People v. Marsh

California Court of Appeal Jun 15, 1982 No. Crim. 5402Published

Before: Andreen

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Holding. A defendant's eligibility for diversion under Penal Code section 1000 is determined by their status at the time of the offense; a subsequent reduction of a prior 'wobbler' conviction to a misdemeanor does not retroactively qualify the defendant for diversion.

Issues

Does a post-offense reduction of a prior 'wobbler' conviction to a misdemeanor relate back to the time of a new offense for purposes of diversion eligibility?
Did the trial court abuse its discretion in denying a motion to withdraw a guilty plea based on alleged ineffective assistance of counsel regarding the defendant's eligibility for diversion?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the offense may have been reduced to a misdemeanor after the commission of the marijuana offense should not retroactively render appellant eligible for diversion under Penal Code section 1000.”

“Any inadequate representation of appellant’s counsel did not result in the withdrawal of a potentially meritorious defense, because a subsequent reduction of the wobbler would not have affected appellant’s felon status”

Opinion

ANDREEN, J.

On June 18, 1980, pursuant to a search warrant, defendant’s residence was searched, netting 25 marijuana plants, pills, marijuana seeds and paraphernalia.

Although we do not have the record of the proceedings before the magistrate, from the transcripts of the hearings before the superior court it appears that the case was referred to the probation office for a recommendation regarding diversion pursuant to Penal Code section 1000. The section applies if the cultivation of marijuana is for personal use and the defendant has had no prior felony conviction within five years prior to the commission of the charged offense. The probation office reported that the case could not be diverted because the defendant suffered a conviction for receiving stolen property on September 8, 1975, some four years and nine months before the commission of the instant offense. Based upon this, the magistrate declined to divert.

On October 6, 1980, an information was filed charging defendant in count one with cultivation of marijuana (Health & Saf. Code, § 11358), and in count two with possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)).

Pursuant to a plea bargain defendant pleaded guilty to count one, upon the condition that count two would be dismissed at the time of sentencing. The matter was referred to the probation department and a hearing was set for December 30, 1980.

Subsequently, and before sentencing, defense counsel (the public defender) moved to be relieved as counsel due to his belief he had inadequately represented defendant in this matter. He asserted that his office had inadequately represented defendant because the receiving stolen property conviction was a “wobbler” (punishable either as a felony or a misdemeanor), and it could have been reduced to a misdemeanor by re

[812]

quest to the court under section 17, subdivision (b)(3) of the Penal Code. It was argued that had it been so reduced, appellant would have been eligible for diversion. The court thereupon appointed different counsel. Defendant’s new counsel then filed a motion to withdraw the guilty plea. The motion was denied and defendant was sentenced.

People v. Marsh

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ANDREEN, J.

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