Opinion
C084122 C084276
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN KEZMA SAMRA, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on March 22, 2018, be modified as follows:
On page 11, delete the second full paragraph and insert the following in its place:
In case No. 3049, defendant was charged and convicted of violating section 11361, subdivision (a)--using a minor to sell marijuana. This provision of the Health and Safety Code was not amended by the enactment of Proposition 64. (§ 11361, subd. (a).) Defendant acknowledges this fact but nonetheless argues that he is entitled to relief under section 11361.8, subdivision (e). According to defendant, he is entitled to relief because "[t]he penalties for [his] offense of conviction . . . have now been drastically reduced by Proposition 64 . . . under the new voter enacted . . . § 11359(d) . . . § 11359(c)(3) and . . . § 11360(a)(3)(C)." Not so. Section 11359 provides the penalties for persons who possess marijuana for sale, while section 11360 provides the penalties for persons who unlawfully transport, import, sell, or give away marijuana. (§§ 11359, 11360.) Although Proposition 64 amended these provisions of the Health and Safety Code, defendant was not convicted of violating section 11359 or 11360. Rather, he was convicted of violating section 11361, subdivision (a)--using a minor to sell marijuana. Accordingly, because none of the statutes amended or enacted by Proposition 64 altered the offense set forth in section 11361, subdivision (a), the trial court properly denied defendant's request to have his conviction redesignated as a misdemeanor. If Proposition 64 had been in effect at the time defendant committed his offense in 1997, his criminal conduct still would have amounted to felony using a minor to sell marijuana. (See People v. Martinez (2018) 2018 WL 1528503, at p. *3 [holding that the defendant was not eligible for resentencing because, had Proposition 47 been in effect time at the time of his drug transportation offense, his criminal conduct still would have amounted to felony drug transportation since none of the statutes amended or enacted by Proposition 47 altered the offense set forth in section 11379].) Moreover, under the plain language of section 11361.8, subdivision (e), defendant's conviction does not qualify for recall. Section 11361.8, subdivision (e) only permits a person who has completed his sentence for a conviction under sections 11357, 11358, 11359, or 11360 to file a petition for recall of sentence. Defendant was not convicted of violating any of these provisions. Defendant's arguments urging a contrary result are unpersuasive.
The petition for rehearing is denied. There is no change in judgment.
HULL, Acting P. J. We concur: DUARTE, J. RENNER, J. NOT TO BE PUBLISHED 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. Nos. 3049 / 3032)
In this consolidated appeal, defendant Steven Kezma Samra challenges the trial court's denial of his motion brought pursuant to Health and Safety Code section 11361.8 (one of the statutes enacted in 2016 as part of the Control, Regulate and Tax Adult Use of Marijuana Act, Proposition 64) to redesignate and dismiss his felony conviction for using a minor to sell marijuana (Health & Saf. Code, § 11361; unless otherwise stated, statutory section references that follow are to the Health and Safety Code). He also challenges the trial court's partial denial of his motion to redesignate and dismiss his felony conviction for cultivation of marijuana (§ 11358) under section 11361.8. We affirm the trial court's orders.
FACTS AND PROCEEDINGS
In January 1997, defendant was charged by felony information in case No. 3032 with three drug-related crimes, including cultivation of marijuana. (§ 11358.) The information did not allege how many marijuana plants defendant was cultivating.
In April 1997, defendant was charged by a second amended felony complaint in case No. 3049 with six drug-related crimes, including three counts of using a minor to sell marijuana. (§ 11361, subd. (a).) It was also alleged that defendant had been released on his own recognizance in case No. 3032 when he committed the charged crimes.
In May 1997, the trial court granted the prosecutor's motion to consolidate the cases.
In July 1997, pursuant to a written plea agreement, defendant pleaded guilty to cultivation of marijuana in case No. 3032 and using a minor to sell marijuana in case No. 3049. At the change of plea hearing, the trial court did not ask for a factual basis for defendant's guilty pleas. The plea agreement does not contain a factual basis for the pleas and does not reference a document providing the factual basis for the pleas. Instead, the plea agreement states that defense counsel will stipulate to a factual basis for defendant's pleas.
Immediately following defendant's guilty pleas, the trial court sentenced defendant to 16 months in prison on the cultivation of marijuana conviction. The court sentenced defendant to the lower term of three years on the using a minor to sell marijuana conviction but stayed execution of sentence pending defendant's successful completion of the 16-month prison term. The sentence imposed by the trial court was consistent with the parties' agreement.
In early November 2016, the electorate passed Proposition 64. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 64, p. 178.) Less than two weeks later, defendant filed two separate motions seeking redesignation and dismissal of his 1997 felony convictions. With respect to case No. 3032, defendant's motion requested that his felony conviction for cultivating marijuana be redesignated as noncriminal conduct and the conviction be dismissed and the record of conviction sealed under section 11361.8, one of the statutes enacted as part of Proposition 64. In the alternative, defendant requested that his conviction be redesignated as a misdemeanor under section 11361.8 and dismissed pursuant to Penal Code section 1203.4. With respect to case No. 3049, defendant's motion requested that his felony conviction for using a minor to sell marijuana be redesignated as a misdemeanor under section 11361.8 and dismissed pursuant to Penal Code section 1203.4. In both motions, defendant waived his right to a hearing.
The People filed a written opposition to both motions and did not request a hearing. The People argued that defendant was only entitled to redesignation of his felony conviction in case No. 3032 as a misdemeanor because the police report showed that he possessed 46 marijuana plants, not six plants or less. In addition, the People argued that defendant was not entitled to relief in case No. 3049 because Proposition 64 did not amend the statute punishing the use of a minor to sell marijuana. (§ 11361.)
The trial court denied defendant's motion in case No. 3049, finding that defendant was convicted of an offense--using a minor to sell marijuana--that was not eligible for the relief requested by defendant. The court initially denied defendant's motion in case No. 3032, finding that the quantity of marijuana providing the basis for his cultivation of marijuana conviction made him ineligible for the relief requested. However, after defendant filed a motion for reconsideration, the court found that defendant was convicted of an offense that was eligible for redesignation, recalled the sentence imposed for the cultivation of marijuana conviction, and redesignated the conviction as a misdemeanor. The court, however, denied the other relief requested by defendant, including defendant's request under section 11361.8 to redesignate his cultivation of marijuana conviction as noncriminal conduct and dismiss and seal the record of conviction. In denying this request, the trial court rejected defendant's contention that the People failed to carry their burden of proof because the police report constituted inadmissible hearsay.
Defendant filed timely notices of appeal. On our own motion, we consolidated the appeals for argument and disposition.
DISCUSSION
I
Proposition 64
Proposition 64 establishes a comprehensive system to legalize, control, and regulate nonmedical marijuana. (Prop. 64, §§ 1, 3.) Proposition 64 added section 11362.1, under which a person 21 years of age or older may possess, transport, or give away not more than 28.5 grams of marijuana not in the form of concentrated cannabis, and may cultivate not more than six living marijuana plants. (§ 11362.1, subd. (a)(1) & (3).) The proposition also reduced the punishment for certain marijuana offenses. As relevant here, Proposition 64 amended section 11358 to reduce the punishment for cultivating more than six marijuana plants. (Prop. 64, § 8.2.) This crime is now generally punishable as a misdemeanor if a person is over the age of 18 and cultivates more than six cannabis plants, except that it may be punished as a felony under certain circumstances. (§ 11358, subds. (c) & (d).)
Proposition 64 also provides for recall of sentence or dismissal in certain cases. It added section 11361.8, which provides in part: "(e) A person who has completed his or her sentence for a conviction under Sections 11357, 11358, 11359, and 11360, whether by trial or 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 file an application before the trial court that entered the judgment of conviction in his or her case to have the conviction dismissed and sealed because the prior conviction is now legally invalid or redesignated as a misdemeanor or infraction 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." (§ 11361.8, subd. (e).)
"The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under the Control, Regulate and Tax Adult Use of Marijuana Act." (§ 11361.8, subd. (f).) "Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e)." (§ 11361.8, subd. (g).)
II
Case No. 3032
1. The trial court did not err when the court denied defendant's request to redesignate his conviction for a violation of section 11358 as noncriminal conduct.
Defendant contends the trial court erred in denying his request to redesignate his cultivation of marijuana conviction as noncriminal conduct under section 11361.8. He argues that reversal is warranted because the People failed to carry their burden to show by clear and convincing evidence that he cultivated more than six marijuana plants in violation of section 11358. According to defendant, the police report showing the amount of marijuana plants found at his residence was not admissible evidence and did not rise to the level of proving by clear and convincing evidence the number of marijuana plants he was responsible for growing.
When defendant was convicted of cultivating marijuana in 1997, section 11358 provided: "Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison." (Former § 11358.) Following the passage of Proposition 64, it is now lawful under state law for persons 21 years of age or older to cultivate not more than six marijuana plants. (§ 11362.1, subd. (a)(3).) It is a misdemeanor for persons 21 years of age or older to cultivate more than six marijuana plants. (§ 11358, subds. (b) & (c).)
In this case, there is nothing in the record of conviction disclosing the number of marijuana plants defendant was growing in 1997, no doubt because there was no reason to identify the number of plants since cultivation of any amount of marijuana was a felony. However, in opposition to defendant's petition to redesignate and dismiss his cultivation of marijuana conviction, the People submitted a police report indicating that 46 marijuana plants were found in a "garage styled structure" behind defendant and Cindy Power's residence. Defendant argues that the police report is insufficient to satisfy the People's burden of proof because it is inadmissible hearsay.
Proposition 64 does not identify what evidence a court may consider in determining whether a defendant is eligible for relief under section 11361.8. Proposition 64 establishes a presumption that a defendant is entitled to relief, and places the burden on the People to prove by clear and convincing evidence that the defendant is not entitled to relief. (§ 11361.8, subd. (f).) Nothing in the proposition suggests that the voters intended to limit the court's consideration of evidence to the record of conviction or that the rules of evidence are any different than those that apply to other types of sentencing proceedings.
In arguing that the trial court erred in considering the police report, defendant contends that "evidence" in the context of a petition under section 11361.8 means admissible evidence. According to defendant, this is so because Evidence Code section 300 applies to every evidentiary hearing in the state courts, including special proceedings. That provision states: "Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings." (Evid. Code, § 300; see Evid. Code, § 105 [" 'Action' includes a civil action and a criminal action"].)
Defendant's argument is unpersuasive because it ignores the large body of case law that has countenanced the admission of otherwise objectionable evidence during postconviction proceedings such as sentencing and revocation of probation or parole. Hearsay evidence is admissible at parole and probation revocation hearings, "[a]s long as [it] bears a substantial degree of trustworthiness" as determined by the trial court. (In re Miller (2006) 145 Cal.App.4th 1228, 1235; People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.) It is likewise admissible at sentencing proceedings, so long as there is "a substantial basis for believing [it] is reliable." (People v. Lamb (1999) 76 Cal.App.4th 664, 683 ["Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial"]; People v. Arbuckle (1978) 22 Cal.3d 749, 754 [a sentencing court may consider a broad range of information, including responsible unsworn or out-of-court statements concerning the convicted person's life and characteristics]; People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 ["An eligibility hearing [under Proposition 47] is a type of sentencing proceeding. Nothing in Proposition 47 suggests the applicable rules of evidence are any different than those which apply to other types of sentencing proceedings. Accordingly, limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable"].)
In our view, a petition for relief pursuant to section 11361.8 is akin to other postconviction proceedings. Thus, the trial court's consideration of the police report was proper, unless the court relied upon unreliable hearsay information contained in the report. In the trial court, defendant argued, as he does on appeal, that a police report is not admissible evidence to establish the value of stolen property in the context of a petition for resentencing under Proposition 47. He further argued, as he does on appeal, that the police report in this case is not admissible because the report is not authenticated by its author, is hearsay, and the statements in the report regarding the number of marijuana plants attributes knowledge of the quantity of the plants to potentially other hearsay declarants as the author refers to "we discovered." In support of his position, defendant cites People v. Johnson (2016) 1 Cal.App.5th 953 (Johnson), which involved a petition to recall a felony sentence for receiving stolen property under Proposition 47. Defendant's reliance on Johnson is misplaced.
At issue in Johnson was whether defendant had sustained his burden to establish eligibility for relief under Proposition 47, which required a showing that the value of the stolen property did not exceed $950. (Johnson, supra, 1 Cal.App.5th at p. 959.) Contrary to defendant's contention, Johnson does not hold that a police report can never be considered in determining whether a defendant is eligible for resentencing under Proposition 47. The Johnson court held that a petitioning defendant has the initial burden of demonstrating eligibility for resentencing under Proposition 47, and that, to satisfy this burden, the defendant is not limited to the record of conviction but rather is entitled to present evidence of facts from any source. (Id. at pp. 964-968.) In concluding that defendant was not entitled to relief, the court explained that the record on appeal did not contain any evidence from any source as to the value of the stolen property from which the trial court could have determined that the defendant was eligible for resentencing. (Id. at p. 968.) In a footnote, the court noted that the statements of the defendant's attorney submitted with the defendant's petition were insufficient as a matter of law to establish the value of the stolen property. (Id. at p. 968, fn. 16.) The court further noted that the unsigned copy of the police report that the defendant submitted was insufficient to establish defendant's eligibility for resentencing. (Ibid.) The court explained that the police report "does not contain admissible evidence; the report lacks authentication, and its statements of value of the stolen property contain multiple levels of hearsay." (Ibid.)
In this case, the police report submitted by the prosecutor is signed by the author and does not contain multiple levels of hearsay regarding the number of marijuana plants found. The report states that a search warrant was executed at defendant and Cindy Power's residence by various police officers, including the author. The report indicates that the author and two other police officers entered a "brown garage styled structure" directly behind the residence and found, among other things, 46 marijuana plants. Under the circumstances, the record supports the trial court's implicit determination that the hearsay information regarding the amount of marijuana plants found at defendant's residence was reliable. The report was written by a police officer at or near the time of the search, and the statement regarding the amount of marijuana plants found was based on the officer's personal observations while he was acting within the scope of his duty as a police officer to observe the facts and report them correctly. (See Lake v. Reed (1997) 16 Cal.4th 448, 461 [unsworn police report fell within the official records hearsay exception because the officer "wrote the report within the scope of his duty as a public employee; the report was made near the time of the event in question; and the source of the information contained in the report--i.e., [the police officer]--and the method and time of preparation 'were such as to indicate its trustworthiness' "].) Accordingly, the trial court did not err in denying defendant's petition to redesignate his cultivation of marijuana conviction to noncriminal conduct and dismiss and seal the record of conviction.
Defendant makes three additional arguments on appeal with respect to case No. 3032. First, he argues that, if the police report was admissible, the trial court erred in failing to redesignate his cultivation of marijuana conviction as an infraction because the police report revealed that the marijuana was found at his residence. Second, defendant argues that the trial court erred in failing to dismiss his redesignated conviction under Penal Code section 1203.4, subdivision (a). Third, defendant argues that the trial court erred in failing to dismiss his redesignated conviction under Penal Code section 1203.4a.
Defendant has forfeited his first and third arguments because he failed to raise them below. (People v. Tully (2012) 54 Cal.4th 952, 979-980, 1029 (Tully); People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 (Clark).) Defendant's second argument--that the trial court erred in failing to dismiss his redesignated conviction under Penal Code section 1203.4, subdivision (a)--lacks merit.
Penal Code section 1203.4 provides, in relevant part: "In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted . . . ." (Pen. Code, § 1204.3, subd. (a).)
This provision of the Penal Code does not apply to defendant. It only applies to a defendant who was placed on probation, not, as here, a defendant who was committed to state prison. (People v. Parker (2013) 217 Cal.App.4th 498, 502 (Parker) [relief under § 1203.4 is not available when the defendant served a prison term]; People v. Borja (1980) 110 Cal.App.3d 378, 381-382 (Borja).)
III
Case No. 3049
Defendant contends the trial court erred in failing to redesignate and dismiss his felony conviction for using a minor to sell marijuana. He argues that redesignation is warranted pursuant to Proposition 64, and that dismissal is warranted pursuant to Penal Code section 1203.4.
In case No. 3049, defendant was charged and convicted of violating section 11361, subdivision (a)--using a minor to sell marijuana. This provision of the Health and Safety Code was not amended by the enactment of Proposition 64. (§ 11361, subd. (a).) Defendant acknowledges this fact but nonetheless argues that he is entitled to relief under section 11361.8, subdivision (e). According to defendant, he is entitled to relief because "[t]he penalties for [his] offense of conviction . . . have now been drastically reduced by Proposition 64 . . . under the new voter enacted . . . § 11359(d) . . . § 11359(c)(3) and . . . § 11360(a)(3)(C)." Not so. Section 11359 provides the penalties for persons who possess marijuana for sale, while section 11360 provides the penalties for persons who unlawfully transport, import, sell, or give away marijuana. (§§ 11359, 11360.) Although Proposition 64 amended these provisions of the Health and Safety Code, defendant was not convicted of violating section 11359 or 11360. Rather, he was convicted of violating section 11361, subdivision (a)--using a minor to sell marijuana. Accordingly, because using a minor to sell marijuana is not one of the offenses reduced to a misdemeanor under Proposition 64, the trial court properly denied defendant's request to have his conviction redesignated as a misdemeanor. Under the plain language of section 11361.8, subdivision (e), defendant's conviction does not qualify for recall. Defendant's arguments to the contrary are unpersuasive.
We reject defendant's additional contention that the trial court erred in failing to dismiss his conviction under Penal Code section 1203.4, subdivision (a). As discussed ante, this provision of the Penal Code does not apply to defendant because he was committed to state prison. (Parker, supra, 217 Cal.App.4th at p. 502 [relief under § 1203.4 is not available when the defendant served a prison term]; Borja, supra, 110 Cal.App.3d at pp. 381-382.)
Finally, defendant has forfeited his contention that the trial court erred in failing to dismiss his conviction under Penal Code section 1203.4a. Defendant did not raise this issue below. (Tully, supra, 54 Cal.4th at pp. 979-980, 1029; Clark, supra, 5 Cal.4th at p. 988, fn. 13.)
DISPOSITION
The trial court's orders are affirmed.
HULL, Acting P. J. We concur: DUARTE, J. RENNER, J.