McClellan

Respondent, Edward McClellan, was found guilty by a judge, sitting without a jury, of selling phencyclidine (PCP) in violation of Health and Safety Code section 11379.5. At the sentencing hearing, however, prior to sentence, the trial judge denied a motion for new trial, but granted a motion pursuant to Penal Code section 1181, subdivision 6, to reduce the offense to simple possession in violation of Health and Safety Code section 11377. Appellant, the People of the State of California, appeals from this order. The appeal lies. (See Pen. Code, § 1238, subd. (a)(6).)

Appellant contends that the trial court exceeded its jurisdiction in its attempt to reduce the offense to simple possession because the evidence supports a judgment of conviction of the greater offense charged. We agree with appellant that the trial judge acted in excess of his jurisdiction. Therefore, for the reasons stated below, we intend to vacate the order under appeal and remand the case to the trial court for the resentencing of respondent.

Facts

On May 21, 1979, an undercover police officer, David L. Parham, went to Jeanette Morgan’s apartment. He knocked on the door and asked for a woman named…