Error and/or relief
The trial court erred in believing that Health and Safety Code section 11358 is not a “wobbler”–a crime that may be punished as either a misdemeanor or a felony. Remanded for the court to reconsider the defendant’s motion to reduce the offense to a misdemeanor.
First Holding:
A “wobbler” is an offense that may be charged and punished as either a felony or a misdemeanor. If a defendant has been convicted of a wobbler that was not charged as a misdemeanor, the procedures set forth in section 17(b) govern the court’s exercise of discretion to classify the crime as a misdemeanor.
Authority:
PEN 17
Davis v. Municipal Court (1988) 46 Cal.3d 64, 70
People v. Park (2013) 56 Cal.4th 782, 790
Second Holding:
When 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 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.
Authority:
PEN 17(b)(3)
Third Holding:
We review a trial court’s decision not to declare a wobbler to be a misdemeanor for abuse of discretion. When a trial court’s decision rests on an error of law, that decision is an abuse of discretion. We independently review questions of statutory interpretation.
Authority:
People v. Lee (2017) 16 Cal.App.5th 861, 866
People v. Lopez (2021) 66 Cal.App.5th 561, 574
People v. Mendoza (2023) 88 Cal.App.5th 287, 294
Fourth Holding:
Health and Safety Code section 11358(c) provides that a 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. Section 11358(d) further provides that, notwithstanding 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.
(Gary note: Boiled down, the specified aggravating circumstances are of three ilks (the numeration being mine): (a) one or more “super strike” prior convictions (see Penal Code section 667(e)(2)(c)(iv)) or a prior conviction for an offense requiring sex offender registration under Penal Code section 290(c); (b) this is at least the third offense under 11358(c); and (c), the current offense resulted in violation of any of several specified environmental protection provisions.)
Authority:
HSC 11358(c)
Fifth Holding:
In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. We turn first to the statutory language, giving the words their ordinary meaning. If the statutory language is not ambiguous, then the plain meaning of the language governs. 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.
Under well-settled principles 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. In other words, when 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.
Authority:
People v. Lopez (2005) 34 Cal.4th 1002, 1006.
Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542
Sixth Holding:
The plain language of 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 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 the defendant’s motion under Penal Code section 17(b) on that basis was an abuse of discretion.
Authority:
PEN 17(b)
(Gary note: For your convenience, here are subdivisions (b) (c), (e), and (f) of section 17 as of the writing of this summary. I omitted subdivision (d), which pertains to infractions.)
PEN 17
(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:
(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.
(2) When the court, upon committing the defendant to a secure youth treatment facility, designates the offense to be a misdemeanor.
(3) When the court grants probation to a defendant 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.
(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.
(5) (A) When the court determines, prior to trial, either on its own motion or the motion of a party, that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.
(B) Following a denial of a motion pursuant to subparagraph (A), a subsequent motion pursuant to subparagraph (A) may only be made upon a showing of changed circumstances, which includes, but is not limited to, newly available facts relevant to the charge or defendant’s personal circumstances, or change in the applicable law.
(c) When a defendant is committed to a secure youth treatment facility for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the secure youth treatment facility, thereafter be deemed a misdemeanor for all purposes.
…….
(e) This section does not authorize a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.
(f) When the court exercises its discretion under this section, an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.