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Filed 3/18/14 P. v. C loud CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

----

THE PEOPLE,

Plaintiff and Appellant,

v.

SHILEE CLOUD,

Defendant and Respondent. C074129

(Super. Ct. No. 11NCR08591)

Defendant Shilee C loud pleaded guilty to transportation of a controlled substance
(Health & Saf. Code, § 11379, subd. (a)) and admitted four prior convictions for drug
related offenses (Health & Saf. Code, § 11370.2, subd. (c)) and four prior prison terms
(Pen. Code, § 667.5, subd. (b) ; unless stated otherwise, all statutory references that follow

are to the Penal Code ). As part of the plea, the People recommended a 17

- year state prison term wit h execution suspended and probation. The trial court suspended imposition of sentence and placed defendant on five years’ probation with drug court

conditions.2

After defendant successfully completed drug court
, the trial court discharged

defendant from probation and reduced the transportation offense to a misdemeanor. The People appeal, contending the trial court lacked jurisdiction to reduce the

offense to a misdemeanor. Defendant agrees. We shall vacate the order and direct the trial court to submit a corrected order to the Department of Justice.

D ISCUSSION
We dispense with the facts of defendant’s crime as they are unnecessary to resolve
this appeal.

The trial court reduced defendant’s felony conviction for transportation of methamphetamine to a misdemeanor pursuant to section 17, subdivision (b)(3). Section 17 provides in pertinent part: “(b) When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a

cou nty jail under the provisions of subdivision (h) of 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 with out 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.”
In order to qualify for reduction to a misdemeanor, the offen s e in q uestion must be a “wobbler,” a crime punishable either as a misdemeanor or felony. O ffenses only punishable as felonies cannot be declared a misdemeanor pursuant to section 17. ( People

v. Prothero (1997) 57 Cal.App.4th 126, 134.) “A felony is a crime th at is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.” ( § 17, subd. (a).) Transportation of a controlled substance is “punished by imprisonment pursuant to3

subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years.” (§ 11379, subd. (a).) Since transportation of a controlled substance is not a wobbler, the trial court

lack ed jurisdiction to reduce the offense to a misdemeanor. We shall therefore vacate the order reducing the crime

. Finally, we recognize that the trial court prepared a new order striking the prior order after being informed of its error by defendant’s appe llate counsel. But the trial court had no jurisdiction to make the order because appeal was pending which divested the trial court of subject matter jurisdiction over the judgment. (Code Civ. Proc., § 916;
People v. Nelms (2008) 165 Cal.App.4th 1465, 147 1

- 1472.)

DISPOSITION
The order reducing defendant’s conviction for transportation of a controlled

substance to a misdemeanor is vacated. The trial court is directed to enter a corrected order and to submit a certified copy of the corrected order to the Department of Justice.

HULL , J.

We concur:

BLEASE , Acting P. J.

HOCH , J.