Filed 12/16/13
                          CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION FOUR



THE PEOPLE,                                      B243507

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. TA114951)
        v.

BRANDON DIONTE WILLIS,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio
Barreto, Jr., Judge. Reversed and remanded with directions.
        Gail Ganaja, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.




                            ____________________________
       The issue in this case is whether the trial court validly exercised its authority in
sentencing defendant Brandon Dionte Willis for a “wobbler” offense. Defendant appeals
from the court‟s judgment that extended his probation beyond three years from the
beginning of his original summary probation period. He contends that in an earlier
proceeding, the trial court classified his conviction as a misdemeanor, which limits
probation to three years. Respondent argues that defendant‟s conviction was not
classified as a misdemeanor, but remained a felony, which would allow the probation
extension. We conclude that the earlier court treated defendant‟s offense as a
misdemeanor and thus the trial court lacked authority to extend his probation period
beyond three years. Accordingly, we reverse the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       On October 25, 2010, defendant Willis pled guilty to a charge of unlawful
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possession of a controlled substance, phencyclidine (PCP), Health and Safety Code
section 11377. The court placed him on deferred entry of judgment (DEJ) for 18 months,
which began a series of extensions, revocations, and reinstatements due to his failure to
provide proof of enrollment in a DEJ program. First, defendant failed to provide proof of
enrollment on December 21, 2010, so the court resumed criminal proceedings. On
February 2, 2011, the court reinstated his DEJ. Then the court twice extended the time
for him to provide proof of enrollment in a program: a 10-day extension granted on
February 25, and a continuance granted on March 15, 2011. On April 25, 2011, the court
terminated his DEJ, once again for failure to provide proof of enrollment.
       On August 9, 2011, the trial court ordered the imposition of a suspended sentence,
with summary probation for 36 months. The order of summary probation included
conditions: defendant was to serve 12 days in county jail, not possess illegal drugs or
paraphernalia, avoid areas where known drug users congregate, not possess or use deadly
weapons, consent to searches at any time by law enforcement or probation officers, obey
all laws and court orders, and provide fingerprints, cheek swab samples, and blood
1
       Defendant did not enter a plea as to the second charged offense, being under the
influence of PCP, Health and Safety Code section 11550.

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specimens pursuant to Penal Code section 296. On February 23, 2012, the court revoked
defendant‟s summary probation.
       At a probation violation hearing on August 17, 2012, the court found by clear and
convincing evidence that defendant had violated the probation conditions. The evidence
demonstrated that he had been in receipt of stolen property, a violation of the condition
that he obey all laws. As a result, the court reinstated the August 2011 probation grant,
but modified it from summary probation to formal probation for 36 months from the
August 2012 hearing date. Defendant filed a timely notice of appeal on August 20, 2012.
                                      DISCUSSION
       Defendant contends the court erred in extending his probation because, at an
earlier proceeding, the court had classified his conviction as a misdemeanor. He argues
that the probation extension should be reversed because misdemeanors may not be
punished by probation in excess of three years. We agree.
       The crime of which defendant was convicted was a “wobbler,” which may be
punished by either “imprisonment in a county jail for a period of not more than one year
or as a felony pursuant to subdivision (h) of Section 1170 of the Penal Code.” (Health &
Saf. Code, § 11377.) Section 1170 provides that “a felony punishable pursuant to this
subdivision where the term is not specified in the underlying offense shall be punishable
by a term of imprisonment in a county jail for 16 months, or two or three years.”
(§ 1170, subd. (h)(1).) The classification of defendant‟s offense of unlawful possession
of PCP turns on whether the court treated the offense as a misdemeanor or felony in
earlier proceedings. We review this question of law under a de novo standard. (People v.
Simmons (2012) 210 Cal.App.4th 778, 790 [“Issues of statutory interpretation are
questions of law subject to de novo review.”].)
       Defendant asserts that the court‟s order of summary probation indicates that it
categorized the offense as a misdemeanor. Under section 17, a felony converts
automatically to a misdemeanor “[a]fter a judgment imposing a punishment other than


2
       All further statutory references are to the Penal Code, unless otherwise indicated.

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imprisonment in the state prison or imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170.” (§ 17, subd. (b)(1); People v. Park (2013) 56 Cal.4th
782, 795 [“when a wobbler is reduced to a misdemeanor in accordance with the statutory
procedures, the offense thereafter is deemed a „misdemeanor for all purposes,‟ except
when the Legislature has specifically directed otherwise”].) Defendant relies on People
v. Glee (2000) 82 Cal.App.4th 99 (Glee), to demonstrate that the court‟s grant of
summary probation amounted to a classification of the offense as a misdemeanor.
       In Glee, the defendant pled guilty to assault with a firearm in exchange for “the
promise that his sentence would be „a grant of probation, with a year in the county jail,
with probation to terminate at the end of that year.‟” (Glee, supra, 82 Cal.App.4th at
p. 101.) The court granted summary probation for this wobbler offense. (Id. at pp. 102,
104.) In reviewing the classification of the offense, the appellate court examined whether
the trial court intended to designate the offense as a felony or misdemeanor. (Glee at
p.105.) It concluded that the record supported an inference that the “sentencing court did
not intend to retain jurisdiction over appellant with the possibility of later imposing a
prison sentence” (ibid.) since the court never advised appellant that a prison sentence
could later be issued for violating his probation, and more fundamentally, since
“summary probation is not authorized in felony cases.” (Id. at p. 104.) Instead, “[a]
grant of informal or summary probation is a „conditional sentence.‟” (Ibid.)
“Conditional sentences are authorized only in misdemeanor cases.” (Ibid.; § 1203,
subd. (a).) Given these facts, the court held that the conviction was a misdemeanor, and
not a felony. (Glee, at p. 104.)
       As in Glee, here the court imposed a sentence of 36 months of summary probation
subject to terms and conditions. Following the reasoning in Glee, the court‟s imposition
of summary probation was a conditional sentence, which is only available in
misdemeanor cases. (Glee, supra, 82 Cal.App.4th at p. 104.) The record indicates no
evidence of an intent to classify the offense as a felony, apart from standard minute
orders designating the charge as a felony. (Id. at p. 105.) The reporter‟s transcripts of
both August probation hearings, in 2011 and 2012, reveal no indication of any intent to


                                              4
classify the offense as a felony. As a result, by ordering summary probation, the court
classified defendant‟s offense as a misdemeanor.
          Respondent maintains that the imposition of summary probation did not classify
the offense as a misdemeanor. It relies on a limited exception to section 17, under which
a court does not classify a conviction as a misdemeanor where it clearly retains the
discretion to impose a felony sentence at a later date. (People v. Soto (1985)
166 Cal.App.3d 770, 775 (Soto).) Respondent contends that the court‟s conduct in
ordering probation indicated an intent to retain jurisdiction, and thus defendant‟s
conviction was a felony.
          In Soto, the court specifically stated that it did “„not intend to make [the offense] a
misdemeanor by sentence‟ and thereafter during the probation revocation proceeding
deemed the matter a felony.” (Soto, supra, 166 Cal.App.3d at p. 775.) The trial court did
not classify the crime as a misdemeanor because it expressly reserved jurisdiction to
pursue the offense as a felony at a later date, and it granted probation without imposing a
sentence. (Ibid.) As a result, the trial court properly sentenced the defendant to a felony.
(Ibid.)
          Soto is distinguishable from this case, since here the court did not expressly
reserve discretion to impose a later felony sentence. When sentencing defendant to
summary probation for 36 months, the court made no statement indicating an intent to
preserve a felony option for sentencing. Aside from standard minute orders describing
the charge as a felony, the court did not specifically characterize or label the offense as a
felony. As in Glee, “the court did not indicate an intention to impose a felony sentence.”
(Glee, supra, 82 Cal.App.4th at p. 105.)
          Respondent also argues that the conditions of the summary probation indicate the
court‟s characterization of the offense as a felony. It points to the August 2011 condition
requiring defendant to provide fingerprints, cheek swab samples, and blood specimens
pursuant to section 296. Because section 296 applies to “[a]ny person, including any
juvenile, who is convicted of or pleads guilty or no contest to any felony offense,”



                                                 5
respondent argues that the court must have intended to classify the offense as a felony.
(§ 296, subd. (a)(1).) Respondent, however, misreads section 296.
       A defendant‟s guilty plea or conviction of a felony determines whether section 296
applies. (§ 296; Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 821-822 [“[I]t is a
defendant‟s guilty plea or verdict, not the sentence subsequently imposed, which triggers
the DNA collection provision.”].) Nevertheless, simply invoking section 296 does not
indicate a court‟s classification of an offense as a felony. A defendant who “pleads guilty
or no contest to any felony offense” can trigger the specifications without the court
designating the offense as a felony. (§ 296.) Section 296 provides, in pertinent part, that
“[n]othing in this chapter shall be construed as prohibiting collection and analysis of
specimens, samples, or print impressions as a condition of a plea for a non-qualifying
offense.” (§ 296, subd. (a)(5).) When the trial court conditioned the summary probation
on defendant providing samples, it complied with this provision because he had pled
guilty to the charge. And pursuant to this subdivision, the probation condition requiring
defendant to provide samples does not indicate that the summary probation was intended
for a felony offense. Instead, the trial court was authorized to apply section 296
standards due to defendant‟s guilty plea. (§ 296.)
       Finally, we asked the parties to submit further briefing on the application of
section 1210.1, subdivision (a) to this case. The statute requires the court to grant
probation and drug treatment to any person convicted of a nonviolent drug possession
offense. (§ 1210.1, subd. (a).) In doing so, “the trial court is not otherwise limited in the
type of probation conditions it may impose.” (Ibid.) Respondent argues we should
remand the matter for reconsideration of the sentence, because the record does not
indicate whether the court sentenced defendant under section 1210.1. We disagree for
two reasons. First, the August 2011 probation order did not require defendant to
complete a drug treatment program, which section 1210.1 requires. (§ 1210.1, subd. (a)
[“As a condition of probation the court shall require participation in and completion of an
appropriate drug treatment program.”].) Without such a requirement, it is clear that the
trial court did not impose the sentence pursuant to section 1210.1. Second, appellant


                                              6
failed to comply with the drug treatment program during his deferred entry of judgment.
“Refusal of drug treatment under a DEJ qualifies as a refusal for purposes of [section
1210.1].” (People v. Friedeck (2010) 183 Cal.App.4th 892, 898; § 1210.1, subd. (b)(4)
[providing an exception for “[a]ny defendant who refuses drug treatment as a condition
of probation”].) As a result, we find that section 1210.1 does not apply here.
       In summary, the court initially imposed summary probation, a disposition reserved
for misdemeanors. In doing so, it effectively classified the offense as a misdemeanor.
Section 17 provides that conversion from a felony to a misdemeanor is automatic “[a]fter
a judgment imposing a punishment other than imprisonment in the state prison or
imprisonment in a county jail.” (§ 17, subd. (b)(1).)
                                     DISPOSITION
       The judgment extending defendant‟s probation beyond three years is reversed with
direction to impose a sentence consistent with misdemeanor punishment.


       CERTIFIED FOR PUBLICATION




                                                        EPSTEIN, P. J.


We concur:


MANELLA, J.


SUZUKAWA, J.




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SUZUKAWA, J., Concurring.


       Penal Code section 1203, subdivision (a) defines probation and a conditional
sentence. Probation “means the suspension of the imposition or execution of a sentence
and the order of conditional and revocable release in the community under the
supervision of a probation officer.” A conditional sentence “means the suspension of the
imposition or execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the supervision of a
probation officer.” The subdivision also provides that conditional sentences are allowed
“whenever probation is authorized in any code as a sentencing option for infractions or
misdemeanors.” Because the statutory language specifically authorizes conditional
sentences for misdemeanors, and not felonies, I agree that defendant received a
misdemeanor sentence when the trial court, with no further statement of intent, granted
summary, or unsupervised, probation.
       I write separately to urge the Legislature to authorize conditional sentences for
felonies. Some cases, often because of a defendant‟s criminal history, should remain
felonies until the defendant successfully completes probation and petitions the court for
relief. (See Pen. Code, § 1203.4.) In this era of dwindling resources, requiring a
defendant to be supervised by a probation officer in order for a charge to remain a felony
makes little sense. A sentencing court should have the flexibility to impress upon a
defendant that a probation violation means a potential prison sentence without straining a
financially strapped criminal justice system.




                                                    SUZUKAWA, J.




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