26 Cal.App.5th Supp. 10, 5982, People v. Lin

Docket Nº:5982, 5983, 5984, 5971
Citation:26 Cal.App.5th Supp. 10
Opinion Judge:MARKMAN, J.
Party Name:THE PEOPLE, Plaintiff and Appellant, v. XIAO DONG LIN et al., Defendants and Respondents.
Attorney:Edward Vieira-Ducey, Deputy District Attorney, for Plaintiff and Appellant. Jesse Grove, Assistant Public Defender, for Defendant and Respondent Hua Ou. Zenia K. Gilg for Defendant and Respondent Xiao Dong Lin. Pete French for Defendant and Respondent Jianhan Ye. James J. Clark for Defendant and ...
Judge Panel:Markman, J., with Murphy, P. J., and Clay, J., concurring. Murphy, P. J., and Clay, J., concurred.
Case Date:July 03, 2018
Court:Superior Court of California
 
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26 Cal.App.5th Supp. 10

THE PEOPLE, Plaintiff and Appellant,

v.

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.

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[Copyrighted Material Omitted]

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COUNSEL:

Edward Vieira-Ducey, Deputy District Attorney, for Plaintiff and Appellant.

Jesse Grove, Assistant Public Defender, for Defendant and Respondent Hua Ou.

Zenia K. Gilg for Defendant and Respondent Xiao Dong Lin.

Pete French for Defendant and Respondent Jianhan Ye.

James J. Clark for Defendant and Respondent Liwen Ruan.

Markman, J., with Murphy, P. J., and Clay, J., concurring.

OPINION

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MARKMAN, J.

While 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.

We 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

On 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.

On 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

The 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 8.850.)

A 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

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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].)

Analysis

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

The original complaints in these four cases each alleged two felony charges. At the time the district attorney filed the charges in April 2016, Health and Safety Code former section 11359 imposed a felony sentence under Penal Code section 1170, subdivision (h). It provided: “ Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section...

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