Filed 10/2/18 P. v. Lindsey-Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Jerome E. Brock, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Cindy Brines, 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 Tre Lindsey-Jones appeals from the trial court’s order denying his petition under Proposition 64 to redesignate as a misdemeanor his felony conviction for transporting more than an ounce of marijuana. Defendant argues: (1) he had a right to be present for the hearing and suffered prejudice from being absent; (2) the factual finding that he transported the marijuana out of the state must be proven beyond a reasonable doubt, not by clear and convincing evidence; (3) the trial court erred when it relied on the police report to find defendant ineligible because the report was hearsay; (4) the evidence was insufficient to prove he attempted to transport the marijuana to a location outside California; and (5) defense counsel was ineffective for failing to object to the trial court’s ruling on the above grounds.

Facts[1] and Procedure

Around 9:00 p.m. on the evening of June 24, 2016, United States Customs and Border Protection agents saw a red sedan exit the eastbound I-10 freeway about 22 miles west of Blythe. The sedan stopped abruptly on the side of the road near where the agents were patrolling. A woman got out of the driver’s side door, got a dog out of the sedan, and ran away from the vehicle. The two agents asked the woman if she was okay. She stated her dog was sick. The agents saw defendant sitting in the passenger side of the sedan. They knocked on the window, and when defendant rolled it down, the agents could smell the odor of marijuana coming from the sedan. The agents searched the sedan and found on the floor behind the passenger seat a plastic container holding 256.4 grams (0.56 lbs) of marijuana and a vacuum sealed bag containing 531.5 grams (1.17 lbs) of concentrated cannabis.[2]

Sheriff’s Deputy Rodriguez responded to the scene. Defendant told him the drugs were his, and that the woman, his girlfriend, did not know about them. Defendant produced an Arizona medical marijuana card, but stated he knew it was not valid in California. Deputy Rodriguez arrested defendant for transporting marijuana for sale, took charge of the drugs and transported defendant to the Colorado River Station. After being read his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant gave the following account: Defendant made the trip to California from Gilbert, Arizona, to transport the drugs from Palm Springs to Blythe because he owed people money and was tasked with that chore “[t]o get back in their good graces.” Defendant stated he did not know where in Blythe he was to deliver the drugs, but would be given instructions later. Defendant told his girlfriend they were going to visit his aunt in Palm Springs, so she rented a car and they left Arizona around 9:00 a.m. that day. While his girlfriend visited with his aunt, defendant said he was going to hang out with some friends. An unknown person picked up defendant at his aunt’s home, drove him to a casino to pick up the drugs, then drove him back to his aunt’s home. Defendant hid the drugs on the floor behind the passenger seat of the sedan, under some other items. Later that day, the couple drove east in the sedan until they stopped 22 miles west of Blythe and attracted the attention of the federal agents. Defendant did not present a driver’s license, but his girlfriend presented an Arizona driver’s license.

On October 13, 2016, defendant pled guilty to one count of transporting more than one ounce of marijuana in violation of Health and Safety Code section 11360, subdivision (a).[3] The court found the factual basis for the plea in the plea form. The court sentenced defendant to three years of formal probation and 90 days in county jail, with credit for four days total.

On February 3, 2017, defendant filed a form petition for resentencing or dismissal under section 11361.8, subdivision (b). Defendant checked the boxes indicating his conviction for section 11360 had been reclassified under Proposition 64 and that he was currently serving the sentence for that crime. Defendant did not check the box next to the statement: “Petitioner/applicant understands there is a right to personally attend any hearing held in this matter. Petitioner/applicant gives up that right; the matter may be heard without his/her appearance.” On February 8, the People filed a form response requesting a hearing and indicating they would submit a report at the hearing indicating defendant was possibly transporting the marijuana from California to Arizona. On June 5, the court set the “resentencing conference” on defendant’s petition for June 30 and requested a public defender be appointed.

The eligibility hearing on defendant’s petition was held on June 29, 2017. Defendant was not present at the hearing, but was represented by the Office of the Public Defender. The People provided the court and defense counsel with the police report, and argued defendant was ineligible for resentencing or dismissal because he was transporting the large amount of marijuana from California to Arizona. When asked by the court whether defense counsel had looked at the report and wished to be heard, counsel stated: “Submit it.” The court then denied the petition.

This appeal followed.

Discussion

1. Statutory Background

On November 8, 2016, the voters passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (the Act), which reduced the criminal consequences for offenses involving marijuana, effective November 9, 2016. Prior to Proposition 64, transporting more than one ounce of marijuana was a felony under section 11360, subdivision (a). Under the amended section 11360, subdivision (a), transporting more than one ounce of marijuana is in most cases now a misdemeanor, except under any of the four circumstances set forth in subdivision (a)(3), which includes when “[t]he offense involved . . . the transport for sale, offer to transport for sale, or attempted transport for sale out of this state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.” (§ 11360, subd. (a)(3)(D).) In other words, if defendant was transporting the large amount of marijuana from Palm Springs to Blythe, he would be guilty under Proposition 64 of only a misdemeanor. If he was attempting to transport the marijuana from California to Arizona, he would be guilty of a felony and thus not entitled to be resentenced to a misdemeanor.

Further, Proposition 64 added section 11361.8, which allows a “person currently serving a sentence for a conviction” of section 11360 and other marijuana crimes to petition the trial court to recall the person’s sentence and resentence them in accordance with the amended statute. (§ 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.” (§ 11361.8, subd. (b).) If the petitioner satisfies the criteria, the court may still deny the petition if it finds that granting it would “pose an unreasonable risk of danger to public safety.” (Ibid.)

2. Defendant’s Absence From the Hearing

Defendant argues he had a right to attend the eligibility hearing and did not waive this right. The People agree that defendant did have a right to attend the hearing, but respond that he has not established prejudice because he failed to specify what he would have said or done to cause a different result. Defendant has the burden of demonstrating prejudice from any error. (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)

We assume for the sake of argument that defendant had a right to attend the resentencing hearing and did not waive it. A criminal defendant has the right to be present at any critical stage of proceedings where his presence could contribute to the fairness of the procedure. (People v. Blacksher (2011) 52 Cal.4th 769, 799.) A sentencing hearing is such a stage. (People v. Fedalizo (2016) 246 Cal.App.4th 98, 110.) It can be argued that a Proposition 64 resentencing eligibility hearing is analogous to a sentencing hearing, based on our courts’ treatment of eligibility hearings under the somewhat similar scheme authorized by Proposition 36. (People v. Frierson (2017) 4 Cal.5th 225, 236; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331 [“[P]etitioner must be provided an opportunity to be heard before the court determines ineligibility based on unadjudicated facts.”] In addition, the petition form states: “Petitioner/applicant understands there is a right to personally attend any hearing held in this matter.” We do note, however, that the appellate court in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick), reviewed the three-step hearing procedure set forth in Proposition 36 (initial eligibility, dangerousness, resentencing) and concluded the petitioner did not have a right to be present for the proceeding on the petition to determine initial eligibility. (Kaulick, at p. 1299.)

In any case, defendant has not established that he was harmed by any error. Defendant argues the error was not harmless because the issue of whether he was transporting the marijuana out of state was never litigated and his presence would have affected the outcome of the hearing because he would have been able to convince the court that he was transporting the marijuana within California, from Palm Springs to Blythe.

Defendant is correct that the question of whether he attempted to transport the marijuana out of state was not litigated in court; it was not an element of the crime to which he pled guilty. Defendant contends the outcome of the hearing would have been different if he had been present because the court could have inquired about his intent in transporting the marijuana, and would have been able to assess his credibility first hand. However, he does not explain in any detail what he would have said that was not in the police report to convince the court that he was transporting the marijuana within California from Palm Springs to Blythe rather than back to his home in Arizona. The police report already contains the account he gave to Deputy Rodriguez, as outlined in the statement of facts ante, and so the court already had defendant’s statement about his intent in transporting the marijuana. The court simply did not believe defendant’s explanation. Defendant has not established that his presence at the eligibility hearing would have changed the outcome, and thus he has not established prejudice.

3. Clear and Convincing Evidence Versus Proof Beyond A Reasonable Doubt

Defendant further argues the People were constitutionally required to establish beyond a reasonable doubt that he was attempting to transport the marijuana out of state, rather than by the clear and convincing evidence standard contained in section 11361.8. This is because, he argues, the People were using the out-of-state element to increase his presumed misdemeanor under the new law to a felony, and this element had not previously been found true beyond a reasonable doubt.

Recently, our Supreme Court in People v. Frierson, supra, 4 Cal.5th 225, was asked to determine whether proof beyond a reasonable doubt is required for the People to establish ineligibility for resentencing under Proposition 36. The court held that proof beyond a reasonable doubt is required because, although the statute (Pen. Code, § 1170.126) does not expressly reference a standard of proof, the structure of the statute reflects an intent to require proof beyond a reasonable doubt for ineligibility both when the statute is applied prospectively and when it is applied retrospectively. Frierson is important on the issue presented here for two reasons. First, unlike Penal Code section 1170.126, Health and Safety Code section 11361.8 here does expressly reference a standard of proof—clear and convincing evidence. Second, the Frierson court based its conclusion strictly on a reading of the statute’s intent—it did not hold that proof of ineligibility beyond a reasonable doubt is constitutionally required. This is consistent with the precedent expressed in Kaulick, as explained immediately post.

Here, defendant already admitted to and was sentenced for the crime of felony transporting more than an ounce of marijuana. The retrospective application of Proposition 64 is an “act of lenity on behalf of the electorate.” (Kaulick, supra, 215 Cal.App.4th at p. 1304.) Like Proposition 36, as explained in Kaulick, Proposition 64 “provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues. Thus, there is no constitutional requirement that the facts be established beyond a reasonable doubt.” (Kaulick, at pp. 1304-1305, italics added.) Because: (1) section 11361.8 expressly provides for a clear and convincing evidence standard of proof for ineligibility; and (2) Kaulick explicitly holds and Frierson implies that proof beyond a reasonable doubt is not constitutionally required at a resentencing hearing that constitutes an act of lenity, we conclude that the trial court correctly applied the clear and convincing evidence standard of proof at the hearing on defendant’s eligibility for resentencing.

4. Sufficiency of the Evidence of Out-of-State Transport

Defendant contends the record contains insufficient evidence that he was attempting to transport the marijuana out of state, for two reasons. First, because the police report describing the facts of the case was inadmissible as hearsay. Second, because the information in the police report was insufficient to support a finding that he was attempting to transport the marijuana out of state.

The police report was admissible evidence at this hearing on defendant’s eligibility for resentencing under Proposition 64. The eligibility hearing is comparable to other postconviction proceedings such as sentencing, parole violation and probation revocation hearings, and eligibility hearings under Proposition 47. At sentencing hearings, a court may consider “unsworn or out-of-court statements” if there is a “substantial basis for believing the information is reliable.” (People v. Lamb (1999) 76 Cal.App.4th 664, 683.) Hearsay evidence is admissible at parole violation and probation revocation hearings if it bears a substantial degree of trustworthiness based on the trial court’s assessment of the indicia of reliability, which will not be reversed on appeal absent an abuse of discretion. (In re Miller (2006) 145 Cal.App.4th 1228, 1235; People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.) In an eligibility hearing under Proposition 47, the parties may make “limited use of hearsay . . . provided there is a substantial basis for believing the hearsay information is reliable.” (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095.) Like these other postconviction proceedings, an eligibility hearing under Proposition 64 may make limited use of hearsay evidence, such as that in the police report here.

As for the sufficiency of the evidence contained in the police report, defendant argues the report only shows that he transported marijuana within California, and that it is pure speculation that he intended to transport the marijuana out of California. He further contends the court should take at face value his statement to Deputy Rodriguez that he was transporting the marijuana to Blythe instead of his home in Arizona because transporting out of state was not an element of the crime at the time he was arrested, and thus there was no reason for him to lie.

It is the exclusive function of the trier of fact to draw reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623.) Reversal on the ground of insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the judgment. (People v. Redmond (1969) 71 Cal. 2d 745, 755.) Here, the court had before it the police report, which showed that defendant and his girlfriend had driven to Palm Springs from their home in Arizona, and when pulled over were heading east on Interstate Highway 10, about 22 miles west of Blythe, carrying a large amount of marijuana. Based on defendant’s statements to Deputy Rodriguez, the court could have chosen to believe that defendant was on his way to Blythe to deliver the marijuana, thus avoiding the out-of-state element required to establish felony transportation. However, the court chose instead to make the reasonable inference that defendant was lying about where he intended to deliver the marijuana. The inference was reasonable because defendant and his girlfriend were headed toward the border with Arizona, and they lived in Arizona. The inference was also reasonable because, as the People point out, defendant was first contacted by federal border patrol officers, and thus had incentive to lie to avoid federal prosecution for interstate transportation of a controlled substance under 18 United State Code, section 1952, which provides for a prison term up to five years. Finally, the court could, and did, choose to disbelieve the very unusual story defendant told about being pressured by unidentified persons to travel from Arizona to California to pick up and deliver the marijuana between points within California. The hypothesis the court chose to believe was sufficiently supported by the evidence found in the police report.

5. Defense Counsel Was Not Ineffective

Finally, defendant argues defense counsel was ineffective for failing to object to: (1) defendant’s absence from the hearing; (2) the court’s reliance on the hearsay evidence in the police report; (3) the standard of proof used; and (4) the insufficiency of the evidence in the police report.

A defendant who claims ineffective assistance of counsel must establish that his counsel’s performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that but for counsel’s errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) For the reasons discussed ante, any defense counsel objection on these issues would not have resulted in a more favorable determination for defendant.

Disposition

The trial court’s order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.