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Name: People v. Feyrer
Case #: B192752
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/29/2007
Subsequent History: Rev. granted 9/12/07: S154242
Summary

Trial court had the discretion to reduce a wobbler offense to a misdemeanor despite the admission of a GBI enhancement. Appellant pleaded no contest to an assault which was punishable as a “wobbler.” (Pen. Code, sec. 245, subd. (a)(1).) He also admitted a GBI enhancement. The trial court placed him on probation. After an early termination of probation, appellant sought to reduce the offense to a misdemeanor and dismiss it under section 17, subdivision (b). The trial court granted the motion to dismiss, but declined to reduce the offense to a misdemeanor because it believed the GBI enhancement made the offense a felony for all purposes. On appeal, appellant argued that the trial court had the discretion to reduce the offense to a misdemeanor despite the enhancement. The appellate court agreed and reversed. Where an offense is a wobbler and the court suspends the imposition of sentence and grants probation, the offense is a felony until it is declared to be a felony or misdemeanor in the discretion of the court. If the court declares it a misdemeanor, any enhancement which is only applicable to felonies, such as a GBI enhancement, is simply not imposed and ceases to have significance.