Filed 10/26/18
                             CERTIFIED FOR PUBLICATION




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             THIRD APPELLATE DISTRICT
                                       (Sacramento)
                                             ----




 THE PEOPLE,                                                        C084235

                 Plaintiff and Respondent,                 (Super. Ct. No. 13F07014)

         v.

 OKOUAVA SAELEE,

                 Defendant and Appellant.




       APPEAL from a judgment of the Superior Court of Sacramento County, Curtis M.
Fiorini, Judge. Reversed with directions.

        Elizabeth Campbell for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Alice Su,
Deputy Attorneys General, for Plaintiff and Respondent.




                                              1
        In this case, we make clear that the prosecution is required to admit actual
evidence to establish an unreasonable risk of danger to public safety in the second step of
Health and Safety Code section 11361.8, subdivision (b),1 enacted as part of Proposition
64. We further hold that the standard of proof is proof by a preponderance of the
evidence. Mere assertions of fact and argument by the prosecution, unsupported by
evidence, is insufficient to establish an unreasonable risk of danger to the public, i.e., an
unreasonable risk that the petitioner will commit a “super-strike” violent felony offense.
Thus, while we disagree with defendant’s contention that the clear and convincing
evidence standard applies to the risk of dangerousness finding under section 11361.8,
subdivision (b), we nevertheless conclude the trial court abused its discretion in rejecting
defendant’s petition to recall and resentence his conviction as a misdemeanor because in
determining that defendant presented an unreasonable risk of danger to the public, the
trial court relied only on bald factual assertions and argument by the prosecution
unsupported by actual evidence.
        We reverse and remand for further proceedings.

                   FACTUAL AND PROCEDURAL BACKGROUND
        In October 2013, defendant was charged with manufacturing hash oil (§ 11379.6,
subd. (a); count one), being a felon in possession of a firearm (Pen. Code, § 29800,
subd. (a)(1); count two), and possessing marijuana for sale (§ 11359; count three). The
complaint alleged that he had suffered a prior serious felony conviction (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12) based on a 1994 conviction for assault with a semi-
automatic firearm (Pen. Code, § 245, subd. (b)).
        In September 2014, defendant pleaded no contest to possessing marijuana for sale
and admitted the prior serious felony conviction allegation as well as a prior prison term



1   Further undesignated statutory references are to the Health and Safety Code.

                                              2
allegation under Penal Code section 667.5, subdivision (b), which was added to the
information by stipulation. The court sentenced defendant to a negotiated aggregate term
of seven years.
       In December 2016, defendant petitioned to redesignate his offense as a
misdemeanor under section 11361.8.2 The petition alleged defendant had no
disqualifying factors under subdivision (b) of section 11361.8. In February 2017, the
prosecution filed written opposition to the petition, arguing that resentencing was
inappropriate because defendant posed an unreasonable risk of danger to public safety.
The prosecution did not challenge defendant’s assertion that he was statutorily eligible
for resentencing.
       Although the prosecution’s written opposition contained numerous factual
assertions, it was not supported by any evidence. In the written opposition, the
prosecution asserted that defendant had a lengthy criminal history, including several prior
firearms-related offenses. According to the prosecution, in 1992, when defendant was
18, he was convicted of carrying a loaded firearm. (Former Pen. Code, § 12031.) While
on probation for that offense, defendant was convicted of felony possession of a firearm
in violation of a probation condition restricting gun possession. (Former Pen. Code,
§ 12021, subd. (d).) The prosecution further represented that in 1994, while on probation
in each of the prior cases, a jury “convicted” defendant of “five counts of Penal Code




2 Defendant’s petition is labeled a petition for redesignation, but because he is currently
serving a sentence on the subject conviction, it is more properly characterized as a
petition for recall and resentencing. (See § 11361.8, subds. (a)-(d) [resentencing];
§ 11361.8, subds. (e)-(g) [redesignation]; 2 Couzens et al., Sentencing Cal. Crimes (The
Rutter Group 2018) § 27.7, p. 27-11 & § 27.12, pp. 27-43 to 27-44 (Couzens)
[distinguishing between § 11361.8 provisions applicable to people currently serving a
sentence and provisions applicable to persons who have completed their sentence].) We
will thus refer to defendant’s petition as one for recall and resentencing.

                                             3
[section] 245(b) . . . assault with the personal use of a firearm.”3 He was sentenced to 30
years four months in state prison.
       The prosecution also asserted that defendant’s current marijuana offense involved
weapons. Citing a sheriff’s report on the incident, the prosecution noted that a loaded
.38-caliber handgun with its serial number removed was found in defendant’s waistband.
The gun had nine live rounds of ammunition in it. A search of defendant’s residence
revealed a rifle with 33 rounds of ammunition in defendant’s bedroom plus more than
100 pounds of marijuana throughout the property, and evidence of methamphetamine
manufacturing.4
       On the same day the People filed their opposition, the court summarily denied the
petition. The court found that defendant would pose an unreasonable risk of danger to
public safety and denied his petition solely on that ground.

                                      DISCUSSION
       Defendant contends the trial court abused its discretion in denying his petition to
recall his felony conviction for possession of marijuana for sale (§ 11359) and resentence



3  Although the prosecution asserted the defendant was “convicted by jury” of “ assault
with personal use of a firearm,” we note that Penal Code section 245, subdivision (b), did
not require personal use. The version of that was in effect between 1993 and December
31, 1999, read: “(b) Any person who commits an assault upon the person of another with
a semiautomatic firearm shall be punished by imprisonment in the state prison for three,
six, or nine years.” One could be convicted of a violation of Penal Code section 245,
subdivision (b), as an aider and abettor. If there was a personal use allegation found true
in connection with this conviction, the written opposition is not clear because the
prosecutor only referenced Penal Code section 245, subdivision (b), and did not reference
a code section for a personal use enhancement.
4 The factual basis for the plea stated only the generic facts related to the plea: defendant
“was in possession of marijuana for sale, having suffered a prior conviction on June 2nd,
1994, which falls under the Three Strikes Law. [¶] Also, he failed to remain free and
clear from prison custody for five years.”

                                             4
him to a misdemeanor because the prosecution failed to prove by clear and convincing
evidence that he was an unreasonable risk to public safety. Defendant also points out that
the prosecution offered no evidence in support of its dangerousness contention. We agree
the court erred, not because it employed the wrong standard of proof, but for the reason
that the prosecution introduced no evidence to satisfy its burden of proof.
                                     I. Proposition 64
       On November 8, 2016, California voters approved Proposition 64, the Control,
Regulate and Tax Adult Use of Marijuana Act. (Ballot Pamp., Gen. Elec. (Nov. 8, 2016)
text of Prop. 64, § 1, p. 178.) Among other things, Proposition 64 reduced the
punishment for certain marijuana offenses, including possessing marijuana for sale under
section 11359. The possession for sale of marijuana by a person 18 years of age or older
is now punished as a misdemeanor unless the person has certain prior convictions or the
offense involved the sale or attempted sale to a person under 18 years of age or the
knowing use of a person 20 years of age or younger in cultivating, transporting, or selling
marijuana. (§ 11359, subds. (b) & (c).)
       Proposition 64 also provides a mechanism for recalling and resentencing prior
felony convictions to a misdemeanor for persons currently serving a sentence. It added
section 11361.8, which provides in pertinent part: “(a) 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.”
(§ 11361.8, subd. (a).)



                                              5
       Subdivision (b) of section 11361.8 provides: “Upon receiving a petition under
subdivision (a), the 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. If the petitioner satisfies the criteria in
subdivision (a), the court shall grant the petition to recall the sentence or dismiss the
sentence because it is legally invalid unless the court determines that granting the petition
would pose an unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b).)
       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.” (§ 11361.8,
subd. (b)(2).) That statute defines the term as “an unreasonable risk that the petitioner
will commit a new violent felony within the meaning of [Penal Code section 667,
subdivision (e)(2)(C)(iv)].” (Pen. Code, § 1170.18, subd. (c).) The cited subdivision of
Penal Code section 667 identifies eight serious or violent felonies, “known colloquially
as ‘super strikes.’ ”5 (People v. Valencia (2017) 3 Cal.5th 347, 351, fn. omitted.)




5  The “super strikes” are: (1) “ ‘a sexually violent offense’ ” as defined in Welfare and
Institutions Code, section 6600, subdivision (b); (2) oral copulation or sodomy, or sexual
penetration of a child under 14 years of age and more than 10 years younger than the
defendant, as defined in Penal Code sections 286, 288a, and 289; (3) a lewd and
lascivious act involving a child under 14 years of age, in violation of Penal Code section
288; (4) any homicide offense, including attempted homicide, as defined in Penal Code
sections 187 through 191.5; (5) solicitation to commit murder, as defined in Penal Code
section 653f, subdivision (b); (6) assault with a machine gun on a peace officer or
firefighter, as defined in Penal Code section 245, subdivision (d)(3); (7) possession of a
weapon of mass destruction, as defined in Penal Code section 11418, subdivision (a)(1);
and (8) any serious and/or violent felony offense punishable in California by life
imprisonment or death (Pen. Code, § 667, subd. (e)(2)(C)(iv)(I-VIII)).

                                                6
                                        II. Analysis
           A. The Proper Standard of Proof on the Dangerousness Finding
       Defendant contends the prosecution had the burden of proving the risk of
dangerousness as defined by Penal Code sections 1170.18, subdivision (c), and 667,
subdivision (e)(2)(C)(iv), by clear and convincing evidence. We disagree.
       Determining the proper standard of proof on the issue of dangerousness requires
us to interpret section 11361.8, enacted as part of Proposition 64. “ ‘In interpreting a
voter initiative . . . , we apply the same principles that govern statutory construction.’ ”
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) Under fundamental rules of
statutory construction, we must ascertain the intent of the Legislature, or the electorate,
from examining the statute as a whole in order to effectuate the purpose of the law.
(People v. Salcido (2008) 166 Cal.App.4th 1303, 1310-1311.) We look first to the plain
meaning of the words used, giving effect to the usual and ordinary import of those words.
(Id. at p. 1311.) “ ‘If the statutory language is unambiguous, “we presume the
Legislature [or electorate] meant what it said, and the plain meaning of the statute
governs.” ’ ” (Ibid.) “ ‘We may not add to or alter those words in order to accomplish a
purpose that does not appear on the face of the statute or from its legislative history.’ ”
(Ibid.; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826-827 [courts do not insert words
into a statute because “[d]oing so would violate the cardinal rule that courts may not add
provisions to a statute”].)
       Subdivision (b) of section 11361.8 contains two sentences, setting forth a two-step
procedure. The first sentence addresses eligibility and states that upon receiving a
petition for a recall of sentence under subdivision (a), the court shall presume the
petitioner satisfies the criteria under that subdivision “unless the party opposing the
petition proves by clear and convincing evidence that the petitioner does not satisfy the
criteria.” (§ 11361.8, subd. (b).) The second sentence, which addresses suitability and
pertains to the trial court’s risk of dangerousness determination, contains no similar

                                               7
standard. The second sentence states in its entirety: “If the petitioner satisfies the criteria
in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the
sentence because it is legally invalid unless the court determines that granting the petition
would pose an unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b), italics
added.) This two-step procedure is similar to the recall and resentencing provisions in
the Three Strikes Reform Act of 2012 (Proposition 36), and the Safe Neighborhoods and
Schools Act of 2014 (Proposition 47). (See People v. Estrada (2017) 3 Cal.5th 661, 667
[referring to the first step in the Prop. 36 recall and resentencing provision as an
eligibility determination and the second step as a suitability determination in which the
trial court makes a finding as to the risk of danger to public safety posed by the
petitioner]; People v. Hall (2016) 247 Cal.App.4th 1255, 1261 (Hall) [referring to the
Prop. 47 procedure as a “ ‘two-step mechanism,’ ” the first step calling for an eligibility
determination and the second a determination as to the risk of dangerousness].)6
       Under the plain language of Proposition 64’s section 11361.8, subdivision (b), the
clear and convincing evidence standard applies to the first-step in Proposition 64’s two-
part procedure, the prosecution’s burden of proof for establishing that defendant does not
satisfy the criteria for resentencing set forth in subdivision (a) and is therefore ineligible
for relief. Dangerousness is not part of the eligibility criteria; it is a consideration




6 The Proposition 47 recall and resentencing provision is set forth in Penal Code section
1170.18, subdivision (b). It provides in pertinent part: “If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.”

  The Proposition 36 recall and resentencing provision is set forth in Penal Code section
1170.126, subdivision (f). It provides in pertinent part: “If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced . . . unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”

                                               8
pertinent to the second step concerning suitability. Nowhere does the statute apply that
same standard to the trial court’s risk of dangerousness determination in the second step.
The statute’s plain language is simply not amenable to defendant’s interpretation that a
trial court may find him unsuitable only if the prosecutor proves he presents the requisite
risk of danger to the public by clear and convincing evidence. That interpretation
requires that we write something into the statute not enacted by the voters. This we will
not do. (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1311 [“In construing a
measure, we may not undertake to rewrite its unambiguous language”].)
       Other courts have rejected similar claims in the context of Proposition 36 and
Proposition 47. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1302-
1306 (Kaulick); People v. Jefferson (2016) 1 Cal.App.5th 235, 240-242 (Jefferson).)
36].)7 The courts in Kaulick and Jefferson concluded, respectively, that the standard of
proof to be applied in the second-step under the Proposition 36 and Proposition 47 recall
and resentencing provisions is the default standard of proof by a preponderance of the
evidence. (Kaulick, at pp. 1305-1306 [Prop. 36]; Jefferson, at p. 241 [Prop. 47].) In
doing so, both courts cited Evidence Code section 115, which provides: “[e]xcept as
otherwise provided by law, the burden of proof requires proof by a preponderance of the
evidence.” (Kaulick, at p. 1305; Jefferson, at p. 341.)
       We conclude that the reasoning of Kaulick and Jefferson applies equally to section
11361.8, subdivision (b), enacted in Proposition 64. (See Couzens, § 27.11, pp. 27-29 to



7  We recognize that neither the Proposition 36 nor Proposition 47 provisions contain the
first sentence in section 11361.8, subdivision (b), stating that there is a presumption that
the defendant satisfies the recall criteria “unless the party opposing the petition proves by
clear and convincing evidence that the petitioner does not satisfy the criteria.” Given our
holding that this language applies only to satisfaction of the criteria qualifying defendant
for recall, this distinction between the Proposition 64 provisions and the Proposition 36
and 47 provisions is not pertinent to our analysis about the standard of proof as to the risk
of danger to the public, i.e., defendant’s suitability.

                                              9
27-32.) Because neither the plain language of section 11361.8, nor any other statute
provides for a higher standard of proof on the dangerousness finding under section
11361.8, subdivision (b), the proper standard of proof for the suitability step is
preponderance of the evidence.

                                 B. Supporting Evidence
       In responding to defendant’s assertion that the prosecution failed to introduce
evidence supporting the dangerousness finding, the People suggest the prosecution is
under no obligation to do so. They assert that defendant did not cite any authority for
such a requirement and in any event, the prosecution provided specific court case
numbers and police report numbers associated with the prior convictions discussed in the
written opposition. We disagree that there is no statutory authority requiring the
introduction of evidence to establish an unreasonable risk of danger to the public.
Although the trial court was not required to find a risk of unreasonable danger by clear
and convincing evidence, the court was required to rely on evidence to make the
dangerousness finding. This the court did not do.
       In making the dangerousness finding, section 11361.8, subdivision (b)(1),
expressly provides that “the court may consider, but shall not be limited to evidence
provided for in subdivision (b) of Section 1170.18 of the Penal Code.” (Italics added.)
Under Penal Code section 1170.18, the resentencing court may consider: (1) the
petitioner’s “criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes”; (2) his or her “disciplinary record and record of rehabilitation while
incarcerated”; and (3) “[a]ny other evidence” the court, within its discretion, deems
relevant. (Pen. Code, § 1170.18, subd. (b)(1)-(3). italics added.) These provisions
clearly signal that some type of evidence must be presented to the trial court.




                                             10
       Here, the People’s written opposition to the petition contained factual assertions
about defendant’s criminal history, but included no evidence supporting those assertions.
Instead, the opposition included only statements of fact and argument made by the
prosecutor, and such statements are not evidence. (People v. Redd (2010) 48 Cal.4th 691,
727 & fn. 16, 733, 743; People v. Hamilton (2009) 45 Cal.4th 863, 928-929 [statements
of counsel not evidence]; accord, Calcor Space Facility, Inc. v. Superior Court (1997)
53 Cal.App.4th 216, 224 [in context of civil law and motion practice, declarations
referencing facts are evidence; arguments of counsel not evidence].)
       Nor did the prosecution ask the court to take judicial notice of any court records
related to the court file numbers it referenced in its written opposition. (See Evid. Code,
§§ 452, 452.5.) For example, in People v. Sledge (2017) 7 Cal.App.5th 1089, 1093
(Sledge), a case involving resentencing under Proposition 47, the trial court took judicial
notice, at the prosecution’s request, of the entire superior court file from a prior
conviction and admitted several documents from it into evidence, including a
supplemental probation report. Nothing similar was done here. Although the prosecution
listed case numbers, there is no indication in the record that the trial court took judicial
notice of those court files on its own motion. (See Evid. Code, § 455 [requiring the trial
court to inform the parties when it has taken judicial notice sua sponte of a matter “that is
of substantial consequence to the determination of the action” and afford the parties a
reasonable opportunity to be heard].)8




8 In denying the petition, the trial court used a local form order, checking off the box
marked “other” under the paragraph for the denial of petitions. In the space provided
next to the word “Other,” it wrote: “Petitioner would pose an unreasonable risk of danger
to public safety.” No reference is made on the form to the court having considered any
court files, other records, or any evidence whatsoever in arriving at this conclusion. It is
recommended that courts using such forms consider modifying them to reflect what
evidence the trial court relied upon.

                                              11
       While Proposition 64 does not define was constitutes “evidence” for purposes of
determining whether a defendant poses an unreasonable risk of danger to public safety
(§ 11361.8, subd. (b)(1)), under Evidence Code section 140 the term “evidence” includes
“testimony, writings, material objects, or other things presented to the senses that are
offered to prove the existence or nonexistence of a fact.” 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]; see also Couzens, supra, § 27.11, p. 27-34.)
Examples of evidence that have been used to establish a defendant’s criminal history or
disciplinary record include the following: (1) Probation reports (see Sledge, at p. 1095
[eligibility hearing under Prop. 47 is a type of sentencing proceeding where use of
reliable hearsay such as that found in probation reports is permitted]); (2) prior
preliminary hearing and trial transcripts (Hall, supra, 247 Cal.App.4th at p. 1261; see
Couzens, § 25.10, p. 25-65 [discussing the eligibility finding in Prop. 47]); (3) rap sheet
printouts from the California Law Enforcement Telecommunication System (CLETS)
(People v. Martinez (2000) 22 Cal.4th 106, 113); (4) prison records (see Jefferson, supra,
1 Cal.App.5th at pp. 243-244) and Penal Code section 969b packages (Martinez, at
p. 116; Couzens, supra, § 25.10, p. 25-65); (5) appellate court opinions concerning the
prior convictions (Jefferson, at pp. 242-243; Couzens, supra, § 25.10, p. 25-65); and (6)
other documents from the record of conviction not listed ante, which may include, the
abstract of judgment, the charging document, plea form, transcripts of the petitioner’s
plea, and the factual basis given for the plea. (See Couzens, supra, § 25.10, p. 25-65.)
Trial courts may also consider the stipulations of the parties regarding facts underlying
prior convictions. (Ibid.) No such evidence or similar sources of evidence was relied
upon by the trial court here.
       Accordingly, as requested by defendant, we shall remand the matter to the trial
court for further proceedings. On remand, the parties will be allowed to present evidence

                                             12
to support their respective positions on the question of whether defendant poses an
unreasonable risk of danger to the public. (See People v. Barragan (2004) 32 Cal.4th
236, 239 [retrial of a strike allegation after reversal for insufficient evidence is
permissible].)
                                       DISPOSITION
       The order denying defendant’s petition for resentencing under Proposition 64 is
reversed, and the matter is remanded for further proceedings consistent with this opinion.



                                                          s/ MURRAY              , J.



We concur:



      s/ BUTZ                , Acting P. J.



      s/ DUARTE              , J.




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