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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

Plaintiff and Respondent, 

v. 

GABRIEL MARTINEZ, 

Defendant and Appellant. 

 H039686 

 (Santa Clara County 

 Super. Ct. No. C1246241, 

 C1348548) 

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. 
2

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. 
3

 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 
4

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 
5

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. 
6

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.” 
7

 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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 
14

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, 
15

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 
16

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 
17

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. 
18

 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 
19

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, 
20

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.