Filed 7/6/16 P. v. Quezada CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041174
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1115723)

             v.

ANTHONY QUEZADA,

         Defendant and Appellant.



         Defendant Anthony Quezada appeals following his conviction for second degree
robbery (Pen. Code §§ 211-212.5, subd. (c)).1 On appeal, defendant asserts that his prior
1987 assault with a deadly weapon conviction (§ 245, subd. (a)(1)) cannot be considered
a prior strike or a prior serious felony for the purpose of this case, because the court’s
imposition of informal probation in that case operated to convert the crime to a
misdemeanor (§§ 1170.12; 667(a)-(b)).2

         1
             All further statutory references are to the Penal Code.
         2
          Defendant argued in his opening brief that his 2001 prior conviction for assault
with force likely to cause great bodily injury (§ 245, subd. (a)(1)) could not be used to
enhance his sentence as a prior prison term under section 667.5, subdivision (b), because
the subsequent 2008 conviction for grand theft was reduced to a misdemeanor pursuant to
section 17. Therefore, according to defendant, the two requirements for a prison prior
that there be a conviction for a felony and a subsequent felony are not present in this case.
        The attorney general argued that despite the fact that the 2008 conviction was
reduced to a misdemeanor, defendant did not remain free from custody for a five-year
                               STATEMENT OF THE CASE3
       In January 2012, defendant was charged by information with second degree
robbery (§§ 211-212.5, subd. (c).) The information also alleged that defendant personally
used a deadly or dangerous weapon during the commission of the robbery. (§ 12022,
subd. (b)(1).) In addition, the information alleged that defendant had suffered two prior
strike convictions, (§§ 667, subds. (b)-(i), 1170.12). One of the alleged strikes was a
prior juvenile adjudication for murder (§ 187), and the other was a 1987 conviction for
assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged that the
prior 1987 conviction for assault qualified as a serious felony under section 667,
subdivision (a). Finally, the information alleged that defendant had served a prior prison
term for a conviction of assault with force likely to cause great bodily injury. (§ 667.5,
subd. b).)
       The case proceeded to jury trial in March 2014. Defendant was found guilty as
charged. After a bench trial, the court found sufficient evidence that appellant had
suffered three prior convictions, but found insufficient evidence of an alleged juvenile
adjudication. The court denied defendant’s Romero4 motion, and sentenced defendant to
a total of 17 years in state prison. Defendant filed a timely notice of appeal in June 2014.
                                       DISCUSSION
       Defendant asserts on appeal that the imposition of informal probation on his 1987
conviction for assault with a deadly weapon automatically converted the offense to a

period following his 2008 conviction and as a result, he was still subject to the prison
prior enhancement under section 667.5, subdivision (b). In his reply brief, defendant
concedes this point, effectively withdrawing the issue on appeal.
       3
         The underlying facts of this case are omitted because they are not relevant to the
issues on appeal.
       4
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


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misdemeanor. As a result, the conviction could not be used to enhance his sentence in
the present case.
       Section 17 sets forth the circumstances when a crime is considered a felony or a
misdemeanor, and provides, in relevant part: “(b) When a crime is punishable, in the
discretion of the court, either 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: [¶] (1) After a judgment imposing a punishment other than imprisonment
in the state prison. . . . [¶] . . . [¶] (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.”
       “[W]here 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.” (People v. Esparza (1967) 253 Cal.App.2d 362, 364-365.) When
a defendant is ordered to serve jail time as a condition of probation, and the court
suspends imposition of sentence, the jail term does not automatically convert a felony
into a misdemeanor. (People v. Glee (2000) 82 Cal.App.4th 99, 103-105 (Glee).)
       A grant of informal or summary probation is a “conditional sentence,” which is
only authorized in misdemeanor cases. (§§ 1203, subd. (a) [“It is the intent of the
Legislature that both conditional sentence and probation are authorized whenever
probation is authorized in any code as a sentencing option for infractions or
misdemeanors.”]; id., subd. (d) [“If a person is convicted of a misdemeanor, the court
may either refer the matter to the probation officer for an investigation and a report or
summarily pronounce a conditional sentence.”]; 1203b [“All courts shall have power to
suspend the imposition or execution of a sentence and grant a conditional sentence in

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misdemeanor and infraction cases without referring such cases to the probation
officer.”].) (See also Glee, supra, 82 Cal.App.4th 99, 104.)
       Defendant relies on Glee, for the argument that his 1987 conviction for assault
with a deadly weapon automatically converted to a misdemeanor because the court
sentenced him to informal probation. In Glee, the defendant argued that his prior
conviction for assault with a firearm was not a strike, because he pleaded guilty to the
assault count 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.’ ” The promised sentence was imposed, and the defendant needed to serve only 36
days in custody after sentencing before the termination of his probation, due to his
accumulated credits. (Glee, supra, 82 Cal.App.4th at pp. 101, 104-105.) The defendant
was not informed when he entered his plea that a violation of his probation could result in
the imposition of a state prison term. (Id. at pp. 104-105.)
       The Glee court concluded that the sentencing court’s imposition of a sentence for
the assault offense of one year in county jail and one year of summary probation to
terminate at the end of the jail term was a “misdemeanor sentence” that “automatically
converted” the assault offense to a misdemeanor. (Glee, supra, 82 Cal.App.4th at
pp. 102, 104-105.) It distinguished cases where imposition of sentence had been
suspended, “the defendant was ordered to serve jail time as a condition of probation and
some portion of the probationary period remained after the defendant’s release from jail.”
(Id. at p. 103.) The Glee court focused on whether the sentencing courts in those cases
intended to impose felony sentences.
       In the Glee court’s view, the defendant had been sentenced by a court that
intended to impose a misdemeanor sentence. The Glee court found that “[t]his record
supports the inference that the sentencing court did not intend to retain jurisdiction over



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appellant with the possibility of later imposing a prison sentence.” (Glee, supra, 82
Cal.App.4th at p. 105.)
       The rationale of Glee is applicable to the present case. Here, the trial court
imposed a term of 180 days in county jail, with 180 days of credit for time served. The
court also ordered informal probation for a period of one year. The court’s sentence of
informal probation demonstrated its intent that the crime be sentenced as a misdemeanor
rather than a felony. There is no evidence in the record that defendant was informed
when he entered his plea that a violation of his probation could result in the imposition of
a state prison term. (See Glee, supra, 82 Cal.App.4th at at pp. 104-105.)
       Defendant also relies on People v. Willis (2103) 222 Cal.App.4th 141 (Willis), to
support his argument that his 1987 conviction was converted to a misdemeanor. The
defendant in Willis pleaded guilty to possession of a controlled substance, which could be
classified as either a felony or a misdemeanor. (Id. at pp. 143-144.) The Willis court
relied on Glee and found that the lack of evidence that the court had the intent “to classify
the offense as a felony, apart from standard minute orders designating the charge as a
felony” supported the defendant’s argument that the trial court’s grant of summary
probation had classified the offense as a misdemeanor. (Id. at pp. 144-145.)
       Like Willis, here, the court’s actions of ordering informal probation and imposing
a jail sentence of 180 days operated to convert the offense to a misdemeanor. While the
minute order in this case contains the reference to holding a hearing at a later date to see
if defendant “stayed out of trouble,” at which point the court would reduce his crime to a
misdemeanor, this does not overcome the legal significance of the court’s imposition of
informal probation at the time of sentencing.
       The People have the burden of proving the truth of the prior conviction. (People
v. Delgado (2008) 43 Cal.4th 1059, 1065). In this case, there is no transcript of the actual
sentencing by the court to show that the court intended that the crime be classified as a

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felony, because the transcript has been destroyed. With this record, the People cannot
establish that the court intended to impose a felony sentence for defendant’s 1987 prior
conviction. Although it appears from the minute order that the court made reference to
defendant staying out of trouble, the court did not inform defendant that he faced a prison
term if he did not do so. “[I]f the prior conviction was for an offense that can be
committed in multiple ways, and the record of conviction does not disclose how the
offense was committed, a court must presume that the conviction was for the least serious
form of the offense.” (Id. at p. 1066.) Here, the 1987 conviction can be sentenced in
more than one way-as a misdemeanor or as a felony. Following the reasoning of
Delgado, since the record does not demonstrate that the court intended to impose a felony
sentence for the 1987 conviction, the presumption should be that that the court intended
to impose a less serious misdemeanor sentence.
       We find that defendant’s 1987 conviction became a misdemeanor at the time of
sentencing, and as such, was erroneously used as a prior strike to enhance defendant’s
sentence in the present case.
                                       DISPOSITION
       The judgment is reversed. The matter is remanded for the limited purpose of
resentencing defendant without use of the 1987 prior conviction of assault with a deadly
weapon as a prior strike.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Quezada
H041174




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