Filed 11/13/18 P. v. Johnson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
DWAYNE ALLEN JOHNSON,
Defendant and Appellant.
|
E068329
(Super.Ct.No. RIF1105334)
OPINION
|
APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed.
Andrea S. Bitar, 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 Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Dwayne Allen Johnson appeals from a trial court’s order denying his petition for resentencing under Health & Safety Code[1] section 11361.8 (Proposition 64). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On April 11, 2011, Officer Moreno, who was a member of the gang task force, was conducting surveillance at a post office. He observed defendant driving a car, with one passenger (the passenger). They arrived at the post office, exited the car, and went to the trunk. Defendant retrieved a box from the trunk and handed it to the passenger. The passenger took the box and entered the post office. A United States Drug Enforcement Administration (DEA) agent followed the passenger into the post office and overheard him talking to a postal employee, who asked if he wanted someone to sign for the package once it was delivered. The passenger said he did not want the package to require a signature. He then paid the postage fee and left. The DEA agent identified himself to the postal employee and requested the package to be set aside. Officer Moreno went inside the post office to see the package, and he immediately detected the odor of marijuana emitting from it. The mailing label on the package reflected that it was being sent from an address in Moreno Valley, California to an address in Toledo, Ohio. The postal inspector took custody of the package, and a federal search warrant was obtained. The package contained approximately two and one-half pounds of marijuana.
On February 21, 2014, the Riverside County District Attorney filed an amended information charging defendant with five counts of transportation of marijuana for sale (Health & Saf. Code, former § 11360, subd. (a), counts 1-5), possession of marijuana for sale (Health & Saf. Code, former § 11359, count 6), and planting, harvesting, or processing marijuana (Health & Saf. Code, § 11358, count 7). The amended information also alleged that he had one prior strike conviction for manufacturing a controlled substance. (Pen. Code §§ 667, subds. (c), (e)(1) & 1170.12, subd. (c)(1); Health & Saf. Code, § 11379, subd. (a).)
On February 25, 2014, defendant entered a plea agreement and pled guilty to counts 1 and 2 and admitted the prior strike conviction.[3]
On May 1, 2014, in accordance with the plea agreement, the trial court sentenced defendant to the upper term of four years on count 1, plus one-third the midterm, or one year, on count 2, doubled pursuant to the prior strike conviction, for a total of 10 years in state prison. The court dismissed the remaining counts.
On November 23, 2016, defendant filed a handwritten petition for resentencing under section 11361.8 (the petition), in propria persona.
On December 21, 2016, the People filed its response, requesting a hearing to determine whether defendant posed an unreasonable risk of danger.
The court held a hearing on the petition on May 9, 2017. At the outset of the hearing, the prosecutor asserted that the main issue was whether defendant was eligible for resentencing on count 1 (transportation of marijuana for sale, § 11360, subd. (a)), and noted that she had provided the court with a police report. The court stated that it had reviewed the police report, as well as the preliminary hearing transcript. Defense counsel proceeded to argue that defendant was only ineligible for resentencing if he intended to transport marijuana outside of the state through the mail. He asserted that the charging document did not mention any type of transportation of marijuana by way of mail, and the police report did not support any such theory either. Defense counsel also noted there was a coconspirator who actually went into the post office and attempted to mail the marijuana, but defendant was not charged with conspiracy. He concluded that defendant only pled to the facts that were contained in the amended complaint as to count 1.
The court reiterated that it reviewed the preliminary hearing transcript and other materials provided and stated that the clear facts behind the charge in count 1 showed that there were “1100 grams” of marijuana transported through the mail. Thus, the court found defendant ineligible for resentencing. As to count 2, the court found that defendant was not an unreasonable risk of danger to the public, and it granted the petition as to that count.
ANALYSIS
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 he was not entitled to relief. He agrees that he pled guilty to transportation of marijuana weighing 28.5 grams or more, but contends he did not plead guilty to the transportation of marijuana across state lines, as now required for a felony conviction under revised section 11360. He further asserts the evidence only showed that a passenger in his car attempted to mail marijuana out of state, the passenger was not charged, and defendant was not charged with conspiracy. Moreover, the record does not explain whether defendant knew there was marijuana in the package he handed to the passenger or whether he knew of the passenger’s plan to mail it to Ohio. We conclude the court properly denied defendant’s petition.
A. Relevant Law
Prior to the passage of Proposition 64, section 11360 provided that “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of section 1170 of the Penal Code for a period of two, three or four years.” (Former § 11360, subd. (a).) Defendant was sentenced under this former version of section 11360 to the upper term of four years, doubled pursuant to the prior strike conviction.
Proposition 64 reduced the punishment for transportation of marijuana to a period of up to six months in county jail, or a fine of up to $500, or both. (§ 11360, subd. (a)(2).) Under the amended version of section 11360, the imposition of state prison terms is limited to specified circumstances, including if the offense involves “the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams.” (§ 11360, subd. (a)(3)(D), italics added.)
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).)
B. The Evidence Was Sufficient
We initially note defendant’s assertion that he did not plead guilty to the transportation of marijuana outside of California, as required under amended section 11360. He points out that neither the plea form nor the information made any reference to the transport of marijuana across state lines. However, as defendant acknowledges, Proposition 64 changed section 11360, so that the mere transportation of marijuana is no longer a felony, but the transportation must be out of this state. (§ 11360, subd. (a)(3)(D).) Here, there was no reference to transporting marijuana out of California in the charging document or plea form because there was no such requirement at the time defendant was charged.
We also note defendant’s assertions that the evidence only demonstrated a passenger in his car, who was not charged, attempted to mail marijuana out of state, and that he (defendant) was not charged with conspiracy to transport marijuana. He further claims the record does not explain whether he knew what was in the package he handed to the passenger, what their relationship was, or whether he knew of the passenger’s plan to mail the marijuana to Ohio. The prosecutor was not required to present evidence on these issues. Defendant pled guilty to transportation of marijuana. “[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 (Turner).) The elements of the offense are: “(1) a person transported, that is, concealed, conveyed or carried marijuana, and (2) the person knew of its presence and illegal character.” (People v. Busch (2010) 187 Cal.App.4th 150, 156 (Busch).) Thus, pursuant to his plea, he admitted that he transported marijuana and knew what was in the package. The only question now is whether the prosecution presented clear and convincing evidence, in opposing the Proposition 64 petition, that defendant transported marijuana out of California. (§ 11361.8, subd. (b).)
In making its ruling, the court noted that it reviewed the preliminary hearing transcript and other documents provided by the prosecution (e.g., the police report). The evidence before the court showed that defendant picked up the passenger, drove him to the post office, took the box containing marijuana out of his car’s trunk, and handed it to the passenger. The passenger then took the box into the post office and attempted to mail it. The box had a mailing label which showed the recipient’s address in Ohio. Again, by pleading guilty to violating section 11360, defendant necessarily admitted he knew what was in the box, and he transported marijuana. (See Turner, supra, 171 Cal.App.3d at p. 125; Busch, supra, 187 Cal.App.4th at p. 156.) Since he drove the passenger and the box of marijuana to the post office and handed the box to the passenger for him to mail it, the evidence clearly showed defendant intended to mail the marijuana out of state.
We conclude that the court properly denied defendant’s Proposition 64 petition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.
[1] All further statutory references will be to the Health and Safety Code, unless otherwise noted.
[2] Since defendant entered a plea agreement, the factual background is taken from the preliminary hearing transcript and the police report.
[3] This court observed that defendant did not actually enter a guilty plea, and we asked the parties for supplemental briefing on whether or not the lack of a personal plea was a problem. Both parties agreed that defendant effectively pled guilty. (See People v. Niendorf (1961) 197 Cal.App.2d 594, 597-598 [“It is obvious that although defendant did not himself use the words ‘I plead guilty,’ he actually did so plead.”].) In light of the record, which shows that defendant signed a written plea agreement, confirmed with the court that he had no questions about his rights or consequences of the agreement, and then at the next hearing did not object when his counsel told the court there was no legal cause why judgment should not be pronounced, we conclude that defendant pled guilty. (See Id. at pp. 597-599.) Therefore, at the request of both parties, we will proceed to the merits of this appeal.
