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