People v. Boatwright

Filed 6/25/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A153352

v.

WILLIAM ROY BOATWRIGHT, (Mendocino County

Super. Ct. No. SCUK-CRCR-13-74202)

Defendant and Appellant.

Proposition 64 reduced or eliminated criminal penalties for various marijuana-

related offenses and established a petitioning process for individuals to seek a reduction

in sentence based on these changes in law. William Roy Boatwright was charged with

possession of marijuana for sale and cultivation of marijuana, both felonies at the time,

and later pleaded guilty to a single felony count of accessory. Defendant appeals from

the denial of his petition for resentencing. This appeal presents an issue of first

impression, whether a defendant convicted of felony accessory is categorically ineligible

for resentencing under Proposition 64 because the crime of accessory is not specifically

mentioned in the statute. We conclude defendant was eligible for resentencing and

reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2013, law enforcement officers executed a search warrant for a

residence in Ukiah and seized 107 pounds of marijuana, four grams of methamphetamine,

drug paraphernalia, a vacuum-sealing device, and 60 pounds of marijuana shake.

Defendant was seen walking from the front door of the house and was detained. He told

officers he was helping a friend package the marijuana inside the house. He was arrested.

The People filed an information charging defendant with possession of marijuana

for sale (Health & Saf. Code,1 § 11359) and cultivation of marijuana (§ 11358). At the

time, both crimes were classified as felonies. (Former §§ 11358 & 11359, as amended by

Stats. 2011, ch. 15, §§ 160 & 161, eff. Apr. 4, 2011.) The information also charged two

prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b).

Under a negotiated disposition, defendant pleaded guilty to a single felony count of

accessory (Pen. Code, § 32),2 and the trial court dismissed the balance of the charges.

Because defendant was found to have played a minimal role in this offense, the court

suspended imposition of sentence and placed him on three years’ formal probation. He

served 228 days in county jail and received 114 days of credit for time served.

Between August 2015 and December 2016, defendant’s probation was revoked

twice and he was ordered to serve a total of 135 days in jail. After a third probation

violation petition was filed in December, the trial court continued the hearing to allow

briefing on what effect, if any, the recent passage of Proposition 64 may have on the

probation proceedings. The court ordered defendant released from custody and tolled his

probation pending the hearing.

Defense counsel petitioned for a reduction in defendant’s sentence under

Proposition 64. Counsel explained, “Although Proposition 64 does delineate the specific

crimes to which it applies, the results in this case would be absurd and unjust if

[defendant] were not afforded that relief” because “[b]oth of the original counts against

[him] would now be misdemeanors.” Counsel also noted that defendant was not

otherwise disqualified from seeking postconviction relief as he had no prior drug-related

1

All statutory references are to the Health and Safety Code unless otherwise

stated.

Penal Code section 32 provides: “Every person who, after a felony has been

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committed, harbors, conceals or aids a principal in such felony, with the intent that said

principal may avoid or escape from arrest, trial, conviction or punishment, having

knowledge that said principal has committed such felony or has been charged with such

felony or convicted thereof, is an accessory to such felony.” This is a “wobbler” offense.

(See Pen. Code, § 33.)

2

convictions or super strikes and was not a sex registrant. The trial court denied

defendant’s petition on the basis that “he’s not specifically covered under Proposition 64

. . . .” The court expressed concern over defendant’s repeated violations of probation and

stated he “should get some sanction for what he’s done.” The court permanently revoked

probation and sentenced defendant to serve the middle term of two years and ordered him

to pay various fines. After applying 794 days of custody credits for time served,

defendant was released from custody.

DISCUSSION

I. Standard of Review

Whether defendant’s accessory conviction is eligible for resentencing under

Proposition 64 “presents a question of statutory interpretation, which we review de

novo.” (People v. Medina (2018) 24 Cal.App.5th 61, 66 (Medina).) “We review voter

initiatives by applying the same principles that govern our interpretation of statutes

passed by the Legislature. [Citation.] In doing so, we turn first to the words of the

provision adopted by voters, giving language its plain and ordinary meaning. [Citation.]

If 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.] We

construe statutory language ‘in context, keeping in mind the statutes’ nature and obvious

purposes,’ and we ‘harmonize the various parts of the enactments by considering them in

the context of the statutory frame work as a whole.’ ” (People v. Laird (2018)

27 Cal.App.5th 458, 463.)

II. Proposition 64

On November 8, 2016, voters passed the Control, Regulate and Tax Adult Use of

Marijuana Act, more commonly known as Proposition 64. Proposition 64 legalized the

recreational use of marijuana and reduced the criminal penalties for various marijuana-

related offenses, including the cultivation and possession for sale of marijuana. The law

provides gradations of punishment for certain marijuana-linked conduct based on factors

such as a person’s age, prior criminal history, and the quantity of marijuana in question.

With certain exceptions not pertinent here, section 11359 now provides: “Every person

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18 years of age or over 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).)3 Section 11358 states the crime of cultivation, again with certain

exceptions, “shall be punished as follows: [¶] . . . [¶] Each person 18 years of age or

over who plants, cultivates, harvests, dries, or processes more than six living [marijuana]

plants 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 that fine

and imprisonment.” (§ 11358, subd. (c).) (See § 11360, subd. (a)(2) [unlawful

transportation of marijuana by a person 18 years of age or over punishable as a

misdemeanor offense].)

Proposition 64 sets forth a procedure that allows an individual currently serving a

sentence to seek postconviction relief based on these changes in the law if the individual

does not have a disqualifying prior conviction. (§§ 11361.8, 11360.) Eligibility for the

petitioning process is described in section 11361.8, subdivision (a) and provides as

follows: “A person currently serving a sentence for a conviction, whether by trial or by

open or negotiated plea, who would not have been guilty of an offense, or who would

have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of

Marijuana Act had that act been in effect at the time of the offense may petition for a

recall or dismissal of sentence before the trial court that entered the judgment of

conviction in his or her case to request resentencing or dismissal in accordance with

Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those

sections have been amended or added by that act.”

The trial court must presume the defendant is entitled to relief absent “clear and

convincing evidence” he or she does not satisfy the criteria set forth in subdivision (a).

(§ 11361.8, subd. (b); see People v. Smit (2018) 24 Cal.App.5th 596, 600–601 (Smit).) If

the defendant qualifies for resentencing, the trial court “shall grant the petition” unless it

3

A more recent amendment to sections 11359 and 11358 substituted the word

“cannabis” for “marijuana.” (Stats. 2017, ch. 27, § 124, eff. June 27, 2017.)

4

“determines that granting the petition would pose an unreasonable risk of danger to

public safety.” (Ibid.) The measure explains that an “ ‘unreasonable risk of danger to

public safety’ has the same meaning as provided in subdivision (c) of Section 1170.18 of

the Penal Code,” namely, “an unreasonable risk that the petitioner will commit a new

violent felony [under Penal Code section 667, subdivision (e)(2)(C)(iv)].” (§ 11361.8,

subd. (b)(2); see Pen. Code, § 1170.18, subd. (c).)

III. Analysis

The trial court below found that defendant was not eligible for resentencing

because the crime of accessory is not specifically enumerated in Proposition 64. We

conclude the trial court misconstrued the scope of relief obtainable under Proposition 64.

“The determination of whether the defendant is eligible for relief under section

11361.8, subdivision (a), requires the court to determine whether the defendant ‘would

not have been guilty of an offense, or . . . would have been guilty of a lesser offense

under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in

effect at the time of the offense.’ ” (Smit, supra, 24 Cal.App.5th at p. 601, italics added.)

The relevant inquiry here is whether the defendant would have been convicted of

accessory had Proposition 64 been in effect at the time of his offense. He would not.

An accessory is a person “who, after a felony has been committed, harbors,

conceals, or aids a principal in such felony, with the intent that said principal may avoid

or escape from arrest, trial, conviction or punishment, having knowledge that said

principal has committed such felony or has been charged with such felony or convicted

thereof . . . .” (Pen. Code, § 32, italics added). As the statutory language makes clear,

conviction as an accessory requires that “someone other than the accused, that is, a

principal, must have committed a specific, completed felony . . . .” (People v. Nuckles

(2013) 56 Cal.4th 601, 607, italics added [listing the elements of the offense].)

Defendant was arrested while exiting a marijuana growth house and was originally

charged with two offenses, possession for sale of marijuana under section 11359 and

cultivation of marijuana under section 11358, prior to defendant’s entry of a guilty plea

for accessory. The record does not indicate whether a principal was separately charged

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with a crime, but at disposition the People stipulated to the following factual basis for

defendant’s plea: “On the date alleged in the County of Mendocino, the defendant

knowing that others were processing marijuana either for sale or for transportation to

others, assisted them after the fact.” The record thus discloses that the completed felony

which formed the basis for defendant’s accessory conviction was either possession of

marijuana for sale, cultivation, or transportation of marijuana. As discussed above, under

statutory amendments to sections 11358, 11359, and 11360, each of these offenses is

punishable as a misdemeanor under Proposition 64. It follows that defendant would not

have been convicted of accessory to a misdemeanor had Proposition 64 been in effect at

the time of the offense, and defendant was eligible for resentencing.4

That Penal Code section 32 is not specifically enumerated in section 11361.8 does

not alter our conclusion. Section 11361.8 provides that the trial court must evaluate a

resentencing petition “in accordance with Sections 11357, 11358, 11359, 11360,

11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added

by that act.” (§ 11361.8, subd. (a), italics added). Under a plain reading of this

subdivision, petitions for resentencing or dismissal must be evaluated “in accordance

with” the manner in which the statutory sections enumerated in section 11361.8 were

amended or added by Proposition 64. These statutory amendments underpin the trial

court’s analysis whether a defendant “would not have been guilty of an offense, or who

would have been guilty of a lesser offense” had Proposition 64 been in effect at the time

4

This case is thus distinguishable from Medina, in which the appellate court

concluded a felony conspiracy conviction based on possession of marijuana for sale was

not eligible for reduction under Proposition 64. (Medina, supra, 24 Cal.App.5th at p. 65).

The conspiracy crime in Medina became a wobbler offense chargeable either as a felony

or misdemeanor, and application of Proposition 64 did not mean the defendant would not

be guilty of a lesser offense. (Id. at p. 66.) The appellate court further concluded that

“felony conspiracy is a more serious crime than the underlying misdemeanor” (id. at

p. 67) and noted that the defendant had conspired to sell at least 35 pounds of marijuana

(id. at pp. 65). Here defendant played a minimal role in the offense and, as a matter of

law, cannot be subjected to accessory liability for a principal’s commission of a

misdemeanor offense.

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of the offense. The wording of section 11361.8, however, does not limit postconviction

relief to just those sections enumerated in the statute.

As our Supreme Court has explained in discussing a substantially similar

resentencing provision under Proposition 47, “the requirement that resentencing occur ‘in

accordance with’ one of the nine code sections listed in Penal Code section 1170.18[,

subdivision] (a) does not make resentencing eligibility contingent upon the petitioner

having been convicted under one of those provisions.” (People v. Martinez (2018)

4 Cal.5th 647, 652.) Rather, a defendant’s eligibility for resentencing turns on whether

he or she “would have been guilty of a misdemeanor under [Proposition 47] had

[Proposition 47] been in effect at the time of the offense . . . .’ ” (Ibid.) (See People v.

Page (2017) 3 Cal.5th 1175, 1184, 1187 [defendants convicted under Veh. Code, § 10851

for theft of an automobile worth $950 or less were eligible for resentencing under

Prop. 47 even when the offense was not enumerated in Pen. Code, § 1170.18, subd. (a)].)

“[I]dentical language appearing in separate statutory provisions should receive the same

interpretation when the statutes cover the same or analogous subject matter.” (People v.

Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6.)

Our conclusion that a defendant convicted of accessory to a marijuana-related

felony may be eligible for resentencing under Proposition 64 is further supported by the

measure’s legislative history. Proposition 64 was intended, in part, to “[p]reserve scarce

law enforcement resources to prevent and prosecute violent crime,” and to “[a]uthorize

courts to resentence persons who are currently serving a sentence for offenses for which

the penalty is reduced by the act, so long as the person does not pose a risk to public

safety, and to redesignate or dismiss such offenses from the criminal records of persons

who have completed their sentences as set forth in this act.” (Prop. 64, § 3, subds. (w) &

(z).) In the voter guide to Proposition 64, the Legislative Analyst explained, “Under the

measure, individuals serving sentences for activities that are made legal or are subject to

lesser penalties under the measure would be eligible for resentencing. For example, an

offender serving a jail or prison term for growing or selling marijuana could have their

sentence reduced. (A court would not be required to resentence someone if it determined

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that the person was likely to commit certain severe crimes.) Qualifying individuals

would be resentenced to whatever punishment they would have received under the

measure.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016), analysis of Prop. 64 by

the Legis. Analyst, p. 95.) In light of the voter’s apparent intent to reduce penalties for

nonviolent marijuana offenses and provide postconviction relief for these offenses, it

would be anomalous for the principals in this case to be allowed to seek resentencing

while denying defendant the same opportunity.

On appeal, the Attorney General does not assert that Proposition 64 is limited only

to those crimes enumerated within section 11361.8, subdivision (a). Instead, he contends

defendant is not entitled to relief “because while he could have been guilty of a lesser

offense had Proposition 64 been in effect at the time of his offense, nothing in the record

suggests that his accessory conviction was predicated on a crime reducible under

Proposition 64.” In support, he notes the People argued below that defendant had been

involved with a “ ‘drug factory,’ ” asserting that the plea bargain had “ ‘intended to cover

all the drugs in the house,’ ” including the four grams of methamphetamine. The

Attorney General also asserts the trial court “ ‘never clarified’ ” the underlying felony of

the accessory conviction.

On the contrary, the underlying felonies were clearly identified at the time of

defendant’s conviction. As discussed above, the People stipulated to the following

factual basis for defendant’s plea: “On the date alleged in the County of Mendocino, the

defendant knowing that others were processing marijuana either for sale or for

transportation to others, assisted them after the fact.” The stipulation makes no mention

of any drugs other than marijuana. It is true that under Proposition 64, certain marijuana-

related offenses may still be punished as a felony, for example if a person has certain

prior convictions, if their cultivation results in substantial environmental harm, if they sell

or attempt to sell to a minor, or if they knowingly use a person 20 years of age or younger

in cultivating, transporting, or selling marijuana. (See §§ 11358, subds. (c) & (d), 11359,

subds. (c) & (d), 11360, subd. (a)(3).) But the record is devoid of any evidence that the

defendant or a principal engaged in felonious behavior of this kind.

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Under section 11361.8, subdivision (b), the trial court “shall presume 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.”

(Italics added.) No such clear and convincing evidence was presented below that would

disqualify the defendant from Proposition 64 relief. While a small amount of

methamphetamine was found in the Ukiah home, there is no evidence that defendant had

any involvement with it, and the stipulated facts recited at the plea hearing make no

mention of it. The only evidence in the record supports the conclusion that defendant’s

accessory conviction was predicated on crimes that were reduced to misdemeanor

offenses under Proposition 64.

CONCLUSION

We conclude the trial court erred in finding defendant categorically ineligible for

resentencing under Proposition 64 based on his felony accessory conviction and remand

to allow the trial court to consider defendant’s request for resentencing in a manner

consistent with this opinion. The trial court approached the matter thoughtfully,

recognizing this case poses an issue of first impression. We do not fault the court for

failing to anticipate our decision here.

We raise an additional matter for the court’s consideration on remand. It appears

that defendant may have completed his sentence during the pendency of this appeal. If

so, then the statutory basis for defendant’s petition may have changed, and along with it,

the procedures the trial court must apply and the form of relief defendant may seek. (See

§§ 11361.8, subd. (a) [petitioning process for a person currently serving a sentence];

11361.8, subd. (e) petitioning process for a person who has completed his or her

sentence].) We express no opinion as to the resolution of these issues.

DISPOSITION

The order denying the petition and finding defendant ineligible for resentencing

under section 11361.8 is vacated. The matter is remanded for further proceedings

consistent with this opinion.

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_________________________

Sanchez, J.

WE CONCUR:

_________________________

Margulies, Acting P. J.

_________________________

Banke, J.

A153352 People v. Boatwright

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Trial Court: Mendocino County Superior Court

Trial Judge: Hon. John A. Behnke

Counsel:

First District Appellate Project, Jonathan Soglin, Executive Director, Stephanie Clarke

and Deborah Rodriguez, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant

Attorneys General, Catherine A. Rivlin and Jalem Z. Peguero, Deputy Attorneys General,

for Plaintiff and Respondent.

A153352 People v. Boatwright

11