People v. Banda

• Decision Date: 20 August 2018
• Docket Number: No. B284725,B284725
• Citation: 26 Cal.App.5th 349,237 Cal.Rptr.3d 63
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael BANDA, Defendant and Appellant.

26 Cal.App.5th 349

237 Cal.Rptr.3d 63

The PEOPLE, Plaintiff and Respondent,

v.Michael BANDA, Defendant and Appellant.

No. B284725

Court of Appeal, Second District, Division 7, California.

Filed August 20, 2018

As Modified on Denial of Rehearing September 18, 2018

Kenneth I. Clayman, Public Defender of Los Angeles County, California, Albert J. Menaster, Nikhil Ramnaney, Nick Stewart-Oaten, Deputy Public Defenders, for Defendant and Appellant.

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervision Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.

ZELON, J.

Michael Banda was convicted of a violation of Health and Safety Code, section 11358 in 2016. After the passage of Proposition 64, he petitioned for dismissal of his conviction. The court denied his petition. We now reverse, and remand to the trial court.

FACTUAL BACKGROUND

Michael Banda was arrested on March 8, 2016, when police arrived at a marijuana dispensary. According to the probation report, which was the only description of the events cited to the trial court on the motion, Banda and another man were stopped fleeing the store; when police searched the location, they found processed marijuana in the store and a number of plants under cultivation in an attached room. Although Banda told the police he was engaged in construction at, and resided at, a specified address, the report did not identify that, or any other address, as the address of the dispensary.

Banda was charged on March 10, 2016, with cultivation of marijuana, a felony. ( Health & Saf. Code, § 11358.)¹ On that date, he entered a plea of guilty, with an agreed to disposition; defense counsel stipulated to a factual basis for the plea based on the police report.² He was sentenced to probation in accordance with the plea agreement on April 8, after the court ordered and received a probation report; counsel submitted to the probation report for that purpose.

A. Banda's Motion To Dismiss

In November 2016, the electorate passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. Among other things, Proposition 64 provided relief to certain persons previously convicted of marijuana related offenses. In July 2017, Banda filed a petition to dismiss the complaint, or to reduce his conviction to a misdemeanor. (§ 11361.8.) The People opposed dismissal, but agreed that reduction to a misdemeanor was warranted.

B. The Evidence Submitted

After Banda petitioned for relief, the People submitted opposition. While conceding that Banda qualified for a reduction of his conviction to a misdemeanor, they argued the court should not dismiss the charge. The sole evidence on which the People relied in their written submission was the probation report; the People neither referred to nor submitted any other evidence to the trial court.

The probation report, prepared after the plea, set out facts in only two paragraphs. Those facts did not link Banda to the dispensary where the plants were found other than by his presence there; he was not reported to be an employee or owner, nor was the address linked to him identified as the address of the dispensary. No indication of the source of the information which included observations by, and statements apparently made by, unnamed officers, was included in the report; in fact, the probation officer specifically stated that neither defendant nor the investigating officer had provided any information.

The court heard the matter on August 9 and 10, 2017, denying Banda's request for an evidentiary hearing. The only evidence the People relied on at the hearing was the probation report, as the court acknowledged.³ Banda objected to the report as containing multiple levels of hearsay, and lacking identification of the source of the information included. Arguing that relevant case law allowed the court to consider reliable hearsay in this proceeding, the People posited that a probation report is always reliable hearsay.

On August 10, the court considered additional case citations submitted by the parties. During that hearing, Banda argued that, at the time he submitted to the probation report for sentencing purposes, the number of plants discovered by the police was irrelevant to the disposition of the matter.⁴ The court indicated that it believed it could supplement the information in the probation report by considering the return to the search warrant;⁵ Banda objected that the return was neither reliable nor admissible. Nonetheless, after making its ruling, the court indicated it had based its decision on the probation report, the search warrant, and the police report. Of those, only the probation report was submitted by the People to satisfy their burden of proof.⁶ The court did not address the reliability of any of the documents, despite Banda's objections. The court denied dismissal, and reduced the conviction to a misdemeanor.

Banda timely filed a petition for writ of prohibition in this court. We deemed the proceeding an appeal on November 1, 2017.⁷

DISCUSSION

A. Proposition 64

Proposition 64 (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) ) legalizes and regulates nonmedical marijuana. The proposition added various sections to the Health and Safety Code. As relevant to this case, section 11362.1 permits the cultivation of not more than six living marijuana plants (§ 11362.1, subd. (a)(1) & (3) ) and reduces the punishment for an adult cultivating more than six plants to a misdemeanor, unless other circumstances, not relevant here, are present. ( § 11358, subds. (c) & (d).)

Proposition 64 also added a provision for relief for persons with prior convictions. The enactment permits those, like Banda, currently serving a sentence for enumerated offenses that would either not be offenses or would be lesser offenses if the current law were in effect at the time of the conviction, to petition for recall or dismissal of the sentence. Section 11358, under which Banda was convicted, is an enumerated offense. (§ 11361.8, subd. (a).)

The procedure for a petition for relief was specified in section 11361.8, subd. (b). Pursuant to the statute, the court is required to presume that 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." (Ibid .)⁸

B. The People's Burden of Proof

As outlined in the statute, the People bore the burden of demonstrating, by clear and convincing evidence, that Banda did not satisfy the criteria for relief. The statute does not, however, specify what evidence the court may consider.

Other recent voter approved initiatives, which provided a mechanism for relief for certain prior convictions similarly failed to specify procedural details, leaving trial courts in a quandary. Both the nature of the evidence the court could consider, and the ability to rely on evidence outside the record of conviction, were raised as issues requiring determination after the passage of both Proposition 36, the Three Strikes Reform Act of 2012, and Proposition 47, the Safe Neighborhoods and Schools Act (2014).

1. Proposition 47

Proposition 47 reduced the punishment for a broad category of crimes previously classified as felonies. In People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633, the Supreme Court considered, among other issues, how courts were to determine eligibility for relief. Under Proposition 47, the petitioner seeking relief bears the burden of proving his or her eligibility. The court determined that, in some instances, the record of conviction would contain the facts necessary to demonstrate eligibility. In others, however, an evidentiary hearing would be required if, after considering the record and any matters in the petition, the return, affidavits, or matters subject to judicial notice, the court believed "the petitioner's entitlement to relief depends on the resolution of an issue of fact." ( Id . at p. 916, 215 Cal.Rptr.3d 758, 391 P.3d 633, quoting Cal. Rules of Court, rule 4.551(f).)

In Romanowski, as here, the issue of fact concerned a question not relevant at the time of conviction and sentencing: there, the value of property taken, and here, the number of plants under cultivation. (See also People v. Page (2017) 3 Cal.5th 1175, 1189, 225 Cal.Rptr.3d 786, 406 P.3d 319 [where material facts are not established by the record of conviction, the court can conduct an evidentiary hearing after a prima facie showing is made by petitioner].)

2. Proposition 36

Proposition 36 allows resentencing for certain persons sentenced under the "Three Strikes" law for nonserious, nonviolent felonies. As was the case with Proposition 47, and is the case with Proposition 64, the enactment left open questions as to the nature of the proof required. In 2018, the Supreme Court addressed those issues. ( People v. Perez (2018) 4 Cal.5th 1055, 232 Cal.Rptr.3d 51, 416 P.3d 42.)⁹

In Perez , the court first clarified that, when a petition is filed, it is the prosecution's burden to prove ineligibility for relief beyond a reasonable doubt; once petitioner makes an initial showing of eligibility, he or she has no further burden to provide any evidence. ( Id. pp. 1062, 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42.)¹⁰ The court reaffirmed its ruling in People v. Estrada (2017) 3 Cal.5th 661, 672, 220 Cal.Rptr.3d 801, 399 P.3d 27, that the court could properly consider facts beyond the record of conviction, and held that the court could, consistent with the Sixth Amendment, consider...