People v. Alcantar CA5

DISCUSSION

Section 17, subdivision (a) explains how to classify a crime as either a felony (a crime punishable by death, imprisonment in state prison, or imprisonment in county jail pursuant to section 1170, subdivision (h)) or a misdemeanor (every other crime except for infractions). Section 17, subdivision (b) provides that when a crime may be punished as either a felony or a misdemeanor (i.e., a wobbler), it is a misdemeanor for all purposes when (1) the punishment imposed is not imprisonment in state prison or imprisonment in county jail pursuant to section 1170, subdivision (h) (§ 17, subd. (b)(1)); (2) the trial court designates the crime as a misdemeanor (id., subd. (b)(2)); or (3) “When the [trial] 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” (id., subd. (b)(3)). Alcantar made his application pursuant to the provisions of section 17, subdivision (b)(3). When ruling on such an application, “section 17(b) … rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’…