California appeals court publishes ruling that judges may reduce some felony marijuana cultivation convictions to misdemeanors

A California appeals court on Oct. 22, 2026, certified for publication a ruling that says judges have discretion to reduce certain felony marijuana cultivation convictions to misdemeanors, including convictions tied to environmental violations, according to the court's publication order and opinion.

The ruling, People v. Baxter (No. E086670), comes from Division Two of the Fourth Appellate District of the California Court of Appeal. The three-judge panel first filed the opinion as unpublished on Sept. 28. Its Oct. 22 order granted a request to publish it, stating that the opinion "meets the standard for publication" under California Rules of Court, rule 8.1105(c). Published Court of Appeal opinions can be cited as precedent in California courts; unpublished ones generally cannot.

Justice Menetrez wrote the opinion. Presiding Justice Ramirez and Justice Fields concurred. The decision was unanimous.

What the court decided

The case turns on how Proposition 64, the 2016 voter initiative that legalized adult-use cannabis in California, rewrote the state's cultivation law, Health and Safety Code section 11358.

According to the opinion, before November 2016 that section had no subdivisions and punished planting, cultivating, harvesting, drying and processing marijuana as a "straight felony," meaning an offense that could only be a felony. Voters approved Proposition 64 on Nov. 8, 2016, and it amended section 11358.

Under the current text, posted on the California Legislature's code website, a person 18 or older who grows more than six living cannabis plants "shall be punished" by up to six months in county jail, a fine of up to $500, or both. That is a misdemeanor.

A separate subdivision, (d), says that "notwithstanding" that misdemeanor rule, the same conduct "may be punished" by imprisonment under Penal Code section 1170(h) if certain conditions exist. Those conditions include:

• one or more prior convictions for certain serious offenses, or for an offense requiring sex-offender registration;
• two or more prior misdemeanor cultivation convictions under subdivision (c); or
• an offense that resulted in specified environmental violations, such as illegal water diversion, illegal discharge of water, violations involving rivers, streams, lakes or protected wildlife, hazardous waste violations, or intentionally or with gross negligence causing substantial environmental harm to surface or ground water, public lands or other public resources.

The panel said the plain language is clear. "Misdemeanor punishment of the offense defined by subdivision (c) is mandatory, because the statute there says 'shall,'" the opinion says. "But felony punishment of the same conduct when the aggravating circumstances listed in subdivision (d) are present is discretionary, because the statute there says 'may.'"

That makes the subdivision (d) offense a "wobbler," the court concluded. Quoting the California Supreme Court's 1988 decision in Davis v. Municipal Court, the opinion defines a wobbler as "an offense which may be charged and punished as either a felony or a misdemeanor." The panel also relied on the California Supreme Court's 2011 decision in Tarrant Bell Property, LLC v. Superior Court, which says that when lawmakers use "shall" and "may" close together, courts may infer they meant mandatory and discretionary meanings.

How the case got there

According to the opinion, San Bernardino County prosecutors filed a complaint in February 2023 alleging nine counts of felony marijuana cultivation under section 11358(d)(3), five counts of misdemeanor possession of marijuana for sale, three counts of felony receipt of proceeds derived from controlled substances and two counts of felony conspiracy to cultivate marijuana. For each felony cultivation count, prosecutors alleged that the defendant either illegally discharged waste under the Water Code or caused substantial environmental harm to public lands and other public resources.

In March 2023, the defendant pleaded guilty to two counts of felony marijuana cultivation and one count of misdemeanor possession for sale. The trial court suspended imposition of sentence, ordered restitution, placed her on probation for two years and ordered 240 days in county jail, to be served through work release.

In March 2025, after she completed probation, she asked the San Bernardino County Superior Court to dismiss her convictions under Penal Code section 1203.4 and to reduce the felonies to misdemeanors under Penal Code section 17(b). Judge Christopher S. Pallone granted the dismissal motion but denied the reduction, ruling that "[t]he language of the statute itself does not permit or make this a wobbler," the opinion says.

Penal Code section 17(b)(3), as quoted in the opinion, provides that when a crime can be punished either as a felony or a misdemeanor, it becomes a misdemeanor for all purposes if the court grants probation without imposing sentence and later declares the offense a misdemeanor, including on the defendant's application. That procedure is only available if the offense is a wobbler, which is why the trial judge's reading of section 11358 decided the motion.

Who argued what

The state did not defend the trial court's reading. The California Attorney General's office, representing the People, agreed with the defendant that subdivision (d) is a wobbler and asked the appeals court to send the case back so the trial judge could exercise discretion, according to the opinion.

After the briefs were filed, the San Bernardino County District Attorney's Office filed a friend-of-the-court brief urging the panel to affirm. It argued that a 2020 appellate decision, People v. Mora-Duran, "establishes that a violation of … section 11358, subdivision (d)(3) is a straight felony," the opinion says.

The panel disagreed. In a footnote, it said Mora-Duran "does not discuss whether subdivision (d) of section 11358 is a wobbler, and a case is not authority for a proposition not discussed." The court called the district attorney's remaining arguments "meritless as well, largely for the reasons stated in appellant's response."

What the ruling does and does not do

The appeals court reversed the order denying the reduction and sent the case back to the trial court "to reconsider the motion consistent with this opinion." It did not reduce the convictions itself. "On remand, the trial court shall exercise its discretion as to whether to reduce her felony convictions to misdemeanors," the opinion says.

The Marijuana Herald, which reported the publication order Oct. 23, likewise noted that the ruling "does not automatically convert" the convictions to misdemeanors and only requires the judge to use discretion.

The decision does not change the text of section 11358, which still allows felony punishment when the listed aggravating conditions are present. It addresses whether judges may treat those offenses as misdemeanors. The Legislature's code page notes that section 11358 was last amended by Senate Bill 753 (2023), effective Jan. 1, 2024.

Because the opinion is now published, other California trial courts can be pointed to its reading of section 11358(d) when deciding similar reduction requests, unless a higher court rules otherwise. The sources reviewed did not report whether the San Bernardino County District Attorney's Office plans to seek further review, and no new hearing date in the trial court was reported.

Additional source

• California Court of Appeal, Fourth Appellate District, Division Two: case page for P. v. Baxter (https://courts.ca.gov/opinion/published/2026-10-22/e086670)

This report is not legal advice.