Reset A A Font size: Print

Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. William R. DOUGLAS, Defendant and Respondent.

No. B110243.

Decided: January 21, 1998

Thomas W. Sneddon, Jr., District Attorney and Gerald McC. Franklin, Senior Deputy District Attorney, for Plaintiff and Appellant. Glen Mowrer, Public Defender and Michael C. McMahon, Assistant Public Defender, for Defendant and Respondent.

The People appeal from an order of the trial court suspending imposition of the defendant's sentence, granting probation, and declaring the charged offenses to be misdemeanors pursuant to Penal Code section 17, subdivision(b).1  We conclude that the order is not appealable and, therefore, dismiss this appeal.  (See § 1238, subd. (d).)

Defendant William R. Douglas (Douglas) and an accomplice were charged by information with receiving welfare benefits based upon false declarations of eligibility (Welf. & Inst.Code, § 14014, count I) and grand theft (§ 487, subd. (a), count II) from the State of California.   Douglas, who was blind and disabled, made false statements to receive welfare benefits for which he was not eligible and obtained overpayments totaling $4,773.20.

On February 24, 1997, Douglas entered a plea of “no contest” to both counts.   The trial court accepted the change of plea and suspended imposition of sentence.   The court placed Douglas, who had no prior criminal record, on probation on both counts for three years and declared both offenses misdemeanors pursuant to section 17, subdivision (b).   The People objected to reducing the welfare fraud count to a misdemeanor.   This appeal followed.


The People contend that a welfare fraud violation under Welfare and Institutions Code section 14014 is a straight felony where the amount obtained exceeds $400 and that the court, therefore, erred in declaring the charge a misdemeanor under section 17, subdivision (b).   We decline to reach the merits of this contention.   For the reasons expressed in People v. Robles (1997) 52 Cal.App.4th 157, 60 Cal.Rptr.2d 419, we conclude that the People have no right to appeal in this case.

The People's right to appeal in a criminal case is expressly limited by statute.   Section 1238 sets forth orders and judgments from which the People may appeal.2  The People argue that subdivisions (a)(1) and (5) of section 1238 authorize this appeal as either an order setting aside a felony charge or an “order made after judgment, affecting the substantial rights of the people.”   Courts have held that an order declaring an offense a misdemeanor under section 17, subdivision (b) may constitute an “order setting aside the [felony] information” within the meaning of section 1238, subdivision (a)(1).  (E.g., People v. Booker (1994) 21 Cal.App.4th 1517, 1520, 26 Cal.Rptr.2d 715 [section 1238, subd. (a)(1) authorizes People's appeal from pretrial order granting defendants' motion to declare charged offenses misdemeanors].)  “The fact that the People's appeal concerns the type of order or judgment contemplated by subdivision (a) of section 1238 does not end the inquiry, however, if the case is one where the defendant was granted probation.”  (People v. Robles, supra, 52 Cal.App.4th at p. 159, 60 Cal.Rptr.2d 419.)   Where, as here, probation is granted, subdivision (d) of section 1238 expressly requires the People to seek review of the grant of probation and an order underlying the grant of probation in an extraordinary writ proceeding whether or not the court imposes sentence.   This section reflects a legislative policy to provide a speedy review of all aspects of a case in which a defendant is placed on probation.

The People contend that the court's action in declaring the welfare fraud count a misdemeanor cannot be said to “underlie” the order granting probation within the meaning of section 1238, subdivision (d), because Douglas was granted probation before the court reduced the charged offenses to misdemeanors.   The transcript of the plea hearing, however, reveals that the court's decision to deem the welfare fraud offense a misdemeanor was part of an indicated sentence clearly underlying the plea and grant of probation.   The existence of the indicated sentence was memorialized in the “plea form” filed with the court prior to the entry of the change of plea.   In the opening brief, the People concede that the duration of the probation was set for only three years rather than five solely “by reason of its [the court's] announced intention to make both offenses misdemeanors.”   On the face of this record, the order deeming the offense to be a misdemeanor necessarily underlies the grant of probation within the meaning of section 1238, subdivision (d).

We acknowledge the cases cited by the dissent from other courts of appeal which have permitted the People to appeal from grants of probation where the trial court has declared a charge a misdemeanor under section 17, subdivision (b).   Those cases, however, either ignored or did not discuss the plain, unambiguous, and controlling language of section 1238, subdivision (d).  In People v. Bailey (1996) 45 Cal.App.4th 926, 53 Cal.Rptr.2d 198, review denied, the court of appeal squarely confronted the issue and held, as we do, that the People must challenge an order granting probation (or order underlying the grant of probation as here) through a writ petition.   Many other courts have proceeded to review orders underlying a grant of probation through a petition for extraordinary relief.  (See, e.g., People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 60 Cal.Rptr.2d 93, 928 P.2d 1171;  People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 255 Cal.Rptr. 46;  People v. Superior Court (Frietag) (1988) 204 Cal.App.3d 247, 250 Cal.Rptr. 912.)

Our holding does not conflict with the rule that an illegal sentence may be corrected at any time.  (See, e.g., People v. Serrato (1973) 9 Cal.3d 753, 763, 109 Cal.Rptr. 65, 512 P.2d 289.)   That rule, which may operate in either the defendant's favor or detriment depending on the nature of the error, has never rendered an illegal sentence appealable at any time.  (See, e.g., Cal.Criminal Law, Procedure and Practice (Cont.Ed.Bar 1996) § 38.34, pp. 1048-1049 [vacating and correcting void sentences through motion procedure followed by writ review].)  The right to an appeal should not be confused with the right to review.   The People clearly have recourse when they believe the trial court has unlawfully declared an offense a misdemeanor.   The nature of that recourse-appeal or writ-depends on whether probation is granted.

The dissent posits a hypothetical case in which a first degree murder conviction is improperly reduced under section 17, subdivision (b) to “misdemeanor first degree murder.”   If the defendant were granted probation after such an order, the People would have 60 days within which to file a petition for a writ of mandate or prohibition under section 1238, subdivision (d).   If the court did not grant probation and instead imposed a jail sentence, the People could file a notice of appeal within 60 days thereafter.   In a case of clear error, such as the one suggested by the dissent, we have every reason to believe a writ would promptly be granted.   Under the dissent's hypothetical, if the People were required to appeal, a first degree murderer erroneously placed on probation would be released into society for a year or more while an appeal was pending.   We doubt that any district attorney would consider writ review, which normally is a speedier remedy, an unreasonable burden in such a case.

The dissent suggests our holding has deprived the People of a ruling on an issue of first impression, i.e., whether the violation of Welfare and Institutions Code section 14014 in this case is a straight felony or a “wobbler.”   The problem here lies not with our decision, but with the People's apparent willingness to gamble that a different panel of judges from this court might reach a different result than did the panel in Robles.   The lawyers who appeared and briefed the Robles case are the very same lawyers appearing before us in the instant appeal.   Surely, the deputy district attorney here was on notice that he had to file a writ petition if he desired to challenge the trial court's order underlying the grant of probation in this case.  (People v. Robles, supra, 52 Cal.App.4th at p. 160, 60 Cal.Rptr.2d 419.)

Our decision in Robles is dispositive of the threshold, jurisdictional issue in this case.   We believe Robles and the decision in Bailey accurately reflect the express intention of the Legislature to require the People to seek review of orders underlying the grant of probation, even where the court imposes sentence, through a timely petition for a writ of mandate or prohibition. (§ 1238, subd. (d);  People v. Robles, supra, 52 Cal.App.4th 157, 60 Cal.Rptr.2d 419;  People v. Bailey, supra, 45 Cal.App.4th 926, 53 Cal.Rptr.2d 198.)

This appeal is dismissed.

I respectfully dissent.   I continue to believe that the majority opinion in People v. Robles (l997) 52 Cal.App.4th l57, 60 Cal.Rptr.2d 419 (Yegan, J. dissenting), which relied upon People v. Bailey (l996) 45 Cal.App.4th 926, 53 Cal.Rptr.2d 198, were erroneously decided.  “An appeal may be taken by the People from ․ [t]he imposition of an unlawful sentence, ․ a sentence not authorized by law․”  (Pen.Code, § 1238, subd. (a)(10).)

This case serves as an appropriate vehicle for the Supreme Court to disapprove the aforementioned cases.   The defendant was charged with violating Welfare and Institutions Code section l40l4, subdivision (a), which provides:  “Any person receiving health care for which he or she was not eligible on the basis of false declarations ․ shall be guilty of a misdemeanor or felony depending on the amount paid on his or her behalf for which he or she was not eligible, as specified in Section 487 of the Penal Code.” The People claim that if the amount obtained is over $400, then the violation is a straight felony and cannot be reduced to a misdemeanor.   If the People are correct, then the defendant is now the recipient of the trial court's erroneous largesse.   If the sentence is unauthorized by law, it is not now or ever in the future correctable.

A hypothetical illustrates the danger in the majority's theory.   Assume the defendant is convicted of first degree murder with special circumstances.   The trial court reduces the matter to a misdemeanor and grants probation.   The People appeal rather than file a timely writ petition.   By the majority's theory the appeal would be dismissed and the result would be that the defendant is convicted of misdemeanor first degree murder with special circumstances.   This would be absurd.   However, if probation is not granted and a jail sentence or fine is imposed, the People could appeal.   The distinction between these two scenerios is too subtle for there to be dramatically different rules with respect to appellate scrutiny.

In my view, we should address the first impression issue presented by the appeal, i.e. whether Welfare and Institutions Code section l40l4, subdivision (a) is a straight felony or a wobbler.   By the majority theory, however, it matters not whether an unauthorized sentence has been presented.   The passage of 60 days without the filing of a writ petition forever forecloses the correction of an unauthorized sentence.

No petition for review was sought in People v. Robles, supra, 52 Cal.App.4th 157, 60 Cal.Rptr.2d 419, and the District Attorney who lost that case on procedure now loses again on procedure.   This issue is ripe for review by the California Supreme Court.

There is no question but that the Legislature may declare what is and what is not an appealable order by the People.  (E.g. People v. Drake (l977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622.)   However, the effect of the rule here applied by the majority is expressly contradicted by the rule declared by the California Supreme Court that an unauthorized sentence, i.e. one that exceeds the jurisdiction of the court, may be corrected “ ‘․ whenever the error comes to the attention of the court.’  (Citation.)”  (In re Harris (1993) 5 Cal.4th 813, 842, 21 Cal.Rptr.2d 373, 855 P.2d 391.)  “Whenever” means at any time.  (See also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

A plethora of cases expressly or impliedly stand for the proposition that the instant order is appealable.  (People v. Prothero (1997) 57 Cal.App.4th 126, 128, 66 Cal.Rptr.2d 779;  People v. Carranza (1996) 51 Cal.App.4th 528, 531-533, 59 Cal.Rptr.2d 134;  People v. Trausch (1995) 36 Cal.App.4th 1239, 1243, fn. 5, 42 Cal.Rptr.2d 836;  People v. Booker (1994) 21 Cal.App.4th 1517, 1520-1521, 26 Cal.Rptr.2d 715;  People v. Vessell (1995) 36 Cal.App.4th 285, 288-289, 42 Cal.Rptr.2d 241.)   If the majority is correct, then 15 appellate court justices have made the same mistake I have made.   I agree with Justices Raye, Nicholson, Sparks, Elia, Premo, Wunderlich, Hastings, Woods, Epstein, Newsom, Strankman, Dossee, Nott, Boren, and Fukuto.   A conflict in the Court of Appeal opinions is apparent.   Review should be granted by the California Supreme Court “․ to secure uniformity of decision or [and] the settlement of [an] important question ․ of law․”  (Cal. Rules of Court, rule 29, subd. (a).)

For these reasons, the appeal should not be dismissed.


1.   All statutory references are to the Penal Code unless otherwise stated.

2.   Section 1238 provides in pertinent part that the People may appeal from any of the following:  “(a)(1) An order setting aside the indictment, information, or complaint․  [¶] (5) An order made after judgment, affecting the substantial rights of the people․  [¶] (10) The imposition of an unlawful sentence․”Subdivision (d) of section 1238 provides, however:  “Nothing contained in this section shall be construed to authorize an appeal from an order granting probation.   Instead, the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted.   The review of any grant of probation shall include review of any order underlying the grant of probation.”

COFFEE, Associate Justice.

STONE, P.J., concurs.