Filed 7/3/18




                       CERTIFIED FOR PUBLICATION

                            IN THE APPELLATE DIVISION

               OF THE CALIFORNIA SUPERIOR COURT, ALAMEDA COUNTY




 THE PEOPLE,                                     Appellate Division Nos.
                                                 5982, 5983, 5984, AND 5971
                   Plaintiff and Appellant,
                                                 (Super. Ct. Nos. 467859-B,
                  v.                             467859-C, 467859-A and
                                                 467859-D)
 XIAO DONG LIN et al.,
                                                 OPINION
                   Defendants and
                   Respondents.




        While Respondents in these consolidated appeals were awaiting trial on
felony charges of possession, sale, and cultivation of marijuana, California voters
passed Proposition 64 – “the Control, Regulate and Tax Adult Use of Marijuana
Act.” Based on Proposition 64, the district attorney amended the complaints to
reflect misdemeanor rather than felony charges. Respondents challenged the
move, arguing that Proposition 64 barred the amended criminal complaints against
them. The trial court sustained Respondents’ demurrers, dismissing the charges.

       We reverse. Proposition 64 did not create a legislative pardon for
defendants facing felony charges for unlicensed sale and cultivation of marijuana
before it passed. Rather, California voters changed the penalties for the conduct
alleged in the complaints here by making those penalties less severe. Under


                                          1
California law, it was appropriate to amend the complaints to invoke the lighter
punishment. (In re Estrada (1965) 63 Cal. 2d 740, 742.)

       The Amended Complaints and Demurrers

       On April 7, 2016, the People filed felony complaints charging Defendants
Hua Ou, Xiao Dong Lin, Jianhan Ye, and Liwen Ruan each with possession of
marijuana for sale (count 1) and cultivating marijuana (count 2), which were
violations of sections 11359 and 11358 of the Health and Safety Code.
Defendants later pled not guilty to the charges.

       On February 28, 2017, in the aftermath of the passage of Proposition 64 in
the November 2016 election, the trial court granted the People’s oral motion to
amend the complaints to charge misdemeanors rather than felonies. The amended
complaints alleged the same counts, but as violations of sections 11359(b) and
11358(c) of the Health and Safety Code. Defendants demurred to the amended
complaints. The trial court sustained the demurrers, finding that Proposition 64
operated as a “legislative pardon, whether it was intentional or not.” (6/20/17 RT
19.)

       Jurisdiction and Standard of Review

        The People timely appealed from the order sustaining the demurrers.
(Penal Code § 1466(a)(3).) This Court has jurisdiction over the appeal, since the
complaints stated misdemeanor counts against the defendants. (Id.; Cal. Const.,
art. VI, § 11(b); Cal. R. Ct. 8.850.)

       A demurrer is simply a challenge to the legal sufficiency of a complaint – it
raises purely legal questions and so this Court reviews the order sustaining the
demurrer de novo. (People v. Keating (1993) 21 Cal. App. 4th 145, 151.) We
“give[] the complaint a reasonable interpretation, and treat[] the demurrer as
admitting all material facts properly pleaded.” We do not “assume the truth of
contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist.
(1992) 2 Cal. 4th 962, 966-67.) This Court also reviews the trial court’s
interpretation of the ballot proposition at issue de novo. (See People v. Arroyo
(2016) 62 Cal. 4th 589, 593.)

       Analysis

       Proposition 64 worked a sea-change in the way California approaches the
growth and use of marijuana through a combination of commercial regulation and
criminal laws. Among its many changes, Proposition 64 reduced the criminal
penalties for the conduct at issue in the cases before us.

                                         2
       The Original Charges

       The original complaints in these four cases each alleged two felony
charges. At the time the district attorney filed the charges in April 2016, Health
and Safety Code section 11359, “possession of marijuana for sale,” imposed a
felony sentence under Penal Code section 1170(h). It provided:

       Every person who possesses for sale any marijuana, except as
       otherwise provided by law, shall be punished by imprisonment
       pursuant to subdivision (h) of Section 1170 of the Penal Code.

(Health & Safety Code § 11359 (Effective Oct. 1, 2011 to Nov. 8, 2016).)

      Likewise, Health and Safety Code section 11358, “cultivating marijuana,”
imposed a felony sentence under Penal Code section 1170(h). It provided:

       Every person who plants, cultivates, harvests, dries, or processes any
       marijuana or any part thereof, except as otherwise provided by law,
       shall be punished by imprisonment pursuant to subdivision (h) of
       Section 1170 of the Penal Code.

(Health & Safety Code § 11358 (Effective Oct. 1, 2011 to Nov. 8, 2016).)

       The Lighter Punishment After Proposition 64

       By passing Proposition 64, California voters amended both sections 11358
and 11359 of the Health and Safety Code. Proposition 64 did not repeal the
statutes; the provisions still proscribe the same conduct. As it did in 2016, section
11359 still provides, “Every person who possesses for sale any marijuana, except
as otherwise provided by law, shall be punished ….” (Health & Safety Code §
11359 (2018).) Likewise, section 11358 still provides, “Every person who plants,
cultivates, harvests, dries, or processes any marijuana plants, or any part thereof,
except as otherwise provided by law” has committed a crime.1 (Health & Safety
Code § 11358 (2018).)

      But, the punishments for both offenses have changed. The statutes now
provide for gradations of criminal penalties that depend on age, prior convictions,


1 The word “marijuana” appeared alone in the old section 11358, without the
clarifying word “plants,” but the addition of the word “plants” is not material for
purposes of the cases before us.
                                           3
and other factors. As charged in the amended complaints here, Respondents
would be punished under section 11359 “as follows”:

       Every person 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.

(Health & Safety Code § 11359(b) (2018).) And as charged in the amended
complaints here, under section 11358 Respondents:

       shall be punished as follows: … Every 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 such fine and
       imprisonment.

(Health & Safety Code § 11358(c) (2018).)

       Retroactive Application of Proposition 64 Under the Estrada Decision

       Generally, our criminal laws will not be applied retroactively. Section 3 of
the California Penal Code provides that “No part of it is retroactive, unless
expressly so declared.” (Cal. Penal Code § 3.) But, Section 3 is a rule of statutory
construction – it is “not a straitjacket.” (In Re Estrada (1965) 63 Cal. 2d 740,
746.) “[T]he rule of construction should not be followed blindly in complete
disregard of factors that may give a clue to the legislative intent. It is to be applied
only after, considering all pertinent factors, it is determined that it is impossible to
ascertain the legislative intent.” (Id.)

       California law recognizes an important exception to the general rule. If an
amended criminal statute imposes a lighter penalty than in the pre-existing law,
then the amendment – with its lighter penalty – may apply to cases where the court
has not yet entered judgment. (In Re Estrada, 63 Cal. 2d at 744-45.)

       The exception is sometimes called the Estrada rule. “The Estrada rule
rests on an inference that, in the absence of contrary indications, a legislative body
ordinarily intends for ameliorative changes to the criminal law to extend as
broadly as possible, distinguishing only as necessary between sentences that are
final and sentences that are not.” (People v. Conley (2016) 63 Cal. 4th 646, 628.)
The Supreme Court explained the reasoning behind this important exception:


                                           4
       When the Legislature amends a statute so as to lessen the
       punishment it has obviously expressly determined that its former
       penalty was too severe and that a lighter punishment is proper as
       punishment for the commission of the prohibited act. It is an
       inevitable inference that the Legislature must have intended that the
       new statute imposing the new lighter penalty now deemed to be
       sufficient should apply to every case to which it constitutionally
       could apply. The amendatory act imposing the lighter punishment
       can be applied constitutionally to acts committed before its passage
       provided the judgment convicting the defendant of the act is not
       final. This intent seems obvious, because to hold otherwise would
       be to conclude that the Legislature was motivated by a desire for
       vengeance, a conclusion not permitted in view of modern theories of
       penology.

(Estrada, 63 Cal. 2d at 745.)

       Here, unlike in the 1965 Estrada case, no one is arguing that the pre-
November 2016 felony penalties for possession and unauthorized marijuana
growing ought to apply to Respondents. Rather, Respondents contend that the
Estrada rule should not apply and they should face no criminal penalty for their
alleged possession with intent to sell and unauthorized growing of marijuana.
Respondents’ argument turns on statutory construction of Proposition 64.

       Statutory Construction of Proposition 64

        The Court interprets a ballot proposition as it would a statute enacted by the
Legislature. The Court begins with the language of the proposition itself, “giving
the words their ordinary meaning and construing this language in the context of
the statute and initiative as a whole.” (People v. Superior Court (Pearson) (2010)
48 Cal. 4th 564, 571.) “If the language is not ambiguous, we presume the voters
intended the meaning apparent from that language, and we may not add to the
statute or rewrite it to conform to some assumed intent not apparent from that
language. If the language is ambiguous, courts may consider ballot summaries
and arguments in determining the voters’ intent and understanding of a ballot
measure.” (Id.; see also Robert L. v. Superior Court (2003) 30 Cal. 4th 894, 901.)

       The Amendments to Sections 11359 and 11358

       The text of Proposition 64 itself, the context of the amendments at issue
within the regulatory framework of the proposition, and the ballot materials that
accompanied the proposition when it went to the voters, all support this Court’s
conclusion that the rule in Estrada applies here. Proposition 64 generally left the

                                          5
original succinct text of sections 11359 and 11358 alone. The amendments add a
series of subsections to the pre-existing statutes that create a more nuanced – and
uniformly lighter – approach to penalizing marijuana possession with intent to sell
and for unauthorized growing of marijuana plants. With respect to the charges in
the amended complaint (violations of sections 11359(b) and 11358(c)) the penalty
changed but the crime itself did not.

       The Stated Purpose of Proposition 64

       The context of the amendments to sections 11359 and 11358 within the
broader framework of Proposition 64 as a whole, along with the supporting ballot
materials, indicate the voters’ intent was to reduce the penalties for the crimes
alleged here – not to issue a legislative pardon. Among the Findings and
Declarations in Section 2 of Proposition 64 is confirmation that the proposition
“will alleviate pressure on the courts, but continue to allow prosecutors to charge
the most serious marijuana-related offenses as felonies, while reducing the
penalties for minor marijuana-related offenses as set forth in the act.” (Prop. 64, §
2(G).) Further, one of the purposes of the act is to “prevent illegal production or
distribution of marijuana.” (Prop. 64, § 3(u).)

       Procedure for Reducing Sentences for Past Marijuana-Related Crimes

       With respect to prior marijuana-related convictions, Proposition 64 creates
a mechanism for convicted defendants to seek re-sentencing based on the lesser
penalties in the proposition. The mechanism also includes defendants who had
been sentenced but where final judgment had not yet been entered. Specifically,
Proposition 64 adds section 11361.8 to the Health and Safety Code. It provides:

       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 … 11358 [and] 11359 … as
       those sections have been amended or added by that act.

(Health & Safety Code § 11361.8(a) (2018).) The trial court then has the
discretion to re-sentence based on factors that include an unreasonable risk to
public safety. (Id. at 11361.8(b).)



                                          6
        Among the purposes of Proposition 64 is 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(z).) The Analysis by the Legislative Analyst, included in the ballot pamphlet,
further confirms:

       Individuals Previously Convicted of Marijuana Crimes. 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 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.

(Ballot Pamp., General Elec. (Nov. 8, 2016), Analysis of Prop. 64 by the
Legislative Analyst, p. 95.)

       The amended Health and Safety Code sections 11359 and 11358 do not
simply apply retroactively under Estrada to automatically reduce the sentences of
those already convicted. The Estrada rule is unhelpful in the context of
defendants already convicted because the proposition explicitly details how to
handle the situation. (See People v. Rascon (2017) 10 Cal. App. 5th 388, 392.)
The situation is similar to that faced by defendants after the passage of Proposition
36, the Three Strikes Reform Act of 2012, which did not apply re-sentencing
retroactively but rather created a process of resentencing “subject to judicial
evaluation of the impact of resentencing on public safety.” (Conley, 63 Cal. 4th at
658-59 (discussed in Rascon, 10 Cal. App. 5th at 394).)

       Had the voters intended a legislative pardon for possession with intent to
sell marijuana or unauthorized marijuana growing, the pardon would presumably
apply to anyone charged with the offense to be pardoned. The detailed fourteen-
sub-section resentencing procedure in Section 11361.8 would not have been
necessary.

       Lesser Penalties for Future Marijuana-Related Crimes

       With respect to future marijuana-related activity, Proposition 64 was
equally unambiguous that its lesser penalties would apply. The Analysis by the

                                          7
Legislative Analyst for Proposition 64 describes the purpose of Proposition 64 as
including “changes in penalties” for marijuana-related crimes. For example:

       This measure (1) legalizes adult nonmedical use of marijuana, (2)
       creates a system for regulating nonmedical marijuana businesses, (3)
       imposes taxes on marijuana, and (4) changes penalties for
       marijuana-related crimes.

(Ballot Pamp., General Elec. (Nov. 8, 2016), Analysis of Prop. 64 by the
Legislative Analyst, p. 92.) It unambiguously references “changes in penalties for
future marijuana crimes.” (Id. at p. 94.)

       The “Legislative Pardon” Argument

       There is no suggestion anywhere in the text of Proposition 64, the Analysis
by the Legislative Analyst, or the arguments for or against the proposition in the
ballot pamphlet relied on by the voters, that the proposition is a legislative pardon
for those charged with, but not yet convicted of, a marijuana-related crime prior to
November 8, 2016. Sections 11359 and 11358 were amended by Proposition 64,
not repealed. As its text confirms, after Proposition 64, possession of marijuana
with intent to sell or unauthorized growing of marijuana remain subject to criminal
“condemnation.” (See People v. Rossi (1976) 18 Cal. 3d 295, 304.) The penalties
are simply lower.

       Conclusion

There is no ambiguity concerning how to address the penalties for those convicted
of marijuana-related offenses prior to Election Day in 2016; they are eligible to
seek a lesser penalty through the mechanism outlined in Proposition 64. There is
also no ambiguity concerning penalties facing those charged with marijuana-
related offenses after Election Day 2016; they face the lesser penalties set out in
Proposition 64. The proposition is silent concerning those in Respondents’
situation: facing but not yet convicted of felony marijuana-related offenses prior
to Election Day 2016. The Estrada rule applies to these cases. The conduct
alleged in the amended complaints remains criminal under California law, but the
lesser penalties in the amended statutes will apply.




                                         8
                                      Disposition

       This Court therefore reverses the trial court’s orders and overrules the
demurrers. The amended complaints are reinstated and the case is remanded for
further proceedings.

      CERTIFIED FOR PUBLICATION



_______________________________________
MARKMAN, J.


We concur:




__________________________________
MURPHY, P.J.




__________________________________
CLAY, J.




                                        9
PARTIES AND ATTORNEYS

People of the State of California,     Edward Vieira-Ducey, Deputy District Attorney
Plaintiff/Appellant
Hua Ou,                                Jesse Grove, Assistant Public Defender
Defendant/Respondent
Xiao Dong Lin,                         Zenia K. Gilg, Esq.
Defendant/Respondent
Jianhan Ye,                            Pete French, Esq.
Defendant/Respondent
Liwen Ruan,                            James J. Clark, Esq.
Defendant/Respondent

Trial Court Judge:               Hon. Tara Flanagan

Trial Court Case Numbers:        People v. Hua Ou              #467859-A        [App. Div. #5984]
                                 People v. Xio Dong Lin        #467859-B        [App. Div. #5982]
                                 People v. Jianhan Ye          #467859-C        [App. Div. #5982]
                                 People v. Liwen Ruan          #467859-D        [App. Div. #5982]
