Filed 4/30/15 P. v. Wright 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Appellant,                                                  C074134

         v.                                                                    (Super. Ct. No. 11NCR08871)

BOBBIE MARIE WRIGHT,

                   Defendant and Respondent.

         In September 2011, defendant Bobbie Marie Wright was charged with
transportation of a controlled substance, methamphetamine, in violation of former Health
and Safety Code section 11379 (Stats. 2001, ch. 841) and possession of drug
paraphernalia in violation of Health and Safety Code section 11364. Following the
preliminary hearing, defendant was held to answer to those same charges.
         On April 3, 2012, the trial court conducted a bench trial based on the transcript of
the preliminary examination. The court found defendant guilty on both counts and
referred the matter to the probation department for evaluation under Proposition 36. The



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trial court subsequently granted defendant three years of probation under Proposition 36
and ordered her to pay various fines and fees.
       After defendant successfully completed Proposition 36 drug court, the trial court
discharged defendant from probation, reduced the transportation felony offense to a
misdemeanor, and set aside her conviction.
       The People appeal, contending the trial court lacked jurisdiction to reduce the
felony offense to a misdemeanor. Defendant argues the error was harmless because
defendant “was entitled to have her conviction abated” pursuant to the subsequent
revisions to Health and Safety Code section 11379. Defendant’s argument lacks merit.
We vacate the order and direct the trial court to submit a corrected order to the
Department of Justice.
                                       DISCUSSION
       The trial court reduced defendant’s felony conviction for transportation of
methamphetamine to a misdemeanor pursuant to Penal Code section 17,
subdivision (b)(3).1
       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.”




1      Undesignated statutory references are to the Penal Code.


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       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
subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four
years.” (Health & Saf. Code, § 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 therefore vacate the
order reducing the crime.
       Defendant contends the trial court’s error was, in essence, harmless because she
was entitled to benefit from the 2014 amendment to Health and Safety Code section
11379, which defined “transport” to mean transportation for sale. (Health & Saf. Code,
§ 11379; see also Assem. Bill No. 721, approved by Governor, Oct. 3, 2013, Assem.
Final Hist. (2013-2014 Reg. Sess.) p. 95.) We disagree because the harmless error
doctrine is inapplicable when a court acts without jurisdiction. (See People v. Saunoa
(2006) 139 Cal.App.4th 870, 872-873 [trial court lacked jurisdiction to conduct retrial
before remittitur issued, harmless error inapplicable]; see also In re Marriage of Jackson
(2006) 136 Cal.App.4th 980, 997 [trial court ruling made in excess of its jurisdiction is
not subject to harmless review analysis on appeal].)
                                      DISPOSITION
       The order reducing defendant’s conviction for transportation of a controlled
substance to a misdemeanor and setting aside the conviction is reversed. The trial court



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is directed to enter a corrected order and to submit a certified copy of the corrected order
to the Department of Justice.



                                                        HOCH          , J.



We concur:



      ROBIE         , Acting P. J.



      MAURO         , J.




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