THE PEOPLE, Plaintiff and Respondent, v. DIALLO MALIK HALL, Defendant and Appellant.
2d Crim. No. B292330
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Filed 9/10/19
(Super. Ct. No. PA022157) (Los Angeles County)
CERTIFIED FOR PUBLICATION
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
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.
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
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
For purposes of present
New
New
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 “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
Appellant’s theory turns on the meaning of “evidence” in the phrase “proves by clear and convincing evidence” of
“‘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. 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.)
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 (
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, 7 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 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
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 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.)
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 presumption (
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 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
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.” (Id. 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 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
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 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
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 (
“[U]nlike the business 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 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. (
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”].)
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
Section 11361.8(b) and Penal Code Section 1170.18 Do Not Support the Exclusion of Reliable Hearsay Evidence
Finally, appellant contends that language concerning proof of dangerousness in
in arrest and probation reports be excluded in determining eligibility for relief under Proposition 64.
Appellant argues that the above italicized language of
This rule of statutory construction is inapplicable here because
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.
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.