Opinion
E070844
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. RAUL LORENZO GOMEZ, Defendant and Appellant.
Joshua M. Searcy for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Michael E. Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1600622) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Joshua M. Searcy for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Michael E. Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Raul Lorenzo Gomez pleaded guilty to the transportation of more than 28.5 grams of marijuana. (Health & Saf. Code, § 11360, subd. (a).) Defendant was sentenced to 36 months of probation. After passage of Proposition 64, he petitioned for resentencing. The petition was denied, and defendant appealed.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, defendant argues the trial court erred by denying the petition because there was insufficient evidence to support its conclusion that he imported marijuana into the state. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the report of Apprehension or Seizure prepared by Senior Border Patrol Agent Thomas Humphrey and added to the record by way of augmentation. The report properly augments the record because the trial court relied upon the information in the report in making its eligibility determination.
On May 9, 2016, United States Border Patrol agents were about 70 miles north of the U.S./Mexico border, near Temecula, California, when the agents observed defendant speeding northbound on I-15. Defendant was driving the car with another individual in the passenger seat. The agents felt that both the defendant and his passenger were acting unnaturally and decided to follow the vehicle.
The agents ran a records check on the vehicle and found "that the vehicle's Title had been changed on numerous occasions within a short amount of time, indicating that the vehicle may have been re-registered for use as a smuggling conveyance." The agents were aware that "[t]itle [f]lipping" of this kind was a technique "to avoid generating a suspicious border crossing history." In addition, the agents found that the prior owner of the vehicle may have been involved in narcotics and money laundering, and that defendant had previously been arrested for alien smuggling.
The agents stopped the vehicle. Defendant identified himself as an American citizen. The record reflects that defendant resides in San Diego, California. Defendant's passenger identified himself as a Mexican national. Defendant said the passenger had his Mexican passport but no immigration documents on him. Defendant's passenger claimed not to speak English. Defendant told the agents that he and his passenger were "just going for a drive," and were headed to Los Angeles.
Agents requested and received permission from defendant to search the vehicle using a trained drug-sniffing dog. The canine alerted, indicating the area of the trunk, and a search of the trunk revealed 7.29 pounds of marijuana worth $11,000.
Defendant was charged in a felony complaint with one count of transporting over 28.5 grams of marijuana. (§ 11360, subd. (a).) On September 29, 2016, defendant pleaded guilty to this charge. He was sentenced to 36 months of formal probation.
On March 14, 2017, following passage of Proposition 64, defendant filed a petition for resentencing. The People opposed the petition. The court heard argument on May 10, 2018, and denied the petition on the basis that defendant was not eligible for resentencing because circumstantial evidence indicated he had imported the marijuana into the state.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court erred by denying his petition for resentencing because there was insufficient evidence to conclude that defendant imported the marijuana for sale in California. We disagree.
Defendant requests that we take judicial notice of a report entitled "Economic Impact Analysis of Medical Cannabis Cultivation Program Regulations" prepared on behalf of the California Department of Food and Agriculture. This document was not part of the record considered by the trial court. Defendant's request for judicial notice is therefore denied. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2 [" 'Reviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances' "].) --------
A. Standard of Review
Where a party challenges a factual finding on the basis that there was insufficient evidence to support that finding, we view the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence which supports the order. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Reversal on this ground is unwarranted unless "upon no hypothesis whatever is there sufficient substantial evidence to support," the factual finding. (People v. Redmond (1969) 71 Cal.2d 745, 755.) "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Under certain resentencing procedures, such as resentencing under Proposition 47, defendant bears the burden of proving eligibility for resentencing. (See People v. Banda (2018) 26 Cal.App.5th 349, 355-356 (Banda).) On appeal from a finding that a party did not meet their burden of proof "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279, quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; accord, In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
However, under Proposition 64, once a defendant submits a petition for resentencing "the court is required to presume that the petitioner satisfies the criteria in subdivision (a), unless 'the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria.' " (Banda, supra, 26 Cal.App.5th at p. 355.) Therefore, where a defendant appeals from a finding of ineligibility under Proposition 64, we apply the same substantial evidence standard as in any other case contesting whether there was sufficient evidence for the party bearing the burden to prevail. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
B. There was Sufficient Evidence of Importation
Defendant argues the Border Patrol agents' report was not sufficient to meet the prosecution's burden of proving by clear and convincing evidence that defendant was ineligible for resentencing because there was no direct evidence that defendant imported the marijuana into the state. We disagree.
Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, reduced the criminal consequences for offenses involving marijuana effective November 9, 2016. Prior to Proposition 64, transporting more than 28.5 grams of marijuana was a felony under section 11360, subdivision (a). Under the amended section 11360, subdivision (a), transporting more than 28.5 grams of marijuana is, in most cases, a misdemeanor except under any of the four circumstances set forth in section 11360 subdivision (a)(3). One of these exceptions applies where "[t]he offense involved the import, offer to import, or attempted import into this state ... of more than 28.5 grams of cannabis." (§ 11360, subd. (a)(3)(D).)
Proposition 64 also added section 11361.8, which allows a "person currently serving a sentence for a conviction" of section 11360 and other marijuana crimes to petition the trial court to recall the person's sentence and resentence them in accordance with the amended statute. (§ 11361.8, subd. (a).) "Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria." (§ 11361.8, subd. (b).)
At a hearing on a petition for resentencing " 'the trial court is not limited to the record of conviction in its consideration of the evidence to adjudicate eligibility for resentencing.' " (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095.) "When ruling on eligibility for resentencing, the trial court 'may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors.' " (People v. Burnes (2015) 242 Cal.App.4th 1452, 1459.) This includes police reports provided the report is reliable. (Banda, supra, 26 Cal.App.5th at p. 357 ["the petition in a Proposition 64 case, as in Propositions 36 and 47, bears the hallmarks of a resentencing proceeding. In such cases, trial courts may consider hearsay if that hearsay is reliable"]; People v. Sledge (2017) 7 Cal.App.5th 1089, 1095.)
At the hearing on defendant's petition for resentencing, the court relied on the Border Patrol agents' report describing the facts of defendant's arrest. Neither party contends the report is unreliable or that the trial court erred in relying on it.
Substantial evidence supports the court's determination that the offense involved the import into this state of more than 28.5 grams of marijuana. First, defendant's actions prior to the stop were suspicious. He and his passenger were driving away from the U.S./Mexico border in a "well known and documented corridor used by illegal entrants and smugglers to transport their illicit cargo." When defendant passed the Border Patrol agents he was speeding. As the agents approached the vehicle, they observed defendant and his passenger staring straight ahead. The agents found this "very unnatural." When the agents pulled alongside, defendant's unnatural, rigid behavior continued while his passenger apparently pretended to use a cell phone. Finally, when the agents slowed to follow defendant, they observed defendant begin looking in his rearview mirror to locate them.
Next, the car's ownership history provides strong circumstantial evidence that defendant was involved in importing drugs from Mexico. The agents found that the car's title had changed numerous times within a short period. According to the agents, this is a standard technique to avoid suspicion at the border. In fact, "[t]he prior owner of the vehicle had alerts as to narcotics/money laundering," further lending credence to the notion that the car was reregistered to avoid alerts at border crossings. This is circumstantial evidence that the vehicle was used to actually cross the border, and not merely to transport drugs within the state, since "title-flipping" is a technique specifically designed to evade detection at a border crossing and not to evade law enforcement attention within the state.
Defendant's passenger was also a Mexican national with no immigration documents other than his passport. In addition, the passenger apparently spoke no English. The evidence thus suggested that defendant's passenger did not reside permanently in the United States. Nevertheless defendant claimed the two were "just going for a drive," to Los Angeles. As the trial court recognized "the passenger being a Mexican national with a passport ... is fairly strong circumstantial evidence," that defendant imported the marijuana from Mexico.
Finally, defendant lied about the presence of drugs in the car and then later admitted that he bought them for $300 from "an unknown person at an unknown location." This demonstrates defendant's awareness that disclosing where the drugs were purchased was criminally relevant.
These facts and the rational inferences drawn from them lead us to conclude that substantial evidence supports the trial court's determination that defendant imported the marijuana from outside California, namely from Mexico.
Defendant argues that the United States Supreme Court's reasoning in United States v. Brignoni-Ponce (1975) 422 U.S. 873 (Brignoni-Ponce) counsels against the trial court's implicit factual finding. Brignoni-Ponce is inapplicable because it was addressing the reasonableness of an investigative roving-patrol stop by Border Patrol agents for purposes of determining whether the evidence should be excluded from trial. (Id. at pp. 881-882.) But no such issue is raised here, and defendant did not contest the reasonableness of the Border Patrol agents' actions leading up to his arrest, so we have no reason to question the reasons for the vehicle stop.
Therefore, we uphold the trial court's order denying defendant's petition for resentencing.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.