Filed 7/22/14 P. v. Cruz 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----




THE PEOPLE,                                                                                  C073253

                   Plaintiff and Appellant,                                    (Super. Ct. No. 12NCR09205)

         v.

BERNABE TRENADO CRUZ,

                   Defendant and Respondent.



         The People appeal from the trial court’s reduction of defendant’s felony
conviction to a misdemeanor following his successful completion of Proposition 36
probation. Defendant Bernabe Trenado Cruz concedes the trial court erred in reducing
the felony conviction, but argues the People’s appeal is moot. Under the guise of arguing
mootness, he argues--in his reply brief--that his conviction should be reversed due to a
subsequent change in the law. As we explain, we shall vacate the trial court’s order
reducing his crime of conviction to a misdemeanor, but decline to entertain his argument
for reversal.



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                                     BACKGROUND
        On August 1, 2012, following a bench trial on stipulated facts, the trial court found
defendant guilty of transportation of hydrocodone, a felony. (Health & Saf. Code,
§ 11352, subd. (a).) On August 8, 2012, the court suspended imposition of sentence and
placed defendant on Proposition 36 probation. Defendant did not appeal from his
conviction.
        On January 9, 2013, having completed the terms and conditions of his probation,
defendant moved the trial court to reinstate and dismiss the charge. The trial court orally
found defendant had completed his Proposition 36 obligations, instructing him to “make
sure that [defense counsel] gets that order done for you,” and that the court would “sign it
as soon as I receive it.” Defense counsel subsequently prepared an order reinstating and
dismissing the charge pursuant to Penal Code section 1210.1, subdivision (d)(1).1 The
proposed order also purported to reduce the (felony) offense of conviction to a
misdemeanor pursuant to section 17, subdivision (b). The trial court signed the order on
January 22, 2013.
        The People appeal from the order reducing defendant’s offense to a misdemeanor,
contending the trial court lacked jurisdiction to reduce this particular felony charge as it
was not a “wobbler,” that is, a crime punishable either as a misdemeanor or a felony.
Defendant agrees with the People’s contention, conceding the trial court erred in signing
the order his counsel prepared and submitted.
        He then argues, however, that the People’s appeal is moot, because the conduct of
which he was convicted no longer constitutes transportation of methamphetamine, due to
recent amendments to Health and Safety Code section 11352. He proceeds to argue for
reversal of his 2012 conviction. As we explain post, he failed to appeal his conviction
and cannot now bootstrap his argument for reversal to his argument for mootness in the
absence of a proper appeal or cross-appeal. We shall vacate the order reducing




1   Further undesignated statutory references are to the Penal Code.

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defendant’s conviction to a misdemeanor and remand with directions to enter a corrected
order and submit a new report of the disposition to the Department of Justice.

                                       DISCUSSION
                                              I
                               Reduction to a Misdemeanor
       The People contend that the trial court lacked authority to reduce defendant’s
conviction for transportation of methamphetamine from a felony to a misdemeanor
pursuant to section 17, subdivision (b)(3). Defendant agrees, as do we.
       Section 17, subdivision (b) permits a trial court to declare a designated felony
offense to be a misdemeanor where the offense is punishable either as a felony or as a
misdemeanor, that is, by up to one year of imprisonment in the county jail (outside of the
application of section 1170, subdivision (d)). 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. “Straight” felonies, which are crimes punishable only as
felonies, cannot be declared misdemeanors pursuant to section 17. (See People v.
Prothero (1997) 57 Cal.App.4th 126, 134.) Defendant’s crime of conviction,
transportation of a controlled substance, is a straight felony, punishable by three, four, or
five years of incarceration. (Health and Saf. Code, § 11352, subd. (a).) Thus the trial
court lacked jurisdiction to reduce it to a misdemeanor. We must vacate the order
purporting to do so.
                                              II
                                          Mootness
       Defendant argues the People’s contention of error, although correct, is moot. He
argues that his current conviction cannot stand, regardless of whether it takes the form of
a felony or misdemeanor. His argument is based on the fact that the Legislature recently
amended Health and Safety Code section 11352, providing that the crime of
transportation of a controlled substance no longer includes transportation for personal


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use. (Stats. 2013, ch. 504, § 1.) Claiming that the stipulated evidence at his bench trial
proved that the oxycodone was transported for personal use, defendant asserts he is
entitled to a retroactive application of the amended law. He concludes that his conviction
should be reversed for insufficient evidence, and his crime cannot be reduced to
possession of methamphetamine (Health & Saf. Code, § 11350), as possession is not an
element of transportation of a controlled substance.
       Defendant’s contentions are based on the rule that “absent a saving clause, a
criminal defendant is entitled to the benefit of a change in the law during the pendency of
his appeal.” (People v. Babylon (1985) 39 Cal.3d 719, 722.)
       Defendant’s 2012 conviction is not, however, “on appeal.” The fact that the
People have appealed the trial court’s 2013 order does not “open season” on defendant’s
2012 conviction, which was appealable at the time his order of probation was entered and
60 days thereafter.
       A notice of appeal must be filed within 60 days after the rendition of the judgment
or the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a); People v.
Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.) The timely filing of the notice of
appeal is, as a general matter, essential to appellate jurisdiction. (People v. Mendez
(1999) 19 Cal.4th 1084, 1094.) If the notice of appeal is not timely filed, the appeal will
be dismissed on jurisdictional grounds without reaching the merits. (In re Chavez (2003)
30 Cal.4th 643, 650.) “Unless the notice is actually or constructively filed within the
relevant period, the appellate court has no jurisdiction to determine the merits of the
appeal and must dismiss the appeal. [Citations.]” (In re Gary R. (1976) 56 Cal.App.3d
850, 853.)
       Under section 1237, subdivision (a), a defendant may appeal from “a final
judgment of conviction,” and the statute specifies that “an order granting probation . . .
shall be deemed to be a final judgment within the meaning of this section.” An order
granting probation is appealable even though imposition of sentence is otherwise

                                              4
suspended. (People v. Cook (1975) 13 Cal.3d 663, 666, fn. 1, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) An appeal from an
order granting probation may attack the conviction upon which the order granting
probation is based. (See, e.g., Cook, at pp. 666-667 [permitting defendant to attack
conviction based on trial counsel’s conflict of interest]; People v. Hamilton (1978)
80 Cal.App.3d 124, 127, fn. 1, 134-135 [probation with imposition of sentence
suspended, order granting probation reversed for instructional error at trial].) “In general,
an appealable order that is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable order or judgment.
[Citations.]” (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.)
       The trial court placed defendant on Proposition 36 probation on August 8, 2012;
defendant did not appeal from that order. Many more than 60 days have passed since the
order was entered. Defendant cannot now argue that his conviction was improper under
the guise of arguing mootness. Further, the instant appeal--the People’s appeal from the
January 2013 order--was filed outside the same 60-day window; thus the filing of this
appeal did not give defendant the right to challenge his conviction in a cross appeal from
the order granting probation. Simply put, defendant is out of time to argue on direct
appeal that he did not transport methamphetamine as charged, found, and sentenced,
despite the possible effect of any subsequent change in the law on his conviction.




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                                     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 omitting the vacated portion and submit a certified copy thereof to the Department
of Justice.



                                                       DUARTE                , J.



We concur:



      NICHOLSON             , Acting P. J.



      MURRAY                , J.




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