Filed 3/18/14 P. v. Cloud 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Glenn)
                                                            ----




THE PEOPLE,                                                                                  C074129

                   Plaintiff and Appellant,                                    (Super. Ct. No. 11NCR08591)

         v.

SHILEE CLOUD,

                   Defendant and Respondent.




         Defendant Shilee Cloud 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 with execution suspended and probation. The trial court suspended
imposition of sentence and placed defendant on five years’ probation with drug court
conditions.


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       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.

                                        DISCUSSION

       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
county 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 without
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 offense in question must be
a “wobbler,” a crime punishable either as a misdemeanor or felony. Offenses 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 that 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 to


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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
lacked 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 appellate 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, 1471-1472.)

                                        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.




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