P. v. Flores
Filed 3/11/08 P. v. Flores CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Appellant, v. EDGAR FLORES, Defendant and Respondent. | D051022 (Super. Ct. No. SCD202825) |
APPEAL from an order of the Superior Court of San Diego County, Gale E. Kaneshiro, Judge. Dismissed.
On November 28, 2006, Edgar Flores pleaded guilty under a plea agreement with the district attorney before Judge Timothy R. Walsh to one count of unlawfully taking a vehicle (Veh. Code, 10851, subd. (a)). In exchange for his guilty plea, the People agreed to dismiss a remaining charge of receiving a stolen vehicle (Pen. Code, 496d),[1]and agreed not to object to a sentence of local time, and to the grant of three years' summary probation subject to the condition of 180 days in local custody. Judge Walsh then suspended imposition of sentence and placed Flores on three years' summary probation. No probation report was requested. On February 27, 2007, the People alleged Flores violated his probation condition of breaking no laws, and petitioned for summary revocation of probation. The court summarily revoked probation[2]and set a formal probation revocation hearing for March 2, 2007. The hearing was continued to March 16, 2007, at which the People requested that the court determine the Vehicle Code section 10851, subdivision (a) offense to be a felony. At the May 11, 2007, hearing on the People's motion, Judge Kaneshiro stated the offense "was reduced by Judge Walsh to a misdemeanor at the time of sentencing . . . ." Judge Kaneshiro then continued the formal probation revocation hearing to allow the People to seek writ or appellate relief from her ruling.
The People appeal, contending Judge Kaneshiro erred in concluding Judge Walsh reduced the offense to a misdemeanor. Flores contends the comments of Judge Kaneshiro at the May 11, 2007, hearing were merely an interpretation of Judge Walsh's statements when he suspended imposition of sentence and Judge Kaneshiro made no appealable ruling or order.
FACTS
The People allege Flores violated the terms and conditions of his probation by committing violations of Health and Safety Code sections 11377, subdivision (a), and 11379. However, because there was no hearing on the merits of the formal probation revocation, there is no factual basis for a formal revocation of probation at this point in the proceedings.
DISCUSSION
The People contend this appeal is authorized by section 1238, claiming Judge Kaneshiro's ruling is an order made after judgment that affects their substantial rights ( 1238, subd. (a)(5)) or modifies the offense to a lesser offense ( 1238, subd. (a)(6)). Flores responds that Judge Kaneshiro merely interpreted Judge Walsh's November 28, 2006, order suspending imposition of sentence and granting summary probation, and this interpretation is not an appealable order. We conclude Judge Kaneshiro did not issue a final ruling or order appealable at this stage of the proceedings. The appeal is therefore unauthorized, and we dismiss it.
The Legislature has determined the People shall have no right of appeal in criminal cases except under certain limited circumstances. (People v. Trujillo (2006) 40 Cal.4th 165, 171-172.) Those circumstances are enumerated in section 1238, which provides in relevant part:
"(a) An appeal may be taken by the people from any of the following: [] . . . []
"(5) An order made after judgment, affecting the substantial rights of the people.
"(6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense." ( 1238.)
Courts are precluded from expanding the People's right of appeal beyond the areas clearly specified in section 1238. (People v. Gaines (1980) 112 Cal.App.3d 508, 512.) This is true even if the People may suffer a wrong without a remedy. (People v. Chacon (2007) 40 Cal.4th 558, 564.)
Judge Kaneshiro's interpretation of Judge Walsh's comments at the hearing in which he suspended imposition of sentence and granted summary probation is not "an order made after judgment" ( 1238, subd. (a)(5)) because no final judgment has been rendered in Flores's case. "An 'order after judgment' within the meaning of section 1238 is an order . . . rendered after the imposition of sentence." (People v. Ibanez (1999) 76 Cal.App.4th 537, 543.) Because Judge Walsh suspended imposition of sentence, in contrast to sentencing Flores and suspending execution of sentence, he made no judgment whether the crime was a felony or a misdemeanor, and Judge Kaneshiro's conclusion is therefore not an order rendered after judgment. (Ibid., People v. Howard (1997) 16 Cal.4th 1081, 1084, 1087-1088.) Moreover, Judge Kaneshiro never conducted the formal probation revocation hearing and Flores was not formally found to be in violation of probation. Rather, the People requested the court take the probation revocation hearing off calendar, and Flores was released on his own recognizance pending this appeal. As a result, Judge Kaneshiro did not sentence Flores, and stated she was "just finding that at this point, [Judge Walsh's] sentence of Mr. Flores was uncertain." We conclude Judge Kaneshiro's statements are not "[a]n order made after judgment." ( 1238, subd. (a)(5); People v. Ibanez, supra, 76 Cal.App.4th at p. 543.)
Likewise, Judge Kaneshiro's interpretation of Judge Walsh's comments at the hearing at which he suspended imposition of sentence is not "[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense." ( 1238, subd. (a)(6).) The cases relied on by the People involve a sentencing court's decision to reduce an offense to a misdemeanor. (See People v. Douglas (1999) 20 Cal.4th 85, 88; People v. Statum (2002) 28 Cal.4th 682.) Judge Kaneshiro did not sentence Flores, but attempted to glean whether Judge Walsh was treating the offense as a felony or misdemeanor when he suspended imposition of sentence and granted summary probation. At the May 11 hearing, Judge Kaneshiro stated the offense "was reduced by Judge Walsh to a misdemeanor at the time of sentencing" and "was deemed by Judge Walsh's actions to have been made a misdemeanor in this case" and stated "I'm going to say I believe this is a misdemeanor." We conclude Judge Kaneshiro's statements are not sufficient to constitute a final sentencing decision to reduce the degree of the offense or modify the offense to a lesser offense within the meaning of section 1238, subdivision (a)(6).
To the extent the People contend Judge Walsh reduced the offense to a misdemeanor and challenge Judge Walsh's November 28, 2006, suspension of imposition of sentence and grant of summary probation, the time to seek relief from that decision has passed. ( 1238, subd. (d); Cal. Rules of Court, rule 8.308.) We also note the People stipulated to that disposition and agreed not to object to a sentence of local time. Flores has not had his formal probation revocation hearing, probation has not been formally revoked, and he has not been sentenced for the offense for which he was granted summary probation. To the extent the People contend Judge Kaneshiro reduced the offense to a misdemeanor, Judge Kaneshiro has not entered an order designating Flores's offense to be a misdemeanor. Any challenge to the sentence he may receive for that offense, and thus a conclusion of the felony or misdemeanor nature of the offense, is premature. The appeal is therefore unauthorized under section 1238, subdivisions (a)(5) or (6), and we dismiss it.
DISPOSITION
The appeal is dismissed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line attorney.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] It is unclear from the record who summarily revoked probation and when. A minute order dated February 26, 2007, states Judge Szumowski summarily revoked probation, but another order dated February 27, 2007, states Judge Fraser summarily revoked probation.
