People v. Martinez

Filed 6/3/14 P. v. Martinez
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039686
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1246241,
C1348548)
v.

GABRIEL MARTINEZ,

Defendant and Appellant.

I. INTRODUCTION
Defendant Gabriel Martinez pleaded no contest in three separate cases to charges
of making criminal threats to his wife’s housemate (Pen. Code, § 422)1, inflicting injury
on his wife (§ 273.5), and stalking her (§ 646.9, subd. (a)). Defendant filed written
objections to two proposed probation conditions and filed a motion under section 17,
subdivision (b) (“17(b) motion”) to reduce to misdemeanors the convictions for making
criminal threats and inflicting injury. At sentencing, when the trial court indicated that
more time would be needed to determine whether the 17(b) motion was authorized by the
plea bargain, defendant withdrew the motion under protest to obtain immediate release
from custody. The trial court sustained his objection to one of the probation conditions
and, pursuant to the negotiated disposition, placed defendant on three years’ probation in
each of the two felony cases, and denied probation in the misdemeanor case. In the

1
Unspecified section references are to the Penal Code.
misdemeanor case, the court sentenced defendant to 229 days in jail, the same amount of
custody credit he had in that case. In the felony cases the court ordered 245 days
concurrent jail time as a probation condition and awarded 245 days of custody credit.
Other probation conditions included a search condition ‒ “You are to submit your person,
place of residence, vehicle, and any property under your control to search at any time
without a warrant by any peace officer.”
On appeal, defendant renews his claim that the search condition is unreasonable.
He also asserts error in the trial court’s refusal to hear his 17(b) motion. The Attorney
General contends that defendant withdrew that motion and therefore cannot complain.
We will reverse the judgment and remand for the trial court to rule on defendant’s 17(b)
motion.
II. TRIAL COURT PROCEEDINGS
Because the cases were resolved before any preliminary examination, the
probation report is our primary source of information about the crimes.
On July 18, 2012, defendant stalked his wife. (§ 646.9, subd. (a).) This led to a
misdemeanor charge in Santa Clara County Superior Court Case No. C1240586.
On December 6, 2012, defendant’s wife was staying in San Jose with Jesus
Montiel, her ex-boyfriend. According to Montiel, defendant came to his residence and
got upset when Montiel would not let him see his wife. Defendant threatened to kill him
and come back and “ ‘finish the job.’ ” Defendant had previously come after Montiel with
a knife. Defendant argued with Montiel and his wife until the police arrived. Officers
heard defendant yell out to Montiel, “ ‘When I get out I am coming back to kill you!’ ”
Defendant told the police he had come to San Jose to see his wife and daughter and that
he refused to attend court hearings. He wanted the police to take his daughter away from
his wife because officers did that to him in Turlock. This led to a felony criminal threat
charge (§ 422) in Santa Clara County Superior Court Case No. C1246241.

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 On December 20, 2012, while defendant was out on bail for the criminal threat, he
brought his daughter to Montiel’s residence, began arguing with his wife about her living
arrangement, pulled out a small can, and sprayed her face with what was apparently
pepper spray. A doctor at a regional center observed that she had a first degree chemical
burn. This led to a felony charge of inflicting corporal injury on his wife (§ 273.5) while
out on bail (§ 12022.1) in Santa Clara County Superior Court Case No. C1348458
(sometimes “the injury case”).
A. CHANGE OF PLEA
At a hearing on March 19, 2013, the court asked the prosecutor “to state the terms
of the agreement[].” The prosecutor stated, “Defendant is going to plead as charged to all
the charges on the three dockets … . [¶] The agreement is that the defendant will get
eight months county jail that can be concurrent in all three matters. [¶] As to the two
felony matters, … defendant will be placed on formal probation with domestic violence
terms. [¶] And as for the misdemeanor docket … , probation can be denied.” The
prosecutor also stipulated defendant could receive “maximum credits on all three cases
… .” Defense counsel and defendant agreed this explanation reflected their
understanding of the agreement.
The court proceeded to review a preprinted and handwritten “Advisement of
Rights, Waiver, and Plea Form Felony” (form CR-6020) with defendant, establishing
that, with counsel’s assistance, he had reviewed and understood the form before signing it
and initialing a number of boxes. The court obtained defendant’s oral waivers of
individual rights before defendant pleaded no contest to violations of sections 422, “a
felony,” 273.5, subdivision (a), “a felony,” and 646.9, subdivision (a), “a misdemeanor.”
He also admitted he was out on bail when he injured his spouse. The court established
that defense counsel had signed the waiver form and concurred in the pleas and that the
prosecutor had also reviewed and signed it. The prosecutor agreed orally that “it

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accurately set forth the agreement.” Noting counsel had stipulated on the form to a
factual basis for the convictions, the court also signed the form.
The eight-page form has a number of components. Item 9 on page 2 is entitled
“plea agreement.” (Capitalization omitted from printing and handwriting throughout.)
Defendant initialed boxes stating in print, “Probation for up to five years, under
conditions to be set by the Court, including a county jail term of” followed by
handwriting stating “8 months (c/c) on felonies, c/c time[.] Probation denied on
misdemeanor. CTS to be maximized, and at least the max. on any of the cases[.]
Eligible for half time on the current sentence.” Items 18 through 20 on page 4 are
entitled “fines and fees.” Printed on 18 are nine different fines, fees, and assessments
with four of them struck out by hand. Item 20 recites that the amounts of the fines for
restitution and the general fund are not part of the plea agreement. Defendant initialed
items 26 and 27 on page 5, entitled “strike offenses.” Preprinted on item 26 is, “I
understand that count(s) _____ each qualifies as a ‘strike’ under the Three Strikes Law.”
Handwritten in the blank is “PC 422 in C1246241.” Item 27 is a preprinted declaration
of defendant’s understanding that as a result of a guilty or no contest plea to a strike
offense, “the penalty for any future felony conviction will be increased … depending on
the number of strikes I have … .” Defendant signed a preprinted statement on page 7 that
he had “initialed each of the items that applies to my case” to show he understood and
assented to it. On the final page, the prosecutor signed a printed acknowledgment that
the form “correctly sets forth the terms of defendant’s plea … .” The preprinted
statement does not require assent to the same proposition from defendant’s attorney.
Sentencing was initially scheduled for May 10, and was continued to May 17, and
again to May 24, 2013.
The probation report recommended three concurrent years of formal probation for
each felony offense (making a criminal threat and inflicting corporal injury on a spouse)
with overlapping conditions plus two additional conditions in the injury case. One

4
condition common to both cases was “[t]he defendant shall submit his/her person, place
of residence, vehicle and any property under his/her control to search at any time without
a warrant by any Peace Officer.” Another was “[t]he defendant shall not possess any
item that under the law would be considered a deadly or dangerous weapon(s) during the
period of Probation.”
On May 16, 2013, defendant filed written objections to the above-quoted
conditions, arguing they were not reasonably related to his crimes or future criminality
and noting that he was prohibited by law from possessing firearms and ammunition.
On May 18, 2013, defendant filed a motion under section 17, subdivision (b),
asking that the convictions for making criminal threats and inflicting corporal injury be
reduced to misdemeanors at the time of granting probation, or at least “the Section 422
charge ... .”
B. SENTENCING HEARING
At the hearing on May 24, 2013, the trial court stated it had considered the
probation report, defendant’s motions, and “a copy of a response as to one of the
probation conditions from the People as well.”2 The court announced its intention “to
follow the negotiated agreement for the eight-month county jail sentence concurrent
across all three cases, including that the misdemeanor would be in probation-denied
status.”
1. ARGUMENT REGARDING SECTION 17(B) MOTION
The People objected to the 17(b) motion, arguing that the negotiated plea was for
the defendant to plead as charged; part of the plea bargain was that the section 422
violation was a strike offense, which was inconsistent with reducing the conviction to a

2
No such response is in the record on appeal.

5
misdemeanor. The People urged that if the court were to consider the motion, the case
should be returned to “pre-prelim status,” so that “defendant can withdraw his plea.”
Defense counsel asserted that the plea bargain included no discussion about
whether the agreement precluded or contemplated a 17(b) motion, and, under those
circumstances, a 17(b) motion was “always appropriate.” Defendant argued that the
“primary motivation for seeking reduction on the 422 is to avoid the strike consequences,
which would last forever,” so the court could leave the section 273.5 conviction as a
felony to impose felony probation.
The court indicated that it was customary in reaching a bargain for the parties to
negotiate whether defendant could bring a 17 (b) motion. The court stated: “I would
agree, [defense counsel], that a [s]ection 17 motion can be brought at any time; however,
the question then arises as to whether or not that negates the deal that was agreed upon.
[¶] And it’s my impression based on the three files I have, the sentence that was agreed
upon, and the way the plea form reads that it was not contemplated that this offer meant ‒
would include, for example, Count 1 in the docket ending 241, which is a felony, that that
matter would be a misdemeanor, in fact, because it’s specifically spelled out on the plea
form.”
Defense counsel confirmed that defendant was interested in being sentenced and
released immediately, and was not interested in withdrawing his plea.
The court continued: “where that leaves us is, procedurally, I think there are [a]
couple of different ways we could proceed. One is Mr. Martinez withdraws his request
under [s]ection 17 so he can receive the negotiated sentence. That’s one way to proceed.
I am unclear if there’s any other avenue open to me.” The parties discussed whether the
court could deny the motion as untimely, but the court felt it was timely. “It’s more a
matter of I don’t think that ‒ I think that it violates the terms of the negotiated plea. But
that’s ‒ I don’t know that that’s up to me to decide.”

6
 Defense counsel commented, “well, I guess the bottom line is if you felt that
hearing a [s]ection 17 motion would violate the plea and you would set the plea aside, if
the only way we could avoid going down that route would be to withdraw the 17 motion,
we would do so here and now on the record but under protest that it was essentially
legally coerced, because it is, in fact, consistent with the plea. And then that could be
sorted out as appropriate later.”
The prosecutor reiterated that a 17(b) motion “was not part of the negotiated
disposition” and if defendant wanted to proceed with the motion, the prosecution would
request a continuance “for research and possible motions on the issue.” The People
argued that defendant’s 17(b) motion was essentially a request to withdraw from the plea
agreement, and, having accepted the plea, the court could not grant the motion.
The court stated: “It would be my intention today to follow the negotiated
agreement. And so, [defense counsel,] I believe the position that leaves us in is that Mr.
Martinez has an option at this point to have me proceed consistent with the negotiated
terms or to wish to proceed, and in doing that then to withdraw his motion under [s]ection
17, or to choose to ask to proceed on the [s]ection 17 at which point I would not proceed
with sentencing. We would put it over to determine whether or not it is procedurally
appropriate or whether the People have some basis on which to set aside their part of the
agreement. [¶] And I do understand your position that Mr. Martinez’s position is that if
he does withdraw the motion it would be because he feels at this point legally coerced to
do that. And I’ll leave that to be determined in a forum where that’s appropriately
determined.”
Defense counsel responded, “Your Honor, we will go ahead ‒ I mean, if this is the
choice as I’m hearing your Honor - and withdraw our [s]ection 17 motion with ‒ under
protest in ‒ to the extent that we think it’s legally viable and consistent with the plea
bargain. You apparently are feeling otherwise, and so we will yield since we want to be

7
under legal protest since we do want the sentencing to proceed today with the indicated
sentence.”
The court accepted “the request to withdraw that motion recognizing that there’s
no bar to that motion being brought at other times in the future.”
2. ARGUMENT REGARDING PROBATION CONDITIONS
The court announced that several proposed probation conditions would not be
imposed in the criminal threat case and would be imposed only in the injury case. The
probation officer noted the need for a firearms restriction under sections 29800 and
30305.
After the above discussion of the 17(b) motion, the court stated its intent to follow
the negotiated agreement and asked about the People’s position if the court were to limit
weapon possession to pepper spray. The prosecutor asserted that a broader weapons
condition was appropriate due to the use of pepper spray, due to a report that “the
defendant has previously brandished a knife. There’s also in the misdemeanor reports
that defendant might have access to guns.” The People observed that the case did not
simply involve domestic violence, as the criminal threat was made against another victim.
The court declined to impose the deadly or dangerous weapon condition in the criminal
threat case and ordered “no pepper spray” in the injury case. “With respect to the search
condition, in light of the protective orders which require no possession or access to
weapons, as well as the ‘no weapons’ provision, but in particular because of the
protective order, I am finding that the search condition in each case is reasonably related
to preventing future criminality under Lent, and that’s an appropriate probation
condition.”
In both cases, the court imposed the condition that, “You are not to own,
knowingly possess, or have within your custody or control any firearm or ammunition for
the rest of your life pursuant to Penal Code Sections 29800 and 30305.” In the injury

8
case, the court stated, “You are not to possess any item ‒ actually, you are not [to]
possess any pepper spray during the period of your probation.”
Defendant filed a notice of appeal in case C1246241 the day of the probation
order, May 24, 2013. Defendant filed a notice of appeal in case C1348548 on October
15, 2013 after this court granted him leave to file an untimely notice.
III. THE SEARCH CONDITION IS REASONABLE
On appeal defendant renews his challenge to the search condition ‒ “You are to
submit your person, place of residence, vehicle, and any property under your control to
search at any time without a warrant by any peace officer.”
We review probation conditions for abuse of discretion and will uphold the trial
court’s broad discretion so long as a challenged condition relates generally to criminal
conduct or future criminality or specifically to the probationer’s crime. (People v. Lent
(1975) 15 Cal.3d 481, 486 (Lent); People v. Olguin (2008) 45 Cal.4th 375, 379-380
(Olguin).) The reasonableness of a probation condition may be challenged on appeal
only if the probationer has questioned it in the trial court. (People v. Welch (1993) 5
Cal.4th 228, 237 (Welch); see In re Sheena K. (2007) 40 Cal.4th 875, 882.).)
On appeal, as in the trial court, defendant has relied on a series of outdated cases
as establishing that the search condition is unreasonable in this case. (People v. Keller
(1978) 76 Cal.App.3d 827 (Keller), disapproved on another ground by Welch, supra, 5
Cal.4th 228, 233-237; In re Martinez (1978) 86 Cal.App.3d 577; People v. Mayers (1980)
110 Cal.App.3d 809 (Mayers); People v. Burton (1981) 117 Cal.App.3d 382 (Burton).)
In re Martinez explained: “In People v. Keller, 76 Cal.App.3d 827, the Court of
Appeal for the Fourth District, placed a ‘gloss’ on the three-pronged Lent test by adding
an overall requirement of reasonableness in relation to the seriousness of the offense for
which defendant was convicted. [¶] There the defendant was convicted of stealing a 49-
cent ballpoint pen. On the assumption that defendant’s shoplifting propensities were
rooted in a narcotic problem, the court imposed the ‘search’ condition in granting him

9
probation. The Court of Appeal, while basing its decision essentially on a failure of the
condition to meet the Lent test, suggested that the condition was in any event
unreasonable in a case of such minor importance. We are of the opinion that the Keller
court’s approach was sound and we approve.” (Martinez, supra, 86 Cal.App.3d at p.
583.) Burton similarly relied on Keller and Martinez in concluding “nothing in
appellant’s past history or the circumstances of the present offense [(assault with a lead
pipe on a coworker)] indicate a propensity on appellant’s part that he would resort to the
use of concealed weapons in the future. Under these circumstances it cannot be said that
the condition of a warrantless search reasonably relates to the prevention of appellant’s
future criminality.” (Burton, supra, 117 Cal.App.3d at p. 391.)
In characterizing this line of authority as outdated, we agree with People v.
Balestra (1999) 76 Cal.App.4th 57 (Balestra), in which Keller was repudiated by the
authoring court. Balestra characterized Keller as going “far beyond the Lent test to list a
total of seven factors we would require to uphold a probation condition.” (Balestra,
supra, at p. 66.) “It is clear that Keller is inconsistent with the Fourth Amendment
jurisprudence since the date of that decision. As our Supreme Court has recently (and
repeatedly) made clear, a warrantless search condition is intended to ensure that the
subject thereof is obeying the fundamental condition of all grants of probation, that is, the
usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search
conditions serve a valid rehabilitative purpose, and because such a search condition is
necessarily justified by its rehabilitative purpose, it is of no moment whether the
underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a
suspicionless search is fully consistent with the deterrent purposes of the search
condition. “ ‘The purpose of an unexpected, unprovoked search of defendant is to
ascertain whether [the probationer] is complying with the terms of [probation]; to
determine not only whether he disobeys the law, but also whether he obeys the law.
Information obtained under such circumstances would afford a valuable measure of the

10
effectiveness of the supervision given the defendant ... .’ ” [Citations.]’ ... . (People v.
Reyes (1998) 19 Cal.4th 743, 752, italics added.)” (Balestra, supra, at p. 67, fn. omitted.)
We agree with Balestra that Lent and not Keller states the critera under which a probation
search condition should be regarded as reasonable.
As the Attorney General notes, Balestra was cited with approval by Olguin, supra,
45 Cal.4th 375, which upheld a condition requiring a probationer to notify the probation
officer of the presence of pets in his residence. The court noted that probation involves
supervision by a probation officer. “For example, probation conditions authorizing
searches ‘aid in deterring further offenses ... and in monitoring compliance with the terms
of probation. [Citations.] By allowing close supervision of probationers, probation
search conditions serve to promote rehabilitation and reduce recidivism while helping to
protect the community from potential harm by probationers.’ (People v. Robles (2000)
23 Cal.4th 789, 795.) A condition of probation that enables a probation officer to
supervise his or her charges effectively is, therefore, ‘reasonably related to future
criminality.’ (See, e.g., People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera )
[affirming probation condition requiring the defendant to ‘ “follow such course of conduct
as the probation officer prescribes” ’ as reasonable and necessary to enable the probation
department to supervise compliance with specific conditions of probation]; Balestra,
supra, 76 Cal.App.4th at pp. 65-67 [upholding warrantless search condition that served
valid rehabilitative purpose of helping probation officer ensure that probationer obeys all
laws].)” (Olguin, supra, at pp. 380-381.)
Olguin noted that probation conditions limiting constitutional rights should be
closely tailored to the purpose of the condition. (Olguin, supra, at p. 384.) “On the other
hand, we have observed that probation is a privilege and not a right, and that adult
probationers, in preference to incarceration, validly may consent to limitations upon their
constitutional rights ‒ as, for example, when they agree to warrantless search conditions.”
(Ibid.; citing Balestra among other cases in support.) We recognize, as defendant points

11
out, that this discussion of search conditions in Olguin was dictum, as the defendant in
that case failed to demonstrate that the challenged condition impaired any constitutional
right. (Id. at pp 384-387.)
Defendant criticizes Balestra for failing to acknowledge that probation conditions
limiting constitutional rights are subject to higher scrutiny. Defendant fails to recognize
that probationers should not expect to enjoy the same freedoms as other citizens. United
States v. Knights (2001) 534 U.S. 112 (Knights) stated: “Inherent in the very nature of
probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is
entitled.” ’ [Citations.] Just as other punishments for criminal convictions curtail an
offender’s freedoms, a court granting probation may impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-abiding citizens.” (Id. at p. 119.)
The search condition imposed in both cases here is justified to ensure defendant’s
compliance with other conditions which prohibit possessing pepper spray, firearms, and
ammunition. The search condition is reasonably and directly related to his crimes
(including spraying his wife in the face) and to future criminality. We find neither an
abuse of discretion nor an unwarranted restriction of defendant’s constitutional rights.
IV. THE 17(B) MOTION
Defendant contends that the trial court erred in ruling that his 17(b) motion was
contrary to the plea bargain. The Attorney General responds that the court made no such
ruling: “The court’s ruling ... was that sentencing would be continued to litigate the
dispute if defendant wanted a ruling on the motion to reduce (and whether the People
could move to withdraw from the plea if the criminal threat conviction were reduced as
defendant wanted), or, alternatively, defendant could withdraw the motion without
prejudice to its renewal at a future time if he wanted sentencing under the plea agreement
that day.” Presented with those alternatives, defendant elected to withdraw his motion.
The Attorney General also asserts that it was inconsistent with defendant’s negotiated
plea to have his criminal threat conviction reduced to a misdemeanor. Defendant agrees

12
that his argument targets the criminal threat conviction and not the spousal injury
conviction.
A. EFFECT OF THE THREE STRIKES STATUTES
Violations of both sections 422 and 273.5 are wobblers, that is, crimes that may be
punished alternatively as a felony or a misdemeanor. (See People v. Culbert (2013) 218
Cal.App.4th 184, 193 [§ 422]; People v. Jackson (2000) 77 Cal.App.4th 574, 576 [§
273.5].) Section 17, subdivision (b), allows the trial court to determine the nature of such
an offense at the time of sentencing or later, namely “on application of the defendant or
probation officer” after the trial court has granted probation “without imposition of
sentence.” (§ 17, subd. (b)(3).)
Conferring discretion on the sentencing court to classify a crime serves at least
two purposes. It affords the sentencing court greater flexibility in tailoring the
punishment to fit the crime and the offender, recognizing that the same crime can deserve
different types of punishment depending on the seriousness of the circumstances of its
commission. (See People v. Smith (1968) 259 Cal.App.2d 868, 873.)
A separate purpose is served by allowing the trial court to reduce the offense after
probation has been granted. The prospect of earning a reduction may motivate a
defendant to comply successfully with probation conditions. (People v. Feyrer (2010) 48
Cal.4th 426, 439-440, (Feyrer) superseded by statute on another ground as stated in
People v. Park (2013) 56 Cal.4th 782, 789, fn. 4 (Park).) Section 17, subdivision (b)(3)
is consistent with a purpose of the probation statutes, which “are intended to afford the
defendant an opportunity to demonstrate his or her rehabilitation in order to obtain early
termination of probation, reclassification of the offense, or dismissal of the action, and ‒
in certain cases ‒ all such forms of leniency.” (Feyrer, supra, at p. 440.) “[I]n conferring
upon the court the power to declare an offense to be a misdemeanor after it has suspended
imposition of judgment or sentence, the Legislature evidently intended to enable the court
to reward a convicted defendant who demonstrates by his conduct that he is

13
rehabilitated.” (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 140.) Section 17,
subdivision (b)(3) was added in 1963. (Park, supra, 56 Cal.4th at p. 793.)
In contrast, the focus of the Three Strikes statutes enacted in 1994 is punishment
rather than rehabilitation. The intent of the Legislature in enacting section 667,
subdivisions (b) through (i), was described in subdivision (b) of the statute. Voters had
the same intent in enacting a virtually identical statute, section 1170.12, later the same
year. “[T]he stated purpose of both the legislative and initiative versions is to ‘ensure
longer prison sentences and greater punishment for those who commit a felony and have
been previously convicted of serious and/or violent felony offenses.’ ” (People v.
Hazelton (1996) 14 Cal.4th 101, 108, quoting the ballot pamphlet.)
The California Supreme Court has determined the Three Strikes statutes do not
restrict a sentencing court’s authority under section 17, subdivision (b) to reduce a
wobbler to a misdemeanor for a defendant who has one or more strikes. (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973 (Alvarez) [possession of
methamphetamine].) However, the Three Strikes statutes also treat as strikes some prior
convictions deemed misdemeanors under section 17, subdivision (b). Whether a prior
conviction amounts to a serious or violent felony strike is determined “upon the date of
that prior conviction and is not affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony to a misdemeanor.” (§§
667, subd. (d)(1); 1170.12, subd. (b)(1).) If a crime is not declared a misdemeanor at the
initial grant of probation, it remains a strike under the Three Strikes statutes even if a
court later declares it a misdemeanor under section 17, subdivision (b). (Feyrer, supra,
48 Cal.4th 426, 442, fn. 8; see Park, supra, 56 Cal.4th 782, 794; People v. Superior
Court (Perez) (1995) 38 Cal.App.4th 347, 363.)
Defendant asked the trial court to determine at the time of granting probation that
both offenses, the criminal threat (§ 422) and the spousal injury (§ 273.5), were
misdemeanors. Defendant expressed special concern about the section 422 conviction,

14
acknowledging his “primary motivation for seeking reduction on the 422 is to avoid the
strike consequences, which would last forever ... .” Defendant correctly assumed that if
the trial court did not declare his section 422 conviction a misdemeanor at the time of
granting probation, it would have strike consequences for him in the event of a later
felony conviction.
B. TRIAL COURT RULING
The parties disagree about whether the trial court reached the merits of defendant’s
17(b) motion. Defendant asserts that the trial court ruled the motion was inconsistent
with the plea bargain. Based on the discussion among the court and counsel about
defendant’s 17(b) motion, we agree with the Attorney General that the trial court did not
actually rule that the motion contravened the plea bargain, but offered a tentative ruling
to that effect. The court’s stated impression was that the agreement did not contemplate
the criminal threat becoming a misdemeanor: “I think that it violates the terms of the
negotiated plea. But that’s ‒ I don’t know that that’s up to me to decide.” The only way
defendant could receive his negotiated sentence that day was to withdraw his motion. If
defendant wanted a ruling on his motion, “[w]e would put it over to determine whether or
not it is procedurally appropriate or whether the People have some basis on which to set
aside their part of the agreement.”
C. EFFECT OF THE PLEA AGREEMENT
Plea agreements are interpreted like other contracts with the goal of giving effect
to the parties’ mutual intention. “ ‘The mutual intention to which the courts give effect is
determined by objective manifestations of the parties’ intent, including the words used in
the agreement, as well as extrinsic evidence of such objective matters as the surrounding
circumstances under which the parties negotiated or entered into the contract; the object,
nature and subject matter of the contract; and the subsequent conduct of the parties.’ ”
(People v. Shelton (2006) 37 Cal.4th 759, 767; Feyrer, supra, 48 Cal.4th at p. 437.) The
parties to the negotiations are a criminal defendant and the executive branch of

15
government, represented by the prosecutor. (Cf. People v. Orin (1975) 13 Cal.3d 937,
943.) The resulting agreement is not effective until the court approves it. (Id. at pp. 942-
943; §§ 1192.4, 1192.5.)
“ ‘[T]he “interpretation of a contract is subject to de novo review where the
interpretation does not turn on the credibility of extrinsic evidence.” ’ [Citations.] ‘In
contrast, “[i]f the parol evidence is in conflict, requiring the resolution of credibility
issues, we would be guided by the substantial evidence test. [Citation.]” [Citation.]
However, extrinsic evidence is not admissible to ascribe a meaning to an agreement to
which it is not reasonably susceptible. [Citation.]’ [Citation.]” (People v. Paredes
(2008) 160 Cal.App.4th 496, 507.) What is controlling is the objective intent of the
parties. A party’s subjective, undisclosed intent is irrelevant to interpreting an contract.
(Founding Members of the Newport Beach Country Club v. Newport Beach Country
Club, Inc. (2003) 109 Cal.App.4th 944, 956.)
In Feyrer, supra, 48 Cal.4th 426, the California Supreme Court considered
whether a plea bargain limited a trial court’s ability under section 17, subdivision (b) to
declare a strike to be a misdemeanor based on the defendant’s successful performance on
probation. The court observed that allowing a reduction of the offense at the completion
of probation serves a rehabilitative purpose. “A grant of probation is intended to afford
the defendant an opportunity to demonstrate over the prescribed probationary term that
his or her conduct has reformed to the degree that punishment for the offense may be
mitigated or waived. Thus, under favorable circumstances, when punishment has not
been imposed, the offense (with certain exceptions) may be reclassified or nullified.” (Id.
at p. 439.) To serve this policy, the court concluded, “The fundamental feature of
probation is that good conduct on the part of the probationer may invite mitigation of
punishment and (in the case of a wobbler) reclassification of the offense. If there is to be
any curtailment of those routinely available options, such a restriction should be made an
express term of the plea agreement.” (Id. at p. 440.) Feyrer applied “the rule that every

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term of a plea bargain should be stated on the record.” (Id. at p. 438.) The Feyrer court
was especially reluctant to infer a term “purporting to restrict the sentencing authority of
the court.” (Ibid.)3
The remaining question in Feyrer was whether the plea agreement in that case did
have such an express restriction. The defendant had agreed to plead no contest to felony
assault involving force likely to produce great bodily injury and to admit personal
infliction of great bodily injury in exchange for felony probation with six months in jail.
The defendant also acknowledged at the plea hearing that the conviction qualified as a
strike. (Id. at p. 432.) “[I]t is evident that defendant’s plea of no contest to an enhanced
felony was a material term of the plea agreement.” (Id. at p. 436.) “It ... is clear the
parties intended to ensure that if defendant committed any future offense, his conviction
for the current offense could be treated as a ‘strike’ under the Three Strikes law.” (Id. at
p. 437.) On the other hand, the court found “no clear indication, ... that the parties ...
intended to provide that the felony could not be reduced to a misdemeanor under any
circumstances, regardless of defendant’s conduct during the period of probation. The
terms of the plea agreement do not state that this is the case. Nor do the terms of that
agreement abrogate the provisions of section 17, subdivision (b)(3), or other statutes
applicable during (or upon the conclusion of) a successful term of probation.” (Feyrer,
supra, at p. 437.)

3
Feyrer embodies the broader principle that, after a plea agreement, a court
retains all sentencing authority not expressly restricted by or necessarily inconsistent with
the terms of the agreement. This principle is also illustrated in precedent recognizing that
the sentencing court retains discretion to determine the amount of the restitution fine if
the plea agreement omits any restriction of the amount. (People v. Dickerson (2004) 122
Cal.App.4th 1374, 1384; People v. Sorenson (2005) 125 Cal.App.4th 612, 619; People v.
Crandell (2007) 40 Cal.4th 1301, 1309; People v. Villalobos (2012) 54 Cal.4th 177, 183.)
Indeed, the plea change form in this case expressly recognized the trial court’s retained
authority to establish the amounts of restitution fund and general fund fines.

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 Both sides claim to find support in Feyrer on appeal. We recognize, as the
Attorney General emphasizes, that Feyrer was concerned with the trial court’s authority
at a later stage of the proceedings, namely after probation terminated. The Feyrer court
was not required to determine whether the agreement precluded a 17(b) motion at the
initial grant of probation. Even if the agreement in Feyrer had contained such a
restriction, it would not compel the conclusion that the agreement before us contains a
similar restriction. There are potentially significant factual differences between the cases.
Feyrer discusses the effect of an early determination of a defendant’s 17(b)
motion. The court explained that conviction of a wobbler will have consequences as a
strike despite “[t]he suspension of imposition of judgment or sentence” when probation is
granted (§§ 667, subd (d)(1)(A); 1170.12, subd. (b)(1)(A)) unless the crime is deemed a
misdemeanor “upon the initial sentencing” (§§ 667, subd (d)(1) 1170.12, subd. (b)(1).
(Feyrer, supra, 48 Cal.4th 426, 442, fn. 8.) Feyrer also states that a plea agreement to
restrict the trial court’s authority under section 17, subdivision (b) “should be stated on
the record.” (Id. at p. 438.) From the agreement in that case, it was clear that the
defendant’s conviction would have strike consequences, but it was not clear “that the
parties also intended to provide that the felony could not be reduced to a misdemeanor
under any circumstances … .” (Id. at p. 437.)
The Three Strikes statutes make it imperative to determine at the time of initial
sentencing the character of those few offenses that are alternatively misdemeanors or
strike felonies. Postponing a ruling on a defendant’s 17(b) motion until after probation is
granted eliminates the court’s ability to relieve the defendant of strike consequences in an
appropriate case.
In this case, the parties disagreed about the terms and intent of the plea agreement
at the next hearing following its announcement. The plea change form and oral recital of
the plea agreement must be read together to ascertain the terms of the agreement.
Because reasonable minds may differ about what parts of the completed form reflect the

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actual plea agreement, the trial court should be the first to determine whether a material
term of the plea agreement was that the section 422 conviction would be a strike, such
that it would not be subject to a 17(b) motion at the time of initial sentencing. If the court
concludes that it retains authority to classify the section 422 conviction under section 17,
subdivision (b), the court should proceed to make that determination while it is still
meaningful, before granting defendant probation pursuant to the plea agreement. Our
determination that the trial court must consider whether defendant can bring a 17(b)
motion should not be understood as any indication about the merits of the motion.
D. FORFEITURE
The Attorney General contends that defendant has forfeited review of his section
17(b) motion, because he withdrew the motion. Ordinarily, this court will not review a
tentative ruling when no definite ruling follows. (People v. Burnett (2003) 110
Cal.App.4th 868, 880.) However, we reach the procedural issue under these
circumstances due to the necessity of a trial court ruling on the scope and terms of the
plea agreement before the initial sentencing, in light of the enduring effect of initial
felony versus misdemeanor treatment on the strike character of defendant’s section 422
conviction.
V. DISPOSITION
The judgment is reversed. The matter is remanded for the trial court to determine
whether the plea agreement allows consideration of defendant’s 17(b) motion at the time
of initial sentencing and, if so, to rule on that motion. If the trial court determines that
consideration of the 17(b) motion is precluded, or considers and denies the motion,

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the judgment shall be reinstated. If the court grants the motion, the court shall enter a
new judgment consistent with that ruling.

____________________________________
Grover, J.

WE CONCUR:

__________________________________
Bamattre-Manoukian, Acting P.J.

__________________________________
Márquez, J.

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