Filed 1/22/18 P. v. Magallon CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Clemente Magallon appeals from an order denying his petition for resentencing pursuant to Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (the act). (Prop. 64, § 8.7, approved Nov. 8, 2016, eff. Nov. 9, 2016; Health & Saf. Code,[1] § 11361.8.) Defendant contends the trial court erred in concluding that his felony conviction under section 11366.5, subdivision (a), is not subject to reduction under Proposition 64. We agree and shall reverse.

Factual and Procedural Background

On September 8, 2015, defendant was charged with possession of marijuana for sale (§ 11359) and cultivation of marijuana (§ 11358). On December 7, 2015, pursuant to a negotiated plea, defendant pled guilty to one felony count under section 11366.5.[2] The prosecutor offered the following factual basis for the plea: “On the date charged in the complaint, defendant was in control of a property where the production of marijuana and storage of marijuana was going on. It was illegal marijuana.”[3] The possession for sale and cultivation counts were dismissed pursuant to the plea bargain.

On January 27, 2016, the trial court suspended the imposition of sentence and placed defendant on formal probation for 36 months.

In November 2016, the probation department filed a petition alleging that defendant had violated his probation. Defendant admitted the probation violation and was ordered to serve 60 days in county jail.

On November 29, 2016, defendant petitioned for resentencing pursuant to section 11361.8. The trial court denied the petition on the ground that defendant is ineligible for resentencing. The court explained, “If [defendant] would have pled guilty to one of the [offenses] that was charged, he would be eligible . . . . However, the voters specified certain statutes. And I think if the court . . . broadens the offenses involved, it gets beyond the voters’ intent which was specifically the statutes enumerated.”

Defendant timely appealed.

Discussion

Proposition 64, among other things, reduced the punishment for certain marijuana offenses. Cultivation of more than six living marijuana plants by an adult is punished as a misdemeanor unless the person has certain prior convictions or intentionally or with gross negligence causes substantial environmental harm. (§ 11358, subds. (c), (d).) The possession for sale of marijuana by one 18 years of age or older is punished as a misdemeanor unless the person has certain prior convictions or the offense involved the sale or attempted sale to one under 18 years of age or the knowing use of one 20 years of age or younger in cultivating, transporting or selling marijuana. (§ 11359, subds. (b), (c).) Proposition 64 also enacted a mechanism for defendants currently serving felony sentences to petition the court for resentencing. (§ 11361.8.)

Section 11361.8, subdivision (a) provides: “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 Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act.” If an eligible defendant would have been guilty of a lesser offense under the act, resentencing is required unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (§ 11361.8, subd. (b).)

The trial court misinterpreted this section. The court mistakenly assumed that section 11361.8 authorizes resentencing for only those convicted of one of the sections in accordance with which resentencing is required. However, the statute authorizes resentencing for any person serving a sentence for a conviction who would not have been guilty of an offense or “who would have been guilty of a lesser offense under the [act] had that act been in effect at the time of the offense.” (§ 11361.8, subd. (e).) The statutes in accordance with which a defendant is to be resentenced do not limit or define the persons who are entitled to resentencing. (Cf. People v. Page (2017) 3 Cal.5th 1175; People v. Romanowski (2017) 2 Cal.5th 903, 914; People v. Gonzales (2017) 2 Cal.5th 858.)

As indicated above, Proposition 64 reduced section 11368 and 11369 offenses from felonies to misdemeanors in the absence of specified aggravating factors apparently not present here. Defendant would have been guilty of one or both of those offenses, which are the very offenses that the People charged defendant with committing and which the record shows him to have committed. (See fn. 3, ante.) Had the act been in effect at the time of the offenses, and at the time when defendant agreed instead to plead to section 11366.5 for controlling the property on which he was cultivating the marijuana, there can be no doubt that he would have been adjudged guilty of one or both of the sections that Proposition 64 subsequently rendered lesser offenses. Therefore, defendant is a person entitled to resentencing under section 11361.8.

The Attorney General disputes this conclusion, citing People v. Dunn (2016) 248 Cal.App.4th 518, 526 for the proposition that a resentencing provision “does not permit the court, in addressing the eligibility of petitioners, to consider crimes that were charged but dismissed.” But in Dunn the court was considering whether the court could impose, as a condition of resentencing under Penal Code section 1170.18, that a defendant withdraw from a plea agreement under which other more serious charges had been dismissed. The People’s concern in that case was that the prosecution would be denied the benefit of a plea bargain under which more serious charges had been dismissed if the defendant were permitted to reduce still further the offense to which the defendant had agreed to plead guilty. In the present case, the People did not agree to dismiss more serious charges in exchange for defendant’s agreement to plead guilty to violation of section 11366.5. The penalty for violating both sections 11358 and 11359 was then the same felony triad as for the violation of section 11366.5. Although the record does not reveal the thinking of the parties, both the prosecution and the defense presumably considered their plea bargain to permit defendant to plead to section 11366.5 as a lesser offense.[4] The defendant here is not seeking to withdraw from a plea bargain and reduce still further the consequences of the lesser offense to which he agreed and pled. He is asserting simply that if Proposition 64 had been in effect at the time of his offense he would have been adjudged guilty of what Proposition 64 has transformed from at most an equivalent to a lesser offense. Under the unusual facts of this case, that is unquestionably correct.

The latter portion of section 11361.8 specifies those sections in accordance with which the defendant is to be resentenced. Section 11366.5 is not included, but sections 11358 and 11359 are. It is entirely logical that defendant be resentenced in accordance with one of those provisions since one of those is the section he would have been found guilty of violating if the act had been in effect at the time of the offense.

This interpretation is fully consistent with the purpose and objectives underlying Proposition 64. As explained in the Voter Information Guide concerning the proposition: “Currently the courts are clogged with cases of non-violent drug offenses. By legalizing marijuana, the Adult Use of Marijuana Act will alleviate pressure on the courts, but continue to allow prosecutors to charge the most serious marijuana-related offenses as felonies, while reducing the penalties for minor marijuana-related offenses as set forth in the act.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2014) text of Prop. 64, § 2, subd. (G), “Findings and Declarations,” p. 179.) On the record before us, it does appear, as defendant argues, that the “transactionally related” section 11361.5 offense was regarded by the district attorney and the court as a less serious offense than the two crimes charged in the complaint. Thus, resentencing and reduction of defendant’s sentence is consistent with both the letter and the purpose of Proposition 64.

Disposition

The order denying defendant’s petition for resentencing is reversed and the matter is remanded for reconsideration consistent with this opinion.

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Pollak, J.

We concur:

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McGuiness, Acting P.J.*

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Jenkins, J.