Filed 6/15/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

NICHOLAS JOHN SMIT,

 Defendant and Appellant.

 G055311

 (Super. Ct. No. SWF028834)

 O P I N I O N

Appeal from an order of the Superior Court of Riverside County, Becky 

Dugan, Judge. Reversed and remanded.

Avatar Legal, Cynthia M. Jones, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Kathryn Kirschbaum, 

Deputy Attorney General, for Plaintiff and Respondent.

* * *
2

Proposition 64 legalized the recreational use of marijuana and reduced the

penalties on various marijuana-related charges, including possessing marijuana for sale. 

(Health & Saf. Code, § 11359; all undesignated statutory references are to this code.) 

Pertinent to the issue in this appeal, the proposition also provided a vehicle for an 

individual to obtain postconviction benefit of the changes in the law if the individual does 

not have a disqualifying prior conviction. (§11361.8; see § 11359.)

Defendant Nicholas John Smit filed a petition in the superior court to 

reduce his felony possession of marijuana for sale conviction in the present matter to a 

misdemeanor. The superior court found defendant ineligible for relief because he was

convicted of four counts of attempted murder in this matter, in addition to the drug 

conviction. We conclude a concurrent conviction for attempted murder in the same case 

in which the defendant was charged and convicted of possessing marijuana for sale does 

not render the defendant ineligible for resentencing on the marijuana count. We will 

reverse the superior court’s order and remand the matter for further proceedings.

I

FACTS

Defendant is presently serving “four consecutive life terms, plus an 

additional term of more than 40 years” (People v. Smit (2014) 224 Cal.App.4th 977, 979 

(Smit I)), for his convictions in the present matter for possession of marijuana for sale, in 

addition to a number of other drug and nondrug offenses, including four counts of 

attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)), and one count of 

conspiring to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a)). After the 

judgment was affirmed on appeal (Smit I, supra, 224 Cal.App.4th at p. 989), the 

electorate enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana 

Act (sometimes, the Act). That proposition legalized marijuana use and reduced 

penalties for a number of marijuana-related offenses from felonies to misdemeanors. 

One such offense is possession of marijuana for sale. (§ 11359.) Proposition 64 further 
3

provided a vehicle by which a defendant who previously suffered a felony conviction for 

one or more of the enumerated marijuana-related offenses may have the conviction(s)

dismissed or reduced to a misdemeanor if the charged conduct would no longer qualify as 

a felony. (§ 11361.8.)

As stated above, the superior court summarily denied defendant’s petition 

for resentencing on the possession of marijuana for sale conviction, finding him ineligible 

for resentencing based on his current convictions for attempted murder. Defendant now 

appeals.

II

DISCUSSION

This case presents a question of statutory interpretation, which we review 

de novo. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.) The rules for 

interpreting legislative enactments and initiative measures are the same. (Robert L. v. 

Superior Court (2003) 30 Cal.4th 894, 900-901.) Our goal is to ascertain the intent of the 

statute. “‘In determining intent, we look first to the words of the statute, giving the 

language its usual, ordinary meaning. If there is no ambiguity in the language, we 

presume the Legislature meant what it said, and the plain meaning of the statute governs. 

[Citation.]’ [Citation.]” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) In 

doing so, we give “significance to every word, phrase, sentence, and part of an act in 

pursuance of the legislative purpose.” (Ibid.)

At the time of defendant’s trial in this matter, possession of marijuana for 

purposes of sale was a felony. (Former § 11359, added by Stats. 2011, ch. 15, § 161, eff. 

April 4, 2011.) In 2016, the voters passed Proposition 64, legalizing recreational 

marijuana use. Pertinent to the issue herein, Proposition 64 amended section 11359, 

generally making it a misdemeanor offense. “Every person 18 years of age or over who 

possesses cannabis 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 
4

($500), or by both such fine and imprisonment.” (§ 11359, subd. (b).) Even after the 

amendment, possession of marijuana for sale may still be charged as a felony if the 

defendant has a prior conviction for an offense that requires registration pursuant to Penal 

Code section 290, or has “one or more prior convictions for an offense” listed in Penal 

Code section 667, subdivision (e)(2)(C)(iv). (§ 11359, subd. (c)(1).)

Proposition 64 also added section 11361.8, a vehicle by which a defendant 

currently serving a sentence for a conviction for any of a number of marijuana-related

statutes, including section 11359, may petition the trial court for resentencing or

dismissal of the drug conviction if the offense is no longer a crime or is now a lesser 

offense. “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), italics added.) 

When a defendant files a petition pursuant to section 11361.8, subdivision (a), the trial 

court must presume the defendant qualifies for relief absent “clear and convincing 

evidence” the defendant does not satisfy the criteria set forth in subdivision (a) of the 

same section. (§ 11361.8, subd. (b).) If the defendant qualifies for resentencing, the trial 

court must grant the defendant relief unless it “determines that granting the petition 

would pose an unreasonable risk of danger to public safety.” (Ibid.)
5

In response to defendant’s petition for resentencing on his conviction for 

possession of marijuana for sale (count two),

1

the district attorney asserted defendant was 

not eligible for resentencing because he suffered a “super strike” conviction

2

in the 

present matter—four counts of attempted murder—and is serving a life sentence on those 

convictions. The superior court agreed. The court’s order stated defendant was denied 

resentencing on his convictions for possession of marijuana for sale (former § 11359, 

repealed by Prop. 64, § 8.3, eff. Nov. 9, 2016), and for cultivation of marijuana (former 

§ 11358, added by Stats. 2011, ch. 15, § 160, eff. April 4, 2011, repealed by Prop. 64, 

§ 8.2, eff. Nov. 9, 2016), despite the fact the petition did not request resentencing on the 

cultivating marijuana conviction. The trial court erred.

The determination of whether the defendant is eligible for relief under 

section 11361.8, subdivision (a), requires the court to determine whether the defendant 

“would not have been guilty of an offense, or . . . 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.” That determination requires the court to apply

recently enacted section 11359 to the facts to determine whether the defendant would

have been convicted of a felony violation under that section had it been in effect at the 

time of the offense. Had the present version of section 11359 been in existence in 2009, 

when defendant committed his crime, he would not have been convicted of a felony 

violation absent proof he suffered a prior conviction for a super strike (§ 11359, subd. 

(c)(1)), had two or more prior convictions for possessing marijuana for sale (§ 11359, 

 

1

 Although defendant’s opening brief asserts the petition sought 

resentencing on his convictions for possessing marijuana for sale (§ 11359) and 

cultivation of marijuana (§ 11358), the petition lists only the conviction for possession of 

marijuana for sale.

2

The offenses listed in Penal Code section 667, subdivision (e)(2)(C), have 

been referred to as “‘“super strike” offenses.’” (People v. Rivera (2015) 233 Cal.App.4th 

1085, 1092.)
6

subd. (c)(2)), sold or attempted to sell marijuana to a minor (§ 11359, subd. (c)(3)), or 

used a person 20 years of age or younger in the course of the violation (§ 11359, subd. 

(d)). Included in the list of the super strikes set forth in section 667 is the crime of 

attempted murder. (Pen. Code, § 667, subd. (e)(2)(C)(iv)(IV).) Defendant was convicted 

of four counts of attempted murder in the present matter.

3

The fact that defendant was convicted of attempted murder in the same case 

in which he seeks relief under section 11361.8 does not make him ineligible for 

resentencing. This is because section 11361.8 makes an individual eligible for 

resentencing if he or she would not have been convicted of felony possession of 

marijuana for sale had the Act been in effect when he was charged with possessing 

marijuana for sale. (§ 11361.8, subd. (a).) In other words, a defendant is eligible for 

relief unless he could have been charged and convicted of a felony violation of section 

11359, even if the Act been in effect at the time of the charged incident.

At the time defendant was charged with felony possession of marijuana for 

sale, he had not suffered any prior conviction of a so-called super strike. Thus, had the 

Act been in effect in 2009, the year of the alleged violation in this matter, defendant 

would not have been charged, much less convicted, of a felony for possessing marijuana 

for sale. Being charged with a super strike in the same case in which the defendant is 

charged with possession of marijuana for sale does not, under the Act, make the 

marijuana possession charge a felony. The statute requires a “prior conviction[].” 

(§ 11359, subd. (c)(1).)

Because defendant did not have a super strike prior conviction at the time 

he was charged with possessing marijuana for sale, he could not have been convicted in 

this case of felony possession of marijuana for sale. He would have been convicted of a 

 

3

Additionally, defendant was convicted of conspiring to commit murder 

(Pen. Code, §§ 182, subd. (a)(1), 187, subd. (a)), which also qualifies as a super strike. 

(Pen. Code, § 667, subd. (e)(2)(C)(iv)(VIII).)
7

misdemeanor violation. (§ 11359, subd. (b).) Thus, the subsequent convictions for 

attempted murder and conspiracy to commit murder did not render him ineligible for 

resentencing.

The Attorney General’s reliance on cases interpreting the resentencing rules 

under Proposition 47 is misplaced. In 2014, the California voters passed Proposition 47, 

which reduced the penalties “for certain drug- and theft-related offenses, and reclassified 

those felonies as misdemeanors.” (People v. Walker (2016) 5 Cal.App.5th 872, 875

(Walker).) Proposition 47 also enacted Penal Code section 1170.18. (Ibid.) That section 

provides a procedure by which a defendant convicted of a felony for an offense 

Proposition 47 reduced to a misdemeanor, can be resentenced on that conviction. (Pen. 

Code, § 1170.18.)

Like section 11361.8, under Proposition 47, a defendant convicted of a 

felony offense reduced to a misdemeanor by the proposition is generally eligible for 

resentencing on the reduced offense if the defendant “would have been guilty of a 

misdemeanor under the act that added this section (‘this act’) had this act been in effect at 

the time of the offense.” (Pen. Code, § 1170.18, subd. (a); compare with § 11361.8, 

subd. (a).) Unlike section 11361.8, however, Penal Code section 1170.18, subdivision 

(i), specifically provides the resentencing provision contained therein “does not apply to 

a person who has one or more prior convictions for an offense specified in clause (iv) of 

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense 

requiring registration pursuant to subdivision (c) of Section 290.”

The Walker court found “[t]he term ‘prior conviction[]’ in section 1170.18, 

subdivision (i) is somewhat ambiguous in the [resentencing] context, raising the question 

of whether an applicant is disqualified from Proposition 47 relief for a super strike 

conviction suffered any time before application is made, or if only a prior super strike 

conviction that occurred before the felony conviction that is the subject of the Proposition 

47 petition will disqualify an applicant from relief.” (Walker, supra, 5 Cal.App.5th at 
8

p. 876.) The court found the former interpretation was warranted because the Legislative 

Analyst’s statement in ballot materials informed the voters that “‘no offender who has 

committed a specified severe crime . . . could be resentenced or have their conviction 

changed.’” (Id. at pp. 876-877.) As the ballot materials contained no contradiction, “the 

Legislative Analyst’s comment all but ‘eliminates doubt’ as to the correct interpretation 

of a ballot initiative.’” (Id. at p. 877.) “Indeed, ‘[n]othing in section 1170.18, 

subdivision (i) limits its application to time periods prior to the commission of the offense 

for which reclassification is sought. The plain language of the statute suggests a general 

disqualification regardless of when a defendant was convicted of the disqualifying 

offense.’ [Citation.]” (Ibid.)

Of course the plain language referred to by the Walker court was found in 

the remedial statute, Penal Code section 1170.18, not in the statute reducing the crime to 

a misdemeanor. There is no plain language in section 11361.8 requiring the same 

interpretation. Indeed, it is section 11359, the charging statute, not the remedial 

resentencing statute that requires proof of a super strike prior conviction. The plain 

language of section 11359 requires the existence of a “prior” conviction to charge the 

crime as a felony. Thus, unless there was evidence defendant had suffered a prior strike 

conviction when he was charged with a violation of section 11359—and there is none

here—defendant would not have been charged with, much less convicted of a felony 

violation had the present version of section 11359 existed at that time. Accordingly, he is 

eligible for resentencing under section 11361.8.

4

The superior court erred in finding defendant ineligible for resentencing 

based on convictions suffered in the same case in which he was convicted of felony 

 

4

 After this opinion was drafted, the Attorney General informed this court 

in a supplemental letter brief that reliance on Walker, supra, 5 Cal.App.5th 872, was 

inappropriate and agreeing that in the present context a disqualifying prior conviction 

must predate the charged offense.
9

possession of marijuana for sale. That, however, is not the end of the analysis. It merely

means the defendant is eligible for resentencing. On remand, the superior court will have 

to decide whether granting defendant relief “would pose an unreasonable risk of danger 

to public safety.” (§ 11361.8, subd. (b).)

III

DISPOSITION

The order denying the petition and finding defendant ineligible for 

resentencing is vacated. The matter is remanded for further proceedings consistent with 

this opinion.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.