28 Cal.App.5th 744
Cal. Ct. App.2018Background
- In 2013 Saelee was charged with manufacturing hash oil, being a felon in possession of a firearm, and possessing marijuana for sale; he pleaded no contest in 2014 to possession for sale (§ 11359) and admitted a 1994 serious felony prior. He received a negotiated 7-year aggregate sentence.
- In December 2016 Saelee petitioned under Proposition 64 (§ 11361.8) to recall and resentence his felony marijuana conviction as a misdemeanor.
- The People filed a written opposition asserting Saelee posed an unreasonable risk to public safety based on prior firearms-related convictions and facts from the arrest (guns, large quantity of marijuana, evidence of meth manufacture), but offered no admissible evidence or judicial-notice requests to support those assertions.
- The trial court summarily denied the petition, finding Saelee would pose an unreasonable risk to public safety, relying solely on the prosecution’s factual assertions and argument.
- The Court of Appeal reversed and remanded, holding the prosecution must introduce evidence at the second-step dangerousness inquiry and that the proper burden for that suitability/dangerousness step is preponderance of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of proof for the § 11361.8(b) "unreasonable risk" (suitability) determination | The prosecution argued the court could deny relief without applying clear and convincing proof for dangerousness (i.e., no higher standard should apply) | Saelee argued the prosecution must prove dangerousness by clear and convincing evidence | Court: clear-and-convincing applies only to eligibility step; the suitability/dangerousness step uses the default preponderance standard (Evidence Code § 115) |
| Whether the prosecution must introduce admissible evidence to prove dangerousness | People suggested no specific evidentiary showing was required beyond factual assertions and citation of case numbers | Saelee argued the People presented no evidence and thus could not meet their burden | Court: the prosecution must present evidence; counsel’s assertions are not evidence and the court must rely on admissible materials (e.g., probation reports, conviction records, CLETS/969b, transcripts) when making the dangerousness finding |
| Scope of materials court may consider when determining "unreasonable risk" | People argued its written assertions and references to court/report numbers were sufficient | Saelee argued the court may consider only evidence in the record or judicially noticed documents, not bare assertions | Court: § 11361.8(b)(1) incorporates Penal Code § 1170.18(b) — the court may consider criminal history, disciplinary/rehabilitation records, and "any other evidence" — so tangible evidence must be offered and considered |
| Remedy for failure to present evidence at the suitability hearing | People implicitly relied on the existing denial | Saelee requested reversal and remand for an evidentiary proceeding | Court: reversed and remanded for further proceedings allowing both sides to present evidence on dangerousness |
Key Cases Cited
- People v. Valencia, 3 Cal.5th 347 (explaining "super-strike" definition and scope)
- People v. Estrada, 3 Cal.5th 661 (describing two-step eligibility/suitability framework in resentencing statutes)
- People v. Kaulick, 215 Cal.App.4th 1279 (holding preponderance standard applies at suitability step under Prop. 36)
- People v. Jefferson, 1 Cal.App.5th 235 (holding preponderance standard applies at suitability step under Prop. 47)
- People v. Redd, 48 Cal.4th 691 (statements of counsel are not evidence)
- People v. Sledge, 7 Cal.App.5th 1089 (discussing evidentiary sources and judicial notice in resentencing proceedings)