People v. Lee

224 Cal. Rptr. 3d 706, 16 Cal. App. 5th 861, 2017 WL 4930954, 2017 Cal. App. LEXIS 952
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 31, 2017
DocketF072173
StatusPublished
Cited by93 cases

This text of 224 Cal. Rptr. 3d 706 (People v. Lee) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lee, 224 Cal. Rptr. 3d 706, 16 Cal. App. 5th 861, 2017 WL 4930954, 2017 Cal. App. LEXIS 952 (Cal. Ct. App. 2017).

Opinion

LEVY, Acting P.J.

*864Defendant Pao Cherta Lee was convicted by jury trial of four felonies after he was found driving a stolen vehicle. On appeal, he contends the trial court erroneously believed it lacked discretion to reduce his convictions to misdemeanors under Penal Code section 17, subdivision (b)1 ( section 17(b) ) because of a section 666.5 allegation. We agree with defendant. Accordingly, *709we vacate the sentence and remand to the trial court for reconsideration and resentencing.

PROCEDURAL SUMMARY

On February 18, 2015, a jury found defendant guilty of unlawfully driving or taking a vehicle ( Veh. Code, § 10851, subd. (a) ; count 1), receiving a stolen vehicle (§ 496d, subd. (a); count 2), and carrying a concealed dirk or dagger (§ 21310; counts 3 & 4). The jury also found true an allegation, pursuant to sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii),2 that defendant was armed with a deadly weapon during the commission of each offense. In connection with counts 1 and 2, defendant admitted having suffered two prior Vehicle Code section 10851, subdivision (a) convictions pursuant to section 666.5, subdivision (a). He also admitted, as to all counts, having suffered four prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

*865The trial court sentenced defendant to 25 years to life on each count, but stayed the terms on counts 2 through 4 pursuant to section 654.

On August 17, 2015, defendant filed a notice of appeal.

FACTS

On August 18, 2013, Michael A., the owner of a 1999 red Honda Civic, got up in the morning and discovered his car was missing from the driveway. He called the police immediately.

On August 24, 2013, around midnight, Fresno Police Officer Vincent Zavala was driving behind a 1999 red Honda Civic driven by defendant. Zavala checked the license plate number and learned the car was stolen. He requested backup, then conducted a traffic stop. He told defendant to remove the keys and drop them outside the door. He ordered defendant out of the car and arrested him. When Zavala searched defendant, he found a sheathed, fixed-blade knife in his right rear pocket and another knife in his right front pocket. When Zavala searched the car, he noticed the center console of the dashboard had been cracked and pulled away, and the stereo had been forcibly removed. The key chain held a Toyota car key and two nonvehicle keys, but no Honda key. Zavala tried all the keys in the Honda ignition. Only the Toyota key worked, but it did not fit easily. It required force and inserted only halfway.

Zavala read defendant his Miranda3 rights and defendant agreed to talk. He said the car belonged to him; his cousin had given it to him for free. Zavala told him he thought that was weird. Defendant said he had had the car for three weeks. Zavala told him that was not possible because it had been reported stolen only about seven days earlier. Defendant said he got the key from his cousin and was using it to drive the car. When Zavala told him it was a Toyota key that only inserted halfway, defendant said he did not know much about cars. He said he was homeless.

Zavala testified that Hondas from the 1990's are easy to manipulate and were, at the time of trial, the most stolen car in Fresno. When he inspected the Honda's ignition, he saw it was loose and bore small *710pry marks, indicating it had been modified. Normally, it would not be possible to force a Toyota key into a Honda ignition. *866DISCUSSION

I. Section 17(b)

A "wobbler" is an offense that, in the trial court's discretion, may be punished as either a felony or a misdemeanor. ( § 17(b) ;4 People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 974, 60 Cal.Rptr.2d 93, 928 P.2d 1171 ( Alvarez ).) All four of defendant's offenses in this case were wobblers. (See Veh. Code, § 10851, subd. (a) ; §§ 496d, subd. (a), 21310.)

The trial court has the sole discretion, under section 17(b), to treat a wobbler as a felony or a misdemeanor for sentencing purposes. ( Alvarez, supra, 14 Cal.4th at p. 977, 60 Cal.Rptr.2d 93, 928 P.2d 1171.) "By its terms, [ section 17(b) ] sets a broad generic standard." ( Ibid. ) "[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.410]."5 ( Id. at p. 978, 60 Cal.Rptr.2d 93, 928 P.2d 1171 fn. omitted.) "As a general matter, the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler 'in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, [felony punishment].' " ( People v. Park (2013) 56 Cal.4th 782, 790, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)

To prove an abuse of discretion, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.

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Bluebook (online)
224 Cal. Rptr. 3d 706, 16 Cal. App. 5th 861, 2017 WL 4930954, 2017 Cal. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lee-calctapp5d-2017.