Denise Rudasill, 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, Michael Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1402572) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Denise Rudasill, 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, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven Anthony Yslas appeals from a trial court's order denying his petition for resentencing under Health & Safety Code section 11361.8 (Proposition 64). We affirm.
All further statutory references will be to the Health and Safety Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On May 1, 2014, a school resource officer at a high school received a phone call from a security agent regarding defendant, an 18-year-old student, who was in possession of brownies containing marijuana. The security agent located defendant and asked him if he had anything in his possession he was not allowed to have on campus, and defendant said he had marijuana brownies. Defendant said he received the brownies from another student, D.L., for him to sell on campus. The security agent opened his backpack and removed four sandwich bags, each containing three brownies individually wrapped in plastic wrap. A police officer later tested a piece of one of the brownies, and it tested positive for marijuana.
The school resource officer read defendant his Miranda rights, and defendant proceeded to tell the officer that on April 29, 2014, he received four sandwich bags containing 14 marijuana brownies from his friend D.L., while at school. Defendant said he and D.L. came up with the idea a few weeks ago that D.L. would make the brownies at home, and he would sell them on campus. They agreed that he would sell them for $5.00 each. Defendant said he knew the brownies contained marijuana because he tried them, and because D.L. told him. He normally received between nine and 14 brownies a batch from her. He said she had made three or four other batches, and he sold them on campus. He received the current batch on April 29, 2014, and he brought them to school on April 30 and again on May 1, 2014. He said he brought them to school on May 1, 2014, because he knew it was wrong to sell them and decided to give them back to D.L.
Miranda v. Arizona (1966) 384 U.S. 436. --------
The officer interviewed D.L., who confirmed that she and defendant came up with the idea of selling brownies on campus for $5.00 each. She would make a batch of brownies at home and give them to defendant to sell. She said she had made three or four batches already, and defendant would normally give her about $30 a batch from his sales. D.L. had marijuana in her closet at home that she used to make the brownies.
On September 15, 2014, the Riverside County District Attorney filed a felony complaint charging defendant with possession of marijuana for sale. (§ 11359, count 1.)
On January 8, 2015, defendant entered a plea agreement and pled guilty to count 1. In accordance with the plea agreement, the trial court placed him on probation under specified terms for a period of three years.
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 "[e]very 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." (§ 11359, subd. (b).) Proposition 64, which became effective November 9, 2016, 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. (§ 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 granting the petition would pose an unreasonable risk of danger to public safety.' [Citation.]" (People v. Rascon (2017) 10 Cal.App.5th 388, 393.)
On February 3, 2017, defendant filed a petition for resentencing or dismissal under section 11361.8, subdivision (b) (the petition).
On February 8, 2017, the People filed its response, stating that defendant was not entitled to relief because he was knowingly selling marijuana to minors at a high school.
The court held a hearing on the petition on October 6, 2017. At the outset of the hearing, defense counsel acknowledged that both he and the court had a copy of the police report, which indicated that defendant was 18 years old at the time of the offense. Defense counsel noted the statute that was applicable to the situation was section 11359, subdivision (c)(3), which involved the knowing sale of marijuana to a person under the age of 18 years old. Defense counsel argued the police report reflected that defendant was caught with marijuana brownies at the high school. He was going to sell them, but decided to return them to the person who gave them to him, because he knew it was wrong. Moreover, nothing in the report indicated that he actually sold or attempted to sell to anyone that day. Defense counsel further argued the fact that defendant was going to sell the brownies at the high school was not enough to establish the sale or attempted sale to a person under the age of 18, since he could have sold brownies to 18-year-old seniors. The People argued that because defendant was selling brownies at a high school, where the people's ages ranged from 14 to 18, it was a reasonable conclusion that he would be attempting to sell to people under the age of 18. The court agreed, stating that defendant was not "I.D.ing" students at the school to determine if they were 18 or not and, by his own admission, he was selling to students at the school. The court found that there was sufficient evidence to deny defendant's request to reduce his conviction to a misdemeanor.
The Court Properly Denied Defendant's Petition
Defendant argues that the court erred in denying his Proposition 64 petition, since the prosecutor failed to show, by clear and convincing evidence, that his offense was "committed in connection with the knowing sale or attempted sale of marijuana to a minor." He further claims this error violated his federal due process rights because the finding that he sold or attempted to sell marijuana to a minor "operated like a sentencing factor" that increased his sentence from a misdemeanor to a felony sentence. We conclude the court properly denied defendant's petition.
A. Relevant Law
At the time defendant committed his crime, Health and Safety Code section 11359 provided: "Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code." (Health & Saf. Code, former § 11359.) Penal Code section 1170, subdivision (h), provides generally for "imprisonment in a county jail for 16 months, or two or three years." Here, defendant was sentenced under this former version of Health and Safety Code section 11359, but was granted probation, pursuant to the plea agreement.
The electorate subsequently passed Proposition 64, which amended section 11359 to provide, generally, that "[e]very 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." (§ 11359, subd. (b).) Thus, if the amendment applies to defendant, his felony conviction for violating section 11359 would be reduced to a misdemeanor.
Proposition 64 allows a defendant convicted before it went into effect, who would have been guilty of a lesser offense under its terms, to petition for a reduction of the conviction and, if still in custody, for resentencing. (§ 11361.8, subd. (a).) "[T]he 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. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).)
On appeal, the substantial evidence rule applies to the clear and convincing standard of proof. (See In re Terry D. (1978) 83 Cal.App.3d 890, 899; see also, In re Maria S. (2000) 82 Cal.App.4th 1032, 1039 (Maria S.).) Therefore, "we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), overruled on other grounds, as stated in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Maria S., at p. 1039 [" '[a]ll reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court's order.' "].)
B. The Evidence Was Sufficient to Support the Court's Finding
Defendant claims that the court misinterpreted section 11359, subdivision (c)(3), because it used his statements that he previously sold marijuana brownies at his high school to find him guilty of currently possessing marijuana for sale. He asserts that he did not admit to selling or attempting to sell the brownies he possessed, and no one saw him sell or attempt to sell the brownies to any student, much less a minor student. Thus, since there was no clear and convincing evidence to support a finding that he sold marijuana to a minor, the court erred by finding him ineligible for resentencing as a misdemeanor. We disagree.
"The determination of whether the defendant is eligible for relief under section 11361.8, subdivision (a), requires the court to determine whether the defendant 'would not have been guilty of an offense, or . . . 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.' That determination requires the court to apply recently amended section 11359 to the facts to determine whether the defendant would have been convicted of a felony violation under that section had it been in effect at the time of the offense." (People v. Smit (2018) 24 Cal.App.5th 596, 601.)
Defendant asserts the statute that was applicable to the situation here is section 11359, subdivision (c)(3), which essentially provides that if a defendant's offense "occurred in connection with the knowing sale or attempted sale" of marijuana to a person under the age of 18 years old, his offense may be punished as a felony. Defendant argues that the court erred in denying his petition because, while he possessed marijuana, there was insufficient evidence that he sold or attempted to sell the marijuana he possessed to a minor. He points out that he did not admit to doing so, he was not caught by school officials in the act of selling the brownies, and there were no witness statements that he did so. However, defendant pled guilty to possession of marijuana for sale. "[A] guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt." (People v. Turner (1985) 171 Cal.App.3d 116, 125.) The elements of the offense here are that the defendant possessed the marijuana with the intent of selling it, and the defendant knew of its presence and illegal character. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) There is no requirement to show that the defendant actually sold the marijuana. Since defendant pled guilty to count 1, he admitted that he possessed the marijuana brownies that day with the intent to sell them. Thus, the only question for the court to decide was whether he intended to sell them to people under the age of 18. (§ 11359, subd. (c)(3).) Moreover, in order to deny the petition, the court simply had to find that defendant possessed marijuana "in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years." (§ 11359, subd. (c)(3), italics added.)
When the security agent caught defendant with the marijuana brownies in his backpack, defendant admitted he received the brownies from D.L. for him to sell on campus. Thus, the court pointed out that, by his own admission, defendant was selling the brownies to students at the high school. It also noted that he was not checking the students' identification to see if they were 18 years old. The court concluded there was sufficient evidence to find that he possessed the marijuana with the intent to sell it to minors. We further note the evidence that defendant admitted to the officer that he and D.L. came up with the plan for her to make marijuana brownies at home and give them to him to sell on campus for $5.00 each. The evidence also showed that he previously sold three or four other batches on campus, and that he was currently found at school with 12 individually wrapped marijuana brownies in his possession. Examining the whole record in the light most favorable to the court's finding, we conclude there was sufficient evidence that defendant possessed the marijuana brownies in connection with selling or attempting to sell them to minors, especially considering the vast majority of students in high school are under 18 years old. (See Guerra, supra, 37 Cal.4th at p. 1129; see also, Maria S., supra, 82 Cal.App.4th at p. 1039.)
Defendant additionally claims that the court violated his Fifth and Fourteenth Amendment due process rights. He argues the finding that he sold or attempted to sell marijuana to a minor, under Health and Safety Code section 11359, subdivision (c)(3), "operated like a sentencing factor" to increase his sentence from a misdemeanor to a felony sentence. Thus, because the People failed to prove the facts required by Health and Safety Code section 11359, subdivision (c)(3), by clear and convincing evidence, the court violated his due process rights in denying his petition. We see no due process violation, since the court properly found there was sufficient evidence he intended to sell marijuana to minors. (See ante) Moreover, contrary to defendant's claim, Health and Safety Code section 11359, subdivision (c)(3), does not increase a sentence from a misdemeanor sentence to a felony sentence. Rather, Health and Safety Code section 11359, subdivision (c), simply sets forth conditions which, if met, would subject a defendant to the Penal Code section 1170, subdivision (h) punishment. (Health & Saf. Code, § 11359, subdivision (c).)
We conclude that the court properly denied defendant's Proposition 64 petition to reduce his conviction to a misdemeanor.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Acting P. J. We concur: MILLER