PEOPLE v. GALINDO (1996)

Oscar Valenzuela Galindo was charged with petty theft with a prior conviction and several additional prior felony convictions, two being serious, or violent, felonies.   A felony conviction on the current offense would have resulted in a minimum 25–year–to–life sentence.  (Pen. Code 1, § 667, subd. (e)(2)(A).)   Before commencement of the preliminary examination, the magistrate reduced the charge to a misdemeanor, noting “It's my understanding what [defendant] stole was a $2 Superglue item․”   Defendant pleaded guilty to the misdemeanor, but the court continued sentencing.

The People filed a notice of appeal from “the order ․ unlawfully sentencing defendant ․ to the county jail after reducing the crime to a misdemeanor pursuant to ․ section 17, thereby dismissing the above-entitled felony charge and refusing to sentence defendant under the mandates of ․ sections 667, subdivisions (d) & (e)(2) and ․ section 1170.12, subdivisions (b) & (c)(2).”   Defendant filed a motion to dismiss the People's appeal.   We reserved ruling on defendant's motion pending our decision in the appeal.

DISCUSSION

Although the magistrate did not expressly rely on section 17, subdivision (b)(5), he reduced the felony charge to a misdemeanor prior to the commencement of the preliminary examination.  Section 17, subdivision (b) provides, “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:

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“(5) When, at or before the preliminary examination ․ the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”  (Emphasis added.)   The statutory language is clear.   The magistrate's order changed the felony case to a misdemeanor case.   The People's right to appeal, if any, is to the appellate department of the superior court. (§ 1466, subd. (a)(1).)

The People now contend they are properly before this court pursuant to section 1466, subdivision (b), which provides, “An appeal from the judgment or appealable order of an inferior court in a felony case is to the court of appeal for the district in which the court is located.”   This argument assumes, (1) a judgment, or appealable order and (2) a felony case.

Judgment typically refers to the adjudication of guilt and sentence refers to the penalty, but “The terms ‘judgment’ and ‘sentence’ have for some purposes, e.g., appeal, been treated as synonymous.”  (6 Witkin & Epstein (2nd ed. 1989) Judgment and Attack in Trial Court, § 3108, p. 3832.)   Consequently, we have a judgment for purposes of appeal.   But the People's right to appeal from inferior courts is extremely limited (see 6 Witkin & Epstein, supra, Appeal, § 3176, pp. 3932–3933) and writ review may also be unavailable in this situation.  (See People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497–498, 72 Cal.Rptr. 330, 446 P.2d 138;  Fadelli Concrete Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th 1194, 1198–1199, 1201–1202, 40 Cal.Rptr.2d 757;  People v. Municipal Court (Kong) (1981) 122 Cal.App.3d 176, 180–181, 175 Cal.Rptr. 861.)   Whether this section provides an appellate remedy or not, it is certainly inapplicable absent a “felony case.”   As stated above, defendant's case is no longer a felony.

The People suggest section 1466, subdivision (b) was enacted to specifically provide appellate review to this court under these circumstances.   The legislative history reveals subdivision (b) was an attempt to clarify the jurisdiction of the Court of Appeal in felony cases.   In 1991, the Legislature amended section 1462, subdivision (b) to give the municipal court jurisdiction to sentence defendants in certain noncapital felony cases.  (Stats.1991, ch. 613, § 8.) But the statute did not specify which court would properly entertain appeals from these felony judgments.   Senator Davis introduced Senate Bill No. 839 (1991–1992 Reg. Sess.) to “clarify procedures to be followed in criminal cases when guilty pleas are entered to felonies in ․ municipal court.”  (Assem. Office of the Floor Coordinator, 3d reading analysis of Sen. Bill No. 839 (1991–1992 Reg. Sess.) April 21, 1992, p. 1.)   The Legislative Counsel's Digest reveals SB 839's amendments to sections 1466 and 859a were to provide for review by the Court of Appeal from a felony guilty plea taken in the municipal court.  (Stats.1992, ch. 78, § 2.)   An appeal from an infraction or misdemeanor sentence remains to the superior court.  (Ibid.)

 The People further contend an order reducing a felony to a misdemeanor under section 17, subdivision (b) is a “dismissal” of the felony charge and thus appealable to this court pursuant to section 1466, subdivision (b).  The People seek to rely on holdings in People v. Superior Court (Feinstein) (1994) 29 Cal.App.4th 323, 34 Cal.Rptr.2d 503 and People v. Booker (1994) 21 Cal.App.4th 1517, 26 Cal.Rptr.2d 715.  Feinstein, involved a writ proceeding challenging a superior court ruling under section 871.5.   No issue of appealability was raised or considered.  Booker, involved the superior court's reduction of felony charges to misdemeanors which the Court of Appeal held was appealable under section 1238, subdivision (a)(1) and (8).   Neither case considered the question of whether a magistrate's reduction of a charge under section 17, subdivision (b)(5) could be appealed to the Court of Appeal pursuant to section 1466, subdivision (b).   It is axiomatic that “ ‘an opinion is not authority for a proposition not therein considered.’ ”  (People v. Saunders (1993) 5 Cal.4th 580, 592, fn. 8, 20 Cal.Rptr.2d 638, 853 P.2d 1093, quoting Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.)

The People's remaining arguments all involve various subdivisions of section 1238.   That statute governs appeals from the superior court and is inapplicable to this case.

DISPOSITION

For the reasons stated above, defendant's motion to dismiss the appeal is granted.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

RYLAARSDAM, Associate Justice.

WALLIN, Acting P.J., and SONENSHINE, J., concur.