Opinion
C093047
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. THOMAS CHARLES SCOTT, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. NRC82011
BLEASE, Acting P. J.
Convicted in 2012 of multiple felony drug-related offenses with 10 prior strikes and sentenced to 25 years to life in prison, defendant Thomas Charles Scott subsequently sought to have his convictions for cultivating marijuana (count 1) and possession of marijuana for sale (count 2) reduced to misdemeanors under Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Health & Saf. Code, § 11362.1), which reduced or eliminated criminal penalties for various marijuana-related offenses and established a petitioning process for individuals to seek a reduction in sentence based on these changes in the law. The trial court found defendant was presumptively ineligible for relief because he was required to register under Penal Code section 290 for several prior violent sex offenses.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends the trial court mistakenly believed it lacked discretion to resentence counts 1 and 2 to misdemeanors, and that remand is necessary to allow the trial court to exercise its informed discretion on whether to redesignate the offenses under Proposition 64. He further contends that, on remand, the trial court should consider whether he is entitled to have his conviction for maintaining a place for selling or using a controlled substance (count 4) dismissed as he could not have been convicted of the offense had Proposition 64 been then in effect.
We conclude the court failed to recognize it had discretion to redesignate counts 1 and 2 as misdemeanors under Proposition 64 and shall remand the matter to allow the court to exercise its discretion. Upon remand, defendant may if he so chooses, raise his argument regarding count 4.
BACKGROUND
In November 2011, defendant was charged with cultivating marijuana (§ 11358- count 1), possession of marijuana for sale (§ 11359-count 2), possession of concentrated cannabis (§ 11357, subd. (a)-count 3), maintaining a place for selling or using a controlled substance (§ 11366-count 4), and possession of child pornography with a prior sex offense (Pen. Code, § 311.11, subd. (b)-count 5). It was further alleged as to all counts that defendant had suffered 10 prior strike convictions consisting of various violent sexual offenses. (Pen. Code, § 667, subd. (b)(1), 1170.12, subds. (a)-(d).)
A jury found defendant guilty on all five counts, and defendant subsequently admitted that all 10 prior strike convictions were true. (People v. Scott (Oct. 31, 2014, C071590) [nonpub. opn.] at pp. 1-2 (Scott).) In July 2012, the trial court sentenced defendant to state prison for 25 years to life on count 1, a concurrent term of 25 years to life on count 5, and 25 years to life each on counts 2 through 4, which were stayed under Penal Code section 654. (Scott, at pp. 1-2.) We affirmed his convictions on appeal. (Id. at p. 13.)
In 2020, the Department of Justice identified defendant as "potentially eligible" under Proposition 64 for recall or dismissal of his sentence or redesignation of some of his convictions. The district attorney opposed and requested a hearing on the matter. In a subsequent written opposition, the district attorney argued defendant's convictions for cultivation of marijuana in violation of section 11358 and possession of marijuana in violation of section 11359 were not eligible for redesignation given an exception for persons, like defendant, who had prior convictions for sex offenses requiring him to register under Penal Code section 290. The district attorney apparently did not contest reducing count 3, possession of concentrated cannabis under section 11357, to a misdemeanor as the disqualifying exception did not apply to that offense.
At a hearing in October 2020, defense counsel requested that the court reduce counts 1, 2, and 3; counsel did not raise any arguments pertaining to reducing or otherwise dismissing count 4. The court then asked the district attorney whether "the People are now contesting that the defendant had a prior duty to register at the time that he was convicted of these offenses that would, therefore, make him presumptively ineligible for re-sentencing to lesser charges . . . [i]s that correct?" The district attorney responded, "[t]hat is correct, your Honor," explaining that in 1990 defendant had been convicted of numerous counts of forcible rape, oral copulation, and sexual penetration, all of which required him to register pursuant to Penal Code section 290. Defense counsel submitted on the People's statement that defendant's duty to register at the time he committed counts 1 and 2 "preempt[ed] him from any kind of relief." The court and the parties agreed, however, that because section 11357 did not contain a similar registration exception, defendant was entitled to have his count 3, possession of concentrated cannabis conviction, reduced to a misdemeanor. The court therefore denied relief as to counts 1 and 2, but reduced count 3 to a misdemeanor, sealed the conviction, and deemed it time served. Defendant timely appealed.
DISCUSSION
Proposition 64
In 2016, the California electorate passed Proposition 64. (People v. Boatwright (2019) 36 Cal.App.5th 848, 853.) "Proposition 64 legalized the recreational use of marijuana and reduced the criminal penalties for various marijuana-related offenses, including the cultivation and possession for sale of marijuana." (Ibid.) "The law provides gradations of punishment for certain marijuana-linked conduct based on factors such as a person's age, prior criminal history, and the quantity of marijuana in question." (Id. at p. 853.) As pertinent here, it amended sections 11358 and 11359 to reduce the punishment for cultivating more than six marijuana plants and for possessing marijuana for sale. (Prop. 64, §§ 8.2 & 8.3.) Both those crimes are now generally punishable as misdemeanors except that they may be punished as felonies under certain circumstances, including that an offender "may be punished by imprisonment" if the person has one or more prior convictions for "an offense requiring registration pursuant to . . . Section 290 of the Penal Code." (§§ 11358, subds. (c) & (d), 11359, subds. (b) & (c), italics added.)
Section 11358 provides in relevant part: "(c) Each person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both that fine and imprisonment." Section 11358, subdivision (d)(1) provides: "Notwithstanding subdivision (c), a person 18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living cannabis plants, or any part thereof, except as otherwise provided by law, 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."
Section 11359 provides in pertinent part: "(b) Every person 18 years of age or over who possesses cannabis for sale shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment." Section 11359, subdivision (c)(1) provides: "Notwithstanding subdivision (b), 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."
A more recent amendment to sections 11358 and 11359 substituted the word "cannabis" for "marijuana." (Stats. 2017, ch. 27, § 124, eff. June 27, 2017.)
Proposition 64 also added section 11361.8, which includes a procedure that allows persons convicted of felony violations of section 11358 and 11359 and currently serving a sentence for such convictions to petition to recall or dismiss their sentence. (§ 11361.8, subd. (a).) In ruling on such a petition, the trial court must "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." (§ 11361.8, subd. (b).)
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 [Proposition 64] 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, [and] 11359 . . . as those sections have been amended or added by that act."
II
Analysis
Defendant contends, and the People concede, the trial court failed to recognize that it had discretion to reduce defendant's convictions for cultivating marijuana and possessing it for sale under sections 11358 and 11359, despite the fact that he was required to register under Penal Code section 290. We agree.
"Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228, citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.) "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing." (Brown, at p. 1228.)
In this case, the court's comments during the hearing on defendant's resentencing petition show that it believed it did not have discretion to redesignate defendant's felony convictions in counts 1 and 2 to misdemeanors because defendant was required to register as a sex offender under Penal Code section 290 when he committed the offenses. After first characterizing defendant as "presumptively ineligible" for resentencing, the court later found that defendant "would not be eligible for resentencing as to those two counts, which are [c]ounts 1 and 2 . . . because of the duty to register pursuant to Penal Code section 290 at the time." (Italics added.)
Under the plain language of both sections 11358 and 11359 as amended by Proposition 64, however, a person convicted of cultivating marijuana or possessing it for sale "may be punished by imprisonment" if the person has a prior conviction requiring him or her to register under Penal Code section 290. (§§ 11358, subds. (c), (d), 11359, subds. (b), (c), italics added.) Ordinarily, the word "may" is deemed permissive or discretionary. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1143; People v. Perez (2021) 67 Cal.App.5th 1008, 1015 [" '[I]n delineating the trial court's authority by use of the word "may," the statutory language itself indicates the trial court has broad discretion' "].) Thus, while the court was not required to reduce defendant's convictions to misdemeanors, it had the discretion to reduce them. Because the court apparently was unaware of this discretion, remand is necessary to allow the court to exercise its informed discretion. (People v. Brown, supra, 147 Cal.App.4th at p. 1228.)
Because the trial court has never considered Proposition 64's effect, if any, on count 4, defendant may raise that issue upon remand. We express no opinion on whether Proposition 64 applies to that count.
DISPOSITION
The matter is remanded to allow the trial court to exercise its discretion whether to redesignate defendant's convictions for cultivating marijuana under section 11358 and possession of marijuana for sale under section 11359.
We concur: ROBIE, J., DUARTE, J.