Gutierrez

Appellant stands convicted, after a jury trial, of two counts of selling heroin in violation of Health and Safety Code section 11352. On count two, appellant was also found to have sold more than one-half ounce of a substance containing heroin in violation of Penal Code section 1203.07, subdivision (a)(2); this section precludes the court from considering probation. Appellant was sentenced to state prison for five years.

The major issue before us is whether Penal Code section 1203.07, subdivision (a)(2), is uncertain in its meaning because it fails to specify whether an “ounce” of the substance containing heroin should be measured by the avoirdupois or apothecaries’ (troy) weight standard. For the reasons to be explained, we conclude the statute is uncertain and should be construed in appellant’s favor. Since appellant sold less than one-half apothecaries’ ounce of a substance containing heroin, he is eligible for probation.

Penal Code section 1203.07 provides in pertinent part: “(a) Notwithstanding the provisions of Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following…