subject: California Forgery Possession Restricted Dangerous Drug Marijuana Misdemeanor Conviction Lawyers Attorneys [print this page] THE PEOPLE, Plaintiff and Appellant, vTHE PEOPLE, Plaintiff and Appellant, v. SHIRLEY ANN GARNETT, Defendant and Respondent
Court of Appeal of California, First Appellate District, Division Two
March 23, 1973
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 the 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. 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.
Issue:
Whether the trial court erred in granting the defendant's motion to strike information of a prior misdemeanor conviction?
A district attorney is charged with the duty of conducting criminal prosecutions, but he has substantial discretion in making a determination whether or not to commence a criminal prosecution in a given case. Until a district attorney elects to proceed with a criminal prosecution, files a complaint or obtains an indictment, and then obtains a conviction, an alleged offense is not punishable in any manner. Thus it is only after a conviction that a judge can exercise whatever discretion is given to him by statute concerning the punishment to be imposed.
A municipal court misdemeanor conviction of possession of marijuana was not a "felony offense" or an offense "punishable as a felony" so as to be chargeable as a prior conviction for the purpose of enhancement of penalties on conviction of subsequent felony charges of possession of marijuana under Health & Saf. Code, 11530, and possession of a restricted dangerous drug under Health & Saf. Code, 11910, where the offense giving rise to the municipal court conviction was initially charged by the prosecutor as a misdemeanor as permitted by Pen. Code, 17, subd. (a). Under Health & Saf. Code, 11533, 11914, a "felony offense" or a "offense punishable as a felony" is 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, but the prosecutor's action in charging the offense as a misdemeanor removed the alternative of a prison sentence; it was a misdemeanor from the moment the complaint was filed. Insofar as this prior is concerned, the appellant has not been convicted of an "offense for which the law prescribes imprisonment in the state prison as either an alternative or the sole penalty." Under the prescription of the law, the municipal court could not impose a prison sentence.
Conclusion:
This court held that the conviction could not be used to increase defendant's punishment upon conviction, even though the prior crime could have originally been punishable as a felony, because the crime was originally charged as a misdemeanor. Hence this court affirmed the decision of the trial court, which granted defendant's motion to strike information of a prior misdemeanor conviction.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
California Forgery Possession Restricted Dangerous Drug Marijuana Misdemeanor Conviction Lawyers Attorneys
