Filed 9/4/18 P. v. James 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. David A. Gunn, Judge. Reversed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

Defendant and appellant Vonnie D. James filed a petition pursuant to Health and Safety Code section 11361.8, subdivision (b), seeking resentencing or dismissal of his felony conviction for sale of marijuana, which the court denied because he was a registered sex offender. On appeal, defendant contends the court erred in determining that Penal Code section 290 registration, in and of itself, warrants the denial of a petition under Health and Safety Code section 11361.8, subdivision (b). We reverse.

On April 26, 2010, defendant pled guilty to five felony drug-related offenses, which included the sale of fake methamphetamine (Health & Saf. Code, § 11355 (count 1)); two counts of sale of methamphetamine (Health & Saf. Code, § 11379 (counts 2 and 3)); furnishing methamphetamine to a minor (Health & Saf. Code, § 11380 (count 4)); and sale of marijuana (Health & Saf. Code, § 11360 (count 5)). Defendant also admitted to having suffered one prison prior (Pen. Code § 667.5, subd. (b)), and one prior strike offense (Pen. Code §§ 667, subd. (c), (e)(1); 1170.12, subd. (c)(1)). Defendant was required to register as a sex offender under Penal Code section 290. The violation of Health and Safety Code section 11360 (count 5) is the subject of this appeal.

On April 30, 2010, the trial court sentenced defendant to a total term of 13 years four months, consisting of 12 years on count 4; plus one year four months on count 1. The court imposed six years each for counts 2 and 3, and six years on count 5, with these terms to be served concurrently with the terms in counts 1 and 4.

On February 3, 2017, defendant petitioned the trial court for resentencing under Proposition 64 (Health & Saf. Code, § 11361.8, subd. (b)), requesting that he be resentenced on count 5. The People opposed the petition arguing that he was ineligible for resentencing because he had been convicted of a sexual battery (Pen. Code, § 243.4) in 1997, and was required to register as a sex offender under Penal Code section 290. At the hearing on September 7, 2017, the court initially agreed with defendant that the fact that he was a Penal Code section 290 registrant was not a bar to resentencing under Proposition 64, but was a factor to be weighed by the court in exercising its discretion to grant defendant’s petition. The court, however, ultimately concluded that defendant’s Penal Code section 290 registration requirement rendered him ineligible for relief under Proposition 64.

On September 19, 2017, defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that the trial court erred in determining defendant’s Penal Code section 290 registration requirement rendered him ineligible for resentencing. We agree.

“Proposition 64 . . . added Health and Safety Code section 11361.8, which allows a ‘person currently serving a sentence for a conviction’ of Health and Safety Code section 11359 (and other marijuana-related crimes) to petition the trial court to recall the person’s sentence and resentence the person in accordance with the amended statute. [Citation.] 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.’ ” (People v. Rascon (2017) 10 Cal.App.5th 388, 392-393.)

“A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, 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 before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with [Health and Safety Code s]ections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.” (Health & Saf. Code, § 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. 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.” (Health & Saf. Code, § 11361.8, subd. (b).)

Under amended Health and Safety Code section 11360, subdivision (a)(3), “a person 18 years of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three, or four years if: [¶] (A) The person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code[.]” Amended Health and Safety Code section 11360, subdivision (a)(3) gives discretion to the sentencing court to treat a conviction of sale of marijuana by an adult defendant as a felony, as opposed to a misdemeanor, if the defendant has a prior conviction requiring that he register as a sex offender pursuant to Penal Code section 290. Where a court is considering resentencing, pursuant to Health and Safety Code section 11361.8, of a prior felony conviction for sale of marijuana, the permissive language in Health and Safety Code section 11360, subdivision (a)(3), i.e., “may,” suggests the court has discretion in determining whether to reduce the offense where the defendant has a prior conviction requiring sex offender registration pursuant to Penal Code section 290. In other words, in such a situation, the reduction of the offense is neither required nor prohibited.

In this case, defendant was required to register as a sex offender under Penal Code section 290. Therefore, the trial court was not required to reduce defendant’s conviction for felony sale of marijuana to a misdemeanor. However, the court was required to exercise its discretion in determining whether to grant defendant’s request in consideration of the fact that defendant had a prior conviction for an offense that required him to register as a sex offender pursuant to Penal Code section 290. Because the court failed to exercise such discretion by finding defendant per se ineligible for resentencing, the matter must be reversed and remanded. We express no opinion on how the court should exercise its discretion on remand.

DISPOSITION

The trial court’s order denying defendant’s petition under Health and Safety Code section 11361.8 is reversed so that the trial may exercise its discretion consistent with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.