Opinion
A167202
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. BRIE ALLISON, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 19NF007420A
JACKSON, P. J.
Brie Allison pleaded no contest to two counts of felony child abuse. (Pen. Code, § 273a, subd. (a); undesignated statutory references are to this code.) She later moved to reduce the convictions to misdemeanors. (§ 17, subd. (b).) The trial court denied the motion, suspended imposition of sentence, and placed her on probation. On appeal, Allison contends the court abused its discretion by denying her motion to reduce the felonies to misdemeanors. We disagree and affirm.
In denying the motion, the trial court relied in part on the probation report. Our factual recitation is drawn primarily from that report.
In April 2019, the San Mateo Police Department investigated a report that a car was being burglarized. A witness told the police two men were walking around the neighborhood with flashlights and peering into the windows of parked cars. Then the men got into a sport utility vehicle (SUV). An officer stopped the SUV. A woman-Allison-was in the driver's seat. One man sat in the front passenger seat; the other man was in the back seat. Next to him were Allison's two children, then two and three years old. The children were in car seats, but they "were not buckled in, nor were the seats belted down." The children were soaked in urine and covered in sores; their teeth were blackened and rotting. The officer changed their diapers, which did not appear to have been changed in some time, as one child had hardened feces in his diaper. In the back seat, officers found 79 grams of crystal methamphetamine (which resembled large "chunks of sugar") within the children's reach. Officers searched the two men and found small amounts of methamphetamine and a pipe.
In June 2019, the prosecution charged Allison with two counts of felony child abuse. In March 2022, she pleaded no contest to the charges. She stipulated to a factual basis, but she did not admit to the truth of the facts as recited by the prosecution. (See People v. West (1970) 3 Cal.3d 595.)
Allison later moved to reduce the charges to misdemeanors pursuant to section 17, subdivision (b). She disputed the police officer's account of her arrest-insisting she was unaware of the presence of methamphetamine in her SUV-and the state of her children's health. She claimed the evidence failed to show she knowingly endangered the children or that their condition was the result of criminal negligence, and she suggested a jury would have convicted her of, at most, misdemeanors. Further, she noted she had "remained crime-free since being charged ...." The motion attached various documents, including letters of support from family members suggesting she had been falsely accused by the police and failed by her attorneys. In opposition, the prosecution noted Allison "was out on bail for a misdemeanor child abuse case" when she was arrested in April 2019, the presence of methamphetamine near the children put them at "incredible health risk," and they were in poor physical condition. The circumstances of the offense, the prosecutor asserted, were "of a felonious nature ...."
At the January 2023 sentencing hearing, the trial court denied the motion to reduce the convictions to misdemeanors. The court first expressed its view that section 273a, subdivision (a) is a "straight felony" and "not a wobbler." Thus, it did not think section 17 was "applicable." Next, the court concluded it "wouldn't reduce" the charges to misdemeanors "anyway in view of the conduct in the case ...." In responding to defense counsel's summary of the motion, and her observation that Allison had not "suffered [any] new convictions" and "ha[d] kept herself focused," the court explained that Allison's lack of remorse was one of its "biggest concerns." The court also noted the children were in "extremely poor physical condition," their car seats were not properly installed, and there were drugs in the car.
The trial court placed Allison on four years' probation with various conditions, including that she serve time in county jail and complete a child abuse counseling program.
DISCUSSION
Allison contends the trial court abused its discretion by denying her motion to reduce the felony child abuse convictions to misdemeanors pursuant to section 17, subdivision (b). We disagree.
Most crimes are classified as either felonies or misdemeanors. (People v. Park (2013) 56 Cal.4th 782, 789 (Park).) As relevant here, felonies are punishable by imprisonment in state prison; other crimes are misdemeanors punishable by imprisonment in county jail and/or by a fine. (§ 17, subd. (a); Park, at p. 789.) "There is, however, a special class of crimes involving conduct that varies widely in its level of seriousness." (Park, at p. 789.) Known as "wobblers," these crimes are "chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor." (Ibid.)
When a defendant is convicted of a wobbler that was charged as a felony, the trial court may exercise its discretion to classify the crime as a misdemeanor. (Park, supra, 56 Cal.4th at p. 790.) A "convicted defendant is not entitled to the benefits of section 17(b) as a matter of right. Rather, a reduction under section 17(b) is an act of leniency by the trial court, one that 'may be granted by the court to a seemingly deserving defendant.'" (People v. Tran (2015) 242 Cal.App.4th 877, 892.) In exercising its discretion, "the court considers the facts surrounding the offense and the characteristics of the offender." (Id. at p. 885.) When the court reduces a wobbler to a misdemeanor, it has determined "felony punishment, and its consequences, are not appropriate for that particular defendant." (Park, at p. 801.) We review the decision for abuse of discretion, reversing only if the party challenging the decision shows it was irrational or arbitrary. (People v. Sy (2014) 223 Cal.App.4th 44, 66.)
At the outset, the parties agree-as do we-that the trial court mistakenly concluded section 273a, subdivision (a) is not a wobbler. (See People v. Soni (2005) 134 Cal.App.4th 1510, 1516.) Because the court made clear it would have denied Allison's motion to reduce the convictions to misdemeanors anyway, no abuse of discretion appears. (People v. Sy, supra, 223 Cal.App.4th at pp. 66-67.) The court considered the "facts of the offense[s]" and Allison's "characteristics." (People v. Tran, supra, 242 Cal.App.4th at pp. 885, 889.) It expressed concern about the children's shocking physical condition, the presence of drugs within their reach, and the fact that their car seats were not properly secured. The court also considered Allison's failure to admit wrongdoing. On this record, we cannot conclude the court acted irrationally or arbitrarily in denying the motion to reduce the convictions to misdemeanors. (Sy, at p. 67.)
Allison suggests the trial court erred in denying the motion because the car seats may have been properly secured and because she may not have known there was methamphetamine in the SUV. She also notes the children were healthy in her care in the years following the incident. This argument is unpersuasive. We will not reverse a trial court's discretionary decision merely because the evidence might support a contrary conclusion or" 'because reasonable people might disagree.'" (People v. Sy, supra, 223 Cal.App.4th at p. 66; People v. Gollardo (2017) 17 Cal.App.5th 547, 562 [no abuse of discretion in denying § 17, subd. (b) motion].)
Having reached this conclusion, we need not address the Attorney General's contention that Allison's assertions are either unsupported by the record or rely on inconclusive evidence.
Allison also contends, in her reply brief, that the trial court failed to consider mitigating factors such as her conduct following the incident. This contention is forfeited for failure to raise it in her opening brief. (People v. Davis (2016) 246 Cal.App.4th 127, 138, fn. 3.) Moreover, it is without merit. At sentencing, the court acknowledged Allison had "done a lot" after the incident and appeared "to have at least in some sense turned her life around." On this record, we presume the court considered available mitigating circumstances in declining to reduce her convictions under section 17, subdivision (b). (People v. Gollardo, supra, 17 Cal.App.5th at p. 562.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Simons, J., Burns, J.