People v. Wallace

PETERS, J.

Bruce Allyn Wallace and his wife were charged and convicted of a violation of section 11500 of the Health and Safety Code (possession of heroin). The husband was also charged and convicted of a prior misdemeanor conviction under the same section. Because of this prior conviction, the trial court ruled that it had no power to grant the defendant husband probation, and also ruled that it had no power to act under sections 6451 and 6452 of the Penal Code. For that reason it sentenced the defendant husband to the state prison. The husband alone appeals.

No challenge is made of the sufficiency of the evidence or of the propriety of any ruling on the admission or exclusion of evidence. The contentions are (1) that the trial court erred in holding that, as a matter of law, it could not grant probation, and (2) that the trial court erred in holding, as a matter of law, that it could not consider the possible application of sections 6451 and 6452 of the Penal Code.

The trial court properly ruled that it was prohibited by law from granting appellant probation.

Appellant was convicted on June 28, 1961. The application for probation was denied, and the state prison sentence imposed, on December 4, 1961. Prior to September 15, 1961, section 11715.6 of the Health and Safety Code read, in part: “In no case shall any person convicted of violating Sections 11500 ... be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court, if such person has been previously

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convicted of any offense described in this division. . . .” Thus, prior to September 15, 1961, appellant, having been previously convicted of a violation of section 11500 of the Health and Safety Code, was not eligible for probation. On this latter day there became effective certain amendments and additions to the Health and Safety Code. Section 11715.6 was amended to provide that probation shall not be granted nor shall execution of a sentence imposed be suspended “if such person has been previously convicted of any

felony offense

described in this division, ...” (Italics added.) At the same time section 11504 of the Health and Safety Code was added. That section provides: “As used in this article ‘felony offense, ’ and offense ‘punishable as a felony’ refer to an offense for which the law prescribes imprisonment in the state prison as either an alternative or the sole penalty, regardless of the sentence the particular defendant received.” Under this definition, the prior misdemeanor sentence, imposed for a violation of section 11500 of the Health and Safety Code, was a “felony conviction,” as that term is defined in section 11504. Thus both the old and amended sections prohibited the trial court from granting probation on the second conviction.