When an offense is punishable either as a felony or as a misdemeanor (commonly referred to as a “wobbler”), subdivision (b)(3) of Penal Code section 17 (hereafter section 17(b)(3)) authorizes a trial court to declare the offense a misdemeanor “at the time of granting probation.”1 Subdivision (d) of section 1238 precludes a People’s appeal from an “order granting probation,” but subdivision (a)(5) of that section allows the People to appeal an “order made after judgment.”
Here, the trial court during a single sentencing hearing accepted defendant’s plea of “no contest,” suspended imposition of sentence, granted defendant probation, and declared the offense a misdemeanor. Because of the sequence in which these events occurred, the majority concludes that the People may appeal, as an order “after judgment,” the trial court’s action declaring the offense a misdemeanor. I disagree.
The majority senselessly makes appealability turn on whether the trial court utters the words declaring the offense to be a misdemeanor immediately before or immediately after it places the defendant on probation. In my *97view, when a court declares a wobbler to be a misdemeanor at any time during the same sentencing hearing at which the court grants probation, the declaration occurs “at the time of granting probation” for purposes of section 17(b)(3), and it is thus a part of the court’s probationary order from which the People can seek review only by petition for writ of mandate (§ 1238, subd. (d)).
I.
On February 24, 1997, defendant William R. Douglas, blind and hearing impaired, appeared in Santa Barbara County Superior Court to enter a no contest plea to charges of grand theft (§ 487, subd. (a)) and obtaining $4,773.20 in health care benefits by false declaration (Welf. & Inst. Code, § 14014). After advising defendant that “a violation of 14014 of the Welfare & Institutions Code ... is a felony,” the prosecutor mentioned an agreement to “reduce this to a misdemeanor.” Defendant then entered a plea of no contest to both counts.
The trial court suspended imposition of sentence, placed defendant on probation for three years conditioned upon payment of restitution and a twenty-seven-day county jail sentence and, over the prosecution’s objection, declared the violation of Welfare and Institutions Code section 14014 to be a misdemeanor. Defendant thereafter signed the probationary order.
The People appealed, challenging the trial court’s ruling under section 17(b)(3) declaring the violation of Welfare and Institutions Code section 14014 to be a misdemeanor. The Court of Appeal, however, dismissed the appeal as taken from a nonappealable order.
II.
Because the trial court’s statement declaring the offense to be a misdemeanor under section 17(b)(3) followed the trial court’s statements suspending the imposition of sentence and granting probation, the majority holds that the People can appeal it as an order “made after judgment.” (§ 1238, subd. (a)(5).) The majority acknowledges that its holding rests on “the circumstances of this case.” (Maj. opn, ante, at p. 88, italics added.) Thus, if the trial court had simply reversed the order of its statements and declared the offense to be a misdemeanor before announcing its grant of probation, the majority would have concluded that the People have no right to appeal.
The majority makes appealability of a section 17(b)(3) declaration a matter of happenstance and fortuity. If the trial court happens to make its *98declaration that the “wobbler” offense is a misdemeanor after it places the defendant on probation, the People may appeal; but if the trial court utters the words of the declaration before its probationary order, the People may not appeal. The majority suggests no reason (and none is apparent) why the Legislature would allow an appeal in one situation but not in the other. I cannot believe that the Legislature intended the People’s right to appeal to turn on whether the section 17(b)(3) declaration by the trial court occurred one moment before or one moment after the court’s grant of probation.
The majority’s “before and after” distinction is particularly inapt here because the trial court’s reduction of the Welfare and Institutions Code section 14014 offense to a misdemeanor was part of a plea bargain that the prosecutor mentioned just before defendant entered his plea of no contest. As the majority acknowledges, a successful attack on the reduction of the offense to a misdemeanor will call into question the validity of defendant’s plea. (Maj. opn., ante, at p. 94, fn. 9.) Moreover, the record bears out that the trial court chose the three-year probationary term because it was the maximum allowable for a misdemeanor. (§ 1203a.) And defendant did not sign the order agreeing to probation until after the trial court had declared the offense to be a misdemeanor. Therefore, contrary to the majority’s assertion, the section 17(b)(3) declaration by the trial court reducing the offense to a misdemeanor in this case was not “formally and legally separate” (maj. opn., ante, at p. 96) from the trial court’s grant of probation.
III.
Unlike the majority, I would not have appealability here depend on whether the trial court’s declaration under section 17(b)(3) reducing a “wobbler” offense to a misdemeanor came just before or just after the court’s grant of probation. As I explain, the key to the People’s appellate rights with regard to all such declarations made at the initial sentencing hearing appears in section 17(b)(3) itself.
As relevant here, subdivision (b) of section 17 provides: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [^] . . . HQ (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” (Italics added.) A declaration is made “at the time of granting probation” if it occurs during the same hearing at which the court suspends imposition of *99sentence and grants probation; a declaration is made “thereafter” when it occurs at a separate hearing some time later during the probationary period as the result of an application to the court by the defendant or the defendant’s probation officer to reduce the offense to a misdemeanor. (See People v. Wood (1998) 62 Cal.App.4th 1262, 1271 [73 Cal.Rptr.2d 308]; People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 363 [45 Cal.Rptr.2d 107].)
By authorizing a trial court to declare an offense to be a misdemeanor “at the time of granting probation” and setting no limit on when during the initial sentencing hearing the court must make its declaration, section 17(b)(3) allows the declaration to be made at any time during that sentencing hearing. Accordingly, a section 17(b)(3) declaration is not properly denominated an order made after judgment. Rather, it is part of the trial court’s disposition of the case that is indivisible from the court’s suspension of imposition of sentence and grant of probation.2 As I noted earlier, section 1238, subdivision (d) precludes the People from appealing “any grant of probation.”
This does not mean, however, that the prosecution has no remedy if the trial court erroneously reduces an offense from a felony to a misdemeanor at the initial sentencing hearing. Subdivision (d) of section 1238 allows the People to challenge a trial court’s grant of probation by petition for writ of mandate and states that appellate review “of any grant of probation shall include review of any order underlying the grant of probation.” (Italics added.) Thus, this provision contemplates that the appellate court in a single writ proceeding will review orders made together with a probationary grant when they are based on the same factual considerations and share the same record.
For the above reasons, I would hold that it is only by writ of mandate, and not by appeal, that the People can seek review of a trial court’s section 17(b)(3) declaration at the initial sentencing hearing reducing a felony to a misdemeanor.
*100I would affirm the judgment of the Court of Appeal dismissing the People’s appeal as taken from a nonappealable order.3
Mosk, J., concurred.
Respondent’s petition for a rehearing was denied May 19, 1999, and the opinion was modified to read as printed above. Kennard, J., was of the opinion that the petition should be granted.
All further undesignated statutory references are to the Penal Code.
In this respect, a section 17(b)(3) declaration made at the initial sentencing hearing is not comparable to the orders deemed appealable “order[s] made after judgment” (§ 1238, subd. (a)(5)) in the three cases on which the majority relies. In each case, the order could not have been made until after rendition of judgment. (See People v. Warner (1978) 20 Cal.3d 678, 682, 683, fn. 2 [143 Cal.Rptr. 885, 574 P.2d 1237] [grant of probation after imposition of sentence]; People v. Minjarez (1980) 102 Cal.App.3d 309, 312 [162 Cal.Rptr. 292] [grant of custody credits following imposition of prison sentence]; People v. Holly (1976) 62 Cal.App.3d 797, 800-801 [133 Cal.Rptr. 331] [staying sentence pursuant to section 654 after imposing sentence].)
In arguing that it has a right to appeal the order here, the prosecution cites subdivisions (a)(1) and (a)(6) of section 1238. Neither applies. Subdivision (a)(1) of section 1238 permits a People’s appeal from an order setting aside an “indictment, information, or complaint.” But a trial court’s section 17(b)(3) declaration, making a wobbler offense a misdemeanor, does not set aside an indictment, information, or complaint. Subdivision (a)(6) of section 1238 authorizes a People’s appeal from an order “modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.” This provision applies when a trial court, acting under section 1181, subdivision 6 or 7, modifies a verdict, finding, or judgment to conform to evidence. (See People v. Drake (1977) 19 Cal.3d 749, 754-757 [139 Cal.Rptr. 720, 566 P.2d 622]; Stats. 1978, ch. 1359, § 2, p. 4511 [amending section 1238 to permit an appeal from an order under section 1181, subdivision 6, modifying an offense to a lesser included offense].) It does not apply when a trial court declares a wobbler offense to be a misdemeanor under section 17(b)(3).