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People v. Hall

California Court of Appeals, Second District, Sixth Division

September 10, 2019

THE PEOPLE, Plaintiff and Respondent,
DIALLO MALIK HALL, Defendant and Appellant.

          Superior Court County of Los Angeles No. PA022157 Daniel B. Feldstern, Judge

          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.

          YEGAN, J.

         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 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]

         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) 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.

         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 ...

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