Filed 9/28/26 P. v. Baxter CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E086670
v. (Super.Ct.No. FVI23000414)
AMANDA QIAOQUN BAXTER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher S.
Pallone, Judge. Reversed and remanded.
Shevin Law Group, Eric D. Shevin, Stephen J. Fisch, and Narek Balagyozyan, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Liz
Olukoya, Deputy Attorneys General, for Plaintiff and Respondent.
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San Bernardino County District Attorney’s Office, Jason Anderson, District
Attorney, and Cary C. Epstein, Deputy District Attorney as Amici Curiae on behalf of
Plaintiff and Respondent.
Amanda Qiaoqun Baxter appeals from the trial court’s order denying her motion to
reduce her felony convictions under subdivision (b) of section 17 of the Penal Code.
Baxter argues that the court abused its discretion by denying relief on the basis that the
statute under which she was convicted, subdivision (d) of Health and Safety Code section
11358, “does not permit or make this a wobbler.” (Unlabeled statutory citations are to the
Health and Safety Code.) The People agree with Baxter and argue that remand is
necessary for the trial court to exercise its discretion under Penal Code section 17,
subdivision (b). We agree and therefore reverse.
BACKGROUND
In February 2023, the People filed a complaint alleging that Baxter committed
nine counts of felony marijuana cultivation (§ 11358, subd. (d)(3)), five counts of
misdemeanor possession of marijuana for sale (§ 11359, subd. (b)), three counts of felony
receipt of proceeds derived from controlled substances (§ 11370.9, subd. (a)), and two
counts of felony conspiracy to cultivate marijuana (§ 11358; Pen. Code, § 182, subd.
(a)(1)). As to each felony cultivation count, the People alleged that Baxter either illegally
discharged waste (Wat. Code, §§ 13260, 13264, 13272, & 13387) or caused substantial
environmental harm to public lands and other public resources.
In March 2023, Baxter pled guilty to two counts of felony marijuana cultivation
(§ 11358, subd. (d)(3)) and one count of misdemeanor possession of marijuana for sale
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(§ 11359, subd. (b)). The trial court suspended imposition of sentence, ordered
restitution, placed Baxter on probation for two years, and ordered that she serve 240 days
in county jail, which were to be satisfied by work release.
In March 2025, after Baxter fulfilled the conditions of her probation, she filed
motions to dismiss her convictions under Penal Code section 1203.4 and reduce her
felony convictions to misdemeanors under subdivision (b) of Penal Code section 17. The
court granted her Penal Code section 1203.4 motion, but it denied her Penal Code section
17, subdivision (b), motion on the basis that “[t]he language of the statute itself does not
permit or make this a wobbler.”
DISCUSSION
Baxter argues that subdivision (d) of section 11358 is a wobbler, and the court
committed legal error and therefore abused its discretion by concluding that the offense
was a straight felony. The People concede the point and agree that we should remand the
case so that the trial court can exercise its discretion. We agree with the parties.
A “wobbler” is “an offense which may be charged and punished as either a felony
or a misdemeanor.” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 70.) After a
“defendant has pleaded no contest or guilty to, a wobbler that was not charged as a
misdemeanor, the procedures set forth in [Penal Code] section 17, subdivision (b) …
govern the court’s exercise of discretion to classify the crime as a misdemeanor.”
(People v. Park (2013) 56 Cal.4th 782, 790.) “[S]ection 17(b)(3) provides that ‘[w]hen a
crime is punishable, in the discretion of the court, either by imprisonment in state prison
… or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes
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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.’” (Ibid.)
We review a trial court’s decision not to declare a wobbler to be a misdemeanor
for abuse of discretion. (People v. Lee (2017) 16 Cal.App.5th 861, 866.) “‘[W]hen a trial
court’s decision rests on an error of law, that decision is an abuse of discretion.’” (People
v. Lopez (2021) 66 Cal.App.5th 561, 574.) “We independently review questions of
statutory interpretation.” (People v. Mendoza (2023) 88 Cal.App.5th 287, 294.)
Before November 2016, section 11358 contained no subdivisions, and the statute
punished the planting, cultivation, harvesting, drying, and processing of marijuana as a
straight felony. (Former § 11358.) In November 2016, voters approved Proposition 64,
which amended several California code sections, including section 11358. (Prop. 64, as
approved by voters, Gen. Elec. (Nov. 8, 2016).)
Subdivision (c) of section 11358 now provides that “[e]ach person 18 years of age
or over who plants, cultivates, harvests, dries, or processes more than six living cannabis
plants shall be punished” as a misdemeanor, i.e., “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 that fine and imprisonment.” But subdivision (d) of section 11358
further provides that “[n]otwithstanding subdivision (c),” planting, cultivation,
harvesting, drying, or processing of more than six cannabis plants by an adult “may be
punished” as a felony if certain aggravating circumstances are present, including
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“[v]iolation of Section 13260, 13264, 13272, or 13387 of the Water Code relating to
discharge of water” or “[i]ntentionally or with gross negligence causing substantial
environmental harm to surface or ground water, public lands, or other public resources.”
(§ 11538, subd. (d)(3)(B), (G).)
“In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute. [Citation.] We turn first to the statutory language, giving the
words their ordinary meaning. [Citation.] If the statutory language is not ambiguous,
then the plain meaning of the language governs. [Citation.] If, however, the statutory
language lacks clarity, we may resort to extrinsic sources, including the analyses and
arguments contained in the official ballot pamphlet, and the ostensible objects to be
achieved.” (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) “Under ‘well-settled
principle[s] of statutory construction,’ we ‘ordinarily’ construe the word ‘may’ as
permissive and the word ‘shall’ as mandatory, ‘particularly’ when a single statute uses
both terms. [Citation.] In other words, ‘[w]hen the Legislature has, as here, used both
“shall” and “may” in close proximity in a particular context, we may fairly infer the
Legislature intended mandatory and discretionary meanings, respectively.’” (Tarrant Bell
Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542.)
The plain language of amended section 11358 is unambiguous. Misdemeanor
punishment of the offense defined by subdivision (c) is mandatory, because the statute
there says “shall.” But felony punishment of the same conduct when the aggravating
circumstances listed in subdivision (d) are present is discretionary, because the statute
there says “may.” Because felony punishment under subdivision (d) is discretionary, the
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offense defined by that subdivision is a wobbler. The court therefore erred by concluding
that subdivision (d) is a straight felony, and the court’s denial of Baxter’s motion under
subdivision (b) of Penal Code section 17 on that basis was an abuse of discretion.1
For the foregoing reasons, we reverse the trial court’s order denying Baxter’s
motion under Penal Code section 17, subdivision (b). On remand, the trial court shall
exercise its discretion as to whether to reduce her felony convictions to misdemeanors.
DISPOSITION
The trial court’s order denying Baxter’s motion under subdivision (b) of Penal
Code section 17 is reversed, and the matter is remanded for the trial court to reconsider
the motion consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
1 After Baxter filed her reply brief, the San Bernardino County District Attorney
filed an amicus curiae brief, disagreeing with the parties and urging us to affirm the trial
court’s order. The district attorney argues that the analysis in People v. Mora-Duran
(2020) 45 Cal.App.5th 589 “establishes that a violation of … section 11358, subdivision
(d)(3) is a straight felony.” We disagree. Mora-Duran does not discuss whether
subdivision (d) of section 11358 is a wobbler, and a case is not authority for a proposition
not discussed. (People v. Nunn (1996) 50 Cal.App.4th 1357, 1364.) We conclude that
the remaining arguments in the amicus curiae brief are meritless as well, largely for the
reasons stated in appellant’s response.
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