Filed 11/19/14 P. v. Carriel-Camacho CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040474
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 127806)

         v.

ARMANDO CARRIEL-CAMACHO,

         Defendant and Appellant.


         Armando Carriel-Camacho appeals from the superior court’s October 7, 2013
order, which denied his motion to (1) clarify that his 1989 plea to former Health and
Safety Code section 11350 was to subdivision (b), not subdivision (a), and (2) reduce the
conviction from a felony to a misdemeanor pursuant to section 17, subdivision (b),
(hereafter section 17(b)) of the Penal Code.1 Appellant’s motion also requested an order
pursuant to section 1203.4,2 which the court granted.

1
        All further statutory references are to the Penal Code unless otherwise stated.
2
        Section 1203.4, subdivision (a)(1), provides: “In any case in which a defendant
has fulfilled the conditions of probation for the entire period of probation, or has been
discharged prior to the termination of the period of probation, or in any other case in
which a court, in its discretion and the interests of justice, determines that a defendant
should be granted the relief available under this section, the defendant shall, at any time
after the termination of the period of probation, if he or she is not then serving a sentence
for any offense, on probation for any offense, or charged with the commission of any
offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea
of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against the defendant and except
as noted below, he or she shall thereafter be released from all penalties and disabilities
       We conclude that the trial court did not abuse its discretion and affirm.
                                                I.
                                    Procedural History
A. Prior Proceedings
       A complaint filed June 6, 1988, alleged that on or about May 10, 1988, appellant
committed a violation of former Health and Safety Code section 11351 in that he “did
possess for sale a controlled substance, to wit: Heroin.” The complaint was amended to
simple possession (former Health and Saf. Code, § 11350) and appellant pleaded guilty.
The court found a factual basis for the plea.
       The probation report, which was prepared for sentencing and filed April 25, 1989,
described the charge to which appellant had pleaded guilty as “[s]ection 11350 of the
Health and Safety Code (Possession of Heroin).” According to the report, law
enforcement executed a search warrant at a residence on May 10, 1988. Officers found
appellant and four others present at the residence and “1.5 grams gross weight of heroin
sitting on a small gram scale, cocaine residue, and approximately 33 grams gross weight
of marijuana in the southeast bedroom.” “Next to the scale was a box of plastic baggies,
cocaine residue, and a wallet belonging to the defendant.” During a postarrest interview,

resulting from the offense of which he or she has been convicted, except as provided in
Section 13555 of the Vehicle Code. . . . However, in any subsequent prosecution of the
defendant for any other offense, the prior conviction may be pleaded and proved and
shall have the same effect as if probation had not been granted or the accusation or
information dismissed. The order shall state, and the probationer shall be informed, that
the order does not relieve him or her of the obligation to disclose the conviction in
response to any direct question contained in any questionnaire or application for public
office, for licensure by any state or local agency, or for contracting with the California
State Lottery Commission.” Subdivision (a)(2) of section 1203.4 states: “Dismissal of
an accusation or information pursuant to this section does not permit a person to own,
possess, or have in his or her custody or control any firearm or prevent his or her
conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of
Part 6.” Subdivision (a)(3) of section 1203.4 provides: “Dismissal of an accusation or
information underlying a conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction to hold public office.”
                                                2
appellant admitted selling cocaine and heroin. It was reported that, although appellant
later claimed he was staying at his uncle’s house while his uncle was in Los Angeles and
he was unaware drugs were kept in the residence, the police had found a rent receipt in
appellant’s name for the premises. The probation report recommended that the court
grant appellant, then 19 years old, probation.
         On April 24, 1989, the trial court placed appellant on formal probation for three
years.
         In 1991, a petition for modification or change of terms of probation was filed. The
petition indicates that appellant was placed on three years of probation for a violation of
former “Section 11350 H & SC (Possession of Heroin).” On the petition, checked boxes
indicate that “the probationer” requested “Early Termination” and “Record Clearance”
but not “Reduction to Misdemeanor.” An unsigned minute order reflects that the court
granted early termination of probation pursuant to former section 1203.3 and record
clearance pursuant to former section 1203.4.
B. Current Proceedings under Section 17, Subdivision (b)
         On October 7, 2013, appellant’s counsel asked the superior court to reissue the
section 1203.4 order for purposes of addressing the federal immigration consequences
that appellant was currently suffering.3 Counsel also asked the court to interpret
appellant’s conviction as a “reducible wobbler” that was reduced to misdemeanor under
the law since, at the time appellant pleaded guilty, former Health and Safety Code
section 11350 had a subdivision (a) and a subdivision (b).
         The superior court granted the motion to the extent it asked for relief under
section 1203.4. The court denied the motion under section 17(b), finding that the offense
of which appellant was convicted “remains a non-alternative felony.”




3
         The 1989 probation report indicated that defendant was a citizen of Mexico.
                                               3
                                              II
                                         Discussion
A. Legal Background
       At the time of appellant’s offense in May 1988, former section 11350 of the
Health and Safety Code provided: “(a) Except as otherwise provided in this division,
every person who possesses (1) any controlled substance specified in subdivision (b) or
(c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14),
(15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), or
(g) of Section 11055, or (2) any controlled substance classified in Schedule III, IV, or V
which is a narcotic drug, unless upon the written prescription of a physician, dentist,
podiatrist, or veterinarian licensed to practice in this state, shall be punished by
imprisonment in the state prison. [¶] (b) Except as otherwise provided in this division,
every person who possesses any controlled substance specified in subdivision (e) of
Section 11054 shall be punished by imprisonment in the county jail for not more than one
year or in the state prison.” (Stats. 1987, ch. 970, § 1, p. 3254, italics added.)
       In 1988, heroin was listed in subdivision (c) of former Health and Safety Code
section 11054. (Stats. 1987, ch. 1174, § 2, p. 4152-4153.) Therefore, possession of
heroin was a “straight felony” under former Health and Safety Code section 11350,
subdivision (a). (Stats. 1987, ch. 970, § 1, p. 3254.)
       At the time of appellant’s offense in 1988, subdivision (e) of former Health and
Safety Code section 11054 stated: “Depressants. Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a depressant effect on the
central nervous system, including its salts, isomers, and salts of isomers whenever the
existence of those salts, isomers, and salts of isomers is possible within the specific
chemical designation: [¶] (1) Mecloqualone. [¶] (2) Methaqualone.” (Stats. 1987,
ch. 1174, § 1.5, p. 4152.) Therefore, possession of those substances was a “wobbler”
                                               4
under former Health and Safety Code section 11350, subdivision (b). (Stats. 1987,
ch. 970, § 1, p. 3254; see Stats.1980, ch. 1270, § 1, p. 4296 [former § 17].) The record of
conviction does not indicate that appellant was in possession of any controlled substance
specified by subdivision (b) of former Health and Safety Code section 11350.
       In 1988, former section 17(b) provided in pertinent part: “When a crime is
punishable, in the discretion of the court, by imprisonment in the state prison or by fine or
by 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.” (Stats. 1980, ch. 1270, § 1, pp. 4296-4297.) This language remains
substantially the same except that it now takes into account criminal justice realignment.4
(§ 17, subd. (b)(3); see People v. Park (2013) 56 Cal.4th 782, 793.)
B. Ruling on the Section 17(b) Motion
       Appellant argues that the court abused its discretion by failing to clarify whether
he was convicted under subdivision (a) or (b) of former Health and Safety Code section
11350. We conclude that the court properly found that appellant was convicted under
subdivision (a) of former Health and Safety Code section 11350.
       Appellant was originally charged with possession for sale of heroin but pleaded to
simple possession (former Health & Saf. Code, § 11350). The probation report referred

4
       “In 2011, the Legislature enacted and amended the Criminal Justice Realignment
Act of 2011 addressing public safety (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess.
2011-2012, ch. 12, § 1 (the Realignment Act or the Act)). . . . Under the terms of the Act,
low-level felony offenders who have neither current nor prior convictions for serious or
violent offenses, who are not required to register as sex offenders and who are not subject
to an enhancement for multiple felonies involving fraud or embezzlement, no longer
serve their sentences in state prison. Instead, such offenders serve their sentences either
entirely in county jail or partly in county jail and partly under the mandatory supervision
of the county probation officer. (Pen. Code, § 1170, subd. (h)(2), (3), (5).)” (People v.
Scott (2014) 58 Cal.4th 1415, 1418-1419.)
                                              5
to the offense to which appellant pleaded as “[s]ection 11350 of the Health and Safety
Code (Possession of Heroin).” The sentencing minutes and the Report of Sentence
Choice to the judicial council, which was signed by superior court judge on April 27,
1989, specify the offense was a violation of former Health and Safety Code section
11350 and describe the offense as “poss of heroin.” Those notations obviously refer to
“possession of heroin” and give rise to the direct inference that appellant was convicted
of violating subdivision (a) of former Health and Safety Code section 11350. (Evid.
Code, § 664 [presumption that official duty regularly performed]; cf. People v. Delgado
(2008) 43 Cal.4th 1059, 1069-1071.)
       As indicated, possession of heroin fell within the scope of subdivision (a) and not
subdivision (b) of former Health and Safety Code section 11350. (Stats. 1987, ch. 970,
§ 1, p. 3254; see Stats. 1987, ch. 1174, § 1.5, p. 4150.) By finding that the violation of
former Health and Safety Code section 11350 was a “non-alternative felony,” the
superior court impliedly concluded appellant had been convicted under subdivision (a) of
that section. The court did not, as appellant claims, refuse to clarify the nature of the
conviction.
       Appellant nevertheless contends that, “[b]y not clarifying why an imputed finding
of subdivision (a) of [former Health and Safety Code section] 11350 was justified, the
court was denying that it had jurisdiction to even consider the section 17 motion . . . .”
He maintains that the superior court was “wrong to believe that it had no jurisdiction to
rule on the motion.” Appellant asserts that the court abused its discretion by denying his
motion to reduce his felony conviction to a misdemeanor pursuant to section 17(b) by not
recognizing its discretion and exercising it based upon the appropriate considerations.
       Appellant offers, as worthy of consideration, his exemplary behavior as a family
man and worker over the past couple of decades. He declares that even if his
“susceptibility to deportation were not an extraordinary equity warranting a reduction
under Penal Code section 17 subdivision (b)(3), his rehabilitation is an extraordinary
                                              6
circumstance that further[s] the likelihood of reduction” to a misdemeanor. Appellant
asks this court to remand the case to allow the superior court to properly exercise its
discretion.
       While a probationer who becomes law abiding and makes a constructive
contribution to society certainly deserves to be commended, neither this court nor the
superior court can change the nature of appellant’s conviction. Subdivision (b) of former
Health and Safety Code section 11350 applied to possession of only specific controlled
substances, not to possession of heroin. The superior court had no discretion to reduce
appellant’s conviction of felony possession under subdivision (a) of former Health and
Safety Code section 11350 to a misdemeanor because section 17(b) was inapplicable.
                                      DISPOSITION
       The October 7, 2013 order is affirmed.




                                             7
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
MÁRQUEZ, J.
