Defendant’s felony conviction for conspiracy to possess marijuana for sale was not eligible for reduction to a misdemeanor under Proposition 64. In 2015, Medina pleaded guilty to felony conspiracy to commit a crime (Pen. Code, § 182, subd. (a)). The target offense was possession of marijuana for sale (Health & Saf. Code, § 11359). After the passage of Proposition 64 in 2016, Medina filed a motion in the trial court to reduce his conviction to a misdemeanor under Penal Code section 17, subdivision (b)(3), and newly enacted Health and Safety Code, section 11361.8, subdivision (e). The trial court denied the motion and Medina appealed. Held: Affirmed. Proposition 64 reduced certain marijuana offenses to misdemeanors. Section 11361.8, subdivision (e) permits a person convicted of specified marijuana offenses (including possession for sale) to apply to have the felony conviction redesignated as a misdemeanor or infraction. A 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.” Here, Medina would not have been guilty of a lesser offense based only on the application of Proposition 64. The conspiracy statute is not a marijuana related offense listed in Proposition 64. Even though Proposition 64 redesignated section 11359 as a misdemeanor, criminal conspiracy is distinct from the actual commission of the criminal offense that is the object of the conspiracy. The Legislature has indicated that conspiracy to commit a misdemeanor is a more serious crime than the underlying misdemeanor by providing that such a conspiracy may be punished as a felony. Based on the ballot materials for Proposition 64, the Court of Appeal concluded that a felony conspiracy conviction is the type of serious offense that may still be sentenced as a felony. The court noted Medina could have been guilty of a lesser offense if the trial court had granted his section 17, subdivision (b)(3) motion.

The trial court did not abuse its discretion when it declined to reduce the conspiracy conviction to a misdemeanor under Penal Code section 17, subdivision (b)(3). Section 17, subdivision (b)(3) allows a trial court, in its discretion, to declare a “wobbler” offense a misdemeanor rather than a felony when a defendant is granted probation without imposition of sentence. Medina’s conspiracy offense became a wobbler after Proposition 64 made the target of the conspiracy (possession of marijuana for sale) a misdemeanor offense. The Court of Appeal concluded that the trial court reasonably declined to exercise its discretion in Medina’s favor. The trial court properly considered the facts and circumstances of the offense as well as Medina’s character. Medina participated in a conspiracy to sell at least 35 pounds of marijuana. He had prior arrests involving marijuana and other illegal drugs. The decision to deny his application for reduction to misdemeanor was neither irrational nor arbitrary.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B284236.PDF