Opinion
E068926
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. SAUL CAMPOS, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400258) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Reversed with directions. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On April 19, 2016, defendant and appellant Saul Campos pled guilty to manufacturing concentrated cannabis under Health and Safety Code section 11379.6; possession of proceeds derived from a controlled substance offense under Health and Safety code section 11370.9; possession of marijuana for sale under Health and Safety Code section 11359; and cultivation of marijuana under Health and Safety Code section 11358. Defendant also admitted that he was armed with a firearm when he committed the possession of proceeds and possession for sale offenses. (Pen. Code, § 12022, subd. (a)(1).)
That same day, the trial court placed defendant on probation for three years, and ordered him to serve 180 days in local custody.
On February 3, 2017, defendant requested resentencing under Health and Safety Code section 11361.8 (Proposition 64), which provides for misdemeanor sentences for certain drug-related offenses, including possession for sale and cultivation of marijuana, unless the trial court finds that the petitioner poses an "unreasonable risk of danger to public safety." The trial court granted defendant's request to reduce his cultivation count, but denied relief for the possession of sale offense on the ground that defendant was armed with a firearm at the time of the offense.
On August 14, 2017, defendant filed a notice of appeal.
For the reasons set forth below, we reverse the trial court's denial of defendant's petition for the possession of sale offense but remand the matter for the court to make a determination of whether defendant poses an unreasonable risk of danger to public safety under Health and Safety Code section 11361.8, subdivision (b).
B. FACTUAL HISTORY
Police officers served a search warrant at a residence where defendant lived. The officers found evidence of a cannabis concentration operation. Defendant arrived while the search was in progress. Defendant had concentrated cannabis on his person and his room contained evidence of the cannabis concentration operation. The officers also found two firearms in another person's bedroom, along with additional evidence of cannabis concentration. Approximately $43,000 was buried in the backyard.
Officers also found 1,000 feet of irrigation hose, 40 fifty-pound bags of fertilizer, and many marijuana plants. Defendant had photos on his cell phone that depicted him standing in a marijuana "grow," in the midst of processing concentrated cannabis, and holding one of the firearms that was found at the residence. Another photo on defendant's phone showed a large amount of cash.
DISCUSSION
Defendant contends that the trial court erred when it declined to reclassify his possession for sale offense as a misdemeanor, and the People agree. Upon remand, defendant argues that the trial court should grant his petition. The People, however, contend that "the court must determine whether relief is warranted. The trial court must decide whether [defendant] poses an unreasonable risk of danger to public safety." We agree with the People.
A. ADDITIONAL PROCEDURAL HISTORY
On February 3, 2017, defendant filed a petition asserting that was serving a sentence, and requested resentencing under Proposition 64. Initially, the People conceded that defendant was entitled to Proposition 64 relief for both the cultivation and possession for sale offenses. The People then shifted their position and argued that defendant was not entitled to relief for possession for sale because he had admitted that he was armed with a firearm when committing the offense. The People argued that only nonviolent criminals were entitled to receive proposition 64 relief and the firearm enhancement disqualified defendant from relief. The trial court agreed and denied relief. On appeal, both parties agree that the trial court erred in denying defendant's Proposition 64 petition on the possession for sale offense.
B. ANALYSIS
On November 8, 2016, the voters passed the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64), which amended section 11359, to provide that "every person 18 years of age or over who possesses cannabis for sale shall be punished 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).)
Proposition 64, which became effective on November 9, 2016, also included Health and Safety Code section 11361.8, which allows a "person currently serving a sentence for a conviction" of specified marijuana-related crimes to petition the superior court to recall the prisoner's sentence and resentence them according to the amended statute. (Health & Saf. Code, § 11361.8, subd. (a).) "If an inmate files such a petition and satisfies the statutory criteria for relief, 'the court shall grant the petition . . . unless the court determines that grating the petition would pose an unreasonable risk of danger to public safety.' (Health & Saf. Code, § 11361.8, subd. (b).) An 'unreasonable risk of danger to public safety' is defined as '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)].' (Pen. Code, § 1170.18, subd. (c); see Health & Saf. Code, § 11361.8, subd. (b)(2).)" (People v. Rascon (2017) 10 Cal.App.5th 388, 392-393.)
Therefore, for a defendant currently serving a sentence, Health and Safety Code section 11361.8 allows qualifying crimes to be resentenced as misdemeanors if the trial court does not find that the defendant poses an unreasonable risk of danger to the public. (Health & Saf. Code, § 11361.8, subd. (a)-(b).)
Under Health and Safety Code section 11361.8, subdivision (e), a "person who has completed his or her sentence for a conviction . . . may file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction . . . ." (Italics added.) "The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid . . . ." (Health and Saf. Code, § 11361.8, subd. (f).)
In this case, defendant filed his petition under Health and Safety Code section 11361.8, subdivision (b), and not subdivision (e).
C. REMAND TO THE TRIAL COURT
In this case, in April 2016, the trial court placed defendant on probation for three years and ordered him to serve 180 days in local custody. In his petition for resentencing, defendant indicated that he was filing for resentencing or dismissal under Health and Safety Code section 11361.8, subdivision (b), and that he "is currently serving the sentence for the crime noted above, and requests the sentence be recalled and that he/she be resentenced or the charges be dismissed as required by law." Because defendant is "currently serving" his sentence, he is entitled to Proposition 64 relief for qualifying crimes so long as the trial court does not make a dangerousness finding. (People v. Bastidas (2017) 7 Cal.App.5th 591 (rev. granted April 26, 2017, S240208 [defendant's probation constituted serving a "sentence" under Proposition 47].) Here, the trial court denied defendant's petition under Proposition 64 because defendant admitted a firearm enhancement. The trial court, however, was required to decide whether defendant posed an unreasonable risk of danger to public safety. Defendant's firearm enhancement admission did not automatically disqualify him from relief under Proposition 64. The case, therefore, should be remanded for the trial court to hold a hearing to determine whether defendant poses an unreasonable risk of danger to public safety.
Notwithstanding, defendant argues that the trial court, upon remand, should simply grant his petition and need not make a dangerousness finding because "probationer's dangerousness is irrelevant if he otherwise qualifies for a sentencing reduction" under Health and Safety Code section 11361.8. Defendant, for the first time on appeal, argues that "a probationer would not fall within the provisions of subdivisions (a) and (b) of Health and Safety Code section 11361.8, because such an interpretation would not harmonize with the wording of subdivision (c)."
Defendant argues that under Health and Safety Code section 11361.8, subdivision (c), "a probationer cannot fall within the category of a defendant who is still serving his sentence, because the statute's scope does not extend beyond parolees and post-release community supervisees and the remedial measures that apply to such persons. Nowhere does the statute make reference to probationers." Therefore, defendant argues that we "should conclude that the electorate did not intend that probationers seeking sentencing relief had to pass a public safety assessment beforehand." In essence, defendant appears to be arguing that his petition should be considered a petition under section 11361.8, subdivision (e), and not under subdivision (b). However, as discussed above, defendant filed his petition for resentencing under Health and Safety Code section 11361.8, subdivision (b), and indicated that he "is currently serving the sentence for the crime noted above." In his opening brief, defendant acknowledged that "[i]n his petition for resentencing filed on February 3, 2017, [defendant] alleged that he was currently serving a sentence for drug related crimes and that he qualified for a sentencing reduction within the meaning of Health and Safety Code section 11361.8, subdivision (b)." Defendant cannot now, for the first time on appeal, argue that he filed his petition under subdivision (e) of section 11361.8 because he has already served his sentence. Moreover, we find the court's reasoning in People v. Bastidas, supra, 7 Cal.App.5th 591, to be instructive. There, the court held that in the context of Proposition 47, a probationer is still serving his sentence. (Id. at pp. 599-606.)
In his appellant's opening brief, defendant wrote: "Here, nothing in Health and [Safety] Code section 11361.8 precludes appellant from obtaining sentencing relief for possessing marijuana for the purpose of sale merely because he was armed at the time of the commission of the offense. Such a defendant who has already completed his sentence is only ineligible for leniency if the prosecution establishes by clear and convincing evidence that the defendant did not suffer a conviction for an enumerated offense and did not complete his sentence. (Health and Saf. Code, §§ 11361.8, subs. (e) & (f).)" --------
In sum, we find that the trial court erred in denying defendant's Proposition 64 petition as to count 3 based on the ground that defendant admitted a firearm enhancement. Instead, the trial court was required to determine whether defendant posed an unreasonable risk of danger to public safety. This case, therefore, is remanded to the trial court for the court to make the dangerousness finding.
DISPOSITION
The trial court's order denying defendant's petition as to count 3, under Health and Safety Code section 11361.8, is reversed. The trial court is directed to hold a hearing as to whether defendant poses an unreasonable risk of danger to public safety. If the trial court makes a finding that defendant poses an unreasonable risk of danger to public safety, the court shall deny defendant's petition. If the trial court makes a finding that defendant does not pose an unreasonable risk of danger to public safety, the court shall grant defendant's petition as to count 3.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.