People v. Buena Vista Mines, Inc.

Water Code section 13387, subdivision (c) provides that a water polluter who “knowingly” violates section 13387, subdivision (a), shall be punished by a fine of not less than $5,000 nor more than $50,000 for each day of violation or by imprisonment for not more than three years, or by both. Neither the word, “felony” nor the words, “state prison” are used in the statute. Relying on In re Humphrey (1923) 64 Cal.App. 572 [ 222 P. 366 ], the superior court ruled that violation of Water Code section 13387, subdivision (c), is a misdemeanor.

When section 13387 is viewed in its entirety, it is apparent that the Legislature intended that a violation of section 13387, subdivision (c), be punishable as a felony. This is so notwithstanding the failure to designate the offense by use of the word, “felony” or to use the words, “state prison.” As we shall explain, any other holding would be an absurdity. Out of an abundance of caution, the Legislature should modify section 13387 to bring it into conformity with Penal Code section 17.

We need not dwell upon the facts or procedural posture of the case. It is sufficient to observe that the Attorney General has exercised prosecutorial…