People v. Cruz CA3

Filed 7/22/14 P. v. Cruz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1

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