26 Cal.App.5th Supp. 10
THE PEOPLE, Plaintiff and Appellant,
XIAO DONG LIN et al., Defendants and Respondents.
Nos. 5982, 5983, 5984, 5971
Superior Court of California, Appellate Division, Alameda
July 3, 2018
Superior Court No. 467859-B, No. 467859-C, No. 467859-A, No.
467859-D, Tara M. Flanagan, Judge.
[Copyrighted Material Omitted]
Vieira-Ducey, Deputy District Attorney, for Plaintiff and
Grove, Assistant Public Defender, for Defendant and
Respondent Hua Ou.
K. Gilg for Defendant and Respondent Xiao Dong Lin.
French for Defendant and Respondent Jianhan Ye.
J. Clark for Defendant and Respondent Liwen Ruan.
Markman, J., with Murphy, P. J., and Clay, J., concurring.
respondents in these consolidated appeals were awaiting trial
on felony charges of possession, sale, and cultivation of
marijuana, California voters passed Proposition 64—
"the Control, Regulate and Tax Adult Use of Marijuana
Act." Based on Proposition 64, the district attorney
amended the complaints to reflect misdemeanor rather than
felony charges. Respondents challenged the move, arguing that
Proposition 64 barred the amended criminal complaints against
them. The trial court sustained respondents' demurrers,
dismissing the charges.
reverse. Proposition 64 did not create a legislative pardon
for defendants facing felony charges for unlicensed sale and
cultivation of marijuana before it passed. Rather, California
voters changed the penalties for the conduct alleged in the
complaints here by making those penalties less severe. Under
California law, it was appropriate to amend the complaints to
invoke the lighter punishment. (In re Estrada (1965)
63 Cal.2d 740, 742 [48 Cal.Rptr. 172, 408 P.2d 948].)
The Amended Complaints and Demurrers
April 7, 2016, the People filed felony complaints charging
defendants Hua Ou, Xiao Dong Lin, Jianhan Ye, and Liwen Ruan
each with possession of marijuana for sale (count 1) and
cultivating marijuana (count 2), which were violations of
sections 11359 and 11358 of the Health and Safety Code.
Defendants later pled not guilty to the charges.
February 28, 2017, in the aftermath of the passage of
Proposition 64 in the November 2016 election, the trial court
granted the People's oral motion to amend the complaints
to charge misdemeanors rather than felonies. The amended
complaints alleged the same counts, but as violations of
sections 11359, subdivision (b) and 11358, subdivision (c) of
the Health and Safety Code. Defendants demurred to the
amended complaints. The trial court sustained the demurrers,
finding that Proposition 64 operated as a “ legislative
pardon, whether it was intentional or not.”
Jurisdiction and Standard of Review
People timely appealed from the order sustaining the
demurrers. (Pen. Code, § 1466, subd. (a)(3).) This court has
jurisdiction over the appeal, since the complaints stated
misdemeanor counts against defendants. (Ibid. ; Cal.
Const., art. VI, § 11, subd. (b); Cal. Rules of Court, rule
demurrer is simply a challenge to the legal sufficiency of a
complaint— it raises purely legal questions and so this
court reviews the order sustaining the
demurrer de novo. (People v. Keating (1993) 21
Cal.App.4th 145, 151 [25 Cal.Rptr.2d 810].) We “ give
the complaint a reasonable interpretation, and treat the
demurrer as admitting all material facts properly
pleaded.” (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].)
We do not “ assume the truth of contentions, deductions
or conclusions of law.” (Ibid .) This court
also reviews the trial court's interpretation of the
ballot proposition at issue de novo. (See People v.
Arroyo (2016) 62 Cal.4th 589, 593 [197 Cal.Rptr.3d 122,
364 P.3d 168].)
Proposition 64 worked a sea change in the way California
approaches the growth and use of marijuana through a
combination of commercial regulation and criminal laws. Among
its many changes, Proposition 64 reduced the criminal
penalties for the conduct at issue in the cases before us.
The Original Charges