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Anderson v. Superior Court of Fresno County5/3/2004
THE COURT
BACKGROUND
The limited record before us strongly suggests that petitioner Dana H. Anderson has suffered four driving under the influence convictions, three of which occurred in fairly close succession. It is the May 24, 2000, sentencing in one of these cases and petitioner's subsequent Penal Code section 17, subdivision (b) motion in the case that are the focus of this proceeding.
At the sentencing hearing, respondent court made the following orderss:
"THE COURT: All right. You're sentenced to three years in state prison, the imposition of the sentence is suspended. You're placed on five years formal probation, recommendation was three years, I'm saying five years, it's on condition don't drink any alcohol, don't possess any alcohol, stay out of bars, submit your person to search and seizure any hour of the day or night with or without a search warrant, with or without probable cause on the demand of any peace officer. Serve 180 days in the Fresno County Jail. . . ."
The court then directed petitioner to participate in both in-house and aftercare alcohol counseling. At the close of the hearing, the court admonished petitioner that, " t doesn't mean I wouldn't put you in prison for three years if I have to."
The minute order for this sentencing hearing shows that the court, among other things, stayed execution of the upper prison term of three years, placed petitioner on probation for five years and ordered him to serve 180 days in local custody.
There thus exists a conflict between the reporter's transcript and the clerk's transcript about whether the superior court suspended imposition or stayed execution of the judgment in this case. Various comments made throughout the initial sentencing hearing weigh in favor of the latter. Comments such as: defense counsel asking for "this three-year term hanging over [appellant's] head"; defense counsel asking for "stayed execution of three years"; defense counsel acknowledging that, if appellant violates probation, "it's years in the joint"; defense counsel asking the trial court to chose the aggravated term; trial court discussing the full three years hanging over petitioner's head if he is granted probation; trial court's comment that the most it can do is give appellant three years in prison; trial court's admonishment that it will put appellant in prison for three years if it has to.
In any event, in December 2002, petitioner brought a section 17, subdivision (b) motion to reduce one felony conviction to a misdemeanor, along with a motion to terminate probation early. Petitioner asserted that the "ends of justice," as well as his good conduct and reform, warranted such action. Petitioner relied on Penal Code section 17, subdivision (b), People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978-979, and Meyer v. Superior Court of Sacramento County (1966) 247 Cal.App.2d 133.
The People opposed the motions. They argued that People v. Howard (1997) 16 Cal.4th 1081, 1087, 1092, 1094, People v. Wood (1998) 62 Cal.App.4th 1262, 126-1267, and section 17, subdivision (b), precluded respondent court from hearing the motion because it lost jurisdiction to reduce the offense once it imposed and suspended execution of a state prison term. The People also argued that early termination of probation was not warranted given the fact that petitioner was facing new State Bar disciplinary proceedings based, in part, on conduct that occurred while he was on probation in the case at issue.
On December 23, 2002, respondent court took up the matters. At the beginning of the hearing, the People provided the court with a copy of "Peopl
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