California Court of Appeals, Second District, Fifth Division
from an order of the Superior Court of Los Angeles County No.
BA417306-02, David M. Horowitz, Judge. Affirmed.
Claudia A. Martinez, for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Blythe J. Leszkay and Marc A. Kohm, Deputy Attorneys
General, for Plaintiff and Respondent.
Job Luna Medina appeals from an order denying his motion to
reduce a felony conspiracy conviction to a misdemeanor under
Penal Code section 17, subdivision (b)(3) (section 17(b)(3))
or Health and Safety Code section 11361.8, subdivision (e)
(section 11361.8(e)). We affirm the denial order. We conclude
the trial court had discretion to reduce the offense under
section 17(b)(3) and properly exercised that discretion. We
further conclude defendant's conspiracy offense is not
eligible for reduction under section 11361.8(e).
5, 2015, defendant pled guilty to felony conspiracy to commit
a crime. (Pen. Code, § 182, subd. (a)(1).) The target
offense was marijuana possession for sale. (Health & Saf.
Code, § 11359.) The trial court suspended imposition of
sentence and placed defendant on probation for one year.
the time defendant engaged in the conspiracy (2013) and when
he entered his guilty plea, marijuana possession for sale was
a felony. (Health & Saf. Code, § 11359, Stats. 2011,
ch. 15, § 161.) Because the target offense was a
felony, the conspiracy was a felony. (Pen. Code, § 182,
subd. (a); People v. Athar (2005) 36 Cal.4th 396,
398, 400.) However, under the Control, Regulate and Tax Adult
Use of Marijuana Act (Proposition 64), effective November 9,
2016, with exceptions not pertinent here, the target
marijuana possession for sale offense is now a misdemeanor.
(Health & Saf. Code, § 11359, as amended by
February 22, 2017, defendant filed a motion to reduce his
felony conviction pursuant to sections 17(b)(3) and
11361.8(e). On March 22, 2017, the court held a hearing on
defendant's motion and denied it. On April 27, 2017,
defendant filed an amended motion to reduce under sections
17(b)(3) and 11361.8(e). The court considered the motion on
June 26, 2017. Without referencing its earlier denial of
defendant's motion, the court again denied it.
17(b)(3) allows a trial court, in its discretion, to declare
a “wobbler” offense a misdemeanor rather than a
felony when, as here, a defendant is granted probation
without imposition of sentence. Section 17(b)(3) provides:
“(b) When a crime is punishable, in the discretion of
the [trial] court, either by imprisonment in the state prison
or imprisonment in a county jail under the provisions of
subdivision (h) of [Penal Code] Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances: [¶]...
[¶] (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 [trial] court declares the offense to
be a misdemeanor.”
conspiracy crime became a “wobbler” (i.e.,
alternatively punishable as a felony or misdemeanor) after
Proposition 64 made the target of the conspiracy-possession
of marijuana for sale-a misdemeanor offense. (Pen. Code,
§ 182; People v. Mullins (2018) 19 Cal.App.5th
594, 611; People v. Tatman (1993) 20 Cal.App.4th 1,
7.) That defendant entered a guilty plea to a felony did not
preclude the ...