Before a trial court can deny a defendant’s petition to reduce a felony to a misdemeanor under Proposition 64, actual evidence to establish an unreasonable risk of danger to public safety must be presented. In September 2014, defendant pleaded guilty to felony possession of marijuana for sale. In December 2016, defendant petitioned pursuant to Proposition 64 to reduce the felony to a misdemeanor. The prosecution opposed the motion, arguing that resentencing posed an unreasonable risk of danger to public safety. The trial court denied the motion. Defendant appealed. Held: Reversed. Proposition 64 passed in November 2016. Among other things, it reduced the punishment for possession of marijuana for sale to a misdemeanor unless the offender has certain priors or the sale involved an underage person. It also added Health and Safety Code section 11361.8, which provides a mechanism for recalling and resentencing for qualified persons currently serving a sentence, unless the granting of the petition presents a risk of danger to public safety. With respect to the dangerousness finding, subdivision (b)(1) provides the types of evidence the court may consider, including the defendant’s criminal history, his disciplinary record and any other evidence the court deems relevant. These provisions clearly reflect that some type of evidence must be presented to prove dangerousness. Here, the prosecution’s opposition contained factual assertions about the defendant’s criminal history and argument, but no evidence. Nor was the trial court asked to take judicial notice of any relevant court records. Thus, no evidence supported the trial court’s denial of the petition. The matter was remanded to the trial court for further proceedings.

The standard of proof for a finding of dangerousness is preponderance of the evidence. Health and Safety Code section 11361.8, subdivision (b), contains a two-step procedure for a resentencing petition filed pursuant to Proposition 64. The first step requires the trial court to presume the petitioner is eligible for resentencing unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (a). If the petitioner satisfies the criteria, the second step requires the court to grant the petition unless it determines that doing so would pose an unreasonable risk of danger to public safety. However, the second step does not contain a clear and convincing standard of proof. Under Evidence Code section 115, “[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” Thus, the second step of a Proposition 64 resentencing petition requires a preponderance of the evidence standard.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C084235.PDF