Opinion
E069102
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES AUGUSTUS MOORE, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF146670) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Reversed with directions. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court denied the Proposition 64 petition of defendant and appellant, Charles Augustus Moore. Defendant contends the trial court erred. The People concedes the trial court erred. We reverse the order with directions.
FACTUAL AND PROCEDURAL HISTORY
A. MARIJUANA CONVICTION
On November 18, 2008, defendant pled guilty to (1) possessing marijuana for sale (Health & Saf. Code, § 11359), a felony; (2) carrying a loaded firearm on his person or in his vehicle in a public place when he was not the registered owner of the firearm (Pen. Code, § 12031, subd. (a)(2)(F)), a felony; and (3) carrying a concealed firearm in his vehicle (Pen. Code, § 12025, subd. (a)(1)), a misdemeanor. The trial court granted defendant 36 months of formal probation, with the condition he serve 90 days in the custody of the Riverside County Sheriff.
In May 2013, defendant's probation was revoked. For the two felony convictions—possessing marijuana and carrying a loaded firearm—the trial court sentenced defendant to prison for a term of one year four months.
Defendant's plea form and the reporter's transcript from the plea hearing, reflect defendant pled guilty to two crimes: possessing marijuana for sale (§ 11359), and the misdemeanor firearm charge (Pen. Code, § 12025, subd. (a)(1)). However, the 2008 minute order and 2013 abstract of judgment reflect defendant was also convicted of the felony firearm charge (Pen. Code, § 12031, subd. (a)(2)(F)).
B. PETITION
In February 2017, defendant petitioned the trial court to resentence him. (Health & Saf. Code, § 11361.8.) Defendant's petition was incomplete, in that he did not identify the crime for which he wanted to be resentenced, what substance was involved in the conviction, or the quantity of the substance involved in the conviction.
The district attorney filed a response to defendant's petition. The district attorney asserted that in May 2013, defendant was convicted of two counts of assault with intent to commit rape (Pen. Code, § 220); oral copulation by force or fear of injury (Pen. Code, § 288a, subd. (c)(2)); criminal threats (Pen. Code, § 422); and assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)).
The district attorney contended that defendant was ineligible for resentencing because defendant is a registered sexual offender (Pen. Code, § 290) and defendant suffered a "super strike" conviction. (Pen. Code, § 1170.18, subd. (i).) The district attorney argued, relying on law related to Proposition 47, that it is of no consequence that the sexual offense convictions occurred after the marijuana conviction.
Defendant asserted that Proposition 64 was not the same as Proposition 47. Defendant contended the sexual offense convictions would have needed to have occurred prior to the marijuana conviction in order to automatically disqualify defendant from resentencing.
The trial court said, "I agree to the extent that when they granted Prop. 64, it doesn't automatically disqualify those with 290 registration, or even with super strike offenses—well, strike offenses, but based on the People versus Walker case, again, I think that is the controlling case law with respect to this matter at this time. So the Court's going to follow that, and I will deny the request without prejudice to reduce the matter under . . . 11361.81. Without prejudice."
DISCUSSION
A. SUMMARY DENIAL
Defendant contends the trial court erred by concluding that a violent sexual offense conviction, which occurred after a marijuana conviction, automatically causes a petitioner to be ineligible for resentencing under Health and Safety Code section 11361.8. The People supports defendant's contention.
We apply the de novo standard of review to this issue of statutory interpretation. (People v. Smit (2018) 24 Cal.App.5th 596, 599-600 (Smit).) The rules for interpreting initiatives are the same as those for interpreting legislative enactments. We begin with the plain language of the statute, giving the words their ordinary meanings. If the language is clear, then the plain meaning of the statute governs. (Ibid.)
Health and Safety Code section 11361.8, subdivision (a), provides, "A person currently serving a sentence for a conviction . . . who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence . . . ." (Italics added.)
The plain meaning of "had that act been in effect at the time of the offense" means the relevant time frame for determining whether the defendant's crime would qualify as a lesser offense is the date when the crime was committed. For example, in this case, defendant possessed marijuana for sale on October 11, 2008, therefore, the trial court should examine whether, on October 11, 2008, the crime would have qualified as a lesser offense.
We now look at the new (post-Proposition 64) law concerning possessing marijuana for sale. After the passage of Proposition 64, the offense of possessing marijuana for sale has been changed to a misdemeanor, punishable by "imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment." (Health & Saf. Code, § 11359, subd. (b).)
However, there are exceptions to this law. One of the exceptions is: a defendant convicted of possessing marijuana for sale shall be imprisoned pursuant to Penal Code section 1170, subdivision (h), if the defendant "has one or more prior convictions for an offense specified in [Penal Code section 667, subdivision (e)(2)(C)(vi)] or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code." (§ 11359, subd. (c)(1).)
The plain meaning of the word "prior" is "before," as in already having happened. Thus, the foregoing exception is triggered when a defendant, who is convicted of possessing marijuana for sale, has already suffered a conviction for an offense listed in Penal Code section 667, subdivision (e)(2)(C)(vi) or an offense requiring registration as a sexual offender.
When the procedural law of Health and Safety Code section 11361.8, subdivision (a), is read together with the new version of Penal Code section 11359, the plain meaning is that a defendant is eligible for resentencing if he did not suffer a disqualifying conviction prior to the marijuana offense. In Smit, supra, the defendant suffered a marijuana-related conviction and attempted murder convictions in the same 2009 case. The appellate court examined whether the trial court properly denied the defendant's Proposition 64 petition when the disqualifying murder convictions occurred in the same case as the marijuana conviction. (Smit, supra, 24 Cal.App.5th at pp. 600-601.)
The appellate court explained that under Proposition 64, the trial court needed to examine what crime the defendant would have been convicted of in 2009, when the marijuana offense was committed, if the new versions of the marijuana laws had been in effect in 2009. (Smit, supra, 24 Cal.App.5th at p. 601.) The appellate court reasoned that because defendant had not suffered a disqualifying conviction prior to the marijuana offense, he was eligible for resentencing under Proposition 64. (Id. at p. 602.)
In sum, when a defendant is seeking to be resentenced, the trial court must determine whether the defendant had a prior conviction at the time the marijuana offense was committed. (Smit, supra, 24 Cal.App.5th at p. 603.) In the context of the instant case, the issue was whether defendant had suffered a disqualifying conviction prior to October 11, 2008.
The district attorney submitted evidence of sexual offense convictions that occurred in 2013. Because the sexual offense convictions occurred after the marijuana offense, they do not automatically disqualify defendant from resentencing. (Health & Saf. Code, § 11361.8, subd. (a) ["at the time of the offense"].) In other words, had the current version of Health and Safety Code section 11359 been in effect in 2008, when defendant committed the marijuana offense, then he would have been eligible for misdemeanor sentencing. Therefore, we conclude the trial court erred by summarily denying defendant's petition.
The trial court relied upon the case of People v. Walker (2016) 5 Cal.App.5th 872 (Walker), which is a Proposition 47 case, in reaching its conclusion. In Walker, the defendant sought resentencing for his 1988 and 1989 convictions for possessing a controlled substance. The trial court denied the defendant's Proposition 47 petition because the defendant suffered a first-degree murder conviction in 1992. The defendant appealed asserting he was eligible for Proposition 47 relief because the drug convictions occurred before the murder conviction. (Id. at p. 875.)
The appellate court analyzed what was meant by the language in Penal Code section 1170.18, subdivision (i): "This section does not apply to a person who has one or more prior convictions for an offense specified in [Penal Code section 667, subdivision (e)(2)(C)(iv)] or for an offense requiring registration pursuant to subdivision (c) of Section 290." The appellate court found the term "prior conviction" to be "somewhat ambiguous," because it was unclear if it meant (A) prior to the filing of the Proposition 47 petition, or (B) prior to the conviction for which the defendant sought resentencing. (Walker, supra, 5 Cal.App.5th at p. 876.) The appellate court looked to the Legislative Analyst's comments on Proposition 47 and the rebuttal to the argument against Proposition 47. The appellate court concluded that the voters intended for "prior conviction" to mean any conviction suffered before the trial court's ruling on the defendant's Proposition 47 petition. (Id. at pp. 876-877.)
On appeal, the People have conceded the trial court erred. Therefore, neither party presents this court with an argument in favor of following Walker. Because neither party is suggesting we follow Walker, we do not delve into distinguishing the case; however, we note that Walker was distinguished by Division Three of this court in a Proposition 64 case. (Smit, supra, 24 Cal.App.5th at p. 558.)
B. RISK OF DANGER
The People assert this court should direct the trial court to conduct a hearing concerning whether granting defendant's petition would pose an unreasonable risk of danger to public safety, because the trial court did not conduct such a hearing. (Health & Saf. Code, § 11361.8, subd. (b).) Defendant contends this court should order the trial court to resentence defendant, without a hearing on dangerousness, because defendant will be incarcerated for years due to the sexual offense convictions "he cannot possibly 'pose an unreasonable risk of danger to public safety' anytime soon following resentencing."
Defendant requests this court take judicial notice of two documents: (1) a "Legal Status Summary" concerning defendant's incarceration, reflecting that, as of March 13, 2018, defendant had 1,653 days remaining to serve on his 2013 sentence; and (2) an "Inmate Locator" reflecting defendant is eligible for parole in September 2022. We deny the request because the information was not presented in the trial court. (People v. Jacinto (2010) 49 Cal.4th 263, 272, fn. 5.) --------
The prosecution bears the burden of proving a petitioner does not qualify for resentencing. If the prosecution does not meet its burden, then the trial court "shall grant the petition . . . unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (Health & Saf. Code, § 11361.8, subd. (b).) The phrase " 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [Penal Code section 667, subdivision (e)(2)(C)(iv)]." (Health & Saf. Code, § 11361.8, subd. (b)(2) & Pen. Code, § 1170.18, subd. (c).) Sexual offenses, of the type defendant was convicted in 2013, are on the list of violent felonies (Pen. Code, §§ 220, 288a, subd. (c)(2)). (Pen. Code, §667, subd. (e)(2)(C)(iv)(I); Welf. & Inst. Code, § 6600, subd. (b).)
"Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70's. This applies with even greater force to a defendant who would still be serving a sentence greater than a human lifespan even if the petition was granted." (People v. Williams (2018) 19 Cal.App.5th 1057, 1063.)
In 2013, defendant was sentenced to a term of 12 years in prison. Now that it is 2018, i.e., five years after 2013, defendant could be released within seven years. Defendant was born in 1989, which means seven years from now, in 2025, he will be 36 years old. Thus, defendant is not serving a life term and he will be young when released from prison. As a result, we are not persuaded that the dangerousness hearing should be bypassed. The time defendant has left to serve in prison is a factor for the trial court to consider when determining dangerousness—but that time is not a reason to entirely bypass a hearing on dangerousness. (See People v. Williams, supra, 19 Cal.App.5th at p. 1064 [the trial court erred by not considering "when, if ever, defendant would be released if the petition was granted"].) Accordingly, the trial court must make a determination as to whether granting defendant's petition would pose an unreasonable risk of danger to public safety. (Health & Saf. Code, § 11361.8, subd. (b).)
DISPOSITION
The order denying the petition and finding defendant ineligible for resentencing is vacated. The trial court is directed to reconsider defendant's petition consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.