People v. Girard

[1007]

Opinion

KINGSLEY, J.

On November 16, 1967, defendant was found guilty of possession of marijuana, in violation of section 11530 of the Health and Safety Code. On December 4, 1967, his application for probation was denied and he was sentenced to state prison. He appealed and, on December 16, 1968, this court affirmed the conviction.

{People

v.

Girard,

Crim. No. 14661—not published.) No petition for rehearing or for hearing in the Supreme Court was filed. Thereafter a petition on his behalf for writ of habeas corpus was filed in the Supreme Court, resulting in an order of that court, dated October 22, 1969 (Crim. No. 13631), reading as follows:

“Upon consent of the Attorney General, petitioner is remanded to the Superior Court of Santa Barbara County to permit that court to sentence him under section 11530 of the Health and Safety Code as a misdemeanant if its discretion so indicates. The order to show cause heretofore issued is discharged and the petition for writ of habeas corpus is denied.

“This order is final forthwith.”

The Attorney General’s consent was based on his concession that defendant was entitled, under

People

v.

Francis

(1969) 71 Cal.2d 66 [75 Cal.Rptr. 199, 450 P.2d 591], to have the trial court consider whether or not he should be resentenced as a misdemeanant.

1

The trial court, in obedience to the above quoted order, directed the return of defendant from state prison, appointed counsel for him, and ordered “an additional probation report.” At the hearing, the probation officer made an oral supplementary report, the matter was discussed at some length among the probation officer, the attorneys and the judge, culminating in the following statement by the court: