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Filed 8/18/20 P. v. Lorenzo CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ELISIO ATENIA LORENZO,

Defendant and Appellant.

C091195

(Super. Ct. No. 13F00743)

In September 2013, after the trial court denied his motion to suppress evidence,

defendant pled no contest to possession of methamphetamine for sale and transportation

of methamphetamine. 

In October 2013, the trial court suspended imposition of sentence and placed 

defendant on formal probation for five years. 
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In December 2013, the trial court transferred the case to San Diego County, 

pursuant to Penal Code section 1203.9.

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Defendant fulfilled the conditions of probation, and in April 2019, the superior 

court in San Diego granted defendant’s petition to set aside his conviction and enter a not 

guilty plea pursuant to section 1203.4. 

In August 2019, defendant filed a motion in Sacramento County to reduce his

convictions to misdemeanors pursuant to section 17, subdivision (b). The trial court

denied the motion on the basis that it lacked jurisdiction because the case had been

transferred to San Diego.

Defendant timely appealed without a certificate of probable cause. 

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief setting forth the facts of the case and requesting that this court review the record to 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 

days of the date of filing of the opening brief. 

Defendant filed a supplemental brief, arguing: (1) the trial court should have 

granted his motion to reduce his felonies, pursuant to section 17, subdivision (b)(3); and 

(2) in the “alternative,” we should grant “a writ of mandamus to vacate the conviction 

and compel the trial court to grant the motion to suppress” due to “a questionable pat 

down.” 

1 Section 1203.9, subdivision (a)(1), provides in relevant part: “whenever a person 

is released on probation . . . the court, upon noticed motion, shall transfer the case to the 

superior court in any other county in which the person resides permanently . . . .”

Further undesignated statutory references are to the Penal Code.
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Whether the protections afforded by Wende and the United States Supreme 

Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an 

order denying a motion brought pursuant to section 17, subdivision (b)(3) is an open 

question. Our Supreme Court has not spoken. The Anders/Wende procedures address 

appointed counsel’s representation of an indigent criminal defendant in the first appeal as 

a matter of right and courts have been loath to expand their application to other 

proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 

539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 

952; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 

160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior 

Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of our Supreme Court’s 

authority to the contrary, we believe it prudent to adhere to Wende in the present case, 

where counsel has already undertaken to comply with Wende requirements, and 

defendant has filed a supplemental brief.

“When a crime is punishable, in the discretion of the court, either by imprisonment 

in the state prison or imprisonment in a county jail under the provisions of subdivision (h) 

of Section 1170, . . . it is a misdemeanor for all purposes under the following 

circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant 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.” (§ 17, subd. (b).)

But, because defendant’s case was transferred to San Diego Superior Court while 

he was on probation, that court -- not the Sacramento County Superior Court -- had “the 

entire jurisdiction over the case,” (§ 1203.9 subd. (b)) including jurisdiction to adjudicate 

defendant’s section 17, subdivision (b)(3) motion.

The language of section 17, subdivision (b)(3) supports this conclusion, as it 

explicitly contemplates “application” by “defendant or [a] probation officer” to reduce a 

felony to a misdemeanor. (Italics added.) As defendant’s probation was overseen and 
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completed in San Diego County, only the San Diego County Superior Court had 

jurisdiction to consider defendant’s section 17, subdivision (b)(3) motion. (See People v. 

Adelmann (2018) 4 Cal.5th 1071, 1080 [“the purpose of section 1203.9 was to eliminate 

the concurrent jurisdiction of two counties over a defendant’s probation”].)

We reject defendant’s alternative argument that we convert this appeal into a writ 

proceeding so that defendant may renew a suppression motion that the trial court denied 

long ago. (Cf. People v. Muhammad (2003) 108 Cal.App.4th 313, 320 [“[W]e decline to 

convert this appeal into a writ proceeding at this point”]; People v. Senior (1995)

33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue in a 

prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent 

a showing of justification for the delay”].)

Having undertaken an examination of the entire record pursuant to Wende, we find 

no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Raye, P. J.

/s/ 

Hull, J.