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California Supreme Court:
Order Reducing Felony to Misdemeanor Is Not Appealable
Opinion Says Prosecution May Not Appeal Wobbler Reduction Even if Unauthorized by Law, Writ Review May Be Available if Need Outweighs Risk of Harassment to Accused
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that the prosecution in a criminal matter may not appeal a pretrial order reducing a felony to a misdemeanor even if the reduction was unauthorized because it did not occur “at or before” a preliminary hearing or at sentencing, as statutorily required.
Pointing out that the prosecution’s ability to appeal is limited to prescribed circumstances that were not applicable, the court said the conclusion “does not necessarily foreclose all review” of such orders as writ review is available under Code of Civil Procedure §1085 if the order exceeds the authority of the court and the need for review outweighs the risk of harassment of the accused.
Also addressing the duration and effect of a temporary stay ordered by an appellate court in writ proceedings, the high court declared that “[w]here the Court of Appeal’s opinion is silent regarding the stay, and no other order directs its dissolution, the stay remains in effect until the proceedings in the Court of Appeal have concluded, i.e., until the opinion is final and the Court of Appeal issues its remittitur.”
Felony Charge
Then-Ventura Superior Court Judge David R. Worley (now retired) ordered the reduction at issue shortly before a jury trial was set to begin in the criminal case against Richard Mitchell, who was charged in 2018 with a felony violation of Penal Code §69, which criminalizes resisting a police officer.
Worley ostensibly made the order under Penal Code §17(b) which provides that a court may declare a so-called “wobbler”—an offense that may be charged as either a felony or misdemeanor—such as §69 to be a misdemeanor either at sentencing or “at or before” the preliminary hearing.
Ventura County District Attorney Erik Nasarenko sought review or the order by filing both an appeal and a petition for writ of mandate in Div. Six of this district’s Court of Appeal, arguing that Worley had no statutory authority to reduce the felony charge to a misdemeanor prior to sentencing and praying for a writ directing the trial court to vacate its order and reinstate the felony charge.
Court of Appeal View
In an Aug. 16, 2023 opinion authored by Justice Kenneth R. Yegan, Div. Six stayed further proceedings in the trial court and issued an order to show cause why the relief sought by the district attorney should not be granted.
Following briefing, the court held that the trial court’s order was unauthorized by §17(b) and granted the requested relief. In addition to addressing the merits of the order, Yegan’s opinion dealt with the threshold issue of appealability.
Yegan noted that the prosecution’s ability to appeal is limited to only those circumstances set forth in Penal Code §1238, but found that two of the provisions applied.
Specifically, he found that the reduction order qualified under both subdivision (a)(1) as “[a]n order setting aside all or any portion of the indictment, information, or complaint” and (a)(8) as “[a]n order…dismissing or otherwise terminating all or any portion of the action.”
The justice acknowledged that the 2005 California Supreme Court case of People v. Williams held that an order declaring a wobbler offense to be a misdemeanor was not appealable but distinguished the case because the reduction in Williams occurred after the preliminary hearing. as permitted by §17(b), and the present case involves a statutorily unauthorized order.
Supreme Court View
Chief Justice Patricia Guerrero authored yesterday’s opinion for a unanimous court, holding that the order was not appealable but declaring that writ review may be appropriate.
However, the court declined to conduct the requisite weighing of factors to determine whether relief was appropriate because the trial court—at the urging of the prosecutor—had reinstated felony charges after the publication of Div. Six’s opinion and the defendant then pled guilty to two misdemeanors as part of a plea bargain. Reinstatement of the felony charges occurred before the temporary stay had been lifted.
Guerrero wrote:
“Because we hold that the trial court’s order was potentially subject to review as an order in excess of jurisdiction, but we decline to consider whether the Court of Appeal reasonably determined that writ relief was proper, the correct disposition is to affirm its judgment. However, given the length of time the charges against Mitchell have been pending, the district attorney states he would be ‘open’ to an order barring further litigation of the charges against Mitchell. While such an order appears reasonable under the circumstances, the parties have not identified any mechanism for this court to order such relief. Upon receipt of the remittitur, the trial court should consider whether to dismiss the charges in the interest of justice.”
Appealability of Order
Guerrero agreed with the Court of Appeal that the trial court’s order was unauthorized as it occurred after the preliminary hearing and before sentencing but said:
“Separate from the trial court’s authority to enter such an order, however, is the People’s ability to challenge it. The Court of Appeal held that the People had a statutory right to appeal the order. We disagree.”
Saying that the prosecution in a criminal case has no right to appeal except as provided by statute, she turned to the decision in Williams, in which the Supreme Court found that the terms of §1238 subdivisions (a)(1) and (a)(8) did not authorize the prosecution to appeal an order reducing wobbler offenses. Guerrero remarked:
“We disagree [with the Court of Appeal] that Williams is distinguishable. The unauthorized nature of the trial court’s order here has no bearing on whether it is an order setting aside a portion of the information or an order dismissing or otherwise terminating a portion of the action under section 1238, subdivision (a)(1) and (8). Just as in Williams, it is neither. The order ‘did not preclude the People from prosecuting the wobbler offenses charged against defendant; it simply determined that these offenses were misdemeanors rather than felonies.’….‘[T]he charged offense has been modified…, but it has not been dismissed or otherwise terminated.’ ”
Continuing, she wrote:
“The Court of Appeal below asserted, ‘It would be absurd to allow an appeal from the superior court’s statutorily authorized order reducing a felony wobbler to a misdemeanor at the time of sentencing…but to bar an appeal from the court’s unauthorized pretrial order accomplishing the same result.’….But the procedural posture of the proceedings matters. Among other things, the People’s appeal from a pretrial order carries with it the potential for prejudicial delay in a way that the People’s appeal following trial does not….’The Legislature has permitted such pretrial appeals by the People of charges that have not been dismissed or set aside only in very limited circumstances’….This case does not fall within the limited circumstances identified by the Legislature.”
She added “[w]e disapprove [of the Court of Appeal’s opinion in] People v. Superior Court (Mitchell)…to the extent it is inconsistent with this opinion.”
Writ Review
The chief justice commented:
“Although we conclude the People have no right to appeal, that conclusion does not necessarily foreclose all review of pretrial orders declaring wobbler offenses charged as felonies to be misdemeanors. Code of Civil Procedure section 1085 allows the People to seek writ review under appropriate circumstances….These circumstances are…quite limited, but…writ review is available ‘when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.’….We hold that a trial court’s unauthorized order reducing a wobbler offense charged as a felony to a misdemeanor is an act in excess of jurisdiction, and it is therefore reviewable by writ when the balance of interests supports the intervention of a higher court.”
Noting the “unusual procedural circumstances of this case,” she said “we decline to consider whether the Court of Appeal reasonably weighed these factors” and said:
“It is sufficient for present purposes to hold that the trial court’s unauthorized order here was an act in excess of jurisdiction. The decision whether to allow writ review in any specific case lies within the discretion of the court considering the People’s petition for writ relief.”
Temporary Stay
As to the trial court proceedings which followed the publication of the Court of Appeal opinion in this case, Guerrero declared:
“The Court of Appeal here issued a temporary stay of all proceedings in the trial court. Because the Court of Appeal’s opinion was never final, its temporary stay never expired. The trial court therefore violated the stay when it acceded to the prosecution’s request to resume the criminal proceedings against Mitchell. We therefore agree with the parties that the trial court lacked jurisdiction to proceed, and its subsequent actions are null and void.”
The case is People v. Superior Court (Mitchell), 2024 S.O.S. 3872.
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