People v. Superior Court of Orange County

Dissenting. — I respectfully dissent. Penal Code section 17, subdivision (b)(3) 1 authorizes a court to declare “wobbler” offenses to be misdemeanors at any time during a single hearing in which a defendant pleads guilty and a court grants probation. It does not matter whether that declaration occurs immediately before or immediately after a defendant pleads guilty, unless unlawful judicial plea bargaining occurs as a result.

1. Relevant Procedural History

On November 21, 2013, the parties had an unreported chambers settlement conference. Defense counsel requested the court to exercise its discretion to reduce the wobblers to misdemeanors. The court indicated it was inclined to grant that request. The prosecutor was given time to file opposition.

On December 17, a hearing was held in open court. At the outset the court stated: “The defense has made an application for the court to consider reducing the entirety of the charges as to this defendant under [section] 17(b) of the Penal Code to a misdemeanor. I have an opposition filed by the People.”

The court next inquired, “Is it also the defense’s indication that you intend to plead guilty to a misdemeanor should the court do…

FACTS

Jalalipour (through a corporation) owned and operated 12 Subway restaurants acquired between 2001 and 2009. From April 2004 through March 2010, he underreported the collected sales tax by about 75 percent, resulting in an unpaid tax liability of almost $1,400,000. Around May of 2010, the Board of Equalization (the Board) selected Jalalipour’s company for a routine civil audit. In June 2010, the Board auditor Jocelyn Tsai met with Jalalipour’s wife, Behina Baher. Baher provided Tsai with copies of weekly sales summary sheets. The weekly summaries showed the amount of sales tax collected, cost of sales, total sales, store location, and dates. Tsai was not allowed to take or copy the weekly summaries. Tsai organized the data on a spreadsheet. She noticed

1 All further statutory references are to the Penal Code unless otherwise stated. 2 Because the petition challenges an order underlying a grant of probation following a guilty plea, the nonprocedural facts are taken from evidence adduced at the preliminary hearing.

2 that information was missing for some weeks and asked Baher to get the missing data from the franchisor. Baher did not provide the missing documentation. Tsai…

The People petitioned for a writ • of mandate ordering the respondent court to vacate its ruling reducing the felony charges against Alireza Jalalipour to misdemeanors and we issued an order to show cause. We hold that, unless the People consent to a reduction of the charged offense, the establishment of defendant’s guilt, whether by plea or trial, must precede *1202 a court’s reduction of a wobbler to a misdemeanor under Penal Code section 17, subdivision (b)(3). 1 We also hold that, in the absence of the People’s consent, the court’s reduction of the charged felonies to misdemeanors, and then allowing defendant to plead guilty to the misdemeanors, constituted an unlawful judicial plea bargain. Accordingly, we grant the People’s petition.

FACTS 2

Jalalipour (through a corporation) owned and operated 12 Subway restaurants acquired between 2001 and 2009. From April 2004 through March 2010, he underreported the collected sales tax by about 75 percent, resulting in an unpaid tax liability of almost $1.4 million.

Around May of 2010, the Board of Equalization (the Board) selected Jalalipour’s company for a routine civil audit. In June 2010, the Board auditor Jocelyn Tsai…