(1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony “wobbler” offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ?

On 12/5/2023, the People filed a motion to dismiss review. The Real Party in Interest (defendant Mitchell) filed an opposition. On 1/10/2024, the court denied the People’s motion to dismiss and requested supplemental briefing on the following issues: (1) In the absence of further order or other direction, when does a Court of Appeal’s temporary stay of superior court criminal proceedings against a defendant expire? (2) If the temporary stay issued by the Court of Appeal had not expired at the time of defendant’s guilty plea, what was the effect, if any, of the stay on the resolution of defendant’s criminal proceedings?

Held: 

Trial court’s unauthorized pretrial order reducing a felony to a misdemeanor was not appealable, but might be reviewable by writ. The People appealed a trial court’s pretrial order reducing a felony to a misdemeanor ostensibly pursuant to PC 17(b); the People also filed a petition for writ of mandate, and the Court of Appeal granted a stay of the trial court proceedings. The CSC holds the order was not appealable, whether or not unauthorized, because the order did not preclude the People from prosecuting the charged wobbler offense (see § 1238(a)(1), (8)); it simply determined that the offense was a misdemeanor rather than a felony. Even where the People cannot appeal, writ review is available “when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused.” Here, since the order was unauthorized, writ review would be warranted if the balance of interests weighs in favor of review.

Unless specifically ordered otherwise, a temporary stay ordered by an appellate court in writ proceedings continues in effect until the opinion is final and the Court of Appeal has issued its remittitur. While Mitchell’s petition for review was pending, the trial court vacated its order reducing the felony; a month later the prosecution moved to reduce the felony back to a misdemeanor, and Mitchell pleaded guilty and was sentenced to time served. In light of the temporary stay, the trial court lacked jurisdiction to conduct these proceedings and they were void. While dismissal at this stage would appear to serve the interests of justice, the application of PC § 1385 in the appellate context is not apparent, and the district attorney’s suggestion of dismissal should be presented to the trial court in the first instance.

This case was decided on 12/12/24. Authored by J.C. Guerrero.