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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Steven ALVAREZ, Real Party in Interest.

No. B095193.

Decided: March 13, 1996

Gil Garcetti, District Attorney of Los Angeles County, Frank Elmer Sundstet, Assistant District Attorney, Diana L. Summerhayes and Joseph N. Sorrentino, Deputy District Attorneys, for Petitioner. No appearance for Respondent. Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Matthew Huey and Alex Ricciardulli, Deputy Public Defenders, for Real Party in Interest.


The People of the State of California seek relief from an order of the respondent court reducing a felony drug possession conviction pursuant to Penal Code section 17, subdivision (b) 1 of defendant, Steven Alvarez, who has now sustained six felony and four misdemeanor convictions.   The prosecution contends the respondent court abused its discretion by reducing the felony offense to a misdemeanor.   We agree with the People that the respondent court exceeded the allowable scope of its sentencing discretion in reducing the felony charge to a misdemeanor.  (People v. Warner (1978) 20 Cal.3d 678, 689, 143 Cal.Rptr. 885, 574 P.2d 1237.)   Accordingly, the petition is granted.


On February 15, 1995, an information was filed charging defendant with one count of possession of methamphetamine, a violation of Health and Safety Code section 11377, subdivision (a).   It was further alleged that defendant had:  previously been convicted of residential burglary (§ 459) on four occasions, which were serious felonies for purposes of section 667, subdivision (b)–(i), and section 1192.7, subdivision (c)(18).   Further, it was alleged he had served a prior prison term within the meaning of section 667.5, subdivision (b).   It was further alleged that defendant was not eligible for probation.  (§ 1203, subd. (e)(4).)

On April 17, 1995, trial commenced.   On April 19, 1995, the jury found defendant guilty of the charged offense.   Defendant waived his right to a jury trial on the special allegations of the prior serious felony convictions.   Later, defendant entered a plea of nolo contendere as to all prior serious felony convictions alleged in the information.   The respondent court found the prior serious felony conviction special allegations to be true.

The probation officer's reports and the testimony at trial indicated the following.   Officer Timothy O'Hara of the Long Beach Police Department saw defendant riding a skateboard on the wrong side of the road while carrying a nylon bag.   Defendant looked directly at the police car and immediately placed an object he was holding in his left hand in his mouth.   Officer O'Hara approached defendant, who was on parole for residential burglary, and detected “an overwhelming odor of marijuana.”   Officer O'Hara asked, “ ‘Wow, dude, how much marijuana have you been smoking today?’ ”   Officer O'Hara testified as follows concerning defendant's response to the inquiry, “[H]e told me that he had smoked some marijuana earlier that morning but he had just swallowed his last roach when he saw us turn into the alley.”   Defendant testified he had a pending “warrant for marijuana possession” when he responded to Officer O'Hara's inquiry.   Officer O'Hara testified he asked defendant the following question, “I asked him if he had any more drugs inside the nylon bag or on his person.”   Defendant lied and claimed he did not use narcotics.   Defendant also consented to a search of the nylon bag.   In the bag, Officer O'Hara found:  three hypodermic syringes;  a “clear glass tube, pipe”;  and .41 grams of methamphetamine.   An experienced police officer testified .41 grams of methamphetamine was a “usable quantity” of the drug.   A usable quantity of the drug was .02 grams.   Later, when interviewed by the authorities, defendant admitted that he injected methamphetamine because he would become depressed.   Defendant indicated he would be able to give himself two injections of methamphetamine from a $20 purchase.   When arrested, defendant lied about his name.   Defendant claimed his name was “Richard Davis.”

The defense was that defendant did not know the methamphetamine and drug paraphernalia were in the bag.   When cross-examined, defendant was unable to remember his address or just how many prior residential burglary convictions he had sustained.   Defendant said that he used marijuana because he would become depressed.   Defendant admitted having difficulty remembering things because of “marijuana usage.”

After his arrest, defendant sought the benefit of the drug diversion statutes.  (§ 1000 et seq.)   The report prepared in connection with the diversion request indicated:  “Defendant readily admits having a small quantity of methamphetamine, two syringes and a glass pipe when arrested on this case.   He also reports daily use of methamphetamine, either by injecting or smoking it, over the past four years, about $20 worth a day, as well as the daily use of marijuana for several years.”   The probation officer recommended a denial of defendant's diversion request.   The probation officer wrote:  “Denial of diversion is being recommended as defendant's arrest record is serious and dates back for several years.   He is also an inveterate drug user who has remained unemployed for over a year.”

The probation report prepared after the jury verdict indicated the following.   On June 8, 1979, defendant was charged with first degree burglary and receiving stolen property.  (§ 496.)   On September 26, 1979, defendant was convicted of two counts of first degree burglary and committed to the California Youth Authority.   On October 24, 1979, defendant was convicted on another count of first degree burglary and was committed to the youth authority.   He was paroled on July 27, 1981.   While on parole, on January 20, 1982, defendant was once again convicted of first degree burglary.   He was placed on probation.   However, on March 11, 1982, his youth authority parole was revoked and he was recommitted.   He was paroled again on February 23, 1983.   On January 3, 1985, defendant was convicted of prostitution (§ 647, subd. (b)) and placed on probation for 12 months.   On February 14, 1985, while on probation, defendant was convicted of misdemeanor trespassing.  (§ 602, subd. (p).)  Defendant was again placed on probation.   On April 1, 1987, defendant was convicted of petty theft (§ 484) and was again placed on 12 months probation.   While on probation, on February 9, 1988, defendant was convicted of first degree burglary for the fifth time.   He was sentenced to prison for seven years.   After he was paroled, defendant was convicted of misdemeanor assault (§ 240) and sentenced to county jail for six months.   He was found in violation of his parole and returned to prison custody.   In connection with the seven year term defendant received in 1988 for first degree burglary, defendant was found in violation of parole and returned to prison custody “on several occasions.”   He was last released from prison custody on March 25, 1994.   On May 25, 1994, the parole authorities issued a warrant for defendant's arrest.

The probation officer's report indicated defendant, who received his general equivalency degree while in the youth authority had been “injecting methamphetamine for ‘years.’ ”   Defendant indicated he recalled “injecting cocaine some time back in the 1980's.”   His primary source of income was “illegal activity.”   The probation report quoted defendant as follows:  “The defendant claims that at the time of his arrest in December 1994, he was ‘on the run’ and knowing that he was wanted by his parole agent, was trying to set up a new residence in Long Beach.   He acknowledges being booked in the present case under an alias in his attempts to avoid detection by parole authorities and as he acknowledges ‘this is a three strike case[,’] he has no expectations of being released from custody.”   Further defendant admitted that his prior burglaries and theft related crimes were accomplished for purposes of securing funds for drugs.   The probation officer found the following to be factors in aggravation:  the planning and other factors indicated the existence of premeditation;  defendant's prior convictions were of increasing seriousness;  defendant has served a prior prison term;  he was on parole when he possessed the methamphetamine;  and his prior performance on probation or parole was unsatisfactory.   The probation report indicated there were no mitigating circumstances.

At defendant's probation and sentencing hearing on June 26, 1995, the respondent court reduced his conviction to a misdemeanor pursuant to section 17, subdivision (b), then placed him on three years unsupervised probation on the condition he serve one year in the county jail.   The pertinent considerations cited by the respondent court for reducing the offense to a misdemeanor were:  defendant possessed a small quantity of methamphetamine;  he cooperated with the police;  he was 34 years old;  the present matter was a “very small case”;  and, “This case does not rise to the level of sending a person like Mr. Alvarez [to prison for] 25 years to life.” 2  The court concluded:  “He's 34 years old and he was seen riding a skate board and all his goodies together with .41 grams of methamphetamine in his packet[.]  [¶] Mr. Alvarez is not as bright as you might think he is.   He certainly hasn't found the light in that he's cured himself of his methamphetamine problems nor does he know how to report to the parole department.  [¶] At this point I'm going to declare a misdemeanor under 17.B(3).  [¶] Mr. Alvarez, I don't know if I've done you a favor or not.   You don't get your act—it's three strikes, Mr. Alvarez.”   The respondent court concluded:  “One year county jail and he's on probation for a period of three years.   It will be unsupervised.   The probation department is to register any new arrests with ․ this court.”


A. Standard of review

 An appellate court reviews a sentencing decision to determine if there has been an abuse of discretion.   The California Supreme Court has held:  “This discretion, however, is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.  [Citations.]   Discretion is abused when granting probation ‘exceeds the bounds of reason, all of the circumstances being considered.’  [Citations.]”  (People v. Warner, supra, 20 Cal.3d at p. 683, 143 Cal.Rptr. 885, 574 P.2d 1237;  accord, People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225 [order that sentences be served consecutively].)  On another occasion, the California Supreme Court described the test for abuse of discretion in sentencing matters as follows:  “The granting or denial of probation is a matter for the discretion of the trial court.  [Citation.]   However, ‘[t]he courts have never ascribed to judicial discretion a potential without restraint.’  [Citation.]   Discretion is compatible only with decisions ‘controlled by sound principles of law, ․ free from partiality, not swayed by sympathy or warped by prejudice․’  [Citation.]”  (People v. Bolton (1979) 23 Cal.3d 208, 216, 152 Cal.Rptr. 141, 589 P.2d 396.)

B. Obligations of Sentencing Judges

 In sentencing a defendant, a trial judge is obligated to consider all of the facts and circumstances of the offense.   The sound exercise of judicial discretion requires a sentencing judge to consider and apply all of the facts concerning a defendant's criminal conduct.   In the decision of In re Cortez (1971) 6 Cal.3d 78, 85–86, 98 Cal.Rptr. 307, 490 P.2d 819, the California Supreme Court expressly set forth the requirement that a proper exercise of judicial discretion involves a knowledge and consideration of all the material facts as follows:  “ ‘It is well established in the law that the severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court.  [Par.] The term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking.   It imports the exercise of discriminating judgment within the bounds of reason.  [Par.] To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.’ ”  (Fn. omitted;  italics added.)   Likewise, Courts of Appeal have repeatedly held that any sentencing decision requires consideration of all the facts concerning the crime.  (People v. Strunk (1995) 31 Cal.App.4th 265, 275, 36 Cal.Rptr.2d 868 [resentencing required because superior court judge failed to consider and weigh “all the circumstances”];  People v. Nevill (1985) 167 Cal.App.3d 198, 202, 212 Cal.Rptr. 898 [“[a]chieving uniformity in sentencing requires the sentence imposed be based upon consideration of all relevant aggravating and mitigating factors”];  People v. Green (1982) 142 Cal.App.3d 207, 216, 192 Cal.Rptr. 146 [“the judge shall consider all the circumstances of the offense and of appellant's participation therein”];  People v. Podesto (1976) 62 Cal.App.3d 708, 723, 133 Cal.Rptr. 409 [“the court should consider all the attendant facts and circumstances as disclosed by the evidence”];  People v. Keogh (1975) 46 Cal.App.3d 919, 934, 120 Cal.Rptr. 817 [“all the material facts in evidence must be both known and considered”].)  Further, it is axiomatic that a defendant's entire criminal record must be considered in sentencing decisions.  (People v. Warner, supra, 20 Cal.3d at p. 685, 143 Cal.Rptr. 885, 574 P.2d 1237 [defendant's three prior child molestation felony convictions considered in determining trial judge abused discretion in granting probation];  People v. Orin (1975) 13 Cal.3d 937, 950–951, 120 Cal.Rptr. 65, 533 P.2d 193 [dismissal of two other charges pursuant to section 1385 an abuse of discretion];  People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193, 80 Cal.Rptr. 913, 459 P.2d 241 disapproved on another point in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301, 276 Cal.Rptr. 49, 801 P.2d 292, fn. 6 [prior narcotics conviction may properly be used to deny probation].)

C. Factors to be considered in sentencing recidivist offenders

 Before proceeding to an analysis of whether the trial court exceeded the scope of its allowable sentencing discretion, we clarify the nature of the charges present in this case.   Defendant, as did the respondent court, characterizes the methamphetamine possession charge, as a less serious felony, an accurate observation given the fact the Legislature has chosen to treat the offense as an alternative felony misdemeanor.   However, this case does not merely involve an allegation of possessing a substantial quantity of usable methamphetamine.   Section 667, subdivisions (b)–(i) involve the application of a recidivism statute which is a historically well established recognized sentencing procedure throughout this state and country.  (See Graham v. West Virginia (1912) 224 U.S. 616, 622, 32 S.Ct. 583, 585, 56 L.Ed. 917;  McDonald v. Massachusetts (1901) 180 U.S. 311, 312, 21 S.Ct. 389, 390, 45 L.Ed. 542;  In re Rosencrantz (1928) 205 Cal. 534, 537–541, 271 P. 902.)   The United States Supreme Court has described the nature of a similar recidivist statute in a case where a repeat offender received a life sentence after being convicted of obtaining $120.75 by false pretenses as follows:  “In this case, however, we need not decide whether Texas could impose a life sentence upon [defendant] merely for obtaining $120.75 by false pretenses.   Had [defendant] only committed that crime, under the law enacted by the Texas Legislature he could have been imprisoned for no more than 10 years.   In fact, at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies, crimes that Texas and other States felt were serious enough to warrant significant terms of imprisonment even in the absence of prior offenses.   Thus the interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property;  it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.   By conceding the validity of recidivist statutes generally, [defendant] himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons.”  (Rummel v. Estelle (1980) 445 U.S. 263, 276, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382;  accord, Texas v. McCullough (1986) 475 U.S. 134, 144, 106 S.Ct. 976, 981–82, 89 L.Ed.2d 104;  Cocio v. Bramlett (9th Cir.1989) 872 F.2d 889, 893;  In re Rosencrantz, supra, 205 Cal. at p. 539, 271 P. 902.)   Later, the United States Supreme Court noted, “Having twice imprisoned him for felonies, Texas was entitled to place upon [defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.”   (Rummel v. Estelle, supra, 445 U.S. at p. 284, 100 S.Ct. at 1144.)   Later, in Parke v. Raley (1992) 506 U.S. 20, 27, 113 S.Ct. 517, 522, 121 L.Ed.2d 391, the United States Supreme Court described the nature of recidivist statutes as follows:  “States have a valid interest in deterring and segregating habitual criminals.  [Citation.]   We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only.  [Citations.]   And we have repeatedly upheld recidivism statutes ‘against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.’  [Citations.]”  (Italics omitted.)   The United States Supreme Court has described a habitual offender finding in this manner:  “Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is ‘essentially independent’ of the determination of guilt on the underlying substantive offense.”  (Oyler v. Boles (1962) 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446 accord, Graham v. West Virginia, supra, 224 U.S. at p. 622, 32 S.Ct. at 585.)   California appellate courts have repeatedly held that when a defendant's criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons.  (In re Rosencrantz, supra, 205 Cal. at p. 539, 271 P. 902;  People v. Coleman (1904) 145 Cal. 609, 611, 79 P. 283;  People v. Weaver (1984) 161 Cal.App.3d 119, 125, 207 Cal.Rptr. 419;  People v. Jacobs (1984) 157 Cal.App.3d 797, 802, 204 Cal.Rptr. 234;  People v. Stone (1945) 69 Cal.App.2d 533, 535, 159 P.2d 701;  People v. Rose (1938) 26 Cal.App.2d 513, 519, 79 P.2d 737.)   Further, California courts have held that the enhanced punishment is imposed not merely as a result of the new offense, but because of the habitual offender's character (People v. Romer (1933) 218 Cal. 449, 452, 23 P.2d 749) and previous criminal conduct.   (People v. Biggs (1937) 9 Cal.2d 508, 512, 71 P.2d 214;  People v. Calderon (1962) 205 Cal.App.2d 566, 572, 23 Cal.Rptr. 62;  accord, People v. Coronado (1995) 12 Cal.4th 145, 158, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   In fact, the habitual offender finding is not an adjudication of guilt under California law of a substantive offense (In re McVickers (1946) 29 Cal.2d 264, 270, 176 P.2d 40), but rather is a finding concerning the status of the defendant as one who has not in the past obeyed the law.  (People v. Hoerler (1962) 208 Cal.App.2d 402, 408, 25 Cal.Rptr. 209;  People v. Richardson (1946) 74 Cal.App.2d 528, 542–543, 169 P.2d 44.)   Hence, the foregoing authority which describes the role of habitual offender statutes historically in this country and state reaches these conclusions:  states have a legitimate interest in more harshly punishing, segregating from society, and deterring from future criminal conduct persons who have repeatedly shown they are incapable of conforming to societal norms;  states have historically pursued that interest with statutes similar to section 667, subdivisions (b)–(i);  the recidivism determination, which is not an adjudication of guilt, is essentially independent from the finding as to the underlying crime;  and courts can utilize recidivism statutes to comply with the judicial duty to protect the public.

 The determination as to the penalties to be imposed in criminal cases is, subject to constitutional restrictions, strictly a matter for the Legislature.   In People v. Tanner (1979) 24 Cal.3d 514, 519, 156 Cal.Rptr. 450, 596 P.2d 328, footnote 3, the California Supreme Court held:  “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.  ‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’  [Citation.]  ‘[T]he legislative branch of the government has the power to declare that in certain ․ cases, probation may not be granted.   The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government.   It does not impair, restrict nor enlarge upon the jurisdiction of the courts.   The function of the courts is to determine the guilt or innocence of an accused.   What disposition may thereafter be made by way of penalty is for the Legislature to determine.’  [Citations.]”   The California Supreme Court has repeatedly emphasized that the determination as to what charges to file is a prosecutorial decision.  (See Davis v. Municipal Court (1988) 46 Cal.3d 64, 82–83, 249 Cal.Rptr. 300, 757 P.2d 11;  People v. Superior Court (On Tai Ho ) (1974) 11 Cal.3d 59, 65, 113 Cal.Rptr. 21, 520 P.2d 405;  People v. Navarro (1972) 7 Cal.3d 248, 258–260, 102 Cal.Rptr. 137, 497 P.2d 481;  Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124–128, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   In People v. Adams (1974) 43 Cal.App.3d 697, 706–707, 117 Cal.Rptr. 905, the defendant argued that the grant of discretion to file a receiving stolen property charge as a felony to the prosecution violated the doctrine of separation of powers.  (Cal. Const., art. III, § 3, & art. VI, § 1;  cf. Davis v. Municipal Court, supra, 46 Cal.3d at pp. 82–83, 249 Cal.Rptr. 300, 757 P.2d 11.)   The Adams court rejected this argument and noted:  “In the case before us the statute deals with the initial determination of the charge to be filed, a decision which, in its nature, occurs before an accusatory pleading is filed and thus before the jurisdiction of a court is invoked and a judicial proceeding initiated.   It involves a purely prosecutorial function and does not condition judicial power in any way.   The function thereby conferred relates only to what is clearly the province historically of the public prosecutor, i.e., the discretion whether or not to prosecute.  [Citations.]   The action of a district attorney in filing an information is not in any way an exercise of a judicial power or function.”  (People v. Adams, supra, 43 Cal.App.3d at p. 707, 117 Cal.Rptr. 905.)

 The sentencing decision in the present case, which involved a recidivist, was subject to the following analysis of the California Supreme Court in People v. Warner, supra, 20 Cal.3d at page 689, 143 Cal.Rptr. 885, 574 P.2d 1237, a case where a grant of probation was found to constitute an abuse of discretion:  “The paramount concern in sentencing must be the protection of society.   The interests of the defendant are of legitimate but secondary concern.   Granting a convicted criminal the qualified liberty of probation subjects society to the risk that it will continue to be victimized during the period when he would otherwise be confined.   In determining whether to grant probation the judge must therefore satisfy himself that the risks inherent in that disposition are outweighed by the potential benefits.   We are mindful that society, as well as defendant, would benefit if he were rehabilitated through psychiatric treatment while on probation.   But, on this record, the chances of such rehabilitation are slight.   And the danger that defendant would repeat his vicious conduct while on probation is considerable.   Therefore, the trial court abused its discretion in granting him probation.”   In cases subject to the Determinate Sentencing law, the Advisory Committee Comment to rule 414 of the California Rules of Court,3 which relates to criteria affecting probation, indicates, “The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community.”  (See Judicial Council Advisory Committee Comment, Deering's Ann.Cal.Rules of Court, rule 414, p. 146.)

D. Application of These Principles to the Present Case

 In the present case, we conclude the sentencing decision exceeded the scope of that allowable to a judge under California law.   First, when all of the facts in the present case are considered as they must (In re Cortez, supra, 6 Cal.3d at pp. 85–86, 98 Cal.Rptr. 307, 490 P.2d 819), including defendant's complete record (People v. Warner, supra, 20 Cal.3d at p. 685, 143 Cal.Rptr. 885, 574 P.2d 1237;  People v. Orin, supra, 13 Cal.3d at pp. 950–951, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Lo Cicero, supra, 71 Cal.2d at p. 1193, 80 Cal.Rptr. 913, 459 P.2d 241), reduction of the charged crime to a misdemeanor was inappropriate.   Defendant, a career criminal, was a parolee at large hiding from his parole officer and subject to a separate arrest warrant for yet another narcotics violation when he was observed smoking marijuana while riding a skateboard the wrong way in a street.   When arrested, he lied to the police as to his identity, thereby violating section 148.9.   When arrested, he had just swallowed a marijuana cigarette and he possessed a substantial quantity of methamphetamine, three syringes, and a pipe used to smoke narcotics.   More critically, given this is a recidivism case, defendant's record of six felony and four misdemeanor convictions rendered him unsuitable for a grant of unsupervised misdemeanor probation.   Defendant's prior criminal record was extremely serious.   He had been convicted of residential burglary on five occasions and the present offense constituted his sixth felony conviction.   His prior burglaries had been committed for purposes of securing money for the unlawful purchase of controlled substances.   He continued while on parole to use drugs on a daily basis and had no known source of income.   In People v. Warner, supra, 20 Cal.3d at page 685, 143 Cal.Rptr. 885, 574 P.2d 1237, the Supreme Court held it was an abuse of discretion to grant probation to a person who had on three occasions been previously convicted of child molestation and concluded:  “We will not belabor the obvious.   One can scarcely imagine a record less appropriate to probation.”   The same is true in this case.   It is hard to imagine a record less appropriate for a grant of misdemeanor probation and one year of custody to be followed by no supervision than that in the present case.

Additionally, the respondent court mischaracterized defendant's prior record.   The respondent court's suggestion that his last conviction was in 1987 is inaccurate.   Defendant was convicted of misdemeanor assault in 1991, which resulted in his return to prison custody for a parole violation.   Further, defendant was incarcerated much of the time since his 1988 residential burglary conviction and he was constantly being returned to prison custody because of parole violations.   Moreover, his last release on parole was on March 25, 1994, and he was arrested in connection with the present offense on December 25, 1994.   During at least part of that time period, defendant had been the subject of a parole violation warrant.   Further, he was the subject of a separate narcotics arrest warrant.

 Second, the respondent court incorrectly substituted its view of the proper sentence for that of the Legislature.   The trial court stated that a 25 years-to-life sentence would be a disproportionate punishment.   As noted previously, it is the Legislature that determines what sentences are disproportionate.  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Sipe (1995) 36 Cal.App.4th 468, 482, 42 Cal.Rptr.2d 266.)   The respondent court's conclusions constituted a judicial substitution of views concerning proper sentencing policy for that of those charged under the California Constitution and a representative democracy with making such decisions.   In making sentencing decisions, a court may not utilize its personal aversion to a particular sentencing format such as section 667, subdivisions (b)(i) as a consideration in determining to reduce a felony to a misdemeanor pursuant to section 17, subdivision (b).   For these combined reasons, we conclude the respondent court did not, utilizing “fixed legal principles, to be exercised in conformity with the spirit of the law” (People v. Warner, supra, 20 Cal.3d at p. 683, 143 Cal.Rptr. 885, 574 P.2d 1237), properly exercise its discretion in reducing defendant's felony conviction to a misdemeanor.  (Id. at p. 689, 143 Cal.Rptr. 885, 574 P.2d 1237.)


Let a peremptory writ of mandate issue directing respondent court to vacate its order of June 26, 1995, reducing defendant's felony conviction to a misdemeanor and granting defendant probation and enter a new and different order in accordance with the views expressed in this opinion.


1.   Penal Code section 17, subdivision (b), provides in pertinent part:  “When a crime is punishable, in the discretion of the court, 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.”   Unless otherwise noted, all future statutory references are to the Penal Code.

2.   The respondent court made other comments which are not pertinent either to a sentencing decision or our resolution of this case.

3.   All future references to a rule are to the California Rules of Court.

TURNER, Presiding Justice.