People v. Carranza (51 Cal. App. 4th 528, 1996)

Opinion

ELIA, J.

The People appeal from an order of the superior court reducing a charge of violating Penal Code section 290, subdivision (g)(2) to a misdemeanor pursuant to Penal Code section 17. We affirm.

By a complaint filed on April 3, 1995, respondent was charged with one felony count of violating Penal Code section 290 subdivision (g)(2) (failing to register a change of address by a sex offender convicted of a forcible sex offense). Following a preliminary examination, an information was filed alleging this violation, that respondent had previously been convicted of rape, a prior “strike” under Penal Code sections 667, subdivisions (b) through (i) and 1170.12, and that respondent had served a prior prison term for rape within the meaning of Penal Code section 667.5, subdivision (b). On June 5,1995, the trial court reduced the charge to a misdemeanor pursuant to Penal Code section 17. Respondent was sentenced to one year in the county jail with probation to terminate upon release from county jail.

Appellant defines the “key issue” in this case as “whether [Penal Code] section 290, subdivision (g)(2), defines an offense which is exclusively a felony, or one which may alternatively be punished as either a felony or a misdemeanor.”

In 1982, respondent was convicted of violating Penal Code section 261 (rape). Although he had been arrested for violating Penal Code section 647, subdivision (f) (drunk in public) since then, he had, at the time of his sentencing, suffered no convictions. He had registered as a sex offender in Milpitas, San Jose, Sunnyvale and Santa Clara. He lived on Haig street in Santa Clara with his brothers for four or five years until, in December of 1994, they all moved out. At respondent’s preliminary examination, his brother testified that respondent then moved in with his parents in Sunnyvale and at times lived in homeless shelters. From the time of the move at the end of 1994 until February of 1995 respondent had no permanent address. On February 14, 1995, a Santa Clara police officer spoke to respondent’s brother at his mother’s house and left his business card. After making telephone contact, respondent met with the officer on February 16. He explained to the officer that he thought his registration requirement lasted only during the period of parole. During the interview, respondent registered as a transient, since changes in the law now allowed such registration.

When respondent appeared in a superior court trial department charged with a felony violation of Penal Code section 290, subdivision (g), the court noted that because of respondent’s prior “strike” a felony conviction for this offense would cause respondent to be ineligible for probation and mandate a minimum state prison term of 32 months and a maximum of 6 years. The court said “Now, it’s the court’s view that a period of approximately 26 days wherein you haven’t registered and because of other factors, including those that you are a transient, would not in my view, and based upon my experience, really provide you equal protection of the law because historically, again, this was always a misdemeanor, it only became a felony on January 1, on that date in fact you were in custody, when you were released it’s basically then alleged that you didn’t register within a period of 26 days, and it’s my view that that type of conduct, albeit now it is a felony and albeit now you come under the three strike legislation under the law, still the court does not feel that is the type of conduct that would warrant a mandatory prison commitment. HD Now, based upon those facts, I’ve indicated to your attorney that I would be willing to exercise my discretion based upon the reasons I’ve already stated on the record and reduce this offense from a felony to a misdemeanor if in fact you were to plead guilty to the misdemeanor and accept a one-year term in county jail.”

On appeal, the People object to the trial court’s reduction of the offense from a felony to a misdemeanor. The People sought a writ of mandamus pursuant to Penal Code section 1238, subdivision (d). We summarily denied that petition on August 4, 1995. The People filed their opening brief on September 28, 1995, and respondent filed a motion to dismiss the appeal October 27, 1995. Ruling on that motion was deferred pending briefing on the case. Respondent argues that the People have no right to appeal following a grant of probation and the pursuit of a petition for writ of mandate is their sole remedy. The People request that should this court conclude that an appeal is an improper remedy, we should treat this appeal as a petition for writ of mandamus.

Penal Code section 1238 provides: “(a) An appeal may be taken by the people from any of the following: ...[<]□ (8) An order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. . . . (10) The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence . . . .”

In People v. Trausch (1995). 36 Cal.App.4th 1239 [42 Cal.Rptr.2d 836], the People appealed the trial court’s reduction of a second degree commercial burglary to a misdemeanor through the imposition of a county jail sentence. The People had objected in the trial court to this reduction. Defendant raised the issue of whether the People had the right to appeal from the imposition of the sentence, noting that the right of the People to appeal is limited only to those situations listed in Penal Code section 1238. The People argued that its appeal was from an unlawful sentence which is recognized as an appealable ground in section 1238, subdivision (a)(10). We agree with the Trausch court that a claim of unlawful sentence falls within the scope of the right to appeal.

Respondent argues that the People have waived any error and are estopped from challenging the order which was a result of their agreement. Before reducing the charge, the trial court told respondent, “I’ve discussed [the case] at some length with your attorney and with the district attorney . . . When the trial court outlined the disposition, including the reduction of the charge to a misdemeanor, the prosecuting attorney spoke to the court but did not object to the disposition. She said “Your Honor, I would caution the court and counsel and defendant that if he—when he gets out of jail and he remains transient, he still has a duty to register. And I would not want him to think that when he gets out just because he’s living on the streets that he does not have a duty.” During the court’s voir dire of respondent, the prosecutor agreed there was a factual basis for the plea and, after the plea, reminded respondent that his registration obligation was a lifetime one. She waived referral of the matter to the probation department and submitted the sentencing without argument. The clerk’s minutes of the proceedings indicate that “Counsel concur” in the plea.

Respondent argues that estoppel should apply when the People have acquiesced to a sentence. In support of his position, respondent cites People v. Beebe (1989) 216 Cal.App.3d 927, 932-935 [265 Cal.Rptr. 242] (defendant was estopped from withdrawing from plea bargain where “straight” felony would be reduced to misdemeanor), People v. Ellis (1987) 195 Cal.App.3d 334 [240 Cal.Rptr. 708] (although prior felony not a serious one as a matter of law, defendant estopped by admission from so asserting), In re Griffin (1967) 67 Cal.2d 343, 347 [62 Cal.Rptr. 1, 431 P.2d 625] (defendant estopped from attacking probation revocation beyond probationary term), and People v. Jones (1989) 210 Cal.App.3d 124, 134 [258 Cal.Rptr. 294] (defendant was estopped from arguing improper dual imposition of enhancement). Each case applies estoppel to bar a later remedy to correct an illegal sentence to which the parties agreed at the time of plea. Appellant does not distinguish or discuss these cases, but, as respondent anticipated, cites People v. Scott (1994) 9 Cal.4th 331 [36 Cal.Rptr.2d 627, 885 P.2d 1040]. Scott reversed long-standing precedent and sided with a minority view that the waiver doctrine applies to claims involving sentencing error. Scott noted that claims involving “unauthorized” sentences can be raised at any time. “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.] . . . [^ Although the cases are varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. ... [f] In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p. 354.)

Thus, whether the People are estopped from pursuing this appeal depends on whether the sentence imposed was “unlawful.” Penal Code section 1238, subdivision (a)(10), states “[an] ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”

The People argue that Penal Code section 290, subdivision (g)(2), is exclusively a felony, therefore the court could not reduce it to a misdemeanor and therefore the county jail sentence imposed is an unauthorized sentence. Respondent argues that the wording of Penal Code section 290, subdivision (g)(2), defines an offense which, under Penal Code section 17, may be a misdemeanor. The resolution of this issue requires that we examine these two Penal Code sections.

Penal Code section 17 provides: “(a) A felony is a crime which 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. [