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Name: People v. Willis
Case #: B243507
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 12/16/2013

Imposition of summary probation for a “wobbler” offense effectively converts the offense to a misdemeanor because summary probation is not authorized in felony cases. Appellant pled guilty to a violation of Health and Safety Code section 11377, subdivision (a), a “wobbler” offense, and was placed on deferred entry of judgment (DEJ). Following his failure to provide proof of enrollment in a program, the court terminated DEJ and ordered 36 months summary probation. A few months later, appellant violated his probation. Following a hearing, the court modified summary probation to formal probation for 36 months from the date of the probation hearing. On appeal, appellant argued that the court erred in extending his probation because the court had previously classified his conviction as a misdemeanor, which may not be punished by probation in excess of three years. Held: Reversed. A grant of informal or summary probation is a “conditional sentence” and conditional sentences are authorized only in misdemeanor cases. (People v. Glee (2000) 82 Cal.App.4th 99, 104; Pen. Code, § 1203, subd. (a).) There was no evidence in the record that the trial court intended to classify the offense as a felony and the court did not expressly reserve discretion to impose a later felony sentence. Accordingly, when the court imposed summary probation, it effectively classified the offense as a misdemeanor. (Pen. Code, § 17.) As a result, the court erred in extending appellant’s probation beyond the three year maximum for misdemeanors.