# People v. Statum

> California Supreme Court · July 25, 2002 · 122 Cal. Rptr. 2d 572

URL: https://www.frixlaw.com/law-library/cases/9787264

## Case

- **Full name:** The PEOPLE, Plaintiff and Appellant, v. RUSSELL HUBERT STATUM, Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** July 25, 2002
- **Citations:** 122 Cal. Rptr. 2d 572; 28 Cal. 4th 682; 2002 Daily Journal DAR 8321; 50 P.3d 355; 2002 Cal. Daily Op. Serv. 6657; 2002 Cal. LEXIS 4827
- **Precedential status:** Published
- **Opinion:** Dissent by Kennard
- **Judges:** Baxter, Kennard
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9787264

## Opinion text

KENNARD, J., Dissenting.
The majority holds that a superior court judgment imposing a misdemeanor sentence for a “wobbler” offense is “[a]n order . . . modifying the offense to a lesser offense” (Pen. Code, § 1238, subd. (a)(6)) and thus an order from which the People may appeal. I disagree. The sentence imposed on a wobbler determines the grade or class of the crime as either a felony or a misdemeanor, but the sentence imposed does not change the nature or identity of the offense and so does not modify the offense to a lesser offense. Therefore, I would hold that the People may not appeal from a judgment imposing a misdemeanor sentence on a wobbler.
*698 Penal Code section 17 defines the terms “felony” and “misdemeanor.” Subdivision (a) of that section reads: “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.” Subdivision (b) of section 17 acknowledges that some offenses are “punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail.” These offenses may be either felonies or misdemeanors. They are known as alternative felony-misdemeanors or, more informally, as wobblers. Subdivision (b) of Penal Code section 17 specifies the circumstances under which a wobbler becomes a misdemeanor: (1) when the court imposes a punishment other than imprisonment in the state prison; (2) when the court designates the offense to be a misdemeanor upon committing the defendant to the Youth Authority; (3) when the court designates the offense to be a misdemeanor upon granting probation without imposition of sentence; (4) when a complaint charging the offense specifies that it is a misdemeanor; and (5) when the magistrate declares the offense to be a misdemeanor at or before the preliminary examination or before filing an order holding the defendant to answer under Penal Code section 872.
From its earliest days, this court has distinguished between the nature or identity of a crime—such as murder, robbery, arson, and so forth—and the class or grade or the crime as being a felony, misdemeanor, or infraction. In People v. War (1862) 20 Cal. 117 , an indictment charged the defendant with assault with a deadly weapon, a wobbler, without specifying whether the offense was a felony or a misdemeanor. This court held that the charge was sufficient. “The real objection to this indictment, if there be any, is that the facts set forth do not constitute a public offense, because the punishment prescribed being either imprisonment in the State prison or a fine, it does not appear whether it is a felony or a misdemeanor, and hence it does not necessarily fall within any class of crimes known to the law.” (Id. at p. 119.) We held that because a wobbler is punishable by imprisonment in the state prison, an indictment alleging a wobbler (without specifying that it was a misdemeanor) necessarily charged a felony, and the crime would become a misdemeanor only upon imposition of a misdemeanor sentence. (Id. at pp. 119-120.) We were careful to point out, however, that a wobbler’s dual classification as either felony or misdemeanor did not mean that a wobbler is two distinct crimes: “The discretion given as to the punishment certainly does not make the same act two offenses . . . .” (Id. at p. 119; accord, People v. Collins (1925) 195 Cal. 325, 347 [ 233 P. 97 ].)
The way that this court has consistently defined and described wobblers shows our understanding that a wobbler is not two separate offenses, one a *699 felony and the other a misdemeanor, but rather a single offense that, in the discretion of the sentencing court, may be classified either as a felony or as a misdemeanor. Thus, we have said that a wobbler is “an offense which may be charged and punished as either a felony or a misdemeanor.” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 70 [ 249 Cal.Rptr. 300 , 757 P.2d 11 ], italics added; see also People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 [ 60 Cal.Rptr.2d 93 , 928 P.2d 1171 ]; People v. Holt (1984) 37 Cal.3d 436, 452, fn. 7 [ 208 Cal.Rptr. 547 , 690 P.2d 1207 ]; People v. Satchell (1971) 6 Cal.3d 28, 35, fn. 13 [ 98 Cal.Rptr. 33 , 489 P.2d 1361 , 50 A.L.R.3d 383 ]; In re Sanchez (1966) 65 Cal.2d 556, 557 [ 55 Cal.Rptr. 422 , 421 P.2d 430 ]; People v. Banks (1959) 53 Cal.2d 370, 380-383 [ 1 Cal.Rptr. 669 , 348 P.2d 102 ].)
The conclusion that a wobbler is a single offense that may be graded or classified as either a felony or a misdemeanor has practical significance in the application of the statute of limitations. In a criminal case, the jury may convict the defendant of either the charged offense or a lesser offense that is necessarily included within the charged offense. (Pen. Code, § 1159.) But a defendant who has been timely charged with a felony offense may assert the statute of limitations as a defense to prevent conviction of a time-barred lesser included misdemeanor offense. (See People v. Picetti (1899) 124 Cal. 361 [ 57 P. 156 ]; see generally People v. Williams (1999) 21 Cal.4th 335, 349-350 [ 87 Cal.Rptr.2d 412 , 981 P.2d 42 ] (dis. opn. of Brown, J.); People v. Stanfill (1999) 76 Cal.App.4th 1137, 1145-1150 [ 90 Cal.Rptr.2d 885 ].) As codified, this rule declares that “[t]he limitation of time applicable to an offense that is necessarily included within a greater offense is the limitation of time applicable to the lesser included offense, regardless of the limitation of time applicable to the greater offense.” (Pen. Code, § 805, subd. (b).)
This rule restricting conviction of time-barred lesser offenses does not apply to a wobbler charged as a felony but sentenced as a misdemeanor. The statute of limitations for felony offenses applies to a wobbler charged as a felony even when the wobbler is sentenced as a misdemeanor. (Doble v. Superior Court (1925) 197 Cal. 556, 575-577 [ 241 P. 852 ].) As codified, the rule governing the statute of limitations for wobblers declares that “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.” (Pen. Code, § 805, subd. (a).) The reason for this distinction is “ ‘that a crime which is punishable by imprisonment either in the state prison or by fine or imprisonment in the county jail in the discretion of the court, is, and forever remains, a felony, but that if the punishment imposed is other than imprisonment in the state prison, although the nature of the crime is not changed, yet for all purposes thereafter arising it is regarded as being a *700 misdemeanor.’ ” (Doble v. Superior Court, supra, at p. 574, italics added, original italics omitted.)
Here, the prosecution by information charged defendant Russell Hubert Statum with reckless driving while fleeing a police officer “in violation of Vehicle Code section 2800.2, a Felony.” Defendant pleaded guilty to this offense as charged, and the superior court imposed a misdemeanor sentence of one year in county jail for this wobbler offense. When the People attempted to appeal from the judgment, the Court of Appeal dismissed the appeal as unauthorized.
Reversing the Court of Appeal, the majority holds that the People’s appeal is authorized by a Penal Code provision allowing the People to appeal from “[a]n order . . . modifying the offense to a lesser offense.” (Pen. Code, § 1238, subd. (a)(6).) To determine the meaning of this provision, the majority correctly states but incorrectly applies the rules of statutory construction. The goal of statutory construction is to ascertain and effectuate legislative intent. (People v. Gardeley (1996) 14 Cal.4th 605, 621 [ 59 Cal.Rptr.2d 356 , 927 P.2d 713 ].) A court begins with the statute’s words, because they are generally the most reliable indicator of the legislative intent, giving those words their ordinary meaning, and if no ambiguity appears then the process of construction is complete and the ordinary meaning controls. (Ibid.)
The ordinary meaning of “modifying the offense to a lesser offense” (Pen. Code, § 1238, subd. (a)(6)) is changing the identity of the conviction offense to a different and lesser offense. Here, by imposing a misdemeanor sentence for a wobbler, the superior court did not change the identity of the offense. The conviction offense, both before and after sentencing, was a violation of Vehicle Code section 2800.2 (reckless driving while fleeing a police officer).. Because the identity of the conviction offense was unaffected, the court in imposing sentence did not modify the offense to a lesser offense within the plain meaning of the Penal Code provision specifying when the People may appeal in a criminal case. (Pen. Code, § 1238, subd. (a)(6).)
The majority asserts that in 1978, when it amended Penal Code section 1238 to permit the People to appeal from an order “modifying the offense to a lesser offense” (Stats. 1978, ch. 1359, §2, p. 4511), the Legislature intended to authorize the People to appeal not only orders modifying the conviction to a different crime, but also judgments imposing misdemeanor sentences after a jury conviction of a wobbler. I disagree.
In 1978, when the Legislature amended Penal Code section 1238 to permit a People’s appeal from an order “modifying the offense to a lesser offense,” *701 laws allowing the prosecution to appeal a trial court’s sentencing determination were virtually nonexistent. As a professor at Michigan Law School pointed out in 1980, “[although several states allow the prosecution to cross-appeal a defendant’s sentence for the purpose of seeking an increase on appeal in response to a defendant’s prior appeal of sentence, no state permits the prosecution to initiate an appeal of sentence for the purpose of seeking an increase on appeal.” (Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences (1980) 78 Mich. L.Rev. 1001, 1001, fn. 3.)
The reason no state law then permitted a prosecutor to appeal a trial court’s discretionary sentencing decision appears to be that the imposition of a greater sentence on a criminal defendant after an appeal by the prosecution was widely viewed as violating the federal Constitution’s double jeopardy clause (U.S. Const., 5th Amend.). Although the United States Supreme Court had never squarely addressed the issue, dictum in at least one decision strongly hinted that such increased sentences were unconstitutional. (United States v. Benz (1931) 282 U.S. 304, 307 [ 51 S.Ct. 113, 114 , 75 L.Ed. 354 ].) It was only in 1980, two years after our Legislature’s 1978 amendment of Penal Code section 1238, that the United States Supreme Court, by a bare majority of five to four, upheld the constitutionality of prosecutorial appeals of judicial sentencing decisions. (United States v. DiFrancesco (1980) 449 U.S. 117 [ 101 S.Ct. 426 , 66 L.Ed.2d 328 ].)
On at least two occasions before the 1978 amendment of Penal Code section 1238, this court had stated that a court of record could not increase a lawfully imposed penalty without unconstitutionally subjecting the defendant to double punishment. (People v. Dorado (1965) 62 Cal.2d 338, 360 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]; People v. Thomas (1959) 52 Cal.2d 521, 530-531 [ 342 P.2d 889 ]; see also People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 486-489 [ 148 Cal.Rptr. 698 ]; People v. Belton (1978) 84 Cal.App.3d Supp. 23, 29-30 [ 149 Cal.Rptr. 231 ].) I presume that in 1978 the Legislature was aware of these statements by this court and that it enacted and amended statutes in light of these decisions. (Estate of McDill (1975) 14 Cal.3d 831, 839 [ 122 Cal.Rptr. 754 , 537 P.2d 874 ]; accord, Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155 [ 278 Cal.Rptr. 614 , 805 P.2d 873 ].
Presumably because of its sensitivity to the then existing constitutional concerns, as expressed in this court’s decisions, the Legislature, when it amended Penal Code section 1238, did not alter the existing rule barring People’s appeals from discretionary sentencing decisions imposing a sentence within the statutorily authorized range of punishments for the offense *702 of which the defendant had been convicted. Instead, when it authorized a People’s appeal from an order “modifying the offense to a lesser offense” (Pen. Code, § 1238, subd. (a)(6)), the Legislature intended to authorize People’s appeals only when the trial judge overturned a jury verdict or guilty plea by changing the nature or identity of the conviction offense. The Legislature had reason to believe such appeals were constitutionally permissible because, three years before, the high court had held that the double jeopardy clause permits prosecutorial appeals in a similar situation: when a trial court overturns a jury’s verdict convicting the defendant by entering a judgment of acquittal. (United States v. Wilson (1975) 420 U.S. 332 [ 95 S.Ct. 1013 , 43 L.Ed.2d 232 ].) Neither the ordinary meaning of the language used nor the legislative history surrounding the amendment, however, suggests that the Legislature intended to authorize prosecutorial appeals when the trial court, without changing the identity of the conviction offense, exercises its discretion to impose a sentence within the statutory range of punishments authorized for that offense, as a trial court does when it imposes a misdemeanor sentence for a wobbler.
For these reasons, I agree with the Court of Appeal that the People’s appeal is unauthorized and should be dismissed.
Werdegar, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9787264. Public record. Not legal advice.