Trial court’s denial of a petition to dismiss a marijuana cultivation conviction reversed where prosecution failed to present any admissible evidence that defendant was not eligible for relief. After the passage of Proposition 64, Banda petitioned to dismiss his conviction for marijuana cultivation (Health & Saf. Code, § 11358). In opposition, the prosecution used the probation report (over objection), to show he was ineligible for relief because of the number of plants under cultivation. His conviction was reduced to a misdemeanor, but not dismissed. He appealed. Held: Reversed. In November 2016, the voters passed Proposition 64 which legalizes and regulates nonmedical marijuana. It added various sections to the Health and Safety Code, including section 11362.1, subdivisions (a)(1) and (a)(3), which permit the cultivation of up to six marijuana plants. Cultivation of more than six plants is generally a misdemeanor (Health & Saf. Code, § 11358, subds. (c) and (d)). Proposition 64 also provided relief to certain persons previously convicted of marijuana related offenses (Health & Saf. Code, § 11361.8). When making an eligibility determination on a petition for dismissal, the trial court is required to presume relief is warranted unless disqualification is shown by clear and convincing evidence. Here, the prosecution relied upon the probation report to show ineligibility. But such reports are not automatically admissible to prove relevant facts. Narration of “reported” events is by definition based on the statements of others, thus hearsay, for which no exception was argued. Further, nothing on the face of the report showed it to be reliable.
Even if the probation report was properly admitted, it contained no evidence establishing that petitioner was ineligible for relief. “A stipulation to a document to provide a factual basis for a plea is an admission only of the facts necessary to the charged offense itself.” Thus, even if the probation report was used as the factual basis for Banda’s plea, it did not provide substantial evidence of the number of plants under cultivation because this was not relevant at the time of Banda’s plea and sentencing. The prosecution presented no admissible evidence of the number of marijuana plants, which was the critical factual issue in this case.
The trial court’s judicial notice of other documents not offered by any party was improper. The trial court attempted to fill in the evidentiary gaps left by the prosecution’s failure to submit evidence of ineligibility by taking judicial notice of the return to the search warrant and a police report. “However, if the subject of judicial notice is of substantial consequence to the determination of the action,” the court must allow each party to address the propriety of taking judicial notice and the tenor of the matter to be noticed (Evid. Code, § 455). The trial court did not do this. Even if judicial notice of the police report was proper, the trial court erred by considering Banda’s stipulation to use that report as the factual basis for his plea to prove the number of plants under cultivation, as that issue was irrelevant to his plea.
The prosecution forfeited any argument that granting the petition would pose an unreasonable risk of danger. Under section 11361.8, subdivision (b) the trial court is authorized to consider whether granting a petition to dismiss a conviction “would pose an unreasonable risk of danger to public safety.” The prosecution did not request that the trial court make a dangerousness determination in their opposition to Banda’s petition, nor did they present any evidence to support such a finding. Further, there was no claim the record supports this determination. On appeal, the issue was forfeited.
