Filed 9/15/22 P. v. Rios CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

REYES RIOS,

Defendant and Appellant.

 B318366

 (Los Angeles County

 Super. Ct. No. NA070266)

APPEAL from an order of the Superior Court of 

Los Angeles County, Richard M. Goul, Judge. Reversed with 

directions.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Blythe J. Leszkay and Theresa A. Patterson, 

Deputy Attorneys General, for Plaintiff and Respondent.

——————————
2

Reyes Rios appeals from an order denying his petition to 

redesignate or dismiss his conviction for the sale or 

transportation of marijuana pursuant to Proposition 64, the 

Control, Regulate and Tax Adult Use of Marijuana Act. (Health 

& Saf. Code,

1

§§ 11360, 11361.8, subd. (e); see Ballot Pamp., Gen. 

Elec. (Nov. 8, 2016) text of Prop. 64, pp. 207–208.) Rios contends

the trial court erred in denying his petition on the ground that 

his conviction for the sale of methamphetamine is not a 

qualifying offense. The Attorney General concedes this point, 

and we agree that the matter must be remanded for further 

proceedings.

BACKGROUND

In 2006, Rios pleaded no contest to one count of the sale of 

methamphetamine (§ 11379, subd. (a)) and one count of the sale 

or transportation of marijuana (§ 11360, subd. (a)). The trial 

court sentenced Rios to two concurrent terms of four years in 

prison. 

In January 2022, Rios filed an application pursuant to 

section 11361.8 to redesignate or dismiss his conviction for the 

sale or transportation of marijuana. The trial court denied the 

application on the ground that Rios’s conviction for the sale of 

methamphetamine was not an offense eligible for reduction. 

Rios timely appealed. 

DISCUSSION

On appeal, Rios contends the trial court’s determination 

that his sale of methamphetamine conviction rendered him 

ineligible for redesignation under Proposition 64 was erroneous, 

1

All undesignated statutory references are to the Health 

and Safety Code.
3

given that his sale of marijuana conviction was an eligible 

offense. The Attorney General concedes the trial court erred and 

we agree.

Proposition 64 legalized the recreational use of marijuana 

and reduced the penalties for various marijuana-related charges, 

including the sale or transportation of marijuana. (§ 11360.) The 

proposition also created a procedure to allow an individual to 

obtain postconviction benefit of the changes in the law if the 

individual does not have a disqualifying prior conviction or 

convictions. (§§ 11361.8, 11360.)

Specifically, section 11361.8, subdivision (e) provides: “A 

person who has completed their sentence whether by trial or open 

or negotiated plea, who would not have been guilty of the 

conviction 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 file an application before the trial court that entered 

the judgment of conviction in their case to have the conviction 

dismissed and sealed because the prior conviction is now legally 

invalid or redesignated as a misdemeanor or infraction in 

accordance with [section] . . . 11360 . . . as . . . amended or 

added by that act.” Subdivision (f) further specifies: “The court 

shall presume the petitioner satisfies the criteria in subdivision 

(e) unless the party opposing the application proves by clear and 

convincing evidence that the petitioner does not satisfy the 

criteria in subdivision (e). Once the applicant satisfies the

criteria in subdivision (e), the court shall redesignate the 

conviction as a misdemeanor or infraction or dismiss and seal the 

conviction as legally invalid as now established under the 

Control, Regulate and Tax Adult Use of Marijuana Act.” 
4

When Rios was convicted in 2006, the sale or 

transportation of marijuana was a felony. (Former § 11360, 

subd. (a) [requiring prison term of two, three, or four years].) 

However, Proposition 64 included amendments to section 11360, 

making the offense, as a general matter, a misdemeanor. 

(§ 11360, subd. (a) [requiring jail sentence not in excess of six 

months and/or fine, unless certain aggravating factors are 

present, such as two or more prior convictions for sale of 

marijuana, allowing court, in its discretion, to impose felony 

term].) 

The trial court therefore erred in denying Rios’s petition for 

dismissal or redesignation pursuant to section 11361.8, 

subdivision (e), for reasons related to the section 11379 

conviction. While the trial court was not mistaken that section 

11379 is not an offense eligible for reduction, Rios’s application 

concerned his section 11360, subdivision (a) conviction, which is 

an eligible offense. (§ 11361.8, subd. (e).) Section 11360 now 

requires a lesser punishment for individuals such as Rios under 

most circumstances. The record does not reflect that Rios is 

otherwise ineligible for redesignation of his section 11360, 

subdivision (a) conviction due to the presence of aggravating 

factors. (§ 11360, subd. (a).) As such, we have not identified any 

evidence, much less “clear and convincing evidence,” that Rios 

does not satisfy the criteria in section 11361.8, subdivision (e). 

(§ 11361.8, subd. (f).) We express no opinion as to whether that 

standard might be satisfied on remand.

For these reasons, we agree that the order denying Rios’s 

petition must be reversed and the matter remanded for further 

proceedings consistent with this opinion. 
5

DISPOSITION

The trial court order is reversed and the matter remanded 

for further proceedings in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ADAMS, J.*

We concur:

EDMON, P. J. 

LAVIN, J. 

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.