July 1, 2008 By Wallin & Klarich

This point was made clear in a recent decision by the California Court of Appeal in People v. Mauch.

In that case, the Defendant was convicted of cultivation of marijuana, in violation of Health and Safety Code section 11358. That statute provides that anyone found guilty of cultivation of marijuana shall be “punished by imprisonment in the state prison.” The trial court, in reducing the Defendant’s conviction to a misdemeanor, relied upon a provision in the Penal Code that gives trial courts discretion to reduce certain crimes to misdemeanor crimes. (Pen. Code, § 17, subd. (b).) However, a prerequisite to the Court’s exercise of discretion is that the crime be alternatively punishable by imprisonment in state prison or county jail. Put simply, had the legislature declared that violations of Health and Safety Code section 11358 were punishable “by imprisonment in the state prison or by imprisonment in county jail for no more than one year,” then the sentencing court could order the offense reduced to a misdemeanor. However, since this crime is punishable ONLY by imprisonment in state prison, it may never be reduced to a misdemeanor.

The Court of Appeal therefore reversed the trial court’s judgment and sent the case back to the trial court with an order to reinstate the Defendant’s felony conviction.

If you or a loved one has been accused of a crime, you would be very wise to speak with an experienced attorney from Wallin & Klarich. See our website at www.wklaw.com or call us at 1-888-749-0034.

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