Filed 5/31/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE


THE PEOPLE,                                  B284236

       Plaintiff and Respondent,             (Los Angeles County
                                             Super. Ct. No. BA417306-02)
       v.

JOB LUNA MEDINA,

       Defendant and Appellant.




      APPEAL from an order of the Superior Court of Los
Angeles County, David M. Horowitz, Judge. Affirmed.
      Claudia A. Martinez, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Blythe J. Leszkay and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
                      I. INTRODUCTION

       Defendant Job Luna Medina appeals from an order denying
his motion to reduce a felony conspiracy conviction to a
misdemeanor under Penal Code section 17, subdivision (b)(3)
(section 17(b)(3)) or Health and Safety Code section 11361.8,
subdivision (e) (section 11361.8(e)). We affirm the denial order.
We conclude the trial court had discretion to reduce the offense
under section 17(b)(3) and properly exercised that discretion. We
further conclude defendant’s conspiracy offense is not eligible for
reduction under section 11361.8(e).

                        II. DISCUSSION

A. Background

       On June 5, 2015, defendant pled guilty to felony conspiracy
to commit a crime. (Pen. Code, § 182, subd. (a)(1).) The target
offense was marijuana possession for sale. (Health & Saf. Code,
§ 11359.) The trial court suspended imposition of sentence and
placed defendant on probation for one year.
       Both at the time defendant engaged in the conspiracy
(2013) and when he entered his guilty plea, marijuana possession
for sale was a felony. (Health & Saf. Code, § 11359, Stats. 2011,
ch. 15, § 161.)1 Because the target offense was a felony, the


1     Health and Safety Code section 11359 then stated: “Every
person who possesses for sale any marijuana, except as otherwise
provided by law, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code.”



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conspiracy was a felony. (Pen. Code, § 182, subd. (a); People v.
Athar (2005) 36 Cal.4th 396, 398, 400.) However, under the
Control, Regulate and Tax Adult Use of Marijuana Act
(Proposition 64), effective November 9, 2016, with exceptions not
pertinent here, the target marijuana possession for sale offense is
now a misdemeanor. (Health & Saf. Code, § 11359, as amended
by Proposition 64.)2
       On February 22, 2017, defendant filed a motion to reduce
his felony conviction pursuant to sections 17(b)(3) and 11361.8(e).
On March 22, 2017, the court held a hearing on defendant’s
motion and denied it. On April 27, 2017, defendant filed an
amended motion to reduce under sections 17(b)(3) and 11361.8(e).
The court considered the motion on June 26, 2017. Without
referencing its earlier denial of defendant’s motion, the court
again denied it.

B. Section 17(b)(3)

      Section 17(b)(3) allows a trial court, in its discretion, to
declare a “wobbler” offense a misdemeanor rather than a felony


2      As amended by Proposition 64, Health and Safety Code
section 11359, subdivision (b) provided: “Every person 18 years
of age or over who possesses marijuana for sale shall be punished
by imprisonment in a county jail for a period of not more than six
months or by a fine of not more than five hundred dollars ($500),
or by both such fine and imprisonment.” (Ballot Pamp., Gen.
Elec. (Nov. 8, 2016) text of Prop. 64, § 8.3, p. 205.)
       A more recent amendment to Health and Safety Code
section 11359 substituted the word cannabis for marijuana.
(Stats. 2017, ch. 27, § 124, eff. June 27, 2017.)



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when, as here, a defendant is granted probation without
imposition of sentence. Section 17(b)(3) provides: “(b) When a
crime is punishable, in the discretion of the [trial] court, either by
imprisonment in the state prison or imprisonment in a county jail
under the provisions of subdivision (h) of [Penal Code] 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 [trial] court declares the offense to be a
misdemeanor.”
        Defendant’s conspiracy crime became a “wobbler” (i.e.,
alternatively punishable as a felony or misdemeanor) after
Proposition 64 made the target of the conspiracy—possession of
marijuana for sale—a misdemeanor offense.3 (Pen. Code, § 182;
People v. Mullins (2018) 19 Cal.App.5th 594, 611; People v.
Tatman (1993) 20 Cal.App.4th 1, 7.) That defendant entered a
guilty plea to a felony did not preclude the trial court from



3      Penal Code section 182 states: “(a) If two or more persons
conspire: [¶] (1) To commit any crime. [¶] . . . [¶] They are
punishable as follows: [¶] . . . [¶] When they conspire to commit
any . . . felony [other than against certain public officials], they
shall be punishable in the same manner and to the same extent
as is provided for the punishment of that felony. . . . [¶] . . . [¶]
When[, with exceptions not applicable here,] they conspire to do
any of the other acts described in this section, they shall be
punishable by imprisonment in a county jail for not more than
one year, or pursuant to subdivision (h) of [Penal Code] Section
1170, or by a fine . . . or by both that imprisonment and fine.”


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exercising its discretion under section 17(b)(3). (People v. Feyrer
(2010) 48 Cal.4th 426, 430-431.)
       Our review of the trial court’s order denying relief under
section 17(b)(3) is for an abuse of discretion. (People v. Park
(2013) 56 Cal.4th 782, 787.) The burden is on defendant to show
the trial court’s decision was irrational or arbitrary. (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; People v.
Mullins, supra, 19 Cal.App.5th at p. 611.)
       Defendant has not met his burden. The trial court properly
considered the facts and circumstances of the offense as well as
defendant’s character. (People v. Superior Court (Alvarez), supra,
14 Cal.4th at p. 978.) Defendant participated in a conspiracy to
sell a large quantity of marijuana, at least 35 pounds.4 He had
prior arrests involving marijuana and other illegal drugs. The
trial court reasonably declined to exercise its discretion in
defendant’s favor. That decision was neither irrational nor
arbitrary. 5




4     In the trial court, the prosecutor represented, without
challenge from the defense, that the amount involved was more
than five pounds. On appeal, defendant concedes: “[T]he facts
are that [defendant] was one of 3 [codefendants], and 35 one-
pound bags were found inside the location where the other two
[codefendants] had been before [defendant] arrived.”

5     On appeal for the first time, defendant objects to the
brevity of the trial court’s explanation for its decision. But
defendant never requested a further explanation. Moreover, the
record as a whole demonstrates the trial court considered the
relevant facts and circumstances.


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C. Section 11361.8(e)

       Section 11361.8(e), which was added by Proposition 64,
permits a person convicted of specified marijuana-related
offenses, including possession for sale, to apply to have a felony
conviction redesignated a misdemeanor or infraction. Section
11361.8(e) states: “A person who has completed his or her
sentence for a conviction under Sections 11357 [possession],
11358 [planting, harvesting or processing], 11359 [possession for
sale], and 11360 [transportation, importation or sale], . . . who
would not have been guilty of an offense or who would have been
guilty of a lesser offense under [Proposition 64] had that act been
in effect at the time of the offense, may file an application . . . to
have the conviction . . . redesignated as a misdemeanor or
infraction in accordance with Sections 11357, 11358, 11359,
11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections
have been amended or added by that act.” (§ 11361.8(e), italics
added.)
       Whether defendant’s conviction rendered him eligible for
reduction under section 11361.8(e), presents a question of
statutory interpretation, which we review de novo. (People v.
Sherow (2015) 239 Cal.App.4th 875, 878.)6 Defendant’s felony
conspiracy conviction was not eligible for reduction under section
11361.8(e). Penal Code section 182, the conspiracy statute, is not
a marijuana-related offense specified in section 11361.8(e). As
our Supreme Court explained in discussing Proposition 47, “the
mere fact that [the statute of conviction] is not one of the code



6     Neither party submitted any evidence to the trial court.
(See Health & Saf. Code, § 11361.8, subd. (f).)


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sections enumerated in Penal Code section 1170.18(a)
[Proposition 47] is not fatal to [defendant’s] petition.” (People v.
Martinez (2018) 4 Cal.5th 647, 652.) Rather, defendant’s
eligibility for reduction turns on whether he is a person who
“would not have been guilty of an offense or who would have been
guilty of a lesser offense under [Proposition 64] had that act been
in effect at the time of the offense.” (§ 11361.8(e); see People v.
Martinez, supra, 4 Cal.5th at p. 652.) Here, defendant would not
have been guilty of a lesser offense by the mere application of
Proposition 64; although he could have been guilty of a lesser
offense had the trial court granted defendant’s section 17(b)(3)
motion. That is because “a ‘wobbler[]’ is deemed a felony unless
charged as a misdemeanor by the People or reduced to a
misdemeanor by the sentencing court under [section 17(b)].”
(People v. Statum (2002) 28 Cal.4th 682, 685; see also People v.
Park, supra, 56 Cal.4th at p. 793 [“a wobbler becomes a
‘misdemeanor for all purposes’ under section 17(b)(3) only when
the court takes affirmative steps to classify the crime as a
misdemeanor”].)
       Nor does Proposition 64’s redesignation of possession of
marijuana for sale as a misdemeanor change our analysis.
“Criminal conspiracy is an offense distinct from the actual
commission of a criminal offense that is the object of the
conspiracy. [Citations.]” (People v. Morante (1999) 20 Cal.4th
403, 416). The crimes of conspiracy and possession for sale
require proof of different elements. (People v. Johnson (2013) 57
Cal.4th 250, 257 [elements for conspiracy]; People v. Harris
(2000) 83 Cal.App.4th 371, 374 [elements for possession for sale].)
       Moreover, the Legislature, by expressly providing in Penal
Code section 182 for the felony sentencing of a defendant who



                                 7
conspires to commit a misdemeanor, has indicated that a felony
conspiracy is a more serious crime than the underlying
misdemeanor. “A conspiracy to commit a misdemeanor does not
elevate the misdemeanor to a felony. It is the unlawful
agreement to commit a criminal offense that constitutes a felony.
The theory behind these principles is that collaborative criminal
activities pose a greater potential threat to the public than
individual acts.” (People v. Tatman, supra, 20 Cal.App.4th at
p. 8.) The voters, in enacting section 11361.8(e), recognized that
the new law would “continue to allow prosecutors to charge the
most serious marijuana-related offenses as felonies, while
reducing the penalties for minor marijuana-related offenses.”
(Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 2G,
p. 179.) In our view, defendant’s felony conspiracy conviction is
the type of serious offense that prosecutors may continue to
charge, and courts may continue to sentence, as a felony.7 We
thus conclude that defendant’s felony conspiracy conviction is not
eligible for reduction under section 11361.8(e). (See People v.
Segura (2015) 239 Cal.App.4th 1282, 1284 [felony conspiracy
conviction not eligible for reduction under Proposition 47].)




7      Accepting the contrary argument, that defendant is eligible
for Proposition 64 relief notwithstanding his conspiracy offense,
would mean there is no principled basis to deny relief to any
defendant convicted of conspiracy to sell marijuana, even for
those involved in far more sophisticated conspiracies with larger
numbers of defendants and larger quantities of marijuana than
at issue here. We doubt that California voters had that result in
mind, particularly without a clearer indication of such an intent
in the text of the Proposition itself.


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                       III. DISPOSITION

      The trial court’s June 26, 2017 order is affirmed.
                CERTIFIED FOR PUBLICATION



                                           KIM, J.
      We concur:



      KRIEGLER, Acting P.J.



      BAKER, J.




     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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