Opinion
E068480
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY RENARD CLAYTON, Defendant and Appellant.
John F. Schuck, 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, and Barry Carlton and Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1400314) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed. John F. Schuck, 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, and Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Timothy Renard Clayton, filed a petition pursuant to Health and Safety Code section 11361.8, subdivision (b), seeking resentencing of his felony conviction for possession of marijuana (Health & Saf. Code, § 11359), 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 and remand the judgment.
I. PROCEDURAL BACKGROUND
On February 4, 2014, the People charged defendant by felony complaint with two counts of pirating at least 100 audiovisual materials (counts 1-2; Pen. Code, § 653w, subd. (a)), possession of a handgun by a prohibited person (count 3; Pen. Code, § 29800, subd. (a)(1)), possession of ammunition by a prohibited person (count 4; Pen. Code, § 30305, subd. (a)), possession of marijuana for sale (count 5; Health & Saf. Code, § 11359), and three counts of offering marijuana for sale or transport (counts 6-8; Health & Saf. Code, § 11360, subd. (a)). The People additionally alleged defendant had suffered five prior prison terms, including one derived from a conviction for failure to register as a sex offender (prior 5).
On May 20, 2015, defendant entered a plea to the court, to the sheet, with an indicated sentence of five years four months of incarceration. On May 21, 2015, the court sentenced defendant to the indicated sentence, striking priors 2, 4, and 5.
The minute order reflects defendant only pled guilty to count 8 and admitted only prior prison allegation 5. This conflicts with both felony plea forms, the sentencing minute order, , the reporter's transcript of the sentencing, and the abstract of judgment. There is no transcript of defendant's entry of the plea contained in the record.
On February 3, 2017, defendant filed a petition for resentencing pursuant to Health and Safety Code section 11361.8 requesting that he be resentenced on his conviction on count 5 for possession of marijuana for sale. The People filed opposition, reflecting defendant was ineligible for the relief requested because he was a Penal Code section 290 sexual offender registrant. On April 6, 2017, the court denied defendant's petition because he was a Penal Code section 290 registrant.
The minute order and abstract of judgment reflect the sentencing court imposed a concurrent sentence of one year four months on count 5.
II. DISCUSSION
Defendant contends the 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.' [Citation.]" (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] 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." (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." (Id., subd. (b).)
Under amended Health and Safety Code section 11359, subdivision (c)(1), "a person 18 years of age or over who possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if: [¶] (1) 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 11359, subdivision (c)(1) gives discretion to the sentencing court to treat a conviction of possession of marijuana for sale 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 section 290, subdivision (c). Where a court is considering the resentencing, pursuant to Health and Safety Code section 11361.8, of a prior felony conviction for possession of marijuana for sale, the permissive language in Health and Safety Code section 11359, subdivision (c)(1), 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 section 290, subdivision (c). In other words, in such a situation, the reduction of the offense is neither required nor prohibited.
A court may also find a defendant ineligible for resentencing if defendant "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" (Health & Saf. Code, § 11359, subd. (c)(1)) and/or whose conviction for possession of marijuana for sale "occurred in connection with the knowing sale or attempted sale of cannabis to a person under the age of 18 years" (Health & Saf. Code, § 11359, subd. (c)(3)). --------
Here, defendant admitted he had suffered a prior prison term for failing to register as a sex offender as required by Penal Code section 290. Thus, the court was not required to reduce defendant's conviction for felony possession of marijuana for sale 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 which required him to register as a sex offender pursuant to section 290, subdivision (c). Since the court failed to exercise such discretion by finding defendant per se ineligible for resentencing on the offense, the matter must be reversed and remanded. We express no opinion on how the court should exercise its discretion on remand.
III. DISPOSITION
The judgment is reversed and the matter remanded for further proceedings in accordance with the views expressed herein.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.