People v. Thatcher

ELKINGTON, J.

The People appeal from an order granting probation and suspending imposition of sentence after a guilty plea, on a charge of possession of marijuana, a felony. (Health & Saf. Code, § 11530.) Defendant was charged with, and admitted, a previous conviction of an identical offense. It is contended that the trial court had jurisdiction only to sentence defendant to the state prison.

Health and Safety Code section 11715.6 provides: “In no case shall any person convicted of violating Sections . . . 11530 ... be granted probation ... if such person has been previously convicted of any felony offense described in this division. . . . ”

Under the circumstances here the court had no legal alternative but to commit defendant to state prison. (See

In re Sanchez,

65 Cal.2d 556 [55 Cal.Rptr. 422, 421 P.2d 430] ;

People

v.

Wallace,

59 Cal.2d 548, 549-550 [30 Cal.Rptr. 449, 381 P.2d 185];

People

v.

Pineda,

238 Cal.App.2d 466, 473 [47 Cal.Rptr. 879].)

Defendant first urges that the People have no right of appeal from the order here at issue.

Penal Code section 1238, subdivision 6, allows an appeal by the People from “an order modifying the verdict or finding by reducing . . . the punishment imposed.’’ It has been held that an order granting probation, when such probation is prohibited, is appealable.

People

v.

Orrante,

201 Cal.App.2d 553, 558 [20 Cal.Rptr. 480], states: “. . . where the trial court suspends the imposition of sentence and grants probation, when it has no jurisdiction to malee such orders, ‘the purpose and ultimate effect of the

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