A California appeals court docket has dominated that felony convictions for aggravated marijuana cultivation are usually not locked in as felonies eternally, holding that judges have discretion to cut back them to misdemeanors as soon as a defendant has accomplished probation.
The choice, Folks v. Baxter (case E086670), comes from the Court docket of Attraction for the Fourth Appellate District, Division Two, which sits in Riverside. The three-justice panel filed its opinion on Sept. 28, 2026, and on Oct. 22 granted a request to certify it for publication, making it citable precedent for different California courts. The state’s judicial department highlighted the ruling in a California Courts Newsroom merchandise dated Oct. 25, saying the court docket discovered “sure felony marijuana cultivation convictions could also be diminished to misdemeanors.”
The court docket reversed a San Bernardino County Superior Court docket order and despatched the case again so the trial choose can determine whether or not the defendant’s two felony cultivation convictions must be reclassified.
How the case reached the appeals court docket
In response to the opinion, San Bernardino County prosecutors filed a grievance in February 2023 charging Amanda Qiaoqun Baxter with 9 counts of felony marijuana cultivation underneath Well being and Security Code part 11358, subdivision (d)(3), 5 counts of misdemeanor possession of marijuana on the market, three counts of felony receipt of proceeds derived from managed substances, and two counts of felony conspiracy to domesticate marijuana.
For every felony cultivation rely, prosecutors alleged an aggravating circumstance: that Baxter both illegally discharged waste in violation of the state Water Code or brought on substantial environmental hurt to public lands and different public sources.
In March 2023, Baxter pleaded responsible to 2 counts of felony cultivation and one rely of misdemeanor possession on the market. The trial court docket suspended imposition of sentence, ordered restitution, positioned her on two years of probation and ordered 240 days in county jail, to be happy via work launch.
After finishing probation, Baxter filed two motions in March 2025: one to dismiss her convictions underneath Penal Code part 1203.4, and one other to cut back the felonies to misdemeanors underneath Penal Code part 17, subdivision (b). Decide Christopher S. Pallone granted the dismissal however denied the discount, concluding that “[t]he language of the statute itself doesn’t allow or make this a wobbler.”
“Shall” versus “might”
In California legislation, a “wobbler” is an offense that may be charged and punished as both a felony or a misdemeanor. A “straight felony” can’t be diminished. The attraction turned on which class aggravated cultivation falls into after Proposition 64, the adult-use legalization initiative voters permitted in November 2016.
Because the opinion explains, earlier than Prop. 64, part 11358 had no subdivisions and handled planting, cultivating, harvesting, drying or processing marijuana as a straight felony. The initiative rewrote the statute. Subdivision (c) now says an grownup who cultivates greater than six residing hashish vegetation “shall be punished” by as much as six months in county jail, a advantageous of as much as $500, or each, which is a misdemeanor.
Subdivision (d) says that, “[n]otwithstanding subdivision (c),” the identical conduct “could also be punished” as a felony when sure aggravating circumstances are current. These embrace violations of Water Code provisions on the discharge of water, and deliberately or with gross negligence inflicting substantial environmental hurt to floor or floor water, public lands or different public sources.
Writing for the panel, Justice Menetrez utilized the usual rule of statutory development that “might” is permissive and “shall” is obligatory, particularly when each seem in the identical statute. “The plain language of amended part 11358 is unambiguous,” the court docket wrote. “Misdemeanor punishment of the offense outlined by subdivision (c) is obligatory, as a result of the statute there says ‘shall.’ However felony punishment of the identical conduct when the annoying circumstances listed in subdivision (d) are current is discretionary, as a result of the statute there says ‘might.’”
As a result of felony punishment underneath subdivision (d) is discretionary, the court docket held, the offense is a wobbler. The trial court docket due to this fact made a authorized error, and underneath appellate precedent, a call based mostly on a authorized error is an abuse of discretion.
Presiding Justice Ramirez and Justice Fields joined the opinion.
Prosecutors break up on the query
The case drew an uncommon lineup. The state, represented by Legal professional Normal Rob Bonta’s workplace, agreed with Baxter that the offense is a wobbler and requested the appeals court docket to ship the case again so the trial choose may train discretion.
The San Bernardino County District Legal professional’s Workplace took the other place. After briefing was full, the district lawyer filed an amicus curiae transient urging the court docket to uphold the denial, arguing {that a} 2020 appellate determination, Folks v. Mora-Duran, “establishes {that a} violation of … part 11358, subdivision (d)(3) is a straight felony.”
The panel rejected that argument in a footnote, noting that Mora-Duran “doesn’t talk about whether or not subdivision (d) of part 11358 is a wobbler, and a case will not be authority for a proposition not mentioned.” It known as the district lawyer’s remaining arguments “meritless as properly.”
What the ruling does and doesn’t do
The choice doesn’t mechanically cut back Baxter’s convictions. It reverses the trial court docket’s order and directs the decrease court docket to rethink her movement and determine, in its personal discretion, whether or not to reclassify the 2 felony cultivation counts as misdemeanors. The court docket cited Penal Code part 17, subdivision (b)(3), which permits a wobbler to turn out to be a misdemeanor “for all functions” when a court docket grants probation with out imposing sentence and later declares the offense a misdemeanor on the defendant’s utility.
As a result of the opinion is now licensed for publication, its studying of part 11358 applies past this one defendant. Different folks convicted of felony cultivation with aggravating circumstances underneath subdivision (d), who’re in any other case eligible underneath Penal Code part 17, can level to Baxter when asking a choose to cut back their convictions. Whether or not any choose grants such a request stays discretionary.
The ruling arrives as environmental harm from unlicensed grows stays a stay political concern in California. Aggravating elements tied to water discharges and hurt to public lands are the identical considerations lawmakers increase about illicit cultivation within the state’s rural north, the place Rep. James Gallagher just lately requested the FBI to focus on unlawful marijuana grows in Siskiyou and Shasta counties. The Baxter determination leaves prosecutors free to cost these circumstances as felonies. It holds solely that the felony label will not be obligatory as soon as a court docket has the case.
The total opinion and the publication order can be found from the California Courts web site.
