People v. Jessup

Filed 6/8/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B295924
(Super. Ct. No. NA078438)
Plaintiff and Respondent, (Los Angeles County)
v.
ZAVIER LOUIS JESSUP,
Defendant and Appellant.
In November 2016, voters passed Proposition 64, the
Control, Regulate, and Tax Adult Use of Marijuana Act. (People
v. Boatwright (2019) 36 Cal.App.5th 848, 853.) One of
Proposition 64’s purposes is to reduce penalties for nonviolent
marijuana-related offenses. (Ballot Pamp., Gen. Elec. (Nov. 8,
2016) text of Prop. 64, § 2, subd. (G).) It achieves this purpose, in
part, by permitting those convicted of marijuana-related felonies
to apply to have their convictions redesignated as misdemeanors.
(People v. Laird (2018) 27 Cal.App.5th 458, 463 (Laird); see
Health & Saf. Code, 1 § 11361.8, subds. (e) & (f).) The issue
1 Further
undesignated statutory references are to the
Health and Safety Code.
presented in this case is whether the attachment of a gang
enhancement to a marijuana-related felony conviction renders
that conviction ineligible for redesignation. We conclude that it
does not.
Zavier Louis Jessup appeals from the trial court’s
order denying his application to redesignate his conviction for
possession of marijuana for sale from a felony to a misdemeanor.
(§ 11361.8, subds. (e) & (f).) Jessup contends the court erred
when it concluded that the gang enhancement attached to his
conviction made him ineligible for redesignation. We agree, and
vacate the order denying Jessup’s application.
FACTUAL AND PROCEDURAL HISTORY
In June 2008, Jessup pled no contest to possession of
marijuana for sale, a felony (§ 11359), and admitted an allegation
that he committed his crime for the benefit of a criminal street
gang (Pen. Code, § 186.22, subd. (b)(1)(A)). The trial court
sentenced him to four years in state prison. Jessup did not
appeal from the judgment.
In December 2018, Jessup applied to have his felony
possession-for-sale conviction redesignated a misdemeanor.
(§ 11361.8, subd. (e).) Prosecutors did not oppose Jessup’s
application. The trial court nevertheless denied it in a written
order, concluding that the gang enhancement attached to
Jessup’s conviction made him ineligible for section 11361.8 relief.
Jessup filed his notice of appeal from that order in January 2019.
Apparently unaware that it had already been denied,
the trial court held a hearing on Jessup’s redesignation
application in March. At the hearing the prosecutor said that
Jessup was eligible for section 11361.8 relief because he had “no
[prior] convictions that would make him ineligible.” The court
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replied that it believed the gang enhancement attached to
Jessup’s possession-for-sale conviction rendered him ineligible for
redesignation. Defense counsel disagreed. He said the court
should focus only on the conviction for the underlying offense.
The court replied that the “underlying offense includes the gang
[enhancement].” The hearing concluded when defense counsel
realized that the court had previously denied Jessup’s application
and that the matter was pending on appeal.
DISCUSSION
Jessup contends the trial court erroneously concluded
that the gang enhancement attached to his conviction for
possession of marijuana for sale renders him ineligible for section
11361.8 redesignation. We agree.
Whether Jessup may have his conviction
redesignated presents an issue of statutory interpretation for our
independent review. (People v. Medina (2018) 24 Cal.App.5th 61,
66.) We interpret statutes added or amended by voter initiative,
such as sections 11359 and 11361.8, in the same manner we
interpret those enacted by the Legislature. (People v. Rizo (2000)
22 Cal.4th 681, 685.) Our fundamental task is to ascertain the
voters’ intent when they adopted the statutes. (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 901 (Robert L.).) We first
consider the statutory language, “giving the words their ordinary
meaning[s] and construing [the] language in the context of the
statute[s] and initiative as a whole.” (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 571 (Pearson).) We presume
voters were “‘aware of existing related laws’” when they enacted
sections 11359 and 11361.8 (People v. Valencia (2017) 3 Cal.5th
347, 369), and that they “intended to maintain a consistent body
of rules” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th
3
183, 199). We also presume voters were aware of the judicial
interpretation of those laws and that they intended for the same
interpretation to apply to related laws with identical or
substantially similar language. (Moran v. Murtaugh Miller
Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 785 (Moran).) If we
conclude that the language of sections 11359 and 11361.8 “is not
ambiguous, we presume the voters intended the meaning
apparent from that language, and [will] not add to the statute[s]
or rewrite [them] to conform to some assumed intent.” (Pearson,
at p. 571.)
When Jessup pled no contest to possession of
marijuana for sale in 2008, the crime was a felony. (Stats. 1976,
ch. 1139, § 73, p. 5082.) Since the adoption of Proposition 64 in
2016, possession of marijuana for sale has been punishable as a
misdemeanor, subject to limited exceptions. (People v. Smit
(2018) 24 Cal.App.5th 596, 600 (Smit).) Now, any adult “who
possesses [marijuana] for sale shall be punished by imprisonment
in a county jail for a period of not more than six months or by a
fine of not more than five hundred dollars ($500), or by both such
fine and imprisonment” (§ 11359, subd. (b)), unless they have one
or more disqualifying prior convictions (id., subd. (c)(1) & (2)),
commit their crime in connection with the sale or attempted sale
of marijuana to a minor (id., subd. (c)(3)), or commit their crime
with a person 20 years of age or younger (id., subd. (d)).
Proposition 64 also added section 11361.8 to the
Health and Safety Code. (Smit, supra, 24 Cal.App.5th at p. 600.)
Subdivision (e) of section 11361.8 provides that a person who has
completed the sentence on a felony possession-for-sale conviction
“may file an application . . . to have [their] conviction . . .
redesignated as a misdemeanor” if they “would have been guilty
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of a lesser offense under [Proposition 64] had [it] been in effect at
the time of the offense.” “The [trial] court shall presume [that the
applicant] satisfies the criteria in subdivision (e) unless the
[prosecutor] proves by clear and convincing evidence that [they
do] not.” (§ 11361.8, subd. (f).) If the applicant satisfies the
criteria, “the court shall redesignate the conviction as a
misdemeanor.” (Ibid.) Once redesignated, the conviction “shall
be considered a misdemeanor . . . for all purposes.” (§ 11361.8,
subd. (h).)
Jessup has completed the sentence on his felony
possession-of-marijuana-for-sale conviction. He has no prior
convictions that would permit him to be punished for a felony
violation of the current version of section 11359. Nor is there
anything in the record to suggest that he committed his crime in
connection with the sale or attempted sale of marijuana to a
minor, or that he committed his crime with someone under the
age of 21. The trial court was thus required to redesignate his
conviction a misdemeanor unless prosecutors proved, by clear
and convincing evidence, that he would have been guilty of a
felony had the current version of section 11359 been in effect
when he committed his offense in 2008.
Prosecutors failed to carry that burden here. If a
defendant admits a Penal Code section 186.22, subdivision (b)(1),
allegation, they are subject to a conduct enhancement. (People v.
Wilson (2016) 5 Cal.App.5th 561, 568.) A conduct enhancement
is “‘an additional term of imprisonment added to the base term’
[citation], which cannot be imposed without a conviction for the
substantive offense.” (People v. Maultsby (2012) 53 Cal.4th 296,
299-300.) Such an enhancement “‘cannot . . . stand[] alone,’”
cannot “be equated with an offense,” and cannot provide the
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“‘legal elements of the offense[] to which [it] attach[es].’” (People
v. Anderson (2009) 47 Cal.4th 92, 118, italics omitted.) It is
separate and distinct from the conviction on the underlying
offense.
People v. Briceno (2004) 34 Cal.4th 451 does not hold
otherwise. The issue in Briceno was whether the definition of
“serious felony” in Penal Code section 1192.7, subdivision
(c)(28)—i.e., “any felony offense, which would also constitute a
felony violation of [Penal Code section] 186.22”—includes only
the substantive offense of active participation in a criminal street
gang, or any felony committed for the benefit of a gang. (Briceno,
at p. 456.) The court concluded that any felony committed for the
benefit of a gang falls within the definition of a “serious felony.”
(Id. at p. 464.) In reaching that conclusion, the court did not
suggest that the gang enhancement is part of the underlying
offense. Rather, it based its conclusion on the fact that the term
“violation” used elsewhere in Penal Code section 1192.7,
subdivision (c), and related statutes includes a violation of
various statutes that define conduct enhancements. (Briceno, at
pp. 460-462.) Additionally, the court noted that the attachment
of certain conduct enhancements to felonies not listed in Penal
Code section 1192.7, subdivision (c), elevates those crimes to
serious felonies. (Briceno, at pp. 463-464.) That reinforces the
proposition, set forth in Maultsby and Anderson, that an
enhancement is considered separately from the conviction to
which it is attached.
People v. Sweeny (2016) 4 Cal.App.5th 295 (Sweeny)
is instructive. The Sweeny defendant was convicted of two felony
counts of receiving stolen property. (Id. at p. 298.) A gang
enhancement was attached to each conviction. (Ibid.) After
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voters passed Proposition 47, the defendant petitioned for
resentencing pursuant to Penal Code section 1170.18. (Ibid.)
The trial court denied the petition, but the Court of Appeal
reversed, concluding that the gang enhancements attached to the
defendant’s convictions did not render him ineligible for
resentencing simply because they elevated his convictions to
serious felonies. (Id. at pp. 301, 303.)
The same is true here. Like Penal Code section
1170.18, section 11361.8 permits a person convicted of a felony
violation of a listed offense to either petition the trial court to
resentence them (§ 11361.8, subd. (a)) or apply to have their
conviction redesignated (id., subd. (e)). The language used in
section 11361.8 is substantively identical to that in Penal Code
section 1170.18. We presume voters were aware of the Sweeny
court’s interpretation of that language when they approved
Proposition 64 the month after Sweeny was decided, and that
they intended for the same interpretation to apply to section
11361.8. (Moran, supra, 40 Cal.4th at p. 785.) Under that
interpretation, the gang enhancement attached to Jessup’s
possession-for-sale conviction does not render him ineligible for
redesignation.
This conclusion comports with the structure and
context of sections 11359 and 11361.8 as a whole. (Pearson,
supra, 48 Cal.4th at p. 571.) Section 11359 includes specified
exceptions that permit treating possession of marijuana for sale
as a felony: if the defendant has certain prior convictions (id.,
subd. (c)(1) & (2)), sells marijuana to a minor (id., subd. (c)(3)), or
commits their crime with a person under age 21 (id., subd. (d)).
The absence of a gang enhancement exception in section 11359
implies that voters did not intend to include it. (See Howard
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Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 514 [“the
explicit mention of some things in a text may imply other matters
not similarly addressed are excluded”].) Section 11361.8
similarly includes no language that excludes felony convictions
with attached gang enhancements. “[W]e may not add to [a]
statute or rewrite it to conform to some assumed intent not
apparent from that language.” (Pearson, at p. 571.)
Our conclusion also fits within our mandate to
“liberally” and “broadly” construe Proposition 64’s provisions to
effectuate its purposes. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016)
text of Prop. 64, §§ 10, 11.) As set forth above, one of Proposition
64’s purposes is to reduce the penalties for nonviolent marijuana-
related felonies by redesignating them as misdemeanors. (Laird,
supra, 27 Cal.App.5th at p. 463.) Jessup’s underlying offense was
both nonserious and nonviolent. The gang enhancement
attached to that offense elevated it to a serious—but nonviolent—
felony. (See Pen. Code, § 1192.7, subd. (c)(28).) Permitting
Jessup to have his conviction redesignated thus helps to further
Proposition 64’s purpose. (Cf. Smit, supra, 24 Cal.App.5th at p.
602 [permitting resentencing of defendant convicted of “super
strike” offense at the same time he was convicted of possession of
marijuana for sale was consistent with voters’ intent when they
adopted Proposition 64]; Sweeny, supra, 4 Cal.App.5th at p. 302
[Proposition 47 permits reducing serious felony to misdemeanor].)
Like his predecessor in Sweeny, the Attorney General
argues Jessup is not eligible for redesignation “because, given his
admission of [the Penal Code section 186.22, subdivision (b)(1),
allegation], his crime[] would still be [a] felon[y] under Penal
Code section 186.22, subdivision (d),” since the two subdivisions
share the same elements. (Sweeny, supra, 4 Cal.App.5th at p.
8
298; compare People v. Garcia (2017) 9 Cal.App.5th 364, 379
[elements of Penal Code section 186.22, subdivision (b)(1)] with
People v. Gonzales (2015) 232 Cal.App.4th 1449, 1464 [elements
of Penal Code section 186.22, subdivision (d)].) We reject this
argument. Section 11361.8 permits redesignation of existing
felony convictions. “It does not require [an applicant] to examine
the Penal Code for other offenses [their] conduct would have
supported and prove [that they] would not have been convicted of
those.” (People v. Abarca (2016) 2 Cal.App.5th 475, 484.) “Nor
does it suggest [that a trial] court must examine the Penal Code
to assure itself . . . that an offender could not have been convicted
of a different felony for the same underlying conduct.” (Ibid.)
Even if it did, the Attorney General’s argument
ignores many of the steps that would be required for Jessup’s
conviction to remain a felony under the current version of section
11359: Jessup would first have to show that his felony
possession-for-sale conviction could be redesignated a
misdemeanor. (§ 11361.8, subd. (e).) The trial court would then
have to find that Jessup made the required showing, and
redesignate his conviction accordingly. (Id., subd. (f).) After
redesignation, prosecutors would have to move to modify Jessup’s
admission on the Penal Code section 186.22, subdivision (b)(1),
allegation—which cannot attach to a misdemeanor, as Jessup’s
conviction would stand—to an admission on a Penal Code section
186.22, subdivision (d), allegation—which can attach to a
misdemeanor (see Robert L., supra, 30 Cal.4th at p. 903). If the
court granted that motion, Jessup’s conviction would be elevated
from a misdemeanor to a “wobbler.” (Sweeny, supra, 4
Cal.App.5th at p. 301.) Because a wobbler is a felony unless
reduced to a misdemeanor (ibid.), for it to remain a felony the
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court would have to both: (1) refrain from exercising its
discretion to strike the Penal Code section 186.22, subdivision (d),
allegation (see Pen. Code, § 186.22, subd. (g)), and (2) refrain
from exercising its discretion to treat the conviction as a
misdemeanor (Sweeny, at p. 301).
Such a procedure is contrary to the plain language of
section 11361.8. Once a trial court redesignates a conviction from
a felony to a misdemeanor, that conviction “shall be considered a
misdemeanor . . . for all purposes.” (§ 11361.8, subd. (h).) A court
could thus never reach the issue of whether a defendant’s
admission to a Penal Code section 186.22, subdivision (b)(1),
allegation could be modified to an admission on a Penal Code
section 186.22, subdivision (d), allegation, or take any of the steps
after that.
Moreover, even if this hypothetical procedure were
permissible under section 11361.8, the Attorney General does not
specify who carries the burden of demonstrating whether
Jessup’s conviction would remain a misdemeanor or be reelevated
to a felony. Requiring Jessup to show that his conviction would
be reduced to a misdemeanor, and then reduced again after it
was elevated to a wobbler, is contrary to the plain language of
section 11361.8, which required Jessup only to show that he
would have been guilty of a misdemeanor had Proposition 64
been in effect when he committed his offense. (§ 11361.8, subd.
(e).) Nothing in the section 11361.8 can be interpreted as
requiring him to make that showing twice.
It thus would have fallen to prosecutors to show that
Jessup’s conviction would remain a felony at the conclusion of
redesignation proceedings. (§ 11361.8, subd. (f).) But in the
proceedings below, prosecutors did not move to modify Jessup’s
10
admission on the Penal Code section 186.22, subdivision (b)(1),
allegation. Nor did they show that the trial court would have
granted that motion, that the court would not have struck any
modified allegation, or that the court would have treated any
allegation not stricken as a felony. They thus failed to show, by
clear and convincing evidence, that Jessup would have been
guilty of a felony even if Proposition 64 had been in effect when
he committed his offense in 2008. (Id., subds. (e) & (f).)
Redesignation was required.
DISPOSITION
The trial court’s January 2, 2019, order denying
Jessup’s application to redesignate his felony possession-of-
marijuana-for-sale conviction is vacated. On remand, the court
shall enter an order granting Jessup’s application and
redesignating his conviction a misdemeanor.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Gary J. Ferrari, Judge
Superior Court County of Los Angeles
______________________________
Susan Morrow Maxwell, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael R. Johnsen and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.