Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header
× You have 2 more free articles available this month. Subscribe today.

California Court of Appeal: Prior Felony Does Not Convert “Wobbler” Into Felony

by Dale Chappell

The fact that a defendant admitted he had prior qualifying felonies for a Cal Pen Code § 665(a) enhancement does not convert his current “wobbler” into a felony, and the trial judge retained authority under section 17(b) to reduce the wobblers to misdemeanors, the Court of Appeal of California, Fifth Appellate District, held. A wobbler is an offense that may be punished as either a felony or a misdemeanor for sentencing purposes, at the discretion of the trial court.

Pao Lee was convicted by a jury for unlawfully driving or taking a vehicle, receiving a stolen vehicle, and carrying two knives when he was caught by police driving that stolen vehicle. Lee had been down this road before; he admitted to having two prior vehicle theft convictions, which brought a section 666.5(a) allegation authorizing a higher sentence for the current convictions.

At sentencing, the State told the judge that the section 666.5(a) enhancement deprived it of discretion to reduce Lee’s wobblers to misdemeanors, because section 666.5(a) “converted” them to felonies. The judge believed the State and said, “this court must” consider the wobblers as felonies because Lee’s admitted prior felonies deprived it of the discretion to treat his current convictions as misdemeanors. The court sentenced Lee to an indeterminate term of 25 years to life in prison, and Lee appealed.

On appeal, Lee argued that the trial court failed to recognize it retained the discretion to treat all four of his current wobblers as misdemeanors, because section 666.5(a) applies only to felonies and does not itself automatically convert a wobbler into a felony. The Court of Appeal agreed.

The Court determined that Lee’s current convictions were wobblers, which the sentencing court had discretion to punish as either misdemeanors or felonies. The appellate court explained that a court abuses its discretion when it acts “on the erroneous assumption it lacked discretion,” which is precisely what happened in the current case.

Section 666.5(a) is a sentencing enhancement that applies only to felonies, the Court instructed, and only when both the prior and current convictions are felonies. The enhancement cannot apply if the current convictions are not felonies, even if the defendant admitted his prior convictions were felonies. “A section 666.5 allegation does not affect the trial court’s authority to reduce a wobbler to a misdemeanor at sentencing,” the Court stated. Further, counsel’s request at sentencing to reduce the convictions to misdemeanors under section 17(b) was not barred by section 666.5(a), as the State and trial court both erroneously believed.

“When the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary,” the Court concluded. Accordingly, the Court of Appeal vacated Lee’s sentence and remanded the case to the trial court with directions to exercise its discretion and determine whether to reduce any of the convictions to misdemeanors pursuant to section 17(b).

See: People v. Lee, 16 Cal. App. 5th 861 (2017). 


As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

People v. Lee



CLN Subscribe Now Ad 450x600
Advertise Here 4th Ad
The Habeas Citebook Ineffective Counsel Side