In re Sanchez

BURKE, J. Defendant petitions for a writ of habeas corpus. He pleaded guilty to a charge of violation of section 11501 of the Health and Safety Code (sale of narcotics). A second like count and a count for supplying marijuana were dismissed. He was also charged with a prior narcotics violation, which he denied. He waived a jury trial on such issue. The trial court received in evidence the file regarding the prior conviction (May 27,1959) and found the charge to be true.

At the time of the prior conviction defendant was 19 years old and the file showed his commitment to the Youth Authority. When convicted on the instant charge of selling narcotics (January 31, 1962) he was 22 years old. The trial judge stated that he was required by the provisions of section [557117]15.6 of the Health and Safety Code1 to deny probation to one previously convicted of a narcotics “felony.” Defendant was therefore sentenced to state prison for the term prescribed by law.2

The prior conviction forms the basis of the present petition for a writ of habeas corpus, it being defendant’s contention that the crime involved should have been deemed a misdemeanor, as a matter of law, pursuant to the provisions of Penal Code section 17.

The prior commitment of defendant to the Youth Authority, dated May 27, 1959, recites that petitioner was found guilty of “(Possession), a felony.” However, the statute applicable to the 1959 offense did not designate the crime a felony or a misdemeanor, but prescribed punishment by imprisonment in the county jail or state prison. (Former Health & Saf. Code, § 11712, as amended, Stats. 1953, ch. 1770, § 6.) In such situations the classification of the offense as a felony or misdemeanor has been held to depend upon the punishment imposed. (Doble v. Superior Court (1925) 197 Cal. 556, 577 [241 P. 852].)

The basic provision of Penal Code section 17 at all times here concerned has been: “When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.” (Italics added.)

In this case no sentence has ever been imposed upon defendant for his prior offense. The court committed him to the Youth Authority. Consequently, the Attorney General contends that the crime may not be “deemed a misdemeanor,” under the above language of Penal Code section 17 since no “judgment imposing a punishment other than imprisonment in the state prison” has been entered.