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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Kevin LOCKETT, Defendant and Appellant.

No. A020557.

Decided: September 26, 1983

John K. Van De Kamp, Atty. Gen., Herbert F. Wilkinson, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Dennis L. Woodman, Woodman & Woodman, Redwood City, for defendant and appellant.

On September 3, 1981, an information was filed in the Superior Court of San Mateo County alleging that defendant and appellant Kevin Lockett had violated Penal Code section 459 in that he had entered a locked vehicle with the intent to commit a theft therein.   Appellant initially pled not guilty, but later withdrew his plea and pled guilty to second degree burglary.   On December 28, 1981, imposition of sentence was suspended and appellant was placed on court probation for one year on condition that he serve nine months in county jail consecutive to a Santa Clara County sentence.

On December 3, 1982, the trial court found that appellant was in violation of probation.   He was ordered to serve an additional three months in county jail and continued on court probation.   The trial court stated that appellant was “on felony probation.”

Appellant contends on appeal that his placement on court probation renders his conviction of a second degree violation of Penal Code section 459 to be a misdemeanor.   Appellant begins by contending that court probation is available only to misdemeanants.   Therefore, he continues, his placement on court probation constitutes a misdemeanor sentence.   Since second degree burglary is a “wobbler” (People v. Municipal Court (White) 88 Cal.App.3d 206, 209, fn. 2, 151 Cal.Rptr. 861), he concludes that the misdemeanor sentence renders his conviction a misdemeanor for all purposes.  (Pen.Code, § 17;  People v. Hamilton (1948) 33 Cal.2d 45, 50, 198 P.2d 873.)

The People agree with appellant that placement on court probation may only be made in misdemeanor cases stating:  “Probation is a creature of statute.  In re Oxidean (1961) 195 Cal.App.2d 814, 817, 16 Cal.Rptr. 193;  People v. Miller (1960) 186 Cal.App.2d 34, 36, 8 Cal.Rptr. 578.   The statutes provide for court probation only in misdemeanor cases.  Penal Code sections 1203(a) and (b);  1203b.   Thus, ‘Although it is common practice [see, People v. Battin (1978) 77 Cal.App.3d 635, 642, 143 Cal.Rptr. 731], apparently there is no authority for summary probation in felony cases.’   Hayden and Keene, Criminal Trial Judges' Benchbook (2d ed., 1971) at 520.”  (Footnotes omitted.)

The People argue that appellant's second and third premises do not follow from his first.   The People cite the following language from People v. Esparza (1967) 253 Cal.App.2d 362, 364–365, 61 Cal.Rptr. 167, certiorari denied 390 U.S. 968, 88 Cal.Rptr. 1082, 19 L.Ed.2d 1174, to support their contention that appellant's conviction should be considered a felony for all purposes:  “It is settled that where the offense is alternatively a felony or misdemeanor (depending upon the sentence), and the court suspends the pronouncement of judgment or imposition of sentence and grants probation, the offense is regarded a felony for all purposes until judgment or sentence and if no judgment is pronounced it remains a felony ․”

The above quoted language from Esparza does not consider the fact that Penal Code section 17 was amended in 1963 to allow the court, upon granting probation without having first imposed a sentence to declare that the defendant has committed a misdemeanor.  (People v. Livingston (1970) 4 Cal.App.3d 251, 255, 84 Cal.Rptr. 237.)   When the trial court placed appellant on court probation, which type of probation is only available to persons who have committed misdemeanor offenses, such placement was implicitly a declaration that the offense was a misdemeanor.1  Since the court had exercised its discretion by affording appellant treatment which could only be given to a misdemeanant, the court did not regain power to later declare the crime to be a felony.  (See People v. Hannon (1971) 5 Cal.3d 330, 334–335, 96 Cal.Rptr. 35, 486 P.2d 1235.)   Accordingly, the trial court's statement on December 3, 1982, that appellant was “on felony probation” was erroneous.   We are therefore of the opinion that appellant's conviction should be treated as a misdemeanor for all purposes.

The order of commitment to county jail, dated December 3, 1982, is modified by striking therefrom the designation of the conviction as a felony and substituting therefor the designation of the conviction as a misdemeanor.   As modified the order is affirmed.

I dissent.   I have no quarrel with the majority's conclusion that when appellant was placed on probation, there was no statutory authorization for summary or court supervised probation in felony cases;  nor is there such authorization at present.1  However, I strongly disagree with the majority's conclusion that by placing appellant on summary probation, the trial court impliedly “declared” his offense to be a misdemeanor.

Penal Code section 17, subdivision (b), provides in relevant part that an alternatively punishable offense is a misdemeanor for all purposes either (1) “[a]fter a judgment imposing a punishment other than imprisonment in the state prison” (id., § 17, subd. (b)(1));  or (2) “[w]hen 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.”  (Id., § 17, subd. (b)(3), emphasis added.)   If the court grants probation without imposing sentence and without declaring the offense a misdemeanor, it retains discretion to impose felony or misdemeanor punishment at a later date.   (People v. Hannon (1971) 5 Cal.3d 330, 334, 96 Cal.Rptr. 35, 486 P.2d 1235.)   Under the latter circumstances, the offense is regarded as a felony for all purposes until judgment or sentence;  if no judgment is pronounced, it remains a felony.  (See People v. Esparza (1967) 253 Cal.App.2d 362, 364–365, 61 Cal.Rptr. 167.)

No judgment has been entered against appellant in this matter (see People v. Banks (1959) 53 Cal.2d 370, 386–387, 1 Cal.Rptr. 669, 348 P.2d 102);  therefore subsection (1) of section 17, subdivision (b), is inapplicable.   As for subsection (3), when the court initially suspended imposition of sentence, it did not expressly declare the offense a misdemeanor.   The transcript of the sentencing hearing refutes the majority's view that the imposition of court probation was equivalent to such a declaration;  summary or court probation was imposed not because the court considered the offense a misdemeanor, but pursuant to a plea bargain and because appellant was already on formal probation in another county.   In addition, the December 28, 1981, order of commitment to county jail, which was signed by Judge Jenkins but which the majority omits from its catalog of the documents in the record, on its face characterizes appellant's offense as a felony.   In sum, the record does not support the majority's conclusion that Judge Jenkins intended to declare appellant a misdemeanant;  all indications are to the contrary.   Nor was any such declaration made at the subsequent probation violation hearing;  on the contrary, at that hearing, the court expressly declared that appellant was on felony probation.   Accordingly, I would conclude that as there has been no judgment entered or sentence imposed, and no declaration that the offense was a misdemeanor, it remains a felony.

The majority's reliance on People v. Hannon, supra, 5 Cal.3d 330, 96 Cal.Rptr. 35, 486 P.2d 1235 is misplaced.   In that case the defendant was convicted of an alternatively punishable offense and committed to the Youth Authority, which later rejected him pursuant to Welfare and Institutions Code section 1737.1.   The court held that he could not then be sentenced to prison, because Penal Code section 17, subdivision (b)(2), plainly provides that such an offense is a misdemeanor for all purposes when the court commits the defendant to the Youth Authority.   Nothing in section 17 suggests that an offense can be only conditionally denominated a misdemeanor subject to successful completion of a Youth Authority term.  (Hannon, supra, at pp. 334–335, 96 Cal.Rptr. 35, 486 P.2d 1235.)

Hannon is inapposite.   In that case, the court took action which unambiguously and unconditionally classified the offense as a misdemeanor according to Penal Code section 17.   In contrast, in this case the court (1) took action which, according to the express terms of section 17, resulted in the offense being presently regarded as a felony;  and (2) granted a form of probation unauthorized by statute in felony cases.   As the order placing appellant on court or summary probation was unlawful, it should be vacated.  (See People v. Massengale (1970) 10 Cal.App.3d 689, 693, 89 Cal.Rptr. 237.)

Because the majority finds it “unthinkable” to conclude that Judge Jenkins may have granted a form of probation unauthorized by law, it presumes that he must have intended to declare appellant a misdemeanant.   However, “[l]egal presumptions do not come to the aid of the record except as to acts or facts touching which the record is silent.   When the record states what was done, it will not be presumed that something different was done.”  (Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760, 82 P.2d 34.)   Here the record states what was done:  Judge Jenkins suspended imposition of sentence without declaring the offense to be a misdemeanor.   The majority, motivated by an unreasonable reluctance to conclude simply that Judge Jenkins erred, ignores the record and presumes that something different was done.

It is not unduly harsh to think that Judge Jenkins may not have realized that summary probation was unauthorized in felony cases.   As the majority acknowledges, the practice has been described as a common one.  (Hayden and Keene, Criminal Trial Judges' Benchbook (2d ed. 1971) p. 520.3.)   In People v. Battin (1978) 77 Cal.App.3d 635, 143 Cal.Rptr. 731, for example, defendant was convicted of misuse of public funds in violation of Penal Code section 424, subdivision 2, a felony.   Nonetheless, he was given three years' informal probation.  (Id., at pp. 642, 660, 143 Cal.Rptr. 731.)   The propriety of the form of probation was not at issue on appeal, but the case at least indicates that trial courts other than Judge Jenkins have considered informal probation appropriate for felons.  (See also People v. Atwood (1963) 221 Cal.App.2d 216, 34 Cal.Rptr. 361 [suspension of execution of prison sentence held to be implied grant of court supervised probation;  no implication in court's opinion that such probation improper in felony case];  People v. Giminez (1975) 14 Cal.3d 68, 120 Cal.Rptr. 577, 534 P.2d 65 [after defendant refuses to accept conditions of five-year period of unsupervised probation, court imposes prison sentence;  Supreme Court affirms, with no suggestion that unsupervised probation would have been unlawful].)

What I find unthinkable is that in its zeal to avoid concluding that the trial court erred, the majority has failed to recognize or consider the implications of its holding in this case.   If in fact it is common practice to grant informal probation in felony cases, and if such a grant of probation is equivalent to an implied declaration that the offense is a misdemeanor, then the majority has in effect created a new basis for attacking a prior felony conviction, and invited untold numbers of defendants to initiate proceedings to have felony convictions designated as misdemeanors.

I would vacate the order granting summary probation, remand the matter, and direct the trial court to order appellant placed on formal probation.


1.   Our colleague, Scott, J., dissents at this juncture.   He reasons that the record will not support our view that “implicitly” the sentencing court (Hon. Thomas M. Jenkins, Judge of the San Mateo County Superior Court) on December 28, 1981, declared appellant's offense to be a misdemeanor.   Manifestly our view simply stated is that Judge Jenkins' discretionary act of placing appellant on “court probation” speaks in this instance louder than the words he did not utter.   Justice Scott, on the other hand, from his reading of the sentencing hearing concludes that Judge Jenkins in the interest of the forum's convenience opted unlawfully for court or summary probation for appellant (see dissenting opinion by Scott, J. at pages 3 through 4).   Arguably, Scott J.'s assessment of the trial court's action is too harsh and seemingly ignores what the law presumes, i.e., “․ a court acting as such is presumed to have acted in the lawful exercise of its jurisdiction.”  (Evid.Code, § 646.)  (We view this appeal from San Mateo County Superior Court Judge Zerne P. Haning's order revoking probation dated December 3, 1982, at which time he ruled that “defendant (appellant) is on felony probation” as essentially a collateral attack upon Judge Jenkin's act placing appellant on summary probation.)   Manifestly, Judge Jenkins' act of suspending the imposition of sentence did not foreclose a misdemeanor sentence.   Justice Scott's result herein makes sense only if we assume that Judge Jenkins either did not know that under Penal Code section 17 he lacked jurisdiction to afford summary probation to a felon, herein appellant, or he did in fact know but opted for an unlawful “custom.”   The majority finds both premises unthinkable as regards this court.   We view Judge Jenkins' act as being meaningfully within the law.   The record reveals (see page 39, clerk's transcript) that the probation report recommended three years formal probation conditional upon serving one year in the county jail.   It is settled that if Judge Jenkins had opted for formal probation, appellant would have remained a convicted felon subject to the court's discretion at the time of imposition of sentence.  (See People v. Hannon (1971) 5 Cal.3d 330, 334, 96 Cal.Rptr. 35, 486 P.2d 1235.)   Thereafter, how formal (or informal) the probation would in fact be is left to the probation officer (see dissent, footnote 1 on page 2 referring to Penal Code section 1202.8 as to “level of supervision.”)   In our (majority) view, Judge Jenkins would not knowingly exercise his discretion contrary to his intentions.   By rejecting formal probation and opting for court or summary probation, we find that the court intended on balance to relieve appellant from the disabilities of a felon by viewing and “declaring” him to be a misdemeanant.Finally, the record as to the “plea bargain” only serves to introduce ambiguity as to the parties' intent and the court's introduction thereof;  an ambiguity we have resolved in the defendant's (appellant's) interests.   The clerk's records at the time of sentence are essentially unintelligible but the probation report recites that it was stipulated “that there would be no commitment to the Department of Corrections․”  (CT 39)  On its face, then the “plea bargain” did not rule out a felony disposition.   Indeed, arguably it recommended “one” i.e., “3 years formal probation” on condition, “serve 1 year in the County Jail.”   But the ambiguity is introduced by the sentencing transcript.   We have decided this case on the premise, as briefed, that the court before granting court probation actually suspended the imposition of sentence.   Upon close scrutiny, arguably the record does not confirm this premise.   The court clerk's “Criminal Minute Form 3” (at CT 11) in pertinent part reads as follows:  “IMPOSITION OF SENTENCE SUSPENDED.   DEFENDANT SENTENCED PER ATTACHMENT.   SENTENCE SUSPENDED.   PROBATION DENIED.  ✓ COURT PROBATION GRANTED FOR A PERIOD OF _.  One (1) year PER CONDITIONS ON ATTACHMENT.”The “Sentencing Attachment” is “Criminal Minute Form 5” (CT 12) and recites under “Conditions of Probation” “Serve Nine (9) months in County Jail to be served consecutively w/Santa Clara County Sentence.”Thus, as an afterthought, we suspect that Judge Jenkins did not in fact suspend the imposition of sentence.   At least it is evident that the clerk did not place his check “✓” in the appropriate blank indicating the same.   Further continuing, a reading of the reporter's transcript at the time of sentencing reveals that after the court received a negative response to its inquiry “Is there any legal cause why judgment and sentence should not be pronounced this date?,” it then heard defense counsel's protestations against the recommendation of one (1) year in the county jail.   During the course thereof counsel stated as regards the plea bargain:  “the plea bargain in this case, of course doesn't address the question of time although it does include the condition of Summary Probation rather than formal probation due to the fact he is on probation again in Santa Clara County.”  (RT 6:5–8)  After receiving the prosecuting attorney's reasons arguing that the court follow the probation report's recommendation, the proceedings ended with the following words of the court:  “THE COURT:  All right.   Mr. Lockett, the Court will abide by the negotiated agreement in this case in spite of at 19 the rather extensive history you have.   The Court will at this time find that you are a person amenable to Probation and place you on Court probation for a period of one year on condition that you serve nine months in the County Jail consecutive to the term that you are serving in Santa Clara County.  [¶]  You will be remanded to the custody of the Sheriff for return to Santa Clara County to complete the service of the sentence there.  [¶]  (Whereupon the Proceedings Terminated.)”Thus, it appears that appellant was “sentenced” by Judge Jenkins on a “wobbler” (second degree burglary) as a misdemeanant.  (See People v. Hamilton, supra, 33 Cal.2d 45, 50, 198 P.2d 873.)   Ah! but the record contains yet another form, to wit:  “Order Admitting Defendant to Probation to the Court” (CT _) signed by Judge Jenkins and acknowledged in writing by appellant Lockett.   In relevant part it clearly states:  “IT IS HEREBY ORDERED by this Court that the imposition of sentence be suspended, and said defendant be admitted to probation to the Court for a period of 1 years from the date of this order, upon the following terms and conditions:    Serve 9 months in the County Jail, stay to _.”Thus, “ambiguity” is readily apparent;  let it be said that we chose “substance” over the “form.”

1.   See, e.g., Penal Code sections 1203, subdivisions (a), (b), (d) (Stats.1982, ch. 1282, No. 10 West's Cal.Legis.Service, pp. 6872–6874), 1203b, 1202.8.

WHITE, Presiding Justice.

FEINBERG, J., concurs.

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