Opinion
E068409
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOE BONILLA, Defendant and Appellant.
Steven S. Lubliner, 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, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF120892) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Judge. Reversed with directions. Steven S. Lubliner, 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, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
In 2008 defendant and appellant Edward Joe Bonilla pled guilty to nine felony counts: possession of a controlled substance for sale under Health and Safety Code section 11378 (counts 1, 5, 8); possession of marijuana for sale under Health and Safety Code section 11359 (count 2); forgery under Penal Code section 476 (count 3); felon in possession of a firearm under Penal Code section 12021, subdivision (a)(1) (count 4); possession of a controlled substance under Health and Safety Code section 11350, subdivision (a) (count 6); possession of a firearm by a prohibited person under Penal Code section 12316, subdivision (b)(1) (count 7); and transportation of a controlled substance under Health and Safety Code section 11379, subdivision (a) (count 9). The trial court sentenced defendant to 19 years four months in prison. A portion of that total sentence consisted of 16 months imposed for the felony violation in count 2.
All further All further statutory references are to the Health and Safety Code unless otherwise indicated.
On November 8, 2016, California voters approved Proposition 64. The initiative became effective the following day.
On February 3, 2017, pursuant to Proposition 64, defendant filed a petition for resentencing under section 11361.8, subdivision (b), to have his felony conviction for possession of marijuana for sale under section 11359 (count 2) reclassified as a misdemeanor. The district attorney's office opposed the motion claiming that defendant was ineligible for relief because he had two prior section 11359 convictions. On April 19, 2017, the trial court agreed with the district attorney's office and denied defendant's petition.
Defendant filed a timely notice of appeal from the denial of his petition.
For the reasons set forth below, we reverse the trial court's summary denial of defendant's petition and direct the court to hold an evidentiary hearing regarding defendant's eligibility.
DISCUSSION
Defendant contends that the case should be remanded to the trial court because the district attorney's office failed to establish his ineligibility for relief under Proposition 64 by clear and convincing evidence. We agree with defendant and remand this case to the trial court.
A. PROCEDURAL BACKGROUND
Count 2 of the amended information charged defendant with possessing marijuana for sale in violation of section 11359. The information also alleged a number of prison priors and two prior strikes. The second prison prior recited that defendant had been convicted of previously violating section 11359 in Riverside County on or about June 4, 1996. Nothing in the information alleged that defendant had suffered a prior conviction for violating section 11359 in 1985.
Defendant pled guilty to multiple counts, including count 2. On September 2, 2008, the trial court granted defendant's Romero motion to strike one of his two prior strikes. During the hearing on the motion, several references were made to defendant's two convictions for residential burglary in 1985. However, no reference was made to a 1985 conviction for violating section 11359.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
The trial court sentenced defendant to 29 years in state prison. His sentence included a two-year term on count 2. In 2015, after the Department of Corrections and Rehabilitation noticed that defendant's sentence on count 2 should have been for 16 months, not two years, his sentence was reduced to 19 years four months.
On February 3, 2017, defendant filed a petition for resentencing on his section 11359 conviction pursuant to section 11361.8, subdivision (b). The district attorney's office opposed the petition stating that defendant was disqualified because he had "2 prior 11359HS convictions 10/11/85 CR20447 and CR69017." The district attorney's office attached two documents to the opposition, both of which summarized the charges in the current case. There was no information regarding the alleged 1985 conviction.
On April 3, 2017, the trial court denied defendant's petition, agreeing with the district attorney's office that defendant was disqualified because he had two prior convictions for violating section 11359; the order was filed April 19, 2017. The court did not attach or cite evidence to support its conclusion.
B. LEGAL BACKGROUND
Proposition 64 amended Health and Safety Code section 11359; it changed the crime of an adult's possession of marijuana for sale from a felony, punishable under Penal Code section 1170(h), to a misdemeanor, punishable by no more than six months in jail under Health and Safety Code section 11359,subdivision (b). The crime, however, remains a felony if a defendant has two or more prior convictions for possessing marijuana for sale under Health and Safety Code section 11359. (Health & Saf. Code, § 11359, subd. (c)(2).)
Proposition 64 also enacted section 11361.8, which allows a defendant to petition the trial court for resentencing on a possession for sale conviction for which he is currently serving a sentence or for a reclassification of a conviction for which he has completed his sentence. (§ 11361.8, subd. (a), (e).) A defendant serving a sentence who is eligible for relief must be resentenced "unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).)
To be eligible for relief under section 11361.8, the defendant must show that the challenged possession for sale conviction would have been a misdemeanor if Proposition 64 had been in effect at the time. (§ 11361.8, subd. (a).) Since possession for sale convictions remain felonies in cases where the defendant had two such prior convictions, if the defendant had two such prior convictions before sustaining the challenged conviction, he is ineligible for relief. A trial court adjudicating a petition must presume the defendant is eligible for relief "unless the part opposing the petition does not satisfy the criteria. (§ 11361.8, subd. (b).)
C. ANALYSIS
In this case, in his opposition to defendant's motion, the deputy district attorney simply noted that defendant was not entitled to relief because he had "2 prior 11359 HS convictions[.]" In support of his opposition, the deputy district attorney included a case printout of the current case, which included a reference that defendant had a prior offense for possessing marijuana for sale under section 11359. The deputy district attorney, however, failed to provide any documentation that defendant had also been convicted of a section 11359 violation in 1985. The deputy district attorney's statement, without anything more, cannot be deemed clear and convincing evidence. In the respondent's brief, the People claim "[c]lear and convincing evidence requires only a finding of high probability—not absolute certainty." The People argue that the deputy district attorney's signature on the form meets the standard. We disagree. Even under this "reduced standard" of clear and convincing evidence, just referencing a 1985 conviction without anything more cannot be deemed clear and convincing evidence.
Notwithstanding, the People contend "it was incumbent on the court reviewing the petition to determine whether appellant had indeed suffered the disqualifying priors set forth by the prosecutor." The People also state "[i]n determining whether the prosecution has met its burden of proof, the trial court must necessarily consider the evidence that is presented. (See § 11361.8, subd. (f).) In this context, considering the evidence would have included confirming the information put forth by the prosecutor." Although we agree with the People's statements, the problem in this case is that the district attorney's office did not present any evidence of a 1985 prior conviction under section 11359. The trial court had no evidence to consider regarding the alleged 1985 conviction.
Furthermore, the People contend that, because the deputy district attorney signed the written opposition, "the information contained in the signed opposition should be presumed to be reliable." We disagree with the People. Even if the deputy district attorney believed that the information was truthful—without any other evidence or documentation regarding the 1985 section 11359 violation, his bare assertion cannot be deemed evidence.
Therefore, based on the above, we reverse the trial court's summary dismissal of defendant's petition. The case is remanded to the trial court to hold an evidentiary hearing on the petition to determine whether defendant suffered a prior conviction under section 11358 in 1985, to determine his eligibility for relief under section 11361.8.
DISPOSITION
The summary dismissal of defendant's petition under section 11358 is reversed and the case is remanded for the court to hold an evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.