People v. Garnett

Opinion

THE COURT.

Respondent was charged by information with one count of forgery in violation of section 470 of the Penal Code, one count of possession of a restricted dangerous drug in violation of section 11910 of the Health and Safety Code, and one count of possession of marijuana in violation of section 11530 of the Health and Safety Code. The information also charged that before the commission of the offenses described therein the respondent had been convicted, in the Superior Court of Alameda County of possession of dangerous drugs, and in the Municipal Court for the Berkeley-Albany Judicial District on a misdemeanor charge of possession of marijuana. The record reflects that the parties stipulated the prior misdemeanor conviction in the municipal court for possession of marijuana was initially charged by the prosecution as a misdemeanor.

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Respondent moved to strike from the information the prior conviction which occurred in the municipal court, and that motion was granted on the ground that the offense was charged in the first instance as a misdemeanor and therefore was never a felony offense. The People have appealed from the order granting the motion.

The significance of the prior convictions relates to the counts charging violations of sections 11910 and 11530 of the Health and Safety Code, and the impact thereon of prior convictions of “felony offenses” or offenses “punishable as felonies.” As used in sections 11910 and 11530, “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 received. (Health & Saf. Code, §§ 11914, 11533.)

The charged prior conviction in the municipal court was for possession of marijuana, an offense proscribed by section 11530 of the Health and Safety Code which provides that the first offense shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison for a period of not less than one year or more than 10 years. The People contend that the conviction in the municipal court was thus for an offense for which the law prescribes imprisonment in the state prison as an alternative penalty and was properly charged as a prior conviction for the purpose of increasing the punishment upon a conviction of the section 11530 offense charged in the information. We disagree.