Prior felony which was reduced to misdemeanor pursuant to Penal Code section 17, subdivision (b), no longer qualifies as a prior serious felony for purposes of a five year enhancement under section 667, subdivision (a). A jury found Park guilty of attempted voluntary manslaughter and other offenses. He admitted a prior serious felony for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), although he informed the court the prior had been reduced to a misdemeanor. The trial court added a five year enhancement to Park’s sentence for the prior serious felony. The Court of Appeal affirmed the enhancement; Park secured review. Held: Reversed. Assault with a deadly weapon is a “wobbler,” i.e., an offense punishable by a prison term or county jail for a term not exceeding one year. Under section 17, subdivision (b)(3), a wobbler that has been reduced to a misdemeanor in accordance with statutory procedures generally precludes its use as a prior felony conviction in a subsequent prosecution, subject to certain statutory exceptions, such as provisions in the Three Strikes law (Pen. Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1)). “Neither the language of section 667(a) nor the ballot materials presented to the voters indicate an express intention on the part of the electorate to override the operation of section 17(b).” Thus, a defendant whose prior wobbler offense was validly reduced to a misdemeanor under section 17(b)(3) is not a person “who previously has been convicted of a serious felony” under section 667(a).
Dismissal pursuant to Penal Code section 1203.4 does not void the effect of a section 17(b)(3) reduction of a felony to a misdemeanor. In addition to reducing Park’s felony prior to a misdemeanor under section 17(b)(3), the court subsequently vacated Park’s guilty plea and dismissed the offense under section 1203.4. Under section 1203.4, a defendant is relieved of some of the burdens of his conviction. Subdivision (a)(1), provides that in a subsequent prosecution the prior conviction may be pled and proved and will have the same effect as though it had not been dismissed. However, nothing in section 1203.4 reflects it was intended to override section 17(b). When Park’s conviction was set aside under section 1203.4, his crime had already been reclassified as a misdemeanor. It was therefore not a prior serious felony under section 667(a).