In Re May

California Court of Appeal Sep 22, 1976 No. Crim. 28987Published

Before: Cobey

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Holding. The court held that the 1975 amendment to Health and Safety Code section 11357, which reduced the penalty for possession of small amounts of marijuana, applies to cases where the judgment is not yet final, and that the trial court exceeded its jurisdiction by imposing a felony sentence for an offense now classified as a misdemeanor.

Issues

Whether the 1975 amendment to Health and Safety Code section 11357 applies to a defendant whose judgment of conviction was not final at the time of the amendment.
Whether habeas corpus is an appropriate remedy to correct a sentence that exceeds the jurisdiction of the trial court.

Disposition. Writ of habeas corpus issued.

Quotations verified verbatim against the opinion

“It is clear that the trial court exceeded its jurisdiction in imposing upon petitioner a greater punishment for a greater crime than the law now recognizes.”

“The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.”

[167]

Opinion

COBEY, Acting P. J.

On the petition of Stanley Ernest May for a writ of habeas corpus, we issued an order to the Superior Court for the County of Los Angeles and to Peter J. Pitchess, sheriff, Los Angeles County, to show cause why respondent court should not vacate its order of July 8, 1976, and instead enter a new order imposing upon petitioner a fine of not more than $100 and correcting its records to show petitioner’s conviction therein to have been only a misdemeanor and why the sheriff should not then release petitioner from custody.

The basis for the petition before us is a 1975 amendment (Stats. 1975, ch. 248, § 2) to Health and Safety Code section 11357, subdivision (b), effective January 1, 1976. (Cal. Const, art. IV, § 8(c); Gov. Code, § 9600, subd. (a).) This amendment made the unauthorized possession of not more than one avoirdupois ounce of marijuana (other than concentrated cannabis) a misdemeanor punishable by a fine of not more than $100. This change in the law constituted a particularized reduction in the classification of the offense of possession of a small amount of marijuana and in the punishment thereof, which, formerly without classification as to the amount possessed (Stats. 1972, ch. 1407), was imprisonment for not less than one year or for not more than ten years.

In May 1971 petitioner pled guilty to possession of marijuana on February 20, 1971, a felony. Thereafter he failed to appear for his probation and sentencing hearing and was not apprehended until December 1975. On December 29, 1975, proceedings in the case were suspended and petitioner was placed on probation for two years. On May 3, 1976, petitioner was found, preliminarily, to be in violation of probation for failure to report to his probation officer. Thereafter, following an evidentiary hearing, on July 8, 1976, the trial court formally found petitioner in violation of probation and modified his probation to provide, among other things, that he serve an additional six months in the county jail for his 1971 offense, at the conclusion of which imprisonment probation was to terminate. This order, now under

[168]

In Re May

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