People v. Banda ( 2018 )

Filed 9/18/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, No. B284725
Plaintiff and Respondent, (Los Angeles County
(Super. Ct. No. NA103745)
v.
ORDER MODIFYING
MICHAEL BANDA, OPINION AND DENYING
REHEARING
Defendant and Appellant.
THE COURT:
IT IS ORDERED that the opinion filed on August 20, 2018,
be modified as follows:
On the caption page, second paragraph, attorney Kenneth
I. Clayman’s title is replaced with Public “Defender”.
On page three, first paragraph, line five the words “of that
year” are replaced with “2017”.
On page four, footnote 3 is replaced with a new footnote, as
follows: “In asking the trial court to take judicial notice of the
court file, the People referenced only the probation report. In
asking this Court before briefing was concluded to augment the
record to include the sentencing hearing at which that report was
discussed, the People asserted that the probation report had been
“used by the prosecution as the basis for requesting denial of
appellant’s motion to dismiss.” In fact, the police report was not
referenced as relevant evidence until the court itself raised the
issue at the end of the hearing.”
On page seven, under the heading Discussion, A.
Proposition 64 the last paragraph is deleted.
On page 10, under the subheading 2. Proposition 36, delete
the sentence: “Moreover, the statute here addresses the hearing
issue, a fact the People failed to appreciate at the trial court;
section 11361.8, subdivision (g), specifies that petitioner has a
right to a hearing.”
On page 10, under subheading C., first sentence is replaced
with “The only evidence relied on by the People at the trial court
was the probation report; the People did not ask the court to
consider any other evidence or documents.”
On page 16, under subheading 3., first paragraph, last
sentence replace the word “proffered” with “relied on.”
On page 18, under subheading 4., the entire paragraph is
replaced with: “The trial court, finding that Banda was ineligible
for relief, did not make the determination required by section
11361.8, subdivision (b) whether dismissing the sentence “would
pose an unreasonable risk of danger to public safety. The trial
court did, however, reduce the conviction to a misdemeanor, as
the People conceded. The People’s concession necessarily
acknowledged that granting Banda relief would not pose an
unreasonable risk of danger to public safety. The trial court
2
could not have resentenced otherwise, given the plain language of
the statute.
With respect to dismissal, the People neither requested a
different determination in their opposition to Banda’s petition in
trial court, nor presented any evidence to support such a finding.
(People v. Frierson (2017) 4 Cal.5th 225, 239 [facts pertaining to
unreasonable risk must be proven by the People].) The People
have not asserted in this court that the record would support
such a finding. Accordingly, the People have forfeited the issue.
(Landry v. Berryessa Union School Dist. (1995) 39 Cal. App. 4th
691, 699-700 [“When an issue is unsupported by pertinent or
cognizable legal argument it may be deemed abandoned and
discussion by the reviewing court is unnecessary. [Citations.]”].)”
On page 19, under subheading Disposition, delete the last
sentence and replace with: “The order denying dismissal of the
sentence is reversed and the matter remanded to the trial court.”
There is no change in the judgment.
Respondent’s petition for rehearing is denied.
____________________________________________________________
ZELON, J., PERLUSS, P. J., WILEY, J. (Assigned)
3
Filed 8/20/18 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, No. B284725
Plaintiff and Respondent, (Los Angeles County
(Super. Ct. No. NA103745)
v.
MICHAEL BANDA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Reversed and
remanded.
Kenneth I. Clayman, Public Defendant 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.
___________________
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
1 All further statutory references, unless otherwise noted,
are to the Health & Safety Code.
2
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 of that year, 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.
2 After oral argument and submission of the case, the
Attorney General moved to augment the record with the police
report. This Court granted the motion to augment on July 23,
2018.
3
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 the 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
3 In asking the trial court to take judicial notice of the court
file, the People referenced only the probation report. In asking
this Court before briefing was concluded to augment the record to
include that report, the People asserted that the probation report
had been “used by the prosecution as the basis for requesting
denial of appellant’s motion to dismiss.”
4
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
4 Both parties, as well as the court, appeared to believe that
Banda had stipulated to the probation report as the factual basis
for the plea. The record demonstrates, however, that the
stipulation was to the police report; the probation report was not
prepared until after the plea hearing.
5 The return to the search warrant is not in the record
presented to this Court.
6 As noted above, the People did not seek to rely on, or seek
judicial notice of, any documents other than the probation report.
7 We ordered that the petition be deemed the opening brief
and the exhibits constitute the record.
5
DISCUSSION
A. Proposition 64
Proposition 64 (Ballot Pamp., 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
6
determines that granting the petition would pose an
unreasonable risk of danger to public safety.” (Ibid.)8
The statute permits petitioner to request a hearing, but
does not require one in the absence of a request. (§11361.8, subd.
(g).)
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, the Supreme Court
considered, among other issues, how courts were to determine
8 The People have not asserted, in the trial court or in this
court, that dismissing the charges would pose a risk of danger to
public safety.
7
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, 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 [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 non-serious,
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
8
Court addressed those issues. (People v. Perez (2018) 4 Cal.5th
1055.)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.)10 The court reaffirmed its
ruling in People v. Estrada (2017) 3 Cal.5th 661, 672, that the
court could properly consider facts beyond the record of
conviction, and held that the court could, consistent with the
Sixth Amendment, consider facts not found by the jury. (Perez,
supra, 4 Cal.5th at p. 1063.)
Thus, to the extent the court and the parties in this case
were uncertain that the court could consider facts beyond the
record of conviction, and could do so in an evidentiary hearing,
the reasoning of the decisions in Perez and Romanowski indicate
that the same should be true in cases under Proposition 64.
9 We invited the parties to address Perez, which was decided
after briefing was complete in this matter. Each party advised
this Court of their belief that Perez has no impact in this matter.
We disagree.
10 The People argued on appeal that Banda failed to introduce
evidence contradicting the probation report and that, as a result,
the People had met their burden of proof. However, under
Proposition 64, as under Proposition 36, the burden is on the
People. The introduction of only inadmissible evidence to meet
that burden means that Banda had no obligation to produce
additional evidence.
9
Moreover, the statute here addresses the hearing issue, a fact the
People failed to appreciate at the trial court; section 11361.8,
subdivision (g), specifies that petitioner has a right to a hearing.
Section 11361.8, subdivision (a) placed the burden of proof on the
People; as Perez and Romanowski made clear, the People were
not limited in meeting that burden to facts already in the record.
C. The People Failed To Meet Their Burden of Proof
1. The Probation Report Was Admissible Only If It
Was Reliable
The only evidence submitted by the People to the trial court
was the probation report; the People did not present, or ask the
court to consider, any other evidence or documents. Probation
reports are not, however, automatically admissible to prove
relevant facts.
The People correctly assert that the petition in a
Proposition 64 case, as in Propositions 36 and 47, bears the
hallmarks of a resentencing proceeding. In such cases, trial
courts may consider hearsay if that hearsay is reliable. (People v.
Arbuckle (1978) 22 Cal. 3d 749, 754, fn. 2; People v. Sledge (2017)
7 Cal.App.5th 1089, 1095 [eligibility hearing under Prop. 36 is a
type of sentencing proceeding, allowing limited use of hearsay
from probation reports if shown to be reliable]; People v. Lamb
(1999) 76 Cal. App. 4th 664, 683.)
A probation report is inadmissible hearsay, however, when
“the report excerpt includes the officer’s assertions that certain
events “reportedly” occurred [during the prior assault].
Narration of “reported” events is by definition based on the
10
statements of others. Indeed, unless the probation officer was a
percipient witness [to the assault], all of the narration contained
in the excerpt must have been drawn from other people’s
previous statements. [¶] The report fragment does not identify
the declarant or declarants from whose statements the probation
officer drew his factual summary.” (People v. Reed (1996) 13
Cal. 4th 217, 230-231 [excerpt of probation report inadmissible
hearsay in proceeding to prove that prior conviction was serious
felony].)
In People v. Burnes (2015) 242 Cal. App. 4th 1452, 1459, the
defendant had been convicted based on his plea. In a subsequent
proceeding under Proposition 36, the trial court relied on the
probation report related to that conviction. Assuming for
purposes of decision that the probation report was properly before
the trial court, the Burnes court concluded the trial court
nonetheless erred in relying on the facts contained in the report.
As the court explained, “The probation report here was neither
admissible nor reliable. The portion of the probation report that
described the circumstances of defendant’s offenses was derived
from a police report. The probation report thus constituted
double hearsay or multiple hearsay, and the People never
attempted to show that the probation report was admissible
under an exception to the hearsay rule. Moreover, nothing in the
probation report established the reliability of the asserted
circumstances of the offenses: the probation report did not
include a copy of the police report; the probation report did not
state whether it was directly quoting from the police report or
summarizing the police report; the probation report did not
specify whether it contained all of the facts included in the police
11
report; the probation report did not state when the police report
was prepared; the probation report did not identify the person
who prepared the police report; and the probation report did not
specify whether the facts in the police report were based on
firsthand knowledge or hearsay. Given these circumstances, it is
impossible to conclude that the probation report reliably
described the circumstances of defendant’s offenses. Because the
probation report was neither admissible nor reliable, the trial
court erred in relying upon it in determining that defendant was
ineligible for resentencing. [Citation].” (Ibid.)
The same is true in this case. The trial court made no
finding that the probation report was reliable, despite Banda’s
repeated objections.11 The fact that the court found it necessary
to rely on other documents indicates that it may not have
believed the probation report was sufficient. If we assume for
purposes of decision that the trial court impliedly found the
probation report to be reliable, that finding was an abuse of
discretion. As in Burnes, the source of the report was unknown;
if the probation officer relied on the police report, he included no
information about the preparation or contents of that report. The
probation report contained hearsay on its face, for which no
exception was argued; indeed, no one directly related to the
11 This Court, having had the opportunity to review the police
report, notes 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.
Because that report did not meet the standard for admissibility
described above, we need not resolve those inconsistencies.
12
events was contacted in its preparation. Nothing on the face of
the report demonstrated that the hearsay it contained was
reliable. As in Burnes, the report was not evidence that Banda
was ineligible for the relief he sought.12
The People relied on Sledge, supra, 7 Cal.App.5th 1089, but
it does not support the admission of the probation report here. In
Sledge, the court found the report, despite its hearsay nature, to
be reliable because it: had been prepared by probation officers
performing their official duties, relying in part on information
obtained from official court records prepared by clerks performing
their regular duties; was used by both parties without objection
throughout the case; and contained conclusions supported by
other facts before the court. (Id. at pp. 1097-1098.) Here, in
contrast, while the report was prepared by the probation officer,
who we presume was performing his official duties, it was only
submitted to for a limited purpose, a purpose that did not relate
to the factual issue now presented. Moreover, in this case the
People relied on no other evidence to support the showing they
were required to make.
12 See also People v. Johnson (2016) 1 Cal.App.5th 953, 968
fn. 16 [finding insufficient evidence in Prop. 47 case after a
negotiated plea agreement where there was no evidence of value;
the probation report was not admissible evidence; and the police
report was unauthenticated and contained multiple levels of
hearsay].
13
2. Even If The Probation Report Were Properly
Admitted, It Contains No Evidence Establishing That
Banda Was Ineligible For Dismissal
In this case, as in Romanowski, the facts relevant to the
determination of eligibility were not relevant at the time of plea
and sentencing. (See, e.g., Johnson, supra, 1 Cal.App.5th at
pp. 966-967 [Proposition 47 created misdemeanors that did not
previously exist, or that were felonies requiring different
showings, making different facts relevant at time of resentencing
hearing].) A stipulation to a document to provide a factual basis
for a plea is an admission only of the facts necessary to the
charged offense itself. (Reed, supra, 13 Cal.4th at p. 224; People
v. Thoma (2007) 150 Cal. App. 4th 1096, 1104.) As a result, in this
case, even had the probation report provided the factual basis for
the plea, as the People believed, that report did not provide
substantial evidence of the number of plants, the critical issue in
this proceeding.13
With respect to the probation report, even had Banda been
interviewed by the probation officer who prepared the report,
13 In People v. Holmes (2004) 32 Cal. 4th 432, the Supreme
Court explained the requirement of a statement of factual basis
for a plea, either by the defendant, or through counsel’s
stipulation to a document supporting the charges to which the
plea pertained. What the Court required was “a factual basis for
each essential element of the crime.” (Id. at p. 440.) The number
of plants was not an essential element of the crime of cultivation
at the time of Banda’s plea in this case.
14
admissions made by a defendant after a guilty plea do “not reflect
the facts upon which [the defendant] was convicted.” (People v.
Trujillo (2006) 40 Cal. 4th 165, 180 [admissions in post-conviction
probation report may not be relied on in determining whether
prior conviction qualifies as a strike].) Here, Banda was not
interviewed; he made no admissions. Instead, his counsel
submitted to the report for purposes of sentencing. The sentence
had been agreed to as part of the plea, and, like the plea itself,
did not concern in any way the number of plants involved.
Accordingly, submission to the probation report was not an
admission as to the number of plants described in that report.14
The People presented no admissible evidence with respect to the
number of plants, the factual issue critical to this proceeding.
14 We need not resolve whether counsel’s submission to the
probation report for the purpose of imposition of the previously
agreed to sentence reflected binding agreement to the contents of
that report, or only a conclusion that, under the circumstances,
nothing further need be said. Even a direct statement by a
defendant to a probation officer, made after the guilty plea has
been accepted is not evidence of the “facts of the offense for which
the defendant was convicted.” (Trujillo, supra, 40 Cal.4th at
p. 179; citing Reed, supra, 13 Cal.4th at p. 223.) The failure to
dispute facts set forth for sentencing, post-plea, is not an adoptive
admission of the facts allowing hearsay statements to be used;
only admissions made prior to the plea are admissible. (Thoma,
supra, 150 Cal.App.4th at pp. 1102-1103.)
15
3. Judicial Notice Augmenting The People’s Showing
Was Improper
The People failed to submit substantial evidence or any
admissible evidence at all, to meet its burden to show, by clear
and convincing evidence, that Banda was ineligible for relief.
The trial court augmented that insufficient showing by taking
judicial notice of other documents, documents not proffered by
any party.
The trial court attempted to fill in the blanks left by the
prosecution by taking judicial notice. Evidence Code section 452,
subdivision (d) allows the trial court in its discretion to take
judicial notice of its own records. However, if the subject of
judicial notice is “of substantial consequence to the determination
of the action,” Evidence Code section 455 requires the court to
allow each party to present information relevant to the propriety
of taking judicial notice and as to the tenor of the matter to be
noticed. (Estate of Russell (1971) 17 Cal. App. 3d 758, 765 [where
the previous financial condition of the trust would have been “of
substantial consequence to the action,” the trial court could not
take judicial notice of records of the court containing financial
information absent notice to the parties].)
This the trial court did not do; although it indicated it
intended to take judicial notice of the return to the search
warrant, to which Banda objected, it did not indicate it was
taking judicial notice of the police report until after it had ruled,
depriving Banda of both notice and the opportunity to object.
(See People v. Griffith (1971) 19 Cal. App. 3d 948, 951 [no waiver
16
of objection to judicial notice when court ruled immediately after
commenting upon the possibility of taking judicial notice].)
Even had judicial notice of the police report been proper,
despite the People’s failure to proffer it to meet their burden of
proof, the trial court erred by considering Banda’s stipulation to
that report as the factual basis for the plea as proof of the
number of plants under cultivation, as that issue was irrelevant
to his plea. In Reed, supra, 13 Cal. 4th 217, the Court addressed
the proof necessary to show that a previous conviction was a
serious felony for the purpose of imposing a sentence
enhancement under Penal Code section 667, subdivision (a). At
issue was the use of a preliminary hearing transcript and the
excerpt of a probation report for the prior conviction, which had
been based on a plea. Respondent argued that both documents,
although hearsay, were properly considered as defendant’s
admissions to show that the previous conviction was a qualifying
felony. The Supreme Court rejected that position, reasoning, in
relevant part, that: “[n]o evidence suggests that in his plea
defendant was asked to, or did, admit any particular facts stated
in the preliminary hearing or probation report other than those
facts necessary to the []charge itself.” (Reed, supra, 13 Cal.4th at
p. 224.) The Court held the admission of the probation report
was error, although harmless under the circumstances, because
the report contained hearsay to which no exceptions applied. (Id.
at p. 230.) It was error here as well.15
15 Cf. People v. Otto (2001) 26 Cal. 4th 200, 209. The Otto
Court, in a sexually violent predator case, found that Welfare and
17
4. The People Forfeited Any Argument That Granting
Banda’s Petition Would Pose An Unreasonable Risk
The trial court, finding that Banda was ineligible for relief,
did not make the determination required by section 11361.8,
subdivision (b) whether dismissing the sentence “would pose an
unreasonable risk of danger to public safety.” The People neither
requested that determination in their opposition to Banda’s
petition in the trial court, nor presented any evidence to support
such a finding. The People have not asserted in this court that
the record would support such a finding. Accordingly, the People
have forfeited the issue. (Landry v. Berryessa Union School Dist.
(1995) 39 Cal. App. 4th 691, 699-700 [“When an issue is
unsupported by pertinent or cognizable legal argument it may be
deemed abandoned and discussion by the reviewing court is
unnecessary. [Citations.]”].)
Institutions Code section 6600, subdivision (a)(3) allowed the
admission of documentary evidence including probation reports,
despite their contents being hearsay that does not fall within an
exception to the hearsay rule, because the Legislature specifically
permitted the use of those documents in the proceeding. The
Court specifically contrasted this use with the determination that
the documents were inadmissible hearsay in Reed, finding the
use of the documents proper in Otto both because of the statutory
exception, and because the declarants were identified. (Otto, at
p. 209.) Banda’s case, like Reed, has neither a statutory
exception nor the identification of declarants.
18
DISPOSITION
The order denying dismissal of the sentence is reversed and
the matter remanded to the trial court to dismiss the charge
against Banda in accordance with the statute.
ZELON, J.
I concur:
PERLUSS, P. J.
19
WILEY, J., dissenting.
I respectfully dissent from the majority’s thoughtful
opinion. Defendant Michael Banda stipulated, first, to the police
report when he pleaded guilty and, second, to the presentence
probation report at his later sentencing. Those two reports and
Banda’s two separate stipulations establish that he had hundreds
more marijuana plants than Proposition 64 allows. His proper
Proposition 64 sentence is a misdemeanor, as the trial court
ruled. I would affirm.
I
When on March 10, 2016 Banda pleaded guilty to
cultivating marijuana, the trial court was required to satisfy
itself that there was a factual basis for his plea. Courts can
satisfy this requirement by asking defense counsel to stipulate to
a particular document that provides an adequate factual basis,
such as a police report or probation report. (People v. Palmer
(2013) 58 Cal. 4th 110, 112–113.) This trial court asked Banda to
stipulate to the police report to establish the factual basis for
Banda’s plea. Banda did so.
Later, on April 8, 2016, the trial court sentenced Banda. At
this second hearing, Banda again stipulated to the prosecution’s
version of events, this time set out in a different and shorter
document: the probation report.
The stipulated police report and the stipulated probation
report explain what happened in this case. Police approached the
Green Star Collective with a search warrant. Banda tried to
leave the location, but officers detained him. Banda told police he
1
resided at the location and was engaged in construction there. A
room at the location contained 192 medium marijuana plants and
77 small marijuana plants, for a total of 269 marijuana plants.
The law changed after Banda’s sentencing. In November
2016, Proposition 64 legalized personal cultivation of marijuana.
Today, people can legally grow six or fewer marijuana plants, but
Proposition 64 makes it a misdemeanor to grow more than that.
(Health & Saf. Code, §§ 11362.1, subd. (a)(3), 11358, subd. (c).)
Banda grew 263 plants more than six.
Proposition 64 permits people in Banda’s situation to
petition to apply the new rules to their cases. Banda did so, but
asked the trial court entirely to abolish his conviction, which
would be appropriate only if Banda had been cultivating six
plants or fewer. The prosecution disagreed, pointing to the
probation report to which Banda had stipulated, which numbered
his plants at more than six. At his Proposition 64 hearing on
August 9 and 10, 2017, however, Banda objected to this probation
report as inadmissible hearsay. In response, the trial court read
aloud from the transcript of Banda’s sentencing hearing, noting
that Banda had acknowledged and accepted the probation report.
The court asked Banda why his stipulation to the probation
report was insufficient. Based on Banda’s stipulation, the trial
court then reduced his conviction to a misdemeanor but refused
to erase the conviction completely.
II
The trial court was right. At the Proposition 64 hearing,
the prosecution bore the burden of proving the facts by clear and
convincing evidence. The prosecution offered more than that. It
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offered Banda’s stipulation. The Proposition 64 hearing judge did
not confront an evidentiary contest requiring weighing and
resolution by a clear and convincing standard of proof. Instead,
the prosecution showed that, at sentencing, all sides had
stipulated to the facts. Such a stipulation is conclusive without
reference to additional evidentiary support. (People v. Palmer,
supra, 58 Cal.4th at pp. 117–118.)
As with other discretionary sentencing decisions where the
defendant has had an opportunity to review the postplea
probation report and to challenge its contents, including its
statement of the facts and circumstances of the offense, the trial
court is entitled to consider the information in that report in
determining whether to reduce a felony conviction to a
misdemeanor. (Cf. People v. Tran (2015) 242 Cal. App. 4th 877,
887 [interpreting Pen. Code, § 17, subd. (b)].)
Under the new Proposition 64 rules, the proper sentence for
Banda is a misdemeanor.
Banda now maintains his stipulation does not count. Why
not? Banda gives six erroneous reasons.
A
First, at oral argument Banda claimed he did not
stipulate to the probation report. The record is to the contrary:
“THE COURT: [This case is] here for sentencing.
Mr. Banda is present. Waive formal arraignment for
judgment, time for sentence?
“BANDA’S COUNSEL: Yes. No legal cause.
“THE COURT: And submit to the probation officer’s
report?
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“PROSECUTOR: Yes.
“THE COURT: Submit to the probation officer’s report?
“PROSECUTOR: Yes, Your Honor. Submitted.
“BANDA’S COUNSEL: Yes.” (Italics added.)
This exchange established a stipulation. On April 9, 2017,
Banda agreed. In the trial court, during his Proposition 64
hearing on that date, Banda described this transcribed exchange
as a “stipulation.” On appeal, however, Banda reversed course to
claim during oral argument that his agreement to “submit” on
the probation report was not a stipulation. This opportunistic
reversal is untenable.
The reasonable interpretation of Banda’s words at
sentencing is that he was not contesting the probation report: he
was waiving any possible objection. Had Banda intended some
other and more limited meaning, evidence law (as well as
ordinary courtroom procedure and simple fairness) required
Banda to state a timely and specific objection to the probation
report. Crossing fingers behind your back should not work in
court.
B
Second, Banda argues the probation report was admissible
only if it was reliable. This is incorrect: Banda stipulated to the
probation report.
Banda’s stipulation was akin to an evidentiary stipulation,
the making of which is a tactical decision entrusted to trial
counsel. Such a stipulation is conclusive without reference to
additional evidentiary support. (People v. Palmer, supra,
58 Cal.4th at pp. 117–118.)
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This rule is consistent with defense counsel’s broad
authority to stipulate to factual and procedural matters on his
client’s behalf. Even at trial, counsel may stipulate to the
existence or nonexistence of essential facts. Counsel may also
stipulate to the admissibility of evidence or to narrow the range
of litigable issues. Stipulations obviate the need for proof and are
independently sufficient to resolve the matter at issue in the
stipulation. (People v. Palmer, supra, 58 Cal.4th at p. 118.)
Unless the trial court, in its discretion, permits a party to
withdraw from a stipulation, it is conclusive upon the parties,
and the truth of the facts it contains cannot be contradicted.
(Palmer v. City of Long Beach (1948) 33 Cal. 2d 134, 141–142
(Traynor, J.); cf. CALCRIM No. 222 [“During the trial, you were
told that the People and the defense agreed, or stipulated, to
certain facts. This means that they both accept those facts as
true. Because there is no dispute about those facts you must also
accept them as true.”] [Citing Palmer v. City of Long Beach,
supra, 33 Cal.2d at pp. 141–142].)
Parties routinely stipulate to documents that would be
inadmissible absent the stipulation. (E.g., People v. Holmes
(2004) 32 Cal. 4th 432, 436 [when taking a guilty plea, trial court
should ask defense to stipulate to a particular document that
provides an adequate factual basis, such as a police report or a
probation report].)
Why would someone stipulate to an inadmissible
document? The usual reason is because the stipulation is true
and the other side can prove it.
Hearsay can be objectionable and inadmissible, but that
does not mean the hearsay is untrue. If Abby tells Barry that
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Carol told her the sky is blue, that is multiple hearsay.
Nonetheless, the sky truly is blue. That is easy to prove. There
are many witnesses. It can be advantageous simply to agree to
hearsay that is true.
Many stipulations are to documents drafted by counsel for
purposes of litigation. These documents would be inadmissible
hearsay without a stipulation. Those otherwise inadmissible
documents, however, can summarize the inevitable result of
proving the documents’ contents through formal and time-
consuming evidentiary processes. A stipulation saves the time
and effort of summoning witnesses from their daily
responsibilities to a courthouse where they will have to wait to
testify in a trial court with a sizable docket of its own. A
stipulation can achieve the same end, swiftly and cleanly, with
complete fidelity to the truth.
Banda stipulated to the probation report. Such a
stipulation is conclusive without reference to additional
evidentiary support. (People v. Palmer, supra, 58 Cal.4th. at
pp. 117–118.)
C
Third, Banda claims his stipulation was of a limited scope.
This claim has no basis in the record. When the court asked if
Banda submitted to the probation report, Banda’s attorney gave
a one-word answer: “Yes.” Banda’s stipulation was counseled,
unqualified, and unlimited. (Cf. People v. French (2008)
43 Cal. 4th 36, 42, 50–51 [defendant pleaded no contest and
defense counsel qualified the factual basis stipulation
accordingly].)
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Banda suggests he stipulated to the probation report
without stipulating to the facts it recited. This argument puzzles
me. It suggests that, despite having stipulated to a factual
summary, Banda remained free to contest the summarized facts.
I know of no precedent for this suggestion, which would have the
practical effect of making stipulations meaningless. Rendering
courtroom agreements meaningless would be an unhappy result,
with unfortunate consequences for all.
D
Fourth, Banda claims the facts about his offense were not
relevant when he pleaded guilty and was sentenced. This is
inaccurate. The facts of Banda’s crime indeed were relevant.
When parties negotiate a plea deal and sentence, the
magnitude of culpability is relevant. The goal of criminal law is
to determine whether the defendant has committed a crime, and,
if so, to impose a punishment that fits the crime. What
punishment fit Banda’s crime? In contraband cases, the presence
of the contraband, and in what magnitude, is relevant. Banda
and the prosecution negotiated his plea deal before Banda
pleaded guilty. Negotiated plea deals are adjustable in degrees:
how many days in custody, how many days of community service
work, how many dollars in fines, and so on. The degree of
Banda’s culpability was relevant to this negotiated adjustment.
One cannot reasonably maintain the prosecution would have
given Banda the same deal no matter his level of culpability.
Orders of magnitude matter.
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The Supreme Court required stipulations of the sort Banda
made when pleading guilty. One reason is to provide a more
adequate record of the conviction process. (People v. Holmes,
supra, 32 Cal.4th at p. 438, fn. 2.) This more adequate record of
the conviction process shows Banda pleaded guilty on the same
factual basis as in the stipulated probation report: 269 plants;
flight from the Green Star Collective; Banda telling police he
resided at and was performing construction at the location.
The police report to which Banda stipulated during his
guilty plea is longer than the probation report and elaborates on
some details. A “small” marijuana plant was six to 10 inches tall,
while a “medium” plant was two and a half to three feet tall. The
room with the marijuana plants was a hydroponic facility. Banda
told police that most of the tools inside the location were his and
that he was familiar with hydroponics. In the opinion of the
arresting officer, the location was the beginning stages of an
advanced hydroponic marijuana grow.
Proposition 64 introduced a new distinction between
growing six versus seven plants. The distinction did not exist at
the time of Banda’s sentencing. This new distinction does not
imply the facts of Banda’s crime were irrelevant to his plea and
sentence. No defense attorney expects a prosecutor to treat a
small time personal-use hobbyist the same as someone building a
large scale commercial drug supply site.
Banda twice agreed the number of plants was 269. This
fact about 269 plants was the basis for the deal that the
prosecution and the defense negotiated and that the court
accepted and imposed. The magnitude of culpability, including
the magnitude of contraband, was relevant when Banda chose to
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stipulate. It remains relevant today. Banda’s stipulation is
binding.
E
Fifth, Banda at oral argument claimed there were
inconsistencies between the police report and the probation
report. Banda did not identify these inconsistencies. I see none.
The probation report accurately summarized the longer and
more detailed police report. The two documents are consistent in
every detail.
For instance, the probation report stated police detained
Banda and the other arrestee while the two were “attempting to
flee the location.” The police report contains additional detail. It
states an officer observed the other arrestee “run from the rear”
of the location into a parking lot, where police detained him. “A
few minutes later” the same officer observed Banda “exit the
rear” of the same location, and the same officer “detained Banda
in the rear without incident.” So police detained both Banda and
the other man while they were attempting to flee the location.
The probation report is consistent with the more detailed police
report.
In another example of consistent and additional detail, the
police report states the location of the Green Star Collective
marijuana operation encompassed two adjoining street addresses
while the probation report summarily refers to a single “location”
without including the immaterial point about two street
addresses.
The two reports are consistent, despite Banda’s assertion to
the contrary. Most significantly, there can be no claim there was
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inconsistency about the number of plants. Both documents agree
there were 192 medium plants and 77 small ones, for a total of
269 plants.
F
Sixth, Banda cites case law. None of it construes the
statute at issue here, which is Proposition 64. None of it permits
Banda to ignore his binding stipulations.
Banda argues two Supreme Court opinions, Trujillo and
Reed, limit the effect of his stipulation to the facts necessary to
the charged offense itself. (See People v. Trujillo (2006)
40 Cal. 4th 165; People v. Reed (1996) 13 Cal. 4th 217.) But
neither Trujillo nor Reed involved stipulations. Neither holding
permits Banda to disregard the facts to which he twice has
stipulated.
There is a second and independent reason why Trujillo and
Reed cannot control this case. Trujillo and Reed are recidivism
cases. Trujillo held that, within the meaning of the “Three
Strikes” law, a probation officer’s report is not part of the record
of conviction that a trial court may consider in determining
whether a defendant’s past conviction was a serious or violent
felony. (People v. Trujillo, supra, 40 Cal.4th at pp. 175, 178, 181.)
Reed held that, for purposes of the habitual criminals statute, a
statement in a probation report cannot prove a past conviction
was for a serious felony. (People v. Reed, supra, 13 Cal.4th at
pp. 220, 230.)
These cases do not interpret the statute in this case, which
is Proposition 64. Trujillo and Reed interpreted statutes that
differ fundamentally from Proposition 64.
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Recidivism statutes embody principles contrary to
Proposition 64. The goal is to punish recidivism by lengthening
current sentences based on past convictions. The recidivism laws
allow prosecutors to collect old facts about past convictions as a
way to increase the punishment imposed for later offenses. By
contrast, Proposition 64 aims to decrease sentences, and in some
cases to abolish convictions altogether, because social attitudes
about marijuana have changed. Proposition 64 heads the
opposite way from the recidivism statutes.
The concerns that animate the recidivism holdings are
missing from the Proposition 64 setting. In the recidivism arena,
defendants can be in danger of being prosecuted and punished
twice for the same offense. There is also a speedy trial issue.
Permitting prosecutors to litigate the circumstances of a crime
committed years in the past thus raises serious problems akin to
denial of speedy trial and double jeopardy. (See People v.
Trujillo, supra, 40 Cal.4th at pp. 176, 177, 179, 180; People v.
Reed, supra, 13 Cal.4th at p. 223.)
Speedy trial and double jeopardy concerns do not exist in
the Proposition 64 setting. Under Proposition 64, events are
triggered not by prosecutors but by people like Banda. There is
no speedy trial concern because Banda decided when to petition.
Banda, not prosecutors, controlled the timing. And there is no
double jeopardy concern, as Banda conceded at oral argument.
Banda faces no danger of being prosecuted twice for a single
culpable action. (Cf. People v. Tran, supra, 242 Cal.App.4th at
pp. 889–890 [“Defendant argues People v. Trujillo (2006)
40 Cal. 4th 165 (Trujillo) supports his claim the probation report
could not be considered by the trial court, as the court in Trujillo
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stated postplea probation reports ‘do not “reflect[] the facts of the
offense for which the defendant was convicted.”’ [Citation.]
Trujillo does not assist defendant, as it deals with a different
circumstance than the one at issue here. . . . Here, the
prosecution is not attempting to prove an enhancement allegation
to increase defendant’s sentence. Rather, defendant is seeking
leniency from the court to reduce his offense. . . . Accordingly,
there is no risk akin to double jeopardy or forcing defendant to
relitigate the circumstances of the crime.”].)
Banda also cites People v. Thoma (2007) 150 Cal. App. 4th
1096, but that opinion is a recidivism holding as well. (See id. at
pp. 1099, 1101, 1102–1104 [decision is based on Trujillo and
Reed].) Thoma did not interpret Proposition 64. Thoma also
predated the Supreme Court’s 2013 statement in People v.
Palmer that stipulations are conclusive without reference to
additional evidentiary support. (People v. Palmer, supra,
58 Cal.4th at pp. 117–118.)
“[Banda] has offered no authority for his position that
considering the facts and circumstances of an offense, as related
in a probation report, somehow transforms the conviction itself or
redefines the crime for which defendant has been convicted.
[Banda] has offered no cogent reason why the trial court should
not have been able to consider the crime summaries of the
conduct supporting his conviction . . . . Just as it was appropriate
for the trial court to consider the facts and circumstances of the
offense in determining the appropriate sentence at the original
sentencing hearing [citation], it was appropriate to consider those
same facts and circumstances of the offense in making” later
Proposition 64 adjustments. (People v. Tran, supra,
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242 Cal.App.4th at p. 891 [interpreting Pen. Code, § 17,
subd. (b)].)
In sum, the trial court result was correct. It followed the
law, it honored the truth to which the parties had agreed, and it
achieved justice. I would affirm.
WILEY, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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