A superior court’s order reducing a felony “wobbler” to a misdemeanor is unauthorized under Penal Code section 17(b) when made after the preliminary hearing and before trial. The first count in a felony information charged defendant with a wobbler as a felony—resisting an officer in violation of Penal Code section 69(a). On the day that trial was to begin, the superior court reduced the felony wobbler to a misdemeanor over the People’s objection. The People petitioned for a writ of mandate directing the superior court to vacate its order. Held: Petition granted. Section 17(b) permits the trial court to reduce a wobbler from a felony to a misdemeanor only at certain times in the criminal process. If the magistrate finds at the preliminary hearing that the People have appropriately charged the defendant with a felony, the defendant is held to answer for the felony charge, and only the prosecution may reduce the charge until sentencing. Here, the court’s postpreliminary hearing, pretrial order was unauthorized.

Penal Code section 1238, subdivisions (a)(1) and (a)(8) permit the People to appeal the superior court’s unauthorized postpreliminary hearing, pretrial order reducing a felony “wobbler” to a misdemeanor. Defendant argued that the People had no right to appeal the superior court’s order. Generally, the People may not seek extraordinary writ relief when there is no right to appeal. But section 1238, subdivisions (a)(1) and (a)(8) authorize an appeal from the instant order. Subdivisions (a)(1) and (a)(8) provide that the People may appeal from an order setting aside any portion of the indictment, information, or complaint, or an order dismissing or otherwise terminating any portion of the action. When lacking statutory authority, the superior court’s order is tantamount to a dismissal of the felony charge, effectively usurping the prosecutor’s charging prerogative. “Thus, the superior court’s order here was not only unauthorized; it was also unconstitutional because it violated the separation of powers clause.” Moreover, a writ is appropriate here, where there is no reason why the proceedings should be allowed to continue as a misdemeanor prosecution when the superior court clearly did not have the authority to issue this order. [Editor’s Note: The court disapproved its previous decision in People v. Bartholomew (2022) 85 Cal.App.5th 775, 778, which held that the People have no authority to appeal a superior court’s pretrial order reducing a felony wobbler to a misdemeanor and rejected the People’s claim that section 1238(a)(6) authorizes such an appeal.]