Filed 11/16/18 P. v. Arias CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed with directions.

Susan L. Ferguson, 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, A. Natasha Cortina, Christine Bergman and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Rudolfo Arias appeals from the trial court’s order denying his Proposition 64 petition to reduce to a misdemeanor his 2008 felony conviction for transporting marijuana for personal use. The People now concede defendant is eligible for resentencing. We reverse with directions to reconsider the petition.

Facts and Procedure

In July 2008, the People filed a complaint charging defendant with felony transporting or selling more than 28.5 grams of marijuana. (Health & Saf. Code, former § 11360, subd. (a).)[1] The People also alleged defendant had a prison term prior. (Pen. Code, § 667.5, subd. (b).) On December 4, 2008, defendant pled guilty to transporting more than 28.5 grams of marijuana for personal use and admitted the prison term prior. The court placed defendant on probation and ordered him to complete the “ROC” program. On May 2, 2011, the court revoked probation and sentenced defendant to the middle term of three years in prison and struck the prison term prior.

On May 31, 2017, defendant filed a petition to reduce his felony marijuana conviction to a misdemeanor under Proposition 64. (Health & Saf. Code, § 11361.8, subds. (e) & (f).) The People opposed the petition on the ground that defendant was not eligible for relief because he is required to register under Penal Code section 290. The People provided a case number but no documentation to prove defendant’s ineligibility. On August 11, 2017, the court denied the petition without a hearing on the ground that, “Defendant is a 290 registrant.”

Defendant appealed.

Discussion

Defendant argues the court erred when it denied his petition because the People did not bear their burden to prove by clear and convincing evidence that he was ineligible for resentencing.

A person who has completed his sentence for a conviction under certain sections, including section 11360, “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 the trial court to have the offense redesignated a misdemeanor as provided for in that section as amended by the act. (§ 11361.8, subd. (e), italics added.)

As amended by Proposition 64, section 11360, subdivision (a), now provides that transportation or sale of marijuana is a misdemeanor, except under certain circumstances. These circumstances include when the offender “has one or more prior convictions for an offense . . . requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.” In such a case, the offense is a felony punishable by two, three, or four years.
“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.” (§ 11361.8, subd. (f).)

Clear and convincing evidence is evidence which is clear, explicit and unequivocal, “ ‘ “so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 CalApp.4th 221, 229; see Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 332.)

Here, in response to defendant’s petition, the People merely indicated defendant is not entitled to relief because “PC 290 conviction; RIF153745.” The People provided no documentation of that conviction whatsoever—no evidence that defendant suffered a conviction requiring sex offender registration, and no evidence that defendant had such a prior conviction at the time of the marijuana offense, as explicitly required by sections 11360, subdivision (a)(3)(A), and 11361.8, subdivision (e). The recitation of a case number, without the accompanying record of conviction, is not the “clear and convincing evidence” the statute requires to overcome the presumption of eligibility. Further, as it turns out, this absence of the prior conviction record resulted in the erroneous ruling that must be corrected. Our colleagues in the Third Appellate District very recently arrived at the same conclusion in People v. Saelee (2018) 28 Cal.App.5th 744, regarding the People’s duty to provide actual evidence, rather than factual assertions and argument, to support the contention that a defendant poses an unreasonable risk of dangerousness under section 11361.8, subdivision (b).

The People do not address this point, but instead concede that defendant is eligible for resentencing because he committed the disqualifying sex offense after he committed the marijuana offense. Therefore, at the time he committed the marijuana offense, defendant did not have “one or more prior convictions for an offense . . . requiring [sex offender] registration.” (§ 11360, subd. (a)(3)(A).) This certainly is true and is a valid basis for reversing the trial court’s order, based on the docket for Riverside County Superior Court case No. RIF153745 attached to defendant’s motion for judicial notice filed January 11, 2018.[2]

However, an equally valid basis for reversing the trial court’s order is that, as defendant argues and is discussed ante, the order is simply not supported by substantial evidence in the trial court record, as in the record of the disqualifying conviction. In any case, we reverse and direct the trial court to reconsider defendant’s petition.

Disposition

The order denying defendant’s petition is reversed. The trial court is directed to reconsider defendant’s petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RAPHAEL

J.