant whose crime is punishable as a felony
must serve his or her sentence in county jail rather than state prison. Section 17,
subdivision (b) now reads in full: “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

(footnote continued on next page)
5



Assault with a deadly weapon, the crime upon which the section 667(a)
enhancement was based in this case, is a wobbler because it is punishable by
“imprisonment in the state prison for two, three, or four years, or in a county jail
for not exceeding one year, or by a fine not exceeding ten thousand dollars
($10,000), or by both the fine and imprisonment.” (§ 245, subd. (a)(1); see People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 (Alvarez) [a court‟s
sentencing discretion to classify a wobbler as a misdemeanor derives from the
charging statutes that provide felony or misdemeanor punishment].)
When a fact finder has found the defendant guilty of, or the defendant has
pleaded no contest or guilty to, a wobbler that was not charged as a misdemeanor,
the procedures set forth in section 17, subdivision (b) (hereafter section 17(b))
govern the court‟s exercise of discretion to classify the crime as a misdemeanor.
As relevant to the issue here, section 17(b)(3) provides that “[w]hen a crime is
punishable, in the discretion of the court, either by imprisonment in the state
prison . . . or by fine or imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances: [¶] . . . [¶] (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.”

(footnote continued from previous page)

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.”
6



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, incarceration in a state prison as a
felon.” (In re Anderson (1968) 69 Cal.2d 613, 664-665.) The court‟s authority to
exercise discretion in this regard is a long-established component of California‟s
criminal law. For purposes of the issue presented in this case, the proper
interpretation and application of section 17(b)(3) is best understood, therefore, by
a brief review of the history of the pertinent provisions of section 17 relating to
wobblers generally.
The statutory authorization for a trial court‟s exercise of discretion to
determine whether a wobbler should be treated as a felony or a misdemeanor first
appeared in 1874. (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347,
355-356.)5 As enacted, the provision of section 17 relating to the misdemeanor
classification of wobblers applied only upon imposition of sentence and a
judgment imposing that punishment, and did not address the scenario presented
here, in which a trial court suspends imposition of sentence and grants probation.
(Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 137.) In light of the
statutory language then in existence, the relevant decisions held that unless and
until the court imposed a sentence other than commitment to state prison, a
wobbler was deemed a felony for all purposes. (People v. Banks (1959) 53 Cal.2d

5
The 1874 amendment to section 17 added the following sentence: “When a
crime, punishable by imprisonment in the State Prison, is also punishable by fine
or imprisonment in a County Jail, in the discretion of the Court, it shall be deemed
a misdemeanor for all purposes after a judgment imposing a punishment other than
imprisonment in the State Prison.” (Code Amends. 1873-1874, ch. 196, § 1,
p. 455.)
7



370, 381, 388 (Banks); Doble v. Superior Court (1925) 197 Cal. 556, 576-577; see
Feyrer, supra, 48 Cal.4th at pp. 438-439 [reaffirming the rule].)6
Banks, supra, 53 Cal.2d 370, illustrates application of the rule that a wobbler
is deemed a felony for all purposes until the court actually imposes a sentence
other than commitment to state prison. In Banks, the defendant pleaded guilty to
vehicle theft, a wobbler. The court suspended imposition of sentence and granted
the defendant three years‟ probation, conditioned upon 12 months in county jail,
which the defendant successfully completed. (Id. at p. 377.) Thereafter, in a
subsequent prosecution for unlawful possession of a firearm by a felon (former
§ 12021), the defendant pleaded guilty to that charge and admitted having suffered
the prior conviction. (Banks, supra, at p. 376.) On appeal, the defendant argued
that his motion below to set aside the judgment should have been granted because
he had not suffered a prior felony conviction. (Id. at pp. 380-381.) This court
rejected that contention based, in relevant part, on the ground that the defendant
remained a convicted felon for purposes of the felon-in-possession offense “until
and unless” the prior crime was reduced to a misdemeanor by the court‟s

6
The language of section 17 added in 1874 also gave rise to the related rule
that if the court exercised its discretion by imposing a sentence other than
commitment to state prison, the defendant stood convicted of a misdemeanor, but
only from that point forward; classification of the offense as a misdemeanor did
not operate retroactively to the time of the crime‟s commission, the charge, or the
adjudication of guilt. (Doble v. Superior Court, supra, 197 Cal. at pp. 576-577
[the court‟s reduction of a wobbler to a misdemeanor at sentencing had no
retroactive effect on the statute of limitations applicable to that crime]; see also
People v. Moomey (2011) 194 Cal.App.4th 850, 856-858 [a wobbler offense
committed by a principal is deemed a felony at the time of its commission for
purposes of imposing criminal liability on an accessory to a felony after the fact,
even if, subsequent to the accessory‟s conviction, the principal‟s offense is
reduced to a misdemeanor].)
8



pronouncement of a misdemeanor sentence. (Id. at p. 388.) Because in that case
the trial court had not actually sentenced the defendant to misdemeanor
punishment, the court in Banks held that the prior offense remained a felony that
could be used to establish the defendant‟s guilt of unlawful possession of a firearm
by a felon. (Id. at pp. 387-388; see also In re Anderson, supra, 69 Cal.2d at p. 664
[“ „if no sentence is ever pronounced the offense remains a felony at all times‟ ”].)
This former rule requiring imposition of a misdemeanor sentence to
effectively reduce a wobbler to a misdemeanor under section 17 sometimes led to
anomalous results in cases in which the court determined at the time of sentencing
that the defendant deserved probation instead of incarceration. For example, in
granting probation in some such cases, the court suspended imposition of sentence
in order to retain jurisdiction over the defendant during the probationary period.
By using this procedure, the court afforded the defendant the opportunity to
demonstrate that he or she had been rehabilitated and deserved being classified as
a misdemeanant rather than a felon. (Feyrer, supra, 48 Cal.4th at p. 439.) But
under the provisions of section 17 as it then read, several decisions held that when
a trial court suspended imposition of sentence and granted probation, its exercise
of discretion to reduce the offense to a misdemeanor was effective only if the court
formally revoked probation during the probationary period and actually sentenced
the defendant to county jail. (See, e.g., Banks, supra, 53 Cal.2d at p. 382, fn. 7,
citing People v. Lippner (1933) 219 Cal. 395, 403.)7 Unless the court followed

7
In these situations, after sentencing the defendant to county jail, the court
typically would then suspend that sentence and grant misdemeanor probation, and
then find that the defendant had satisfied the terms of probation and terminate it.
(See Woodruff J. Deem, Ventura County District Attorney, letter to Sen. Robert J.
Lagomarsino, Feb. 12, 1963 [urging the lawmaker to sponsor a bill to amend § 17
that would render these additional procedures unnecessary].)
9



that procedure, the cases held that even though the trial court had granted
probation, had not imposed any term of confinement, and had intended that the
offense be deemed a misdemeanor after the successful completion of probation,
the defendant nonetheless must be treated as previously having been convicted of
a felony. By contrast, if a trial court determined at the time of sentencing that the
defendant‟s crime warranted incarceration and committed him or her to county
jail, under the governing cases, that defendant would be considered as having been
convicted of a misdemeanor.
To remedy both the cumbersome procedures for complying with section 17‟s
requirements in a case in which the court suspended imposition of sentence and
granted probation, and the anomalous results that occurred when the court failed to
do so, the Legislature amended section 17 in 1963 to provide a streamlined
mechanism for reducing a wobbler to a misdemeanor under these circumstances.
(Stats. 1963, ch. 919, § 1, pp. 2169-2170.)8 Under the 1963 amendment, which
appears in its present form as section 17(b)(3), the court may reduce a wobbler to a
misdemeanor either by declaring the crime a misdemeanor at the time probation is
granted or at a later time — for example, when the defendant has successfully

8
The 1963 amendment to section 17 added a second paragraph, with the
following language: “Where a court grants probation to a defendant without
imposition of sentence upon conviction of a crime punishable in the discretion of
the court by imprisonment in the state prison or imprisonment in the county jail,
the court may at the time of granting probation, or, on application of defendant or
probation officer thereafter, declare the offense to be a misdemeanor.” In a letter
to then-Governor Edmund G. Brown urging him to sign the legislation, the bill‟s
author referenced the serious consequences for a probationer whose conviction
was unintentionally deemed a felony rather than a misdemeanor, including its use
as a prior felony conviction in a subsequent criminal prosecution. (See Sen.
Robert J. Lagomarsino, sponsor of Sen. Bill No. 802 (1963 Reg. Sess.), letter to
Edmund G. Brown, June 4, 1963.)
10



completed probation. (See Meyer v. Superior Court, supra, 247 Cal.App.2d at
p. 140 [as amended, § 17 authorizes the court to reduce a wobbler to a
misdemeanor even after probation has expired].)
It is evident from the statutory language that a wobbler becomes a
“misdemeanor for all purposes” under section 17(b)(3) only when the court takes
affirmative steps to classify the crime as a misdemeanor. When the court properly
has exercised its discretion to reduce a wobbler to a misdemeanor under the
procedures set forth in section 17(b), the statute generally has been construed in
accordance with its plain language to mean that the offense is a misdemeanor “for
all purposes.” (See People v. Navarro (1972) 7 Cal.3d 248, 271 [commitment to
the (former) Youth Authority, which reduced a wobbler to a misdemeanor by
operation of § 17(b)(2), rendered the defendant eligible for a narcotics addiction
rehabilitation program that prohibited participation by convicted felons]; People v.
Hannon (1971) 5 Cal.3d 330, 340 [concluding that the statutory language of
§ 17(b) was plain and unequivocal]; see also People v. Marshall (1991)
227 Cal.App.3d 502, 504-505 [the defendant‟s honorable discharge from the
Youth Authority, which by operation of the terms of § 17, subd. (c), rendered his
wobbler a “misdemeanor for all purposes,” precluded imposition of a five-year
prior serious felony enhancement under § 667(a) in a subsequent criminal
proceeding].)
Significant to the issue presented here, reviewing courts have long
recognized that reduction of a wobbler to a misdemeanor under what is now
section 17(b) generally precludes its use as a prior felony conviction in a
subsequent prosecution. (See Banks, supra, 53 Cal.2d at p. 388 [recognizing that a
wobbler reduced to a misdemeanor “would not be available . . . to increase
defendant‟s punishment if defendant should thereafter prove himself a recidivist”];
People v. Pryor (1936) 17 Cal.App.2d 147, 152-153; People v. Rowland (1937)
11

19 Cal.App.2d 540, 541-542; see also People v. Camarillo (2000) 84 Cal.App.4th
1386, 1390 [absent a specific statutory command to the contrary, a wobbler
reduced to a misdemeanor by the court‟s exercise of discretion under § 17(b) does
not qualify as a prior felony conviction].) As the appellate court observed in In re
Rogers (1937) 20 Cal.App.2d 397, 400-401, one of the “chief” reasons for
reducing a wobbler to a misdemeanor “is that under such circumstances the
offense is not considered to be serious enough to entitle the court to resort to it as a
prior conviction of a felony for the purpose of increasing the penalty for a
subsequent crime.”
The provisions of section 17(b) are not necessarily conclusive, however, and
the Legislature sometimes has explicitly made clear its intent to treat a wobbler as
a felony for specified purposes notwithstanding a court‟s exercise of discretion to
reduce the offense to a misdemeanor. For example, under Business and
Professions Code section 6102, subdivision (b), an attorney who pleads guilty to,
or is found guilty of, a wobbler charged as a felony is deemed convicted of a
felony and subject to immediate suspension from the practice of law, even if the
offense has been reduced to a misdemeanor pursuant to section 17(b)(1) or (b)(3).
(See also Gov. Code, § 1029, subd. (a) [disqualifying from employment as a peace
officer any person who has been adjudged guilty of a felony, notwithstanding
reduction of the offense to a misdemeanor pursuant to § 17(b)].) Similarly, under
a provision of the Three Strikes law, the determination whether a prior conviction
qualifies as a strike for purposes of sentencing under that law is based “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).) The Three Strikes
law also explicitly provides that the determination of whether a prior offense
constitutes a strike is not affected by the “suspension of imposition of judgment or
12

sentence.” (§§ 667, subd. (d)(1)(A), 1170.12, subd. (b)(1)(A).) By this language,
lawmakers made clear their intent to bring within the reach of the Three Strikes
law a defendant whose wobbler was reduced to a misdemeanor after the time of
initial sentencing. (See Feyrer, supra, 48 Cal.4th at pp. 443-444 & fn. 8 [finding
it evident that a wobbler reduced to a misdemeanor under § 17(b)(3) after
suspension of imposition of sentence could be used as a prior felony conviction
under the Three Strikes law in the event the defendant were to suffer a subsequent
felony conviction]; see also People v. Franklin (1997) 57 Cal.App.4th 68, 73-74
[§ 17(b)(2), which deemed a wobbler a “misdemeanor for all purposes” when the
offender is committed to, and successfully discharged from, the Youth Authority,
was one of the laws displaced by § 667, subd. (d)(1)]; People v. Superior Court
(Perez), supra, 38 Cal.App.4th at pp. 362-363 [a prior offense remains a felony for
purposes of the Three Strikes law when the court‟s exercise of discretion under
§ 17(b)(3) to reduce a wobbler to a misdemeanor occurs after initial sentencing].)
From the decisions addressing the effect and scope of section 17(b), we
discern a long-held, uniform understanding that when a wobbler is reduced to a
misdemeanor in accordance with the statutory procedures, the offense thereafter is
deemed a “misdemeanor for all purposes,” except when the Legislature has
specifically directed otherwise. The question presented in this case is whether a
defendant adjudged guilty of a wobbler charged as a felony that is later reduced to
a misdemeanor pursuant to section 17(b)(3) is nonetheless subject to a five-year
enhancement under section 667(a) in a subsequent criminal proceeding. We next
turn to that issue.
B. Applicability of section 667(a) to a defendant whose prior offense
was reduced to a misdemeanor pursuant to section 17(b)(3)
As we shall explain, neither the language nor history of section 667(a) or of
the constitutional amendment that was enacted concurrently with that statutory
13

provision discloses an intent on the part of lawmakers to limit the effect of a
court‟s exercise of discretion pursuant to section 17(b). We therefore conclude
that defendant‟s earlier offense did not qualify as a prior serious felony for
purposes of enhancement under section 667(a).
Section 667(a) was added to the Penal Code in 1982 by the passage of the
voter initiative Proposition 8, commonly known as the Victims‟ Bill of Rights, that
made sweeping changes to California‟s criminal laws. (Brosnahan v. Brown
(1982) 32 Cal.3d 236, 240, 242, 244; People v. West (1984) 154 Cal.App.3d 100,
106.) The substance of the statute has changed little since its original enactment,
and provides in relevant part that “any person convicted of a serious felony who
previously has been convicted of a serious felony in this state . . . shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried
separately.” (§ 667(a)(1), as amended by Stats. 1994, ch. 12, § 1, p. 72.)9 As
originally enacted, like today, “[t]here is no requirement of prior incarceration or
commitment for this [provision] to apply”; that is, the five-year enhancement
applies when the defendant had been granted felony probation in lieu of
imprisonment. (§ 667(a)(2).) The statute, then and now, defines the term “serious
felony” by reference to the list of crimes appearing in section 1192.7, subdivision
(c), which also was added to the Penal Code by the passage of Proposition 8.
(§ 667(a)(4).) Section 667(a) does not, however, specifically define the terms
“convicted” or “conviction” as used in the provision.

9
Before the 1994 amendment, this language was found in section 667,
former subdivision (a).
14



In determining whether a defendant who previously was found guilty of, or
pleaded guilty to, a wobbler is subject to enhancement under section 667(a) in a
later prosecution notwithstanding the court‟s designation of the earlier offense as a
misdemeanor pursuant to section 17(b), we are guided by the well-established
principle that our task is to discern the lawmakers‟ intent. (People v. Jones (1993)
5 Cal.4th 1142, 1146.) Because section 667(a) was enacted by the electorate, it is
the voters‟ intent that controls. (People v. Jones, supra, at p. 1149.) Nonetheless,
our interpretation of a ballot initiative is governed by the same rules that apply in
construing a statute enacted by the Legislature. (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 571; People v. Jones, supra, at p. 1146.) We
therefore first look to “the language of the statute, affording the words their
ordinary and usual meaning and viewing them in their statutory context.” (Alcala
v. Superior Court (2008) 43 Cal.4th 1205, 1216; accord, Robert L. v. Superior
Court (2003) 30 Cal.4th 894, 901.) Once the electorate‟s intent has been
ascertained, the provisions must be construed to conform to that intent. (Arias v.
Superior Court (2009) 46 Cal.4th 969, 979.) “[W]e may not properly interpret the
measure in a way that the electorate did not contemplate: the voters should get
what they enacted, not more and not less.” (Hodges v. Superior Court (1999) 21
Cal.4th 109, 114.)
As noted above, section 667(a) provides for the mandatory imposition of a
five-year enhancement to the sentence of any person convicted of a serious felony
“who previously has been convicted of a serious felony.” The Attorney General
argues that, by its plain and unambiguous language, the statute applies in the
present proceeding because defendant had pleaded guilty to assault with a deadly
weapon in 2003, his conviction constituted a felony conviction at that time and
remained a felony conviction until it was reduced to a misdemeanor in 2006, and
therefore defendant “previously ha[d] been convicted of a serious felony” from
15

2003 through 2006. For the reasons discussed hereafter, we disagree with the
Attorney General‟s contention regarding the proper interrelationship between the
provisions of section 667(a) and section17(b).
As discussed above, long before the enactment of section 667(a), California
decisions had repeatedly and uniformly recognized that, in the absence of a clear
statutory directive to the contrary, when a trial court properly exercises its
discretion to reduce a wobbler to a misdemeanor under section 17(b), the trial
court‟s action precludes the use of that offense as a prior felony conviction in a
subsequent prosecution. (See Banks, supra, 53 Cal.2d at p. 388; In re Rogers,
supra, 20 Cal.App.2d at pp. 400-401; People v. Rowland, supra, 19 Cal.App.2d at
pp. 541-542; People v. Pryor, supra, 17 Cal.App.2d at pp. 152-153.) The
Attorney General‟s contention directly conflicts with this line of decisions
because, under the Attorney General‟s interpretation, section 667(a) would
override section 17(b)‟s command that a trial court‟s exercise of discretion in
reducing a wobbler to a misdemeanor renders the offense a “misdemeanor for all
purposes.” (§ 17(b).) Nothing in the language of section 667(a), or in the
materials presented to the voters in connection with the passage of Proposition 8,
however, discloses any basis on which to infer that the voters intended by the
passage of that initiative to depart from long-settled law regarding the proper
application and effect of section 17(b). Notably, although section 667(a)(2)
provides that “[t]here is no requirement of prior incarceration or commitment,” the
statute does not state that the five-year enhancement applies when a defendant has
been granted felony probation and the trial court thereafter reduced the offense to
a misdemeanor.
Similarly, neither the ballot arguments supporting the initiative nor an
analysis of the measure by the Legislative Analyst contained any mention of the
effect of the statute on a court‟s exercise of discretion to reduce a wobbler to a
16

misdemeanor. By way of background, the Legislative Analyst informed voters in
relevant part that “[u]nder the criminal justice system, persons convicted of
misdemeanors may be fined or sentenced to a county jail term, or both. Those
convicted of felonies may be fined in some cases, sentenced to state prison, . . . or
both fined and imprisoned. For some crimes, a person may receive „probation‟ in
lieu of a prison sentence or a fine.” (Ballot Pamp., Primary Elec. (June 8, 1982),
Analysis by the Legislative Analyst, p. 32, original italics; hereafter Ballot
Pamphlet.) Notably absent from this overview of the classification of criminal
offenses is any reference to the special subset of crimes punishable, at the court‟s
discretion, as either a felony or a misdemeanor.
Nor was there any mention of wobblers in the Legislative Analyst‟s analysis
under the subject heading “Longer Prison Terms,” which concerned the statutory
and constitutional provisions relating to sentence enhancement for prior felony
convictions. (Ballot Pamphlet, supra, at p. 54.) The Legislative Analyst
explained in relevant part that, under existing law, sentence enhancement for
repeat offenders is permissible only “if the convicted person has served prior
prison terms” and that “[c]onvictions resulting in probation . . . generally are not
considered for the purpose of increasing sentences . . . .” (Ibid., original italics.)
As proposed by the initiative measure, the analysis continued, a defendant could
receive a sentence enhancement of five years for each prior felony conviction
“regardless of the sentence imposed for the prior conviction.” (Ibid.) There was,
however, no suggestion that the new provisions proposed by the measure would
displace existing law with regard to which prior convictions would constitute prior
felony convictions for purposes of a recidivist sentencing statute. Indeed, the
voters were given no explanation at all regarding the court‟s discretion to reduce a
wobbler to a misdemeanor under section 17(b).
17

Thus, neither the language of section 667(a) nor the ballot materials
presented to the voters indicate an express intention on the part of the electorate to
override the operation of section 17(b) Accordingly, we conclude that a defendant
whose wobbler properly was reduced to a misdemeanor pursuant to section
17(b)(3) is not a person “who previously has been convicted of a serious felony”
within the meaning of section 667(a). (Cf. People v. West, supra, 154 Cal.App.3d
at p. 109 [presuming from the ballot pamphlet‟s silence on the issue that the
electorate did not intend to alter existing law by treating a juvenile wardship
adjudication as a “conviction” for purposes of sentence enhancement under section
667(a)].) As noted ante, “we may not properly interpret the measure in a way that
the electorate did not contemplate: the voters should get what they enacted, not
more and not less.” (Hodges v. Superior Court, supra, 21 Cal.4th at p. 114.)
This conclusion is also supported by the well-settled principle of statutory
interpretation that “all presumptions are against a repeal by implication.” (People
v. Acosta (2002) 29 Cal.4th 105, 122.) It is true that notwithstanding this
presumption, the provisions of a voter initiative may be said to impliedly repeal an
existing statute when “ „the two acts are so inconsistent that there is no possibility
of concurrent operation,‟ ” or “ „the later provision gives undebatable evidence of
an intent to supersede the earlier‟ provision. [Citations.]” (Professional
Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1038.)
The presumption against a repeal by implication is not overcome here, however,
because there is no difficulty in reconciling the application of section 667(a) with
the operation of section 17(b).
Section 667(a) mandates a five-year sentence enhancement for each prior
serious felony conviction, but it “does not define „prior conviction.‟ ” (People v.
West, supra, 154 Cal.App.3d at p. 110.) That definition is provided in section 17,
the statutory provision that classifies offenses. When the prior crime is a wobbler
18

that is not charged as a misdemeanor, its status as a felony or misdemeanor is
governed by section 17(b). If the court exercises its discretion pursuant to section
17(b), the prior crime is a misdemeanor and cannot be used for purposes of
sentence enhancement under section 667(a). If, on the other hand, the court does
not exercise its discretion to reduce the prior crime to a misdemeanor, the offense
is a felony that can subject the defendant to a section 667(a) sentence enhancement
in a subsequent prosecution.
In sum, given that it was well established at the time section 667(a) was
enacted that when a trial court reduced a wobbler to a misdemeanor under section
17(b) the offense was not thereafter to be considered a felony conviction for
purposes of a recidivist statute, and given the absence of any indication in section
667(a) of an intention to depart from this general rule, we conclude that when a
wobbler has been reduced to a misdemeanor the prior conviction does not
constitute a prior felony conviction within the meaning of section 667(a).
The Attorney General advances a variety of arguments in opposition to the
foregoing conclusion, but, as we shall explain, none of the arguments is persuasive.
First, the Attorney General cites a number of decisions to support the
assertion that defendant was convicted of a prior serious felony for purposes of
section 667(a) at the time that his guilt was initially ascertained in the prior
proceeding and that the trial court‟s subsequent reduction of the offense to a
misdemeanor did not “retroactively” void or eliminate that classification. But the
cases relied upon by the Attorney General shed no light on the electorate‟s intent
with regard to the circumstances presented here. As prior decisions have
explained, the terms “convicted” and “conviction” are ambiguous and susceptible
of different meanings depending on context. (See People v. Shirley (1993) 18
Cal.App.4th 40, 46 [the term “conviction” may mean a verdict or guilty plea, or
include the pronouncement of judgment]; People v. Rhoads (1990)
19

221 Cal.App.3d 56, 60; see, e.g., Alvarez, supra, 14 Cal.4th at p. 975 [when a
defendant is adjudged guilty of a wobbler in a current prosecution, the
determination whether that offense is a felony conviction within the meaning of
the Three Strikes law occurs at the time of sentencing by the court].) None of the
cases relied upon by the Attorney General involves the situation in which the trial
court has affirmatively exercised its discretion under section 17(b) to reduce a
wobbler to a misdemeanor before the defendant committed and was adjudged
guilty of a subsequent serious felony offense.
Some of the decisions cited by the Attorney General concern the application,
or reaffirmation, of the rule previously discussed, that until the court actually
exercises its discretion to reduce a wobbler to a misdemeanor under section 17(b),
the offense is deemed a felony for all purposes. (See Feyrer, supra, 48 Cal.4th at
pp. 438-439; Banks, supra, 53 Cal.2d at pp. 390-391.) For example, the Attorney
General cites People v. Balderas (1985) 41 Cal.3d 144, in which this court
concluded that when the defendant pleaded guilty to a wobbler and was placed on
probation without imposition of sentence but the court never designated the crime
as a misdemeanor, the offense constituted a felony and therefore was properly
admitted as a prior felony conviction at the penalty phase of a capital trial. (Id. at
p. 203.) We disagree with the Attorney General that the cited decisions are
authority for the proposition that, in every case, the character of a wobbler is
determined at the time of plea or verdict. As Banks, supra, 53 Cal.2d 370,
explained, when a defendant‟s guilt of a wobbler has been established by plea or
verdict, but there is no pronouncement of judgment by the court, the defendant‟s
status is that of a convicted felon, although that status is only provisional because
“it could, in due course, have been changed to that of a misdemeanant by
pronouncement of a sentence to the county jail or for a fine.” (Id. at p. 387.) This
court repeated the point more recently in Alvarez, supra, 14 Cal.4th at page 975,
20

by observing that section 17(b) is “ „sui generis [and] specifically leaves the
determination of the nature of the conviction to the discretion of the judge to be
determined at sentencing.‟ ” (Original italics.)
Other decisions referenced by the Attorney General involve prior crimes that
were not wobblers, or the interpretation of statutes, such as the Three Strikes
sentencing scheme, that contain language expressly defining the term “prior felony
conviction” in a manner clearly meant to treat the prior conviction as a felony
conviction notwithstanding the earlier court‟s exercise of discretion under section
17(b). (See People v. Queen (2006) 141 Cal.App.4th 838, 842; People v. Williams
(1996) 49 Cal.App.4th 1632, 1637-1638.) None support the Attorney General‟s
argument that section 667(a) applies even when the prior crime is a wobbler that
has been reduced to a misdemeanor in accordance with the procedures of section
17(b)(3).
Indeed, under the Attorney General‟s theory — that a prior conviction of a
wobbler constitutes a prior felony conviction for purposes of section 667(a) if the
conviction has been properly classified as a felony conviction at some point in
time — any prior wobbler that was not charged as a misdemeanor could be used
for sentence enhancement purposes under section 667(a). This is because there
would always be some period of time between a defendant‟s guilty plea or guilty
verdict on the wobbler and the trial court‟s imposition of sentence. But even the
Attorney General does not contend that a defendant‟s plea of guilty to a wobbler
would constitute a prior felony conviction for purposes of section 667(a) when the
trial court has designated the offense a misdemeanor at the time of initial
sentencing.
In further support of her proposed interpretation of section 667(a), the
Attorney General relies upon the provisions of article I, section 28, subdivision
(f)(4), of the California Constitution, a separate measure that was also included in
21

the 1982 initiative along with section 667(a). (People v. West, supra, 154
Cal.App.3d at pp. 106-107.) As relevant here, that constitutional provision states
that “[a]ny prior felony conviction of any person in any criminal proceeding . . .
shall subsequently be used without limitation for purposes of . . . enhancement of
sentence in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f)(4).) Like
section 667(a), however, neither the language nor legislative history of article I,
section 28, subdivision (f), indicates that this constitutional provision was intended
to address or alter the operation of section 17(b) in defining whether a prior
conviction constitutes a “prior felony conviction” within the meaning of a
recidivist sentencing statute.
Thus, contrary to the Attorney General‟s contention, the conclusion we have
reached regarding the proper application of section 667(a) in this setting does not
conflict with article I, section 28, subdivision (f)(4), and does not hinder the
voters‟ purpose of “achiev[ing] „increased punishment and effective deterrence . . .
by increasing the total period of imprisonment for recidivist offenders.‟ ” (People
v. Jones, supra, 5 Cal.4th at p. 1147, quoting People v. Prather (1990) 50 Cal.3d
428, 437.) As to the special subset of wobbler statutes that proscribe conduct that
can vary widely in its level of seriousness, the Legislature has empowered the
courts to decide, in each individual case, whether the crime should be classified as
a felony or a misdemeanor. In making that determination, the court considers the
facts surrounding the offense and the characteristics of the offender. (Alvarez,
supra, 14 Cal.4th at p. 978.) When the court properly exercises its discretion to
reduce a wobbler to a misdemeanor, it has found that felony punishment, and its
consequences, are not appropriate for that particular defendant. (In re Anderson,
supra, 69 Cal.2d at pp. 664-665; In re Rogers, supra, 20 Cal.App.2d at pp. 400-
401 [in reducing a wobbler to a misdemeanor, the court has determined that the
offense is not serious enough to be used as a prior felony conviction for the
22

purpose of sentence enhancement for a subsequent crime].) Such a defendant is
not blameless. But by virtue of the court‟s proper exercise of discretion, neither is
such defendant a member of the class of criminals convicted of a prior serious
felony whom the voters intended to subject to increased punishment for a
subsequent offense.
The Attorney General additionally argues that precluding imposition of a
five-year sentence enhancement under section 667(a) for a prior wobbler that was
reduced to a misdemeanor pursuant to section 17(b) is inconsistent with this
court‟s opinions in Feyrer, supra, 48 Cal.4th 426, and Banks, supra, 53 Cal.2d
370. These decisions are distinguishable from the present matter, however,
because in neither case did the court exercise its discretion pursuant to section
17(b) to reduce a wobbler to a misdemeanor. As those decisions explain, absent
such reduction, the offense constitutes a felony for all purposes. There is no
dispute that, under the rule in those cases, defendant would be subject to the
section 667(a) enhancement had he committed and been convicted of the present
crimes before the court reduced the earlier offense to a misdemeanor. To the
extent that the Attorney General relies upon Feyrer and Banks to support the
argument that the court‟s exercise of discretion to reduce defendant‟s crime to a
misdemeanor “did not change, erase, or vacate the serious felony conviction that
occurred in 2003,” she has misread those opinions.
The Attorney General also asserts that the rehabilitative purpose of section
17(b) would be disserved by permitting a defendant whose wobbler was reduced
to a misdemeanor to escape an enhanced penalty under section 667(a) in a
subsequent prosecution. But the same may be said when the operation of section
17(b) precludes application of any statute that imposes penal consequences for
having suffered a prior felony conviction, and the Attorney General points to no
decision that has created an exception to section 17(b) when there was no
23

indication of the lawmakers‟ intent to override that statute‟s plain language. (See
People v. Camarillo, supra, 84 Cal.App.4th at p. 1394 [declining the Atty. Gen.‟s
invitation to read into § 17(b) an exception based upon “public policy
considerations” that would allow the defendant‟s current offense of driving under
the influence to be elevated to a felony pursuant to Veh. Code, former § 23175.5].)
The Attorney General‟s further assertion that a defendant whose prior offense
has been reduced to a misdemeanor under section 17(b) is not entitled to leniency
after choosing to commit a subsequent serious felony is an argument that is
appropriately directed to the Legislature rather than to this court. We observe,
however, that our conclusion regarding the proper interpretation of sections 17(b)
and 667(a) does not mean that a repeat offender such as defendant will altogether
avoid an increased sentence for his current felony. Here, defendant‟s prison
sentence was properly doubled as a result of application of the Three Strikes law.
As previously mentioned, the Three Strikes law creates an exception to the
operation of section 17(b) by providing that the determination of whether a prior
felony conviction qualifies as a strike is based upon the date of the prior
conviction and is not affected by the sentence imposed unless that sentence
“automatically . . . converts the felony to a misdemeanor” at the time of initial
sentencing. (§§ 667, subd. (d)(1); 1170.12, subd. (b)(1).) In the prior proceeding,
defendant pleaded guilty to felony assault with a deadly weapon. Because the trial
court in that proceeding suspended imposition of sentence and granted probation,
and only thereafter reduced the crime to a misdemeanor, defendant‟s prior offense
qualified as a strike under the Three Strikes law. Accordingly, defendant‟s
sentence for the current conviction of assault with a firearm was properly doubled
as a second strike from six years to 12. (§ 667, subds. (d) & (e)(1).)
24

C. Effect of the dismissal of charges pursuant to section 1203.4
As previously recounted, in addition to reducing defendant‟s offense to a
misdemeanor under section 17(b)(3), the trial court subsequently vacated
defendant‟s guilty plea and dismissed the charge pursuant to section 1203.4,
subdivision (a)(1), a rehabilitative provision that rewards a person who has
successfully completed probation. (Selby v. DMV (1980) 110 Cal.App.3d 470,
473 [§ 1203.4 mitigates some of the consequences of conviction and, with certain
exceptions, restores the person to his or her former status in society].) By
operation of section 1203.4, defendant was, with certain enumerated exceptions,
released “from all penalties and disabilities” resulting from the conviction.10 One
of the specified exceptions set forth in section 1203.4 is that “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.” (§ 1203.4, subd. (a)(1).)

10
Section 1203.4 states in pertinent part that “[i]n any case in which a
defendant has fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of the period of
probation, or in any other case in which a court, in its discretion and the interests
of justice, determines that a defendant should be granted the relief available under
this section, the defendant shall, at any time after the termination of the period of
probation, if he or she is not then serving a sentence for any offense, on probation
for any offense, or charged with the commission of any offense, be permitted by
the court to withdraw his or her plea of guilty or plea of nolo contendere and enter
a plea of not guilty; or, if he or she has been convicted after a plea of not guilty,
the court shall set aside the verdict of guilty; and, in either case, the court shall
thereupon dismiss the accusations or information against the defendant and except
as noted below, he or she 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. . . .”
(§ 1203.4, subd. (a)(1).)
25



In concluding that defendant‟s prior offense could be used to add five years
to his sentence in the present proceeding pursuant to section 667(a), the Court of
Appeal recognized that defendant‟s crime had been reduced to a misdemeanor
under section 17(b)(3). The Court of Appeal reasoned, however, that it must
consider section 17(b) together with section 1203.4, and determined that “under
the plain language” of the latter provision, defendant‟s earlier offense qualified as
a serious felony pursuant to section 667(a) in a subsequent prosecution because it
had “the same effect as if probation had not been granted or the accusation or
information [not been] dismissed.” (§ 1203.4, subd. (a)(1).)
Although the Court of Appeal‟s reasoning is not entirely clear, it appears to
have concluded that by virtue of the language of section 1203.4, defendant‟s prior
offense, a wobbler that was not charged as a misdemeanor, could be used to
enhance his sentence in a subsequent criminal proceeding because, had probation
not been granted and the information not been dismissed, defendant‟s crime would
be deemed a felony. But there is nothing in section 1203.4 suggesting that
provision was intended to override the provisions of section 17(b). Under the
Court of Appeal‟s reading of section 1203.4, every wobbler conviction dismissed
under section 1203.4 that was not originally charged as a misdemeanor would
qualify as a prior felony conviction in a subsequent prosecution. This
understanding of the operation of section 1203.4 cannot be reconciled with the
numerous decisions, discussed fully above (ante, at p. 12), recognizing that the
reduction of a wobbler to a misdemeanor under section 17(b) generally precludes
its use as a prior felony conviction in a subsequent prosecution.
The Court of Appeal expressed the view that its application of section 1203.4
to the present case was consistent with this court‟s decision in Feyrer, supra, 48
Cal.4th 426. As we explain, however, the Court of Appeal‟s reliance on certain
language in Feyrer is misplaced, and neither the cited passage nor our holding in
26

that case supports a conclusion that defendant‟s earlier crime qualified as a prior
serious felony conviction for purposes of enhancement under section 667(a).
In Feyrer, supra, 48 Cal.4th 426, the parties entered into a plea agreement
specifying that the defendant would be granted formal probation in exchange for
his no contest plea of guilty to felony assault and admission of a great bodily
injury enhancement. (Id. at p. 431.) The issue presented in the case was whether
the terms of the plea agreement prevented the trial court from later reducing the
wobbler to a misdemeanor pursuant to section 17(b)(3). We held that it did not.
(Feyrer, supra, at pp. 435-441.) In the course of our discussion regarding the
underlying purpose and effect of a court‟s suspending imposition of sentence and
granting probation in a wobbler case, we quoted extensively from Banks, supra,
53 Cal.2d 370, including the following passage, which was relied upon by the
Court of Appeal here: “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.” (Feyrer, supra, at pp. 439-440,
quoting Banks, supra, at p. 391.)
Contrary to the Court of Appeal‟s understanding, the above quoted text has
no application to the present case. As discussed ante, in part II.B., at the time
Banks was decided, the court‟s exercise of discretion to reduce a wobbler to a
misdemeanor under section 17 was given the intended effect only if the court
actually imposed a sentence other than commitment to state prison; unless and
until the court did so, a wobbler was deemed a felony for all purposes. In Banks,
the defendant‟s prior offense was treated as a felony because the court had
suspended imposition of sentence and granted probation but had never actually
27

imposed a sentence other than commitment to state prison. (Banks, supra, 53
Cal.2d at p. 387.) After the defendant successfully completed his probation, he
did not seek dismissal of the charge pursuant to section 1203.4. (Banks, supra, at
p. 387.) As Banks explained, had the defendant been granted dismissal under
section 1203.4, he would have been relieved of “all penalties and disabilities”
resulting from his felony conviction except the use of that conviction for limited
purposes in a subsequent criminal proceeding. (Banks, supra, at p. 390.) By
contrast, here the court properly exercised its discretion to reclassify defendant‟s
crime to a misdemeanor pursuant to section 17(b)(3) after defendant had
successfully completed probation. When defendant‟s conviction was later set
aside under section 1203.4, the crime of which he had been convicted had been
reclassified as a misdemeanor. Section 1203.4 did not erase defendant‟s
conviction; rather, it freed him from some of the misdemeanor conviction‟s
“ „penalties and disabilities.‟ ” (People v. Vasquez (2001) 25 Cal.4th 1225, 1230;
see Meyer v. Board of Medical Examiners (1949) 34 Cal.2d 62, 67; Adams v.
County of Sacramento (1991) 235 Cal.App.3d 872, 877-878.) Whether or not
defendant‟s misdemeanor conviction had been dismissed under section 1203.4,
however, that conviction did not constitute a prior serious felony conviction for
purposes of enhancement under section 667(a). Accordingly, the Court of Appeal
erred in relying upon the cited language in Feyrer, supra, 48 Cal.4th 426.
28

III. DISPOSITION
The judgment of the Court of Appeal is reversed insofar as it upheld
imposition of a five-year sentence enhancement pursuant to section 667(a), and the
matter is remanded to the Court of Appeal with directions to remand the case to
the trial court for resentencing in accordance with this opinion. In all other
respects, the judgment is affirmed.
CANTIL-SAKAUYE, C. J.
WE CONCUR:

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

29



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

Name of Opinion People v. Park
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 5/4/11, 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S193938
Date Filed: May 13, 2013
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Francis M. Devaney

__________________________________________________________________________________

Counsel:

Doris M. LeRoy, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Gary W. Schons and Dane R. Gillette,
Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Steven T.
Oetting and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.



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

Doris M. LeRoy
P.O. Box 240
Westcliffe, CO 81252
(719) 783-2665

Meagan J. Beale
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2225


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Should the enhancement imposed on defendant under Penal Code section 667, subdivision (a), be stricken because his prior conviction for a serious felony was reduced to a misdemeanor under Penal Code section 17, subdivision (b), and dismissed under Penal Code section 1203.4?

Opinion Information
Date:Docket Number:
Mon, 05/13/2013S193938

Opinion Authors
OpinionChief Justice Tani Cantil-Sakauye

May 27, 2014
Annotated by William Cage

Facts:
In 2003, Park pleaded guilty to felony assault with a deadly weapon. The court suspended the sentence and imposed a three-year probation period. The court reduced the felony to a misdemeanor after Defendant’s completion of the probation term (pursuant Penal Code section 17(b)(3)), then, in 2006, dismissed the charge (pursuant Penal Code section 1203.4). In September of 2007, Park was involved in a fight outside of a San Diego County restaurant. A group of men passing by intervened to break up the scuffle. Later, Park approached the group of men and asked who pushed him during the intervention. After one man announced his involvement, Park shot him three times, seriously injuring him. Subsequently, Park was charged with attempted premeditated murder and assault with a deadly weapon. The judge imposed a twenty-four year prison sentence after considering the 2003 prior, dismissed felony conviction as a felony, and after finding the five-year enhancement application appropriate under Penal Code section 667(a).

Procedural History:
The jury acquitted Park of premeditated murder, but found him guilty of the lesser offense of attempted voluntary manslaughter and assault with a firearm. Park then waived his right to a jury trial with respect to the prior conviction allegation, and the judge imposed a twenty-four year prison sentence. Park appealed, arguing the court’s five year sentence enhancement was imposed erroneously. The appellate court upheld the sentence, and the Supreme Court of California reversed.

Issue:
Is a prior felony conviction that was subsequently reduced to a misdemeanor a "felony" within the meaning of the enhancement statute, Cal. Penal Code section 667(a)––which permits adding prison time if the defendant has a prior felony conviction on his record?

Holding:
No. Since the previous court reduced the offense to a misdemeanor in its discretion, the offense did not operate as a felony within the meaning of the enhancement provision.

Analysis:
The 2003 crime was a wobbler––meaning, it was within the court’s discretion to treat the offense as either a misdemeanor or felony. Generally, wobblers are subject to discretion to account for cases in which “rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon.” Although Defendant admitted to suffering the prior felony conviction, the court’s reduction rendered the prior felony a misdemeanor for sentencing purposes. Furthermore, pursuant section 17(b)(3), when an offense is punishable either with jail time or a fine and the judge imposes probation, the offense operates as a misdemeanor.

The enhancement statute was predicated upon a previous felony conviction. Because the offense was reduced, however, it operated as a prior misdemeanor conviction with respect to section 667(a), not a prior felony.

Further, there was no basis to read into the legislative intent that felonies arising under the wobbler context and subsequently reduced to misdemeanors qualify as felonies for the purposes of the sentence enhancement statute.

Tags:
ballot initiative interpretation, Cal. penal code, Cal. penal code § 1203, Cal. penal code § 17, Cal. Penal Code § 667, California Criminal Law, discerning legislative intent, prior conviction, prior offenses, retroactive, retroactivity, sentence enhancement, sentencing enhancement, statutory interpretation, wobbler, electorate intent

Parallel Citations:
56 Cal. 4th 782, 299 P.3d 1263, 13 Cal. Daily Op. Serv. 4737, 2013 Daily Journal D.A.R. 6045