People v. Hall ( 2019 )

Filed 9/10/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B292330
(Super. Ct. No. PA022157)
Plaintiff and Respondent, (Los Angeles County)
v.
DIALLO MALIK HALL,
Defendant and Appellant.
Proposition 64 reduces or eliminates penalties for
marijuana offenses. We hold that reliable hearsay evidence in
arrest and probation reports is admissible to prove ineligibility
for Proposition 64 relief.
Diallo Malik Hall appeals from an order denying his
application to have his 1996 felony transportation of marijuana
conviction dismissed or redesignated as an infraction pursuant to
Proposition 64. Appellant argues that, in determining his
eligibility for the requested relief, the trial court erroneously
considered inadmissible hearsay evidence in arrest and probation
reports. We disagree and affirm.
Factual and Procedural Background
In 1996 appellant pleaded nolo contendere to a violation of
former Health and Safety Code section 11360, subdivision (a), as
charged in a felony complaint.1 The complaint alleged that he
had committed “the crime of sale or transportation of marijuana.”
In 1996 the crime was a “straight felony” punishable “by
imprisonment in the state prison for a period of two, three or four
years.” (Former § 11360, subd. (a); Stats. 1983, ch. 223, § 3, p.
1464.)
In denying the requested Proposition 64 relief, the trial
court considered the change of plea transcript. The court stated:
“[H]e did enter his plea on page 10 [of the transcript] to the crime
of sale and transportation of marijuana. So that was in the
conjunctive.” (Italics added.) Appellant stipulated that there
was “a factual basis” for the plea. But the stipulation did not
refer to “any particular document” such as an arrest or probation
report.
In 2018 appellant filed an application for relief pursuant to
Proposition 64. He sought to dismiss the felony conviction or, in
the alternative, redesignate it as an infraction. The trial court
denied the application but redesignated the felony conviction as a
misdemeanor. It found “sufficient basis to believe” that appellant
had transported the marijuana “for sale.”
In determining that appellant was ineligible for the
requested relief, the trial court considered his arrest and
probation reports, which were prepared in 1996. The prosecutor
said that the deputy sheriffs who had arrested appellant “are not
Unless otherwise stated, all statutory references are to
1
the Health and Safety Code.
2
available.” Appellant objected that the reports “constitute
inadmissible hearsay.” The trial court overruled the objection
and admitted both documents because they contained reliable
information.
The arrest report says that Los Angeles County Deputy
Sheriffs Peacock and Sutton stopped a vehicle that appellant was
driving. In the vehicle’s ashtray, they found two partially
smoked marijuana cigarettes. “Upon opening the trunk of the
vehicle, [they] immediately smelled the strong odor of
marijuana.” Inside the trunk, they found a backpack that
contained “a large amount of a green leafy substance, resembling
‘marijuana.’” The amount was “far greater than that normally
possessed for personal use.” The backpack also contained
“eighteen small ‘zip-lock’ baggies, commonly used for packaging
narcotics[,] . . . and a small hand held scale, commonly used for
weighing narcotics.” The arrest report does not state the weight
of the marijuana in the backpack. The deputies formed the
opinion that appellant was in “possession of marijuana for sale”
and arrested him for that offense.
According to the probation report, its “source[] of
information” is the “D.A. Packet.” The report says that the
marijuana in the backpack weighed “approximately one pound.”2
2
The probation report here is a presentence report. At oral
argument appellant’s counsel insisted that appellant had entered
his nolo plea and had been sentenced on the same day, so that
the subsequent preparation of the probation report was an idle
act. Counsel is mistaken. The probation report shows that the
parties negotiated a “proposed plea agreement,” which was “365
days county jail, probation.” (Italics added.) The plea was
entered on April 16, 1996, and the next “hearing date,” i.e., the
date of sentencing, was May 23, 1996. The probation report was
3
In denying appellant’s application, the trial court stated: “I
don’t know where that one pound of marijuana came from.
That’s an issue that I would have a question about. And what is
in the police report as a large amount is described in the
probation report as approximately one pound.” “Bottom line, it
appears that there was a large amount [of marijuana], more than
someone would use for personal use. [¶] On the flip side, there is
no stipulation that attaches [appellant] to these particular police
reports or probation reports. That was not in the record of the
plea. But I’m going to rely upon this information because it’s
simple and straightforward and it’s contained both in the police
report and in the probation report. Yes, the probation report is
prepared by a person with official duties to prepare these reports
for sentencing purposes and make sentencing recommendations
based upon the particulars of each case, and I don’t see any
significant inconsistencies in the probation report and police
report that would cause me to find that I would not rely upon [the
probation report].” “I believe that the basic crux of the
information in these reports that go to the quantity [of the
marijuana] are reliable enough for me to use it to make this
determination.”
Former Section 11360
In 1996 section 11360, subdivision (a) made it a felony to
transport “any” marijuana.3 But section 11360, subdivision (b)
filed on May 16, 1996, seven days before the hearing date. The
report stated, “Reluctantly, probation officer will concur with the
plea agreement . . . .”
3
The 1996 version of section 11360, subdivision (a)
provided: “Except as otherwise provided by this section or as
authorized by law, every person who transports, imports into this
4
provided that the transport of “not more than 28.5 grams of
marijuana” was a misdemeanor punishable “by a fine of not more
than . . . ($100).” Since appellant pleaded nolo contendere to a
felony violation of section 11360, subdivision (a), we presume that
he transported more than 28.5 grams of marijuana.
Present Sections 11360, 11361.8, and 11362.1
Proposition 64, an initiative measure known as “the
Control, Regulate and Tax Adult Use of Marijuana Act,” amended
section 11360 and added new sections 11361.8 and 11362.1.
(Stats. 2017, ch. 27 § 129.) As amended, present section 11360,
subdivision (a)(2) provides that every person 18 years of age or
older who transports “any cannabis [also known as marijuana]
shall be punished” by “imprisonment in a county jail for a period
of not more than six months or by a fine . . . .” This punishment
renders the offense a misdemeanor. (See Pen. Code, § 17, subd.
(a).) Pursuant to present section 11360, subdivision (b), every
person who transports “not more than 28.5 grams of cannabis . . .
is guilty of an infraction and shall be punished by a fine of not
more than” $100.
For purposes of present section 11360, “‘transport’ means to
transport for sale.” (§ 11360, subd. (c).) Thus, present section
11360 does not criminalize the transport of marijuana for
purposes other than sale, such as personal use. The 1996 version
of section 11360 criminalized the transport of any marijuana
regardless of whether it was transported for sale.
state, sells, furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish, administer, or give
away, or attempts to import into this state or transport any
marijuana shall be punished by imprisonment in the state prison
for a period of two, three or four years.” (Italics added.)
5
New section 11362.1, subdivision (a) provides, “[I]t shall be
lawful . . . for persons 21 years of age or older to: (1) Possess,
process, transport, purchase, obtain, or give away to persons 21
years of age or older without any compensation whatsoever, not
more than 28.5 grams of cannabis . . . .” In 1996 appellant was
more than 21 years old.
New section 11361.8, subdivisions (e) and (f) provide: “(e) A
person who has completed his or her sentence for a conviction
under Section[] . . . 11360 . . . 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 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 . . . 11360 [and]
11362.1 . . . as those sections have been amended or added by
that act. [¶] (f) 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.”
Admissibility of Hearsay Evidence in
Arrest and Probation Reports
Appellant contends that, in determining he was ineligible
for the requested relief, the trial court erroneously considered
6
“unsworn hearsay in a police and probation report.” Appellant
further claims that “[t]he prosecutor presented no other evidence
establishing [his] ineligibility for dismissal.” He argues,
“Proposition 64 did not authorize courts to disregard the rules of
evidence, including those barring the use of hearsay, at a
Proposition 64 dismissal hearing.” The hearsay rule is set forth
in Evidence Code section 1200, which provides: “(a) ‘Hearsay
evidence’ is evidence of a statement that was made other than by
a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated. [¶] (b) Except as provided
by law, hearsay evidence is inadmissible.”
Appellant’s theory turns on the meaning of “evidence” in
the phrase “proves by clear and convincing evidence” of section
11361.8, subdivision (f) (section 11361.8(f)). “‘Where [as here] an
appeal involves the interpretation of a statute enacted as part of
a voter initiative, the issue on appeal is a legal one, which we
review de novo. . . .’ [Citation.]” (People v. Sledge (2017) 7
Cal.App.5th 1089, 1095 (Sledge).)
“‘In interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction. [Citation.] Thus,
[1] “we turn first to the language of the statute, giving the words
their ordinary meaning.” [Citation.] [2] The statutory language
must also be construed in the context of the statute as a whole
and the overall statutory scheme [in light of the electorate’s
intent]. [Citation.] [3] When the language is ambiguous, “we
refer to other indicia of the voters’ intent, particularly the
analyses and arguments contained in the official ballot
pamphlet.” [Citation.]’ [Citation.] [¶] In other words, our ‘task
is simply to interpret and apply the initiative’s language so as to
effectuate the electorate’s intent.’ [Citation.]” (Robert L. v.
7
Superior Court (2003) 30 Cal.4th 894, 900-901, brackets in
original except for bracketed citations.) “The enacting body is
deemed to be aware of existing laws and judicial constructions in
effect at the time legislation is enacted. [Citation.] This principle
applies to legislation enacted by initiative. [Citation.]” (People v.
Weidert (1985) 39 Cal.3d 836, 844.)
Evidence Code section 140 defines “evidence” as “testimony,
writings, material objects, or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.”
As used in section 11361.8(f), “evidence” is ambiguous because
“[t]he statute does not . . . specify what evidence the court may
consider.” (People v. Banda (2018) 26 Cal.App.5th 349, 355
(Banda).) “[T]he enactment left open questions as to the nature
of the proof required.” (Id. at p. 356.) Section 11361.8(f) does not
provide that evidence presented at an eligibility hearing under
Proposition 64 must meet the admissibility standard of evidence
presented at a criminal trial.
The hearsay rule does not apply in all evidentiary
proceedings. We cite two examples. First, in People v. Maki
(1985) 39 Cal.3d 707, 709, our Supreme Court “conclude[d] that
documentary hearsay evidence which does not fall within an
exception to the hearsay rule may be admitted [at probation
revocation hearings] if there are sufficient indicia of reliability
regarding the proffered material.”
Second, in determining whether a convicted felon is eligible
for resentencing to a misdemeanor under Proposition 47 (Pen.
Code, § 1170.18), reliable hearsay statements in a probation
report are admissible. (Sledge, supra, 7 Cal.App.5th at pp. 1095,
1098.) The structure of Proposition 47 is similar to Proposition
64. “Proposition 47 . . . ‘created a new resentencing provision:
8
[Penal Code] section 1170.18. Under section 1170.18, a person
“currently serving” a felony sentence for an offence that is now a
misdemeanor under Proposition 47, may petition for a recall of
that sentence and request resentencing in accordance with the
statutes that were added or amended by Proposition 47. . . .
[Citation.]’ [Citations.]” (People v. Rivas-Colon (2015) 241
Cal.App.4th 444, 448.)
Probation Report
Since reliable hearsay statements in a probation report are
admissible to show whether a petitioner is eligible for
resentencing under Proposition 47 (Sledge, supra, 7 Cal.App.5th
at pp. 1095, 1098), it logically follows that they are also
admissible to show whether a petitioner is eligible for relief under
Proposition 64. The Court of Appeal in Sledge reasoned: “An
eligibility hearing 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.
[Citations.]” (Id. at p. 1095.) In People v. Saelee (2018) 28
Cal.App.5th 744, 756 (Saelee), the court applied similar reasoning
to Proposition 64: “Nothing in Proposition 64 suggests the
applicable rules of evidence are any different than those which
apply to other types of sentencing proceedings. (Sledge, supra,
Cal.App.5th at p. 1095 [arriving at the same conclusion regarding
Prop. 47] . . . .” (Brackets in original.)
The Court of Appeal in Sledge said it agreed with the trial
court’s explanation for admitting the hearsay evidence in the
probation report. The trial court stated: “‘I don’t think
9
a probation report has to meet the strict requirements of
hearsay.’ ‘It’s just a matter I think like a sentencing hearing. If
it’s reliable hearsay, it’s admissible. And I think those
statements [in the probation report] are sufficiently reliable
hearsay to be admissible.’” (Sledge, supra, 7 Cal.App.5th at pp.
1096-1097; see People v. Arbuckle (1978) 22 Cal.3d 749, 754
(Arbuckle) [“A sentencing judge ‘may, consistently with
the Due Process Clause of the Fourteenth Amendment, consider
responsible unsworn or “out-of-court” information relative to the
circumstances of the crime and to the convicted person’s life and
characteristics’”]; 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”].)
On appeal, the test is whether the trial court abused its
discretion in determining that the hearsay statements in the
probation report are sufficiently reliable to be admissible. (See
People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 405
[“We review the trial court’s evidentiary rulings for abuse
of discretion”]; United States v. Ngombwa (8th Cir. 2018) 893
F.3d 546, 557 “‘[W]hether hearsay evidence is sufficiently reliable
to support a sentencing decision depends on the facts of the
particular case, and is committed to the sound discretion of the
district court’”].)
According to the probation report, the weight of the
marijuana in the backpack was “approximately one pound.”
There is no evidence that in 1996 appellant disputed the accuracy
of the one-pound figure. The trial court did not abuse its
discretion in determining that, although it did not “know where
that one pound of marijuana came from,” the probation report’s
10
statement as to the weight was reliable. The probation officer did
not pull the “one pound” figure out of thin air. “[I]t must be
presumed that the probation officer fully and fairly performed
the duty imposed upon him by section 1203 of the Penal Code.”
(People v. Rosenberg (1963) 212 Cal.App.2d 773, 777; accord,
People v. Cardenas (2015) 239 Cal.App.4th 220, 235.) Penal Code
section 1203, subdivision (b)(1) requires the probation officer “to
investigate and report to the court . . . upon the circumstances
surrounding the crime.” (See Sledge, supra, 7 Cal.App.5th at p.
1097 [“it is presumed the probation officers . . . regularly
performed their official duties”]; Banda, supra, 26 Cal.App.5th at
p. 359 [“the report was prepared by the probation officer, who we
presume was performing his official duties]; Arbuckle, supra, 22
Cal.3d at p. 755 [diagnostic report prepared by Department of
Corrections “has inherent reliability because it was made
pursuant to a court order by expert, objective government
personnel in pursuit of their official duties”]; Evid. Code, § 664
[“It is presumed that official duty has been regularly
performed”].)
The trial court reasonably inferred that the probation
officer had derived the weight of the marijuana from the report
prepared by a criminalist at the sheriff’s crime lab. The
criminalist’s report must have been included in the “D.A. packet”
on which the probation report was based. The trial court noted,
“[I]n [the] probation report there is . . . a summary of the facts
that . . . presumably comes from the police report but also comes
from things like chemist’s reports . . . that are provided [to the
probation officer].”
The criminalist had an official duty to accurately weigh and
analyze the seized contraband. Pursuant to the official duty
11
presumption (Evid. Code, § 664), the criminalist’s report is
presumed to be reliable. (See People v. Brown (1989) 215
Cal.App.3d 452, 455 [“We have no reason to believe [that police
chemist’s] test results [showing that the confiscated substance
contained .84 grams of cocaine] were anything but trustworthy
and reliable”].)
The trial courts’ ability to consider reliable hearsay in
probation reports is necessary to assure the fair and efficient
implementation of Proposition 64. In many cases the probation
report will be the only document in the court file setting forth the
facts underlying the marijuana offense to which the Proposition
64 petitioner pleaded guilty. If reliable hearsay information in
the probation report were inadmissible, the People would have to
subpoena the law enforcement personnel who had provided the
information to the probation officer. Because of the passage of
time, the personnel may not be available or even identifiable,
such as the unnamed criminalist who in 1996 analyzed and
weighed the marijuana in the present case.
Even if law enforcement personnel are identifiable and
available, requiring them to come to court to testify would defeat
an important purpose of Proposition 64. Section 3(w) of
Proposition 64 provides, “It is the intent of the people in enacting
this act to . . . [p]reserve scarce law enforcement resources to
prevent and prosecute violent crime.” (Voter Information Guide,
Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 3(w), pp. 179-180.)
The electorate could reasonably expect that thousands of persons
convicted of marijuana offenses would take advantage of
Proposition 64 to seek the dismissal or redesignation of their
convictions. The ballot pamphlet argument in favor of
Proposition 64 observes: “Every year, there are more than 8,800
12
felony arrests for growing or selling marijuana in California,
resulting in some very long prison sentences. This is an
enormous waste of law enforcement resources.” (Id. at p. 98.) If
law enforcement personnel were required to testify in court to
prove ineligibility for relief under Proposition 64, their ability “to
prevent and prosecute violent crime” would be impeded. (Id. at p.
180.) The result would be “an enormous waste of law
enforcement resources.” (Id. at p. 98.) Thus, to effectuate the
electorate’s intent, reliable hearsay statements in probation
reports, such as the one here about the quantity of the
marijuana, should be admissible.
Banda, supra, 26 Cal.App.5th 349, is distinguishable and
does not compel reversal. There, before the passage of
Proposition 64, Banda pleaded guilty to the cultivation of
marijuana, a felony. After the passage of Proposition 64, he
petitioned to dismiss the case or redesignate the conviction as a
misdemeanor. Based solely on the probation report, the People
argued against a dismissal. Unlike the present case, the People
in Banda did not rely on both the arrest and probation reports.
The Banda trial court refused to dismiss the case. It
redesignated the conviction as a misdemeanor.
The appellate court reversed. It observed, “The People
correctly assert that the petition in a Proposition 64 case . . .
bears the hallmarks of a resentencing proceeding. In such cases,
trial courts may consider hearsay if that hearsay is reliable.
[Citations.]” (Banda, supra, 26 Cal.App.5th at p. 357.) But “[t]he
trial court made no finding that the probation report was
reliable” and “may not have believed the probation report was
sufficient.” (Id. at p. 358, fn. omitted.) Here, in contrast, the trial
court found that the probation and arrest reports were reliable.
13
In Banda the appellate court concluded that the trial court
would have abused its discretion had it found the probation
report reliable because “[n]othing on the face of the report
demonstrated that the hearsay it contained was reliable.”
(Banda, supra, 26 Cal.App.5th at p. 358.) Here, in contrast, the
probation officer presumably obtained information about the
weight of the marijuana from a reliable source - a criminalist
employed by the sheriff’s crime lab. Moreover, the one-pound
figure for the marijuana, rather than a lesser weight, is
supported by the arresting deputies’ statement that they found “a
large amount” of marijuana.
Banda is also distinguishable because there the appellate
court, “having had the opportunity to review the police report,
[found] that there are factual inconsistencies related to Banda
between that document and the probation report, which further
calls into question the reliability of the probation report.”
(Banda, supra, 26 Cal.App.5th at p. 358, fn. 11.) Here, there are
no such factual inconsistencies. The trial court stated, “I don’t
see any significant inconsistencies in the probation report and
police report that would cause me to find that I would not rely
upon [the probation report].”
Appellant claims that the California Supreme Court “made
clear [that] a trial court must not rely on hearsay in a probation
report to establish contested facts regarding the defendant’s
former conduct.” In support of his claim, appellant cites People v.
Reed (1996) 13 Cal.4th 217 (Reed), and People v. Trujillo (2006)
40 Cal.4th 165 (Trujillo). Neither case supports appellant’s
claim.
In Reed the defendant was charged with several felony
offenses. The information alleged that he had been previously
14
convicted of two prior serious felonies, one of which was assault
with a deadly weapon (ADW). If true, each prior serious felony
allegation would result in a five-year sentence enhancement. To
prove that the ADW was a serious felony, the trial court admitted
an excerpt from the probation report stating that the defendant
“reportedly” had struck the victim on the head with a “large
heavy wooden cane.” (Reed, supra, 13 Cal.4th at p. 221.) The
Supreme Court held that the probation report’s narration of the
defendant’s “reported” actions was inadmissible “because it
contains hearsay that has not been shown to be within any
exception to the hearsay rule (Evid.Code, § 1200).” (Id. at p. 220.)
Reed is distinguishable. There, the strict application of the
hearsay rule was required because the defendant was being tried
on an allegation of a serious felony sentence enhancement.
Appellant, on the other hand, was not being tried on any charge
or allegation. He was seeking to dismiss or redesignate his felony
conviction because of a postconviction act of lenity by the
electorate. (See Sledge, supra, 7 Cal.App.5th at p. 1097 [unlike
Reed, “the eligibility hearing in this case was not a trial on a
prior conviction allegation for sentence enhancement purposes.
Defendant . . . was petitioning under Proposition 47 for ‘“an act of
lenity”’”].)
In Trujillo the court noted that “‘the relevant inquiry in
deciding whether a particular prior conviction qualifies as a
serious felony for California sentencing purposes is limited to an
examination of the record of the prior criminal proceeding . . . .’”
(Trujillo, supra, 40 Cal.4th at p. 179.) The court “conclude[d]
that a defendant’s statements, made after a defendant’s plea of
guilty has been accepted, that appear in a probation officer’s
report prepared after the guilty plea has been accepted are not
15
part of the record of the prior conviction, because such statements
do not ‘reflect[ ] the facts of the offense for which the defendant
was convicted.’ [Citation.]” (Ibid.) Therefore, such statements
cannot be used to show that a prior conviction qualifies as a
serious or violent felony within the meaning of California’s Three
Strikes law. (Id. at pp. 179-181.)
Trujillo is also distinguishable. Unlike Trujillo, here the
trial court was not limited to an examination of the record of the
prior criminal proceeding. (See Reed, supra, 13 Cal.4th at p. 189
[In determining whether a prior conviction qualifies as a serious
felony for sentencing purposes, “the trier of fact may look to the
entire record of conviction ‘but no further’”].) Moreover, here the
weight of the marijuana does “‘reflect[ ] the facts of the offense for
which [appellant] was convicted.’” (Trujillo, supra, 40 Cal.4th at
p. 179.) Finally, unlike the defendant in Trujillo, appellant was
not on trial for “an allegation that [he] had suffered a prior
conviction for a violent felony within the meaning of the ‘Three
Strikes’ law . . . .” (Id. at p. 169.)
Arrest Report
We presume that the electorate understood that arrest
reports would be admissible to the extent they fall within the
official records exception to the hearsay rule. This exception is
incorporated in Evidence Code section 1280, which provides:
“Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered
in any civil or criminal proceeding to prove the act, condition, or
event if all of the following applies: [¶] (a) The writing was made
by and within the scope of duty of a public employee. [¶] (b) The
writing was made at or near the time of the act, condition, or
16
event. [¶] (c) The sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
Here, the arrest report’s factual statements satisfy the
requirements of the official records exception to the hearsay rule.
Appellant was arrested on February 17, 1996 at 2:30 a.m. The
report was approved at 6:00 a.m. on the same date. It was
prepared by and within the scope of duty of the arresting
deputies. The facts stated in the report were based on their
personal observations. “Assuming satisfaction of the exception’s
other requirements, ‘[t]he trustworthiness requirement . . . is
established by a showing that the written report is based upon
the observations of public employees who have a duty [as the
arresting deputies had] to observe the facts and report and record
them correctly.’ [Citation.]” (Gananian v. Zolin (1995) 33
Cal.App.4th 634, 640; see Lake v. Reed (1997) 16 Cal.4th 448.)
“Moreover, ‘. . . the statutory presumption of duty
regularly performed (Evid.Code, § 664) shifts the foundational,
method-of-preparation burden in this situation. The [party
opposing admission] therefore must show that the officer failed in
his duty to observe and correctly report the events described.
[Citation.]’ [Citations.] Thus, if [appellant] opposed admission of
the arrest report into evidence, he had the burden to show that
[the deputy sheriffs] failed in [their] duty to observe and report
correctly the event described. [Appellant] made no such showing.
Indeed, [appellant] ‘did not even attempt to controvert the
presumptive accuracy of this official report.’ [Citation.]”
(Jackson v. Dept. of Motor Vehicles (1994) 22 Cal.App.4th 730,
739.)
“[U]nlike the business records exception [Evid. Code,
§ 1271], which ‘requires a witness to testify as to the identity of
17
the record and its mode of preparation in every instance,’
Evidence Code section 1280 ‘permits the court to admit an official
record or report without necessarily requiring a witness to testify
as to its identity and mode of preparation if the court takes
judicial notice or if sufficient independent evidence shows that
the record or report was prepared in such a manner as to assure
its trustworthiness.’ [Citation.]” (People v. Martinez (2000) 22
Cal.4th 106, 129.) Thus, the trial court properly admitted the
factual statements in the arrest report. (See Rupf v. Yan (2000)
85 Cal.App.4th 411, 430, fn. 6 [“a police officer’s report is
admissible under Evidence Code section 1280 if it is based upon
the observations of a public employee who had a duty to observe
facts and report and record them correctly”]; Coe v. City of San
Diego (2016) 3 Cal.App.5th 772, 786-788 [police reports
admissible under official records exception].)
Appellant asserts, “In [People v.] Sanchez [(2016) 63
Cal.4th 665], the [California] Supreme Court held that police
reports are not admissible under the [official] record hearsay
exception.” The court did not so hold. It held that an expert’s
opinion testimony concerning defendant’s gang membership was
inadmissible in a criminal trial because the expert had relied on
testimonial hearsay in police reports. (People v. Sanchez, supra,
at pp. 694-695.) The holding was based on Crawford v.
Washington (2004) 541 U.S. 36 (Crawford), in which “the United
States Supreme Court held . . . that the admission of testimonial
hearsay against a criminal defendant violates the Sixth
Amendment right to confront and cross-examine witnesses.”
(People v. Sanchez, supra, at p. 670.)
Appellant cites no authority suggesting that Crawford
applies to a proceeding in which a convicted felon is seeking to
18
dismiss or redesignate his felony conviction because of the
electorate’s post-conviction act of lenity, e.g., Proposition 64. In
Crawford the United States Supreme Court observed: “The Sixth
Amendment’s Confrontation Clause provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.’ We have held that
this bedrock procedural guarantee applies to both federal and
state prosecutions. [Citations.]” (Crawford, supra, 541 U.S. at p.
42.) Appellant’s Proposition 64 application to dismiss or
redesignate his 1996 felony marijuana conviction is not a
criminal prosecution.
Pursuant to the official records exception to the hearsay
rule, the arrest report was admissible only to the extent it
reported “an act, condition, or event” observed by the arresting
deputies. (Evid. Code, § 1280.) Such an act or event includes the
deputies’ discovery of “a large amount” of marijuana in the
backpack together with “eighteen small ‘zip-lock’ baggies . . . and
a small hand held scale.” But the arrest report also includes the
following opinions or conclusions of the deputies: the amount of
marijuana was “far greater than that normally possessed for
personal use,” the zip-lock baggies were “commonly used for
packaging narcotics,” and the scale was “commonly used for
weighing narcotics.” The official records exception does not allow
the admission of opinions or conclusions. In construing the
similar business records exception to the hearsay rule (Evid.
Code, § 1271), our Supreme Court stated: “The psychiatrist’s
opinion that the victim suffered from a sexual psychopathology
was merely an opinion, not an act, condition or event within the
meaning of the statute.” (People v. Reyes (1974) 12 Cal.3d 486,
19
503; see also Hutton v. Brookside Hospital (1963) 213 Cal.App.2d
350, 355.)
Although the deputies’ conclusion concerning the
significance of the scale and baggies is not admissible under the
official records exception to the hearsay rule, the trial court did
not abuse its discretion in admitting the conclusion based on its
reliability. (See Sledge, supra, 7 Cal.App.5th at p. 1095
[“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”]; Banda, supra, 26 Cal.App.5th
at p. 357 [“the petition in a Proposition 64 case . . . bears the
hallmarks of a resentencing proceeding. In such cases, trial
courts may consider hearsay if that hearsay is reliable”].) It is
well known that plastic baggies and scales are “tools of the trade”
for drug dealers. (United States v. Carrasco (9th Cir. 2001) 257
F.3d 1045, 1048 [“the pink baggies and the scale with drug
residue found in Carrasco’s vehicle are by themselves indicative
of drug trafficking. Plastic baggies and scales are well-known
tools for the packaging and sale of drugs”]; United States v.
Savinovich (9th Cir.1988) 845 F.2d 834, 837 [“Because scales
constitute one of the tools of the drug trade, they are probative of
intent to distribute”]; United States v. Payne (D.C. Cir. 1986) 805
F.2d 1062, 1065 [“the prosecution also offered into evidence
paraphernalia frequently associated with marijuana dealers,
namely, scales and zip-lock bags, to further demonstrate the
requisite intent [to distribute marijuana”]; Commonwealth v.
Cruz (2011) 459 Mass. 459, 469, fn. 15 [“the officers did not see a
scale, plastic baggies, or any other drug paraphernalia
traditionally associated with the sale of marijuana”].)
20
The remaining issue is the admissibility of the deputies’
conclusion that the amount of marijuana was “far greater than
that normally possessed for personal use.” The arrest report does
not provide any information as to the deputies’ training and
experience in distinguishing between marijuana possessed for
personal use and marijuana possessed for sale. “In cases
involving possession of marijuana . . . , experienced officers may
give their opinion that the narcotics are held for purposes of sale
based upon such matters as the quantity, packaging and normal
use of an individual . . . .” (People v. Newman (1971) 5 Cal.3d 48,
53, italics added, disapproved on another ground in People v.
Daniels (1975) 14 Cal.3d 857, 862.)
Nevertheless, under the particular facts of this case, the
trial court did not abuse its discretion in determining that the
deputies’ conclusion was admissible based on its reliability.
(Sledge, supra, 7 Cal.App.5th at p. 1095; Banda, supra, 26
Cal.App.5th at p. 357.) The probation report shows that the
marijuana weighed approximately one pound, which is equal to
16 ounces. The People note that, in the Voter Information Guide
for Proposition 64, the Legislative Analyst stated that one ounce
of marijuana is “the equivalent of roughly 40 marijuana
cigarettes, also known as ‘joints.’” (Voter Information Guide,
Gen. Elec., supra, analysis by Leg. Analyst, p. 90.) In his reply
brief, appellant accepts the Legislative Analyst’s statement of
equivalency. Appellant asserts, “As [the People] point[] out,
under the current statute, an individual may [lawfully] possess
enough marijuana to create forty joints at a time - an amount ‘far
greater than a person would possess for personal use’ in a single
day or week, but an amount nonetheless well within the
boundaries of the law.” (See § 11362.1, subd. (a) [lawful for
21
persons 21 years of age or older to possess “not more than 28.5
grams [approximately one ounce] of cannabis”].) Thus, one pound
(16 ounces) of marijuana is the equivalent of roughly 640 joints,
far more than what is normally needed for personal use. (See
Commonwealth v. Madera (2010) 76 Mass.App.Ct. 154, 159 [“The
combined amounts of marijuana, almost one pound, indicated
that the defendant intended to distribute it and that it was not
simply for personal use”]; United States v. Massey (6th Cir. 2018)
758 Fed.Appx. 455, 461 [“the quantity of marijuana that Massey
possessed [98.3 grams, approximately 3.47 ounces] strongly
indicates an intent to distribute”].)4
Section 11361.8(b) and Penal Code Section1170.18 Do
Not Support the Exclusion of Reliable Hearsay Evidence
Finally, appellant contends that language concerning proof
of dangerousness in section 11361.8, subdivision (b) (section
11361.8(b)) and Penal Code section 1170.18 (section 1170.18)
shows that the electorate intended that reliable hearsay evidence
4
In his reply brief, appellant claims for the first time that
the hearsay statements in the arrest report are insufficient to
prove by clear and convincing evidence that he does not satisfy
the statutory criteria for dismissal of his felony conviction. The
claim is forfeited because appellant did not raise it in his opening
brief. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93.) On the
merits, there is nothing “unclear” or “unconvincing” about the
hearsay evidence in the police and probation reports. Inside the
backpack in the trunk, the deputies found a “large amount”
(approximately one pound) of marijuana, “eighteen small ‘zip-
lock’ baggies, commonly used for packaging narcotics[,] . . . and a
small hand held scale, commonly used for weighing narcotics.”
This constitutes substantial evidence from which a reasonable
trier of fact could find by clear and convincing evidence that
appellant was transporting the marijuana for sale.
22
in arrest and probation reports be excluded in determining
eligibility for relief under Proposition 64. Section 11361.8(b)
applies to a person who, unlike appellant, is currently serving his
sentence. Such a person “may petition for a recall or dismissal of
sentence.” (§ 11361.8, subd. (a).) If the person meets the
eligibility criteria, “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(b).)
“In exercising its discretion, the court may consider, but shall not
be limited to evidence provided for in subdivision (b) of Section
1170.18 of the Penal Code.” (§ 11361.8(b)(1).) Section 1170.18,
subdivision (b) provides: “In exercising its discretion, the court
may consider all of the following: [¶] (1) The petitioner’s
criminal conviction history, including the type of crimes
committed, the extent of injury to victims, the length of prior
prison commitments, and the remoteness of the crimes. [¶] (2)
The petitioner’s disciplinary record and record of rehabilitation
while incarcerated. [¶] (3) Any other evidence the court, within
its discretion, determines to be relevant in deciding whether a new
sentence would result in an unreasonable risk of danger to public
safety.” (Italics added.)
Appellant argues that the above italicized language of
section 1170.18, subdivision (b)(3), together with section
11361.8(b), “authorizes the use of hearsay in one instance,” i.e., to
prove dangerousness of a person who is currently serving his
sentence; therefore, the use of hearsay is not impliedly authorized
in another instance, i.e., to prove ineligibility under section
11361.8, subdivision (e) of a person who, like appellant, has
completed his sentence. Appellant is invoking the following rule
23
of statutory construction: “[T]he existence of specific exceptions
[e.g., the exception for hearsay evidence allegedly created by
section 11361.8(b) and section 1170.18] does not imply that
others exist. The proper rule of statutory construction is that the
statement of limited exceptions excludes others, and therefore
the judiciary has no power to add additional exceptions; the
enumeration of specific exceptions precludes implying others.
[Citation.]” (Parmett v. Superior Court (1989) 212 Cal.App.3d
1261, 1266.)
This rule of statutory construction is inapplicable here
because section 11361.8(b) and section 1170.18 do not create an
exception for the admission of hearsay evidence. Neither section
refers to hearsay evidence or the hearsay rule. “Proposition 64
does not define [what] constitutes ‘evidence’ for purposes of
determining whether a defendant poses an unreasonable risk of
danger to public safety (§ 11361.8, subd. (b)(1)) . . . . Nothing in
Proposition 64 suggests the applicable rules of evidence are any
different than those which apply to other types of sentencing
proceedings. [Citations.]” (Saelee, supra, 28 Cal.App.5th at p.
756.)
Disposition
The order redesignating appellant’s felony marijuana
conviction as a misdemeanor and denying his application to
dismiss it or redesignate it as an infraction is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J. PERREN, J.
24
Daniel B. Feldstern, Judge
Superior Court County of Los Angeles
______________________________
Ricardo D. Garcia, Public Defender, Albert J. Menaster,
Robert Krauss and Nick Stewart-Oaten, Deputy Public
Defenders, under appointment by the Court of Appeal for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Blythe J. Leszkay, Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.