Filed 9/18/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BANDA,

Defendant and Appellant.

 No. B284725

(Los Angeles County

 (Super. Ct. No. NA103745)

 ORDER MODIFYING 

 OPINION AND DENYING 

 REHEARING

THE COURT:

IT IS ORDERED that the opinion filed on August 20, 2018, 

be modified as follows:

On the caption page, second paragraph, attorney Kenneth 

I. Clayman’s title is replaced with Public “Defender”.

On page three, first paragraph, line five the words “of that 

year” are replaced with “2017”.

On page four, footnote 3 is replaced with a new footnote, as 

follows: “In asking the trial court to take judicial notice of the 

court file, the People referenced only the probation report. In 

asking this Court before briefing was concluded to augment the 
2

record to include the sentencing hearing at which that report was 

discussed, the People asserted that the probation report had been 

“used by the prosecution as the basis for requesting denial of 

appellant’s motion to dismiss.” In fact, the police report was not 

referenced as relevant evidence until the court itself raised the 

issue at the end of the hearing.”

On page seven, under the heading Discussion, A. 

Proposition 64 the last paragraph is deleted.

On page 10, under the subheading 2. Proposition 36, delete 

the sentence: “Moreover, the statute here addresses the hearing 

issue, a fact the People failed to appreciate at the trial court; 

section 11361.8, subdivision (g), specifies that petitioner has a 

right to a hearing.”

On page 10, under subheading C., first sentence is replaced 

with “The only evidence relied on by the People at the trial court 

was the probation report; the People did not ask the court to 

consider any other evidence or documents.”

On page 16, under subheading 3., first paragraph, last 

sentence replace the word “proffered” with “relied on.”

On page 18, under subheading 4., the entire paragraph is

replaced with: “The trial court, finding that Banda was ineligible 

for relief, did not make the determination required by section 

11361.8, subdivision (b) whether dismissing the sentence “would 

pose an unreasonable risk of danger to public safety. The trial 

court did, however, reduce the conviction to a misdemeanor, as 

the People conceded. The People’s concession necessarily 

acknowledged that granting Banda relief would not pose an 

unreasonable risk of danger to public safety. The trial court 
3

could not have resentenced otherwise, given the plain language of 

the statute.

With respect to dismissal, the People neither requested a 

different determination in their opposition to Banda’s petition in 

trial court, nor presented any evidence to support such a finding. 

(People v. Frierson (2017) 4 Cal.5th 225, 239 [facts pertaining to 

unreasonable risk must be proven by the People].) The People 

have not asserted in this court that the record would support 

such a finding. Accordingly, the People have forfeited the issue. 

(Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 

691, 699-700 [“When an issue is unsupported by pertinent or 

cognizable legal argument it may be deemed abandoned and 

discussion by the reviewing court is unnecessary. [Citations.]”].)”

On page 19, under subheading Disposition, delete the last

sentence and replace with: “The order denying dismissal of the 

sentence is reversed and the matter remanded to the trial court.”

There is no change in the judgment.

Respondent’s petition for rehearing is denied.

____________________________________________________________

ZELON, J., PERLUSS, P. J., WILEY, J. (Assigned)
Filed 8/20/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BANDA,

Defendant and Appellant.

 No. B284725

 (Los Angeles County

 (Super. Ct. No. NA103745)

APPEAL from an order of the Superior Court of Los 

Angeles County, Daniel J. Lowenthal, Judge. Reversed and 

remanded.

Kenneth I. Clayman, Public Defendant of Los Angeles 

County, California, Albert J. Menaster, Nikhil Ramnaney, Nick 

Stewart-Oaten, Deputy Public Defenders, for Defendant and 

Appellant.

Xavier Becerra, Attorney General of California, Gerald A. 

Engler, Chief Assistant Attorney General, Lance E. Winters, 

Senior Assistant Attorney General, Shawn McGahey Webb, 
2

Supervision Deputy Attorney General, Blythe J. Leszkay, Deputy 

Attorney General, for Plaintiff and Respondent.

___________________

Michael Banda was convicted of a violation of Health and 

Safety Code, section 11358 in 2016. After the passage of 

Proposition 64, he petitioned for dismissal of his conviction. The 

court denied his petition. We now reverse, and remand to the 

trial court.

FACTUAL BACKGROUND

Michael Banda was arrested on March 8, 2016 when police 

arrived at a marijuana dispensary. According to the probation 

report, which was the only description of the events cited to the 

trial court on the motion, Banda and another man were stopped 

fleeing the store; when police searched the location, they found 

processed marijuana in the store and a number of plants under 

cultivation in an attached room. Although Banda told the police 

he was engaged in construction at, and resided at, a specified 

address, the report did not identify that, or any other address, as

the address of the dispensary.

Banda was charged on March 10, 2016 with cultivation of 

marijuana, a felony. (Health & Saf. Code, §11358.)1 On that 

date, he entered a plea of guilty, with an agreed to disposition; 

defense counsel stipulated to a factual basis for the plea based on 

 

1 All further statutory references, unless otherwise noted, 

are to the Health & Safety Code.
3

the police report.2 He was sentenced to probation in accordance 

with the plea agreement on April 8, after the court ordered and 

received a probation report; counsel submitted to the probation 

report for that purpose. 

A. Banda’s Motion To Dismiss

In November 2016, the electorate passed Proposition 64, 

the Control, Regulate and Tax Adult Use of Marijuana Act.

Among other things, Proposition 64 provided relief to certain 

persons previously convicted of marijuana related offenses. In 

July of that year, Banda filed a petition to dismiss the complaint, 

or to reduce his conviction to a misdemeanor. (§ 11361.8.) The 

People opposed dismissal, but agreed that reduction to a 

misdemeanor was warranted.

B. The Evidence Submitted

After Banda petitioned for relief, the People submitted 

opposition. While conceding that Banda qualified for a reduction 

of his conviction to a misdemeanor, they argued the court should 

not dismiss the charge. The sole evidence on which the People 

relied in their written submission was the probation report; the 

People neither referred to nor submitted any other evidence to 

the trial court.

 

2 After oral argument and submission of the case, the 

Attorney General moved to augment the record with the police 

report. This Court granted the motion to augment on July 23, 

2018.
4

The probation report, prepared after the plea, set out facts 

in only two paragraphs. Those facts did not link Banda to the 

dispensary where the plants were found other than by his 

presence there; he was not reported to be an employee or owner, 

nor was the address linked to him identified as the address of the 

dispensary. No indication of the source of the information which 

included observations by, and statements apparently made by,

unnamed officers, was included in the report; in fact, the 

probation officer specifically stated that neither the defendant 

nor the investigating officer had provided any information. 

The court heard the matter on August 9 and 10, 2017, 

denying Banda’s request for an evidentiary hearing. The only 

evidence the People relied on at the hearing was the probation 

report, as the court acknowledged.3 Banda objected to the report 

as containing multiple levels of hearsay, and lacking 

identification of the source of the information included. Arguing 

that relevant case law allowed the court to consider reliable 

hearsay in this proceeding, the People posited that a probation 

report is always reliable hearsay. 

On August 10, the court considered additional case 

citations submitted by the parties. During that hearing, Banda 

argued that, at the time he submitted to the probation report for 

 

3 In asking the trial court to take judicial notice of the court 

file, the People referenced only the probation report. In asking 

this Court before briefing was concluded to augment the record to 

include that report, the People asserted that the probation report 

had been “used by the prosecution as the basis for requesting 

denial of appellant’s motion to dismiss.”
5

sentencing purposes, the number of plants discovered by the 

police was irrelevant to the disposition of the matter.4 The court 

indicated that it believed it could supplement the information in 

the probation report by considering the return to the search 

warrant;5 Banda objected that the return was neither reliable nor 

admissible. Nonetheless, after making its ruling, the court 

indicated it had based its decision on the probation report, the 

search warrant, and the police report. Of those, only the 

probation report was submitted by the People to satisfy their

burden of proof.6 The court did not address the reliability of any 

of the documents, despite Banda’s objections. The court denied 

dismissal, and reduced the conviction to a misdemeanor. 

Banda timely filed a petition for writ of prohibition in this 

court. We deemed the proceeding an appeal on November 1, 

2017.7

 

4 Both parties, as well as the court, appeared to believe that 

Banda had stipulated to the probation report as the factual basis 

for the plea. The record demonstrates, however, that the 

stipulation was to the police report; the probation report was not 

prepared until after the plea hearing.

5 The return to the search warrant is not in the record 

presented to this Court.

6 As noted above, the People did not seek to rely on, or seek 

judicial notice of, any documents other than the probation report.

7 We ordered that the petition be deemed the opening brief 

and the exhibits constitute the record.
6

DISCUSSION

A. Proposition 64

Proposition 64 (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) 

legalizes and regulates nonmedical marijuana. The proposition 

added various sections to the Health and Safety Code. As 

relevant to this case, section 11362.1 permits the cultivation of 

not more than six living marijuana plants (§ 11362.1, subd. (a)(1) 

& (3)) and reduces the punishment for an adult cultivating more 

than six plants to a misdemeanor, unless other circumstances, 

not relevant here, are present. (§ 11358, subds. (c) & (d).)

Proposition 64 also added a provision for relief for persons 

with prior convictions. The enactment permits those, like Banda, 

currently serving a sentence for enumerated offenses that would 

either not be offenses or would be lesser offenses if the current 

law were in effect at the time of the conviction, to petition for 

recall or dismissal of the sentence. Section 11358, under which 

Banda was convicted, is an enumerated offense. (§ 11361.8, subd. 

(a).)

The procedure for a petition for relief was specified in 

section 11361.8, subd. (b). Pursuant to the statute, the court is 

required to presume that the petitioner satisfies the criteria in 

subdivision (a), unless “the party opposing the petition proves by 

clear and convincing evidence that the petitioner does not satisfy 

the criteria. If the petitioner satisfies the criteria in subdivision 

(a), the court shall grant the petition to recall the sentence or 

dismiss the sentence because it is legally invalid unless the court 
7

determines that granting the petition would pose an 

unreasonable risk of danger to public safety.” (Ibid.)8

The statute permits petitioner to request a hearing, but 

does not require one in the absence of a request. (§11361.8, subd.

(g).)

B. The People’s Burden of Proof 

As outlined in the statute, the People bore the burden of 

demonstrating, by clear and convincing evidence, that Banda did 

not satisfy the criteria for relief. The statute does not, however, 

specify what evidence the court may consider.

Other recent voter approved initiatives, which provided a 

mechanism for relief for certain prior convictions similarly failed 

to specify procedural details, leaving trial courts in a quandary.

Both the nature of the evidence the court could consider, and the 

ability to rely on evidence outside the record of conviction, were 

raised as issues requiring determination after the passage of both 

Proposition 36, the Three Strikes Reform Act of 2012, and 

Proposition 47, the Safe Neighborhoods and Schools Act (2014).

1. Proposition 47

Proposition 47 reduced the punishment for a broad 

category of crimes previously classified as felonies. In People v. 

Romanowski (2017) 2 Cal.5th 903, the Supreme Court 

considered, among other issues, how courts were to determine 

 

8 The People have not asserted, in the trial court or in this 

court, that dismissing the charges would pose a risk of danger to 

public safety.
8

eligibility for relief. Under Proposition 47, the petitioner seeking 

relief bears the burden of proving his or her eligibility. The Court 

determined that, in some instances, the record of conviction 

would contain the facts necessary to demonstrate eligibility. In 

others, however, an evidentiary hearing would be required if, 

after considering the record and any matters in the petition, the 

return, affidavits, or matters subject to judicial notice, the court 

believed “the petitioner’s entitlement to relief depends on the 

resolution of an issue of fact.” (Id. at p. 916, quoting Cal. Rules of 

Court, rule 4.551(f).) 

In Romanowski, as here, the issue of fact concerned a 

question not relevant at the time of conviction and sentencing:

there, the value of property taken, and here, the number of plants 

under cultivation. (See also People v. Page (2017) 3 Cal.5th 1175, 

1189 [where material facts are not established by the record of 

conviction, the court can conduct an evidentiary hearing after a 

prima facie showing is made by petitioner].)

2. Proposition 36

Proposition 36 allows resentencing for certain persons 

sentenced under the “Three Strikes” law for non-serious, 

nonviolent felonies. As was the case with Proposition 47, and is 

the case with Proposition 64, the enactment left open questions 

as to the nature of the proof required. In 2018, the Supreme 
9

Court addressed those issues. (People v. Perez (2018) 4 Cal.5th 

1055.)9

In Perez, the court first clarified that, when a petition is 

filed, it is the prosecution’s burden to prove ineligibility for relief 

beyond a reasonable doubt; once petitioner makes an initial 

showing of eligibility, he or she has no further burden to provide 

any evidence. (Id. pp. 1062, 1066.)

10 The court reaffirmed its 

ruling in People v. Estrada (2017) 3 Cal.5th 661, 672, that the 

court could properly consider facts beyond the record of 

conviction, and held that the court could, consistent with the 

Sixth Amendment, consider facts not found by the jury. (Perez, 

supra, 4 Cal.5th at p. 1063.)

Thus, to the extent the court and the parties in this case 

were uncertain that the court could consider facts beyond the 

record of conviction, and could do so in an evidentiary hearing, 

the reasoning of the decisions in Perez and Romanowski indicate 

that the same should be true in cases under Proposition 64. 

 

9 We invited the parties to address Perez, which was decided 

after briefing was complete in this matter. Each party advised 

this Court of their belief that Perez has no impact in this matter. 

We disagree.

10 The People argued on appeal that Banda failed to introduce 

evidence contradicting the probation report and that, as a result, 

the People had met their burden of proof. However, under 

Proposition 64, as under Proposition 36, the burden is on the 

People. The introduction of only inadmissible evidence to meet 

that burden means that Banda had no obligation to produce 

additional evidence. 
10

Moreover, the statute here addresses the hearing issue, a fact the 

People failed to appreciate at the trial court; section 11361.8, 

subdivision (g), specifies that petitioner has a right to a hearing. 

Section 11361.8, subdivision (a) placed the burden of proof on the 

People; as Perez and Romanowski made clear, the People were

not limited in meeting that burden to facts already in the record. 

C. The People Failed To Meet Their Burden of Proof

1. The Probation Report Was Admissible Only If It

Was Reliable

The only evidence submitted by the People to the trial court 

was the probation report; the People did not present, or ask the 

court to consider, any other evidence or documents. Probation 

reports are not, however, automatically admissible to prove 

relevant facts.

The People correctly assert that the petition in a 

Proposition 64 case, as in Propositions 36 and 47, bears the 

hallmarks of a resentencing proceeding. In such cases, trial 

courts may consider hearsay if that hearsay is reliable. (People v. 

Arbuckle (1978) 22 Cal.3d 749, 754, fn. 2; People v. Sledge (2017) 

7 Cal.App.5th 1089, 1095 [eligibility hearing under Prop. 36 is a 

type of sentencing proceeding, allowing limited use of hearsay 

from probation reports if shown to be reliable]; People v. Lamb

(1999) 76 Cal.App.4th 664, 683.)

A probation report is inadmissible hearsay, however, when 

“the report excerpt includes the officer’s assertions that certain 

events “reportedly” occurred [during the prior assault].

Narration of “reported” events is by definition based on the 
11

statements of others. Indeed, unless the probation officer was a 

percipient witness [to the assault], all of the narration contained 

in the excerpt must have been drawn from other people’s 

previous statements. [¶] The report fragment does not identify 

the declarant or declarants from whose statements the probation 

officer drew his factual summary.” (People v. Reed (1996) 13 

Cal.4th 217, 230-231 [excerpt of probation report inadmissible 

hearsay in proceeding to prove that prior conviction was serious 

felony].)

In People v. Burnes (2015) 242 Cal.App.4th 1452, 1459, the

defendant had been convicted based on his plea. In a subsequent 

proceeding under Proposition 36, the trial court relied on the 

probation report related to that conviction. Assuming for 

purposes of decision that the probation report was properly before 

the trial court, the Burnes court concluded the trial court 

nonetheless erred in relying on the facts contained in the report. 

As the court explained, “The probation report here was neither 

admissible nor reliable. The portion of the probation report that 

described the circumstances of defendant’s offenses was derived 

from a police report. The probation report thus constituted 

double hearsay or multiple hearsay, and the People never 

attempted to show that the probation report was admissible 

under an exception to the hearsay rule. Moreover, nothing in the 

probation report established the reliability of the asserted 

circumstances of the offenses: the probation report did not 

include a copy of the police report; the probation report did not 

state whether it was directly quoting from the police report or 

summarizing the police report; the probation report did not 

specify whether it contained all of the facts included in the police 
12

report; the probation report did not state when the police report 

was prepared; the probation report did not identify the person 

who prepared the police report; and the probation report did not 

specify whether the facts in the police report were based on 

firsthand knowledge or hearsay. Given these circumstances, it is 

impossible to conclude that the probation report reliably 

described the circumstances of defendant’s offenses. Because the 

probation report was neither admissible nor reliable, the trial 

court erred in relying upon it in determining that defendant was 

ineligible for resentencing. [Citation].” (Ibid.)

The same is true in this case. The trial court made no 

finding that the probation report was reliable, despite Banda’s 

repeated objections.11 The fact that the court found it necessary 

to rely on other documents indicates that it may not have 

believed the probation report was sufficient. If we assume for 

purposes of decision that the trial court impliedly found the 

probation report to be reliable, that finding was an abuse of 

discretion. As in Burnes, the source of the report was unknown; 

if the probation officer relied on the police report, he included no 

information about the preparation or contents of that report. The 

probation report contained hearsay on its face, for which no 

exception was argued; indeed, no one directly related to the 

 

11 This Court, having had the opportunity to review the police 

report, notes that there are factual inconsistencies related to 

Banda between that document and the probation report, which 

further calls into question the reliability of the probation report. 

Because that report did not meet the standard for admissibility 

described above, we need not resolve those inconsistencies.
13

events was contacted in its preparation. Nothing on the face of 

the report demonstrated that the hearsay it contained was 

reliable. As in Burnes, the report was not evidence that Banda 

was ineligible for the relief he sought.12

The People relied on Sledge, supra, 7 Cal.App.5th 1089, but 

it does not support the admission of the probation report here. In 

Sledge, the court found the report, despite its hearsay nature, to 

be reliable because it: had been prepared by probation officers 

performing their official duties, relying in part on information 

obtained from official court records prepared by clerks performing 

their regular duties; was used by both parties without objection 

throughout the case; and contained conclusions supported by 

other facts before the court. (Id. at pp. 1097-1098.) Here, in 

contrast, while the report was prepared by the probation officer, 

who we presume was performing his official duties, it was only 

submitted to for a limited purpose, a purpose that did not relate 

to the factual issue now presented. Moreover, in this case the 

People relied on no other evidence to support the showing they 

were required to make.

 

12 See also People v. Johnson (2016) 1 Cal.App.5th 953, 968 

fn. 16 [finding insufficient evidence in Prop. 47 case after a 

negotiated plea agreement where there was no evidence of value; 

the probation report was not admissible evidence; and the police 

report was unauthenticated and contained multiple levels of 

hearsay].
14

2. Even If The Probation Report Were Properly

Admitted, It Contains No Evidence Establishing That 

Banda Was Ineligible For Dismissal

In this case, as in Romanowski, the facts relevant to the 

determination of eligibility were not relevant at the time of plea 

and sentencing. (See, e.g., Johnson, supra, 1 Cal.App.5th at 

pp. 966-967 [Proposition 47 created misdemeanors that did not 

previously exist, or that were felonies requiring different 

showings, making different facts relevant at time of resentencing 

hearing].) 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. (Reed, supra, 13 Cal.4th at p. 224; People 

v. Thoma (2007) 150 Cal.App.4th 1096, 1104.) As a result, in this 

case, even had the probation report provided the factual basis for 

the plea, as the People believed, that report did not provide 

substantial evidence of the number of plants, the critical issue in 

this proceeding.13

With respect to the probation report, even had Banda been 

interviewed by the probation officer who prepared the report, 

 

13 In People v. Holmes (2004) 32 Cal.4th 432, the Supreme 

Court explained the requirement of a statement of factual basis 

for a plea, either by the defendant, or through counsel’s 

stipulation to a document supporting the charges to which the 

plea pertained. What the Court required was “a factual basis for 

each essential element of the crime.” (Id. at p. 440.) The number 

of plants was not an essential element of the crime of cultivation 

at the time of Banda’s plea in this case.
15

admissions made by a defendant after a guilty plea do “not reflect 

the facts upon which [the defendant] was convicted.” (People v. 

Trujillo (2006) 40 Cal.4th 165, 180 [admissions in post-conviction 

probation report may not be relied on in determining whether 

prior conviction qualifies as a strike].) Here, Banda was not 

interviewed; he made no admissions. Instead, his counsel 

submitted to the report for purposes of sentencing. The sentence 

had been agreed to as part of the plea, and, like the plea itself, 

did not concern in any way the number of plants involved. 

Accordingly, submission to the probation report was not an 

admission as to the number of plants described in that report.14

The People presented no admissible evidence with respect to the 

number of plants, the factual issue critical to this proceeding.

 

14 We need not resolve whether counsel’s submission to the 

probation report for the purpose of imposition of the previously 

agreed to sentence reflected binding agreement to the contents of 

that report, or only a conclusion that, under the circumstances, 

nothing further need be said. Even a direct statement by a 

defendant to a probation officer, made after the guilty plea has 

been accepted is not evidence of the “facts of the offense for which 

the defendant was convicted.” (Trujillo, supra, 40 Cal.4th at 

p. 179; citing Reed, supra, 13 Cal.4th at p. 223.) The failure to 

dispute facts set forth for sentencing, post-plea, is not an adoptive 

admission of the facts allowing hearsay statements to be used; 

only admissions made prior to the plea are admissible. (Thoma, 

supra, 150 Cal.App.4th at pp. 1102-1103.)
16

3. Judicial Notice Augmenting The People’s Showing

 Was Improper

The People failed to submit substantial evidence or any 

admissible evidence at all, to meet its burden to show, by clear 

and convincing evidence, that Banda was ineligible for relief. 

The trial court augmented that insufficient showing by taking 

judicial notice of other documents, documents not proffered by 

any party.

The trial court attempted to fill in the blanks left by the 

prosecution by taking judicial notice. Evidence Code section 452, 

subdivision (d) allows the trial court in its discretion to take 

judicial notice of its own records. However, if the subject of 

judicial notice is “of substantial consequence to the determination 

of the action,” Evidence Code section 455 requires the court to 

allow each party to present information relevant to the propriety 

of taking judicial notice and as to the tenor of the matter to be 

noticed. (Estate of Russell (1971) 17 Cal.App.3d 758, 765 [where 

the previous financial condition of the trust would have been “of 

substantial consequence to the action,” the trial court could not 

take judicial notice of records of the court containing financial 

information absent notice to the parties].)

This the trial court did not do; although it indicated it 

intended to take judicial notice of the return to the search 

warrant, to which Banda objected, it did not indicate it was 

taking judicial notice of the police report until after it had ruled, 

depriving Banda of both notice and the opportunity to object. 

(See People v. Griffith (1971) 19 Cal.App.3d 948, 951 [no waiver 
17

of objection to judicial notice when court ruled immediately after 

commenting upon the possibility of taking judicial notice].)

Even had judicial notice of the police report been proper, 

despite the People’s failure to proffer it to meet their burden of 

proof, the trial court erred by considering Banda’s stipulation to 

that report as the factual basis for the plea as proof of the 

number of plants under cultivation, as that issue was irrelevant 

to his plea. In Reed, supra, 13 Cal.4th 217, the Court addressed 

the proof necessary to show that a previous conviction was a 

serious felony for the purpose of imposing a sentence 

enhancement under Penal Code section 667, subdivision (a). At 

issue was the use of a preliminary hearing transcript and the 

excerpt of a probation report for the prior conviction, which had 

been based on a plea. Respondent argued that both documents, 

although hearsay, were properly considered as defendant’s 

admissions to show that the previous conviction was a qualifying 

felony. The Supreme Court rejected that position, reasoning, in 

relevant part, that: “[n]o evidence suggests that in his plea 

defendant was asked to, or did, admit any particular facts stated 

in the preliminary hearing or probation report other than those 

facts necessary to the []charge itself.” (Reed, supra, 13 Cal.4th at 

p. 224.) The Court held the admission of the probation report 

was error, although harmless under the circumstances, because 

the report contained hearsay to which no exceptions applied. (Id.

at p. 230.) It was error here as well.15

 

15 Cf. People v. Otto (2001) 26 Cal.4th 200, 209. The Otto 

Court, in a sexually violent predator case, found that Welfare and 
18

4. The People Forfeited Any Argument That Granting 

Banda’s Petition Would Pose An Unreasonable Risk

The trial court, finding that Banda was ineligible for relief, 

did not make the determination required by section 11361.8, 

subdivision (b) whether dismissing the sentence “would pose an 

unreasonable risk of danger to public safety.” The People neither 

requested that determination in their opposition to Banda’s 

petition in the trial court, nor presented any evidence to support 

such a finding. The People have not asserted in this court that 

the record would support such a finding. Accordingly, the People 

have forfeited the issue. (Landry v. Berryessa Union School Dist. 

(1995) 39 Cal.App.4th 691, 699-700 [“When an issue is 

unsupported by pertinent or cognizable legal argument it may be 

deemed abandoned and discussion by the reviewing court is 

unnecessary. [Citations.]”].)

 

Institutions Code section 6600, subdivision (a)(3) allowed the 

admission of documentary evidence including probation reports, 

despite their contents being hearsay that does not fall within an 

exception to the hearsay rule, because the Legislature specifically 

permitted the use of those documents in the proceeding. The 

Court specifically contrasted this use with the determination that 

the documents were inadmissible hearsay in Reed, finding the 

use of the documents proper in Otto both because of the statutory 

exception, and because the declarants were identified. (Otto, at 

p. 209.) Banda’s case, like Reed, has neither a statutory 

exception nor the identification of declarants.
19

DISPOSITION

The order denying dismissal of the sentence is reversed and 

the matter remanded to the trial court to dismiss the charge 

against Banda in accordance with the statute.

ZELON, J.

I concur:

PERLUSS, P. J.
1

WILEY, J., dissenting.

I respectfully dissent from the majority’s thoughtful 

opinion. Defendant Michael Banda stipulated, first, to the police 

report when he pleaded guilty and, second, to the presentence 

probation report at his later sentencing. Those two reports and 

Banda’s two separate stipulations establish that he had hundreds 

more marijuana plants than Proposition 64 allows. His proper 

Proposition 64 sentence is a misdemeanor, as the trial court 

ruled. I would affirm.

I

When on March 10, 2016 Banda pleaded guilty to 

cultivating marijuana, the trial court was required to satisfy 

itself that there was a factual basis for his plea. Courts can 

satisfy this requirement by asking defense counsel to stipulate to 

a particular document that provides an adequate factual basis, 

such as a police report or probation report. (People v. Palmer

(2013) 58 Cal.4th 110, 112–113.) This trial court asked Banda to 

stipulate to the police report to establish the factual basis for 

Banda’s plea. Banda did so. 

Later, on April 8, 2016, the trial court sentenced Banda. At 

this second hearing, Banda again stipulated to the prosecution’s 

version of events, this time set out in a different and shorter 

document: the probation report.

The stipulated police report and the stipulated probation 

report explain what happened in this case. Police approached the 

Green Star Collective with a search warrant. Banda tried to 

leave the location, but officers detained him. Banda told police he 
2

resided at the location and was engaged in construction there. A 

room at the location contained 192 medium marijuana plants and 

77 small marijuana plants, for a total of 269 marijuana plants.

The law changed after Banda’s sentencing. In November 

2016, Proposition 64 legalized personal cultivation of marijuana. 

Today, people can legally grow six or fewer marijuana plants, but 

Proposition 64 makes it a misdemeanor to grow more than that. 

(Health & Saf. Code, §§ 11362.1, subd. (a)(3), 11358, subd. (c).) 

Banda grew 263 plants more than six.

Proposition 64 permits people in Banda’s situation to 

petition to apply the new rules to their cases. Banda did so, but 

asked the trial court entirely to abolish his conviction, which 

would be appropriate only if Banda had been cultivating six 

plants or fewer. The prosecution disagreed, pointing to the 

probation report to which Banda had stipulated, which numbered 

his plants at more than six. At his Proposition 64 hearing on 

August 9 and 10, 2017, however, Banda objected to this probation 

report as inadmissible hearsay. In response, the trial court read 

aloud from the transcript of Banda’s sentencing hearing, noting 

that Banda had acknowledged and accepted the probation report. 

The court asked Banda why his stipulation to the probation 

report was insufficient. Based on Banda’s stipulation, the trial 

court then reduced his conviction to a misdemeanor but refused 

to erase the conviction completely. 

II

The trial court was right. At the Proposition 64 hearing, 

the prosecution bore the burden of proving the facts by clear and 

convincing evidence. The prosecution offered more than that. It 
3

offered Banda’s stipulation. The Proposition 64 hearing judge did 

not confront an evidentiary contest requiring weighing and 

resolution by a clear and convincing standard of proof. Instead, 

the prosecution showed that, at sentencing, all sides had 

stipulated to the facts. Such a stipulation is conclusive without 

reference to additional evidentiary support. (People v. Palmer, 

supra, 58 Cal.4th at pp. 117–118.) 

As with other discretionary sentencing decisions where the 

defendant has had an opportunity to review the postplea 

probation report and to challenge its contents, including its 

statement of the facts and circumstances of the offense, the trial 

court is entitled to consider the information in that report in 

determining whether to reduce a felony conviction to a 

misdemeanor. (Cf. People v. Tran (2015) 242 Cal.App.4th 877, 

887 [interpreting Pen. Code, § 17, subd. (b)].)

Under the new Proposition 64 rules, the proper sentence for 

Banda is a misdemeanor. 

Banda now maintains his stipulation does not count. Why 

not? Banda gives six erroneous reasons.

A

First, at oral argument Banda claimed he did not 

stipulate to the probation report. The record is to the contrary:

“THE COURT: [This case is] here for sentencing. 

Mr. Banda is present. Waive formal arraignment for 

judgment, time for sentence?

“BANDA’S COUNSEL: Yes. No legal cause.

“THE COURT: And submit to the probation officer’s 

report?
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“PROSECUTOR: Yes.

“THE COURT: Submit to the probation officer’s report?

“PROSECUTOR: Yes, Your Honor. Submitted.

“BANDA’S COUNSEL: Yes.” (Italics added.)

This exchange established a stipulation. On April 9, 2017, 

Banda agreed. In the trial court, during his Proposition 64 

hearing on that date, Banda described this transcribed exchange 

as a “stipulation.” On appeal, however, Banda reversed course to 

claim during oral argument that his agreement to “submit” on 

the probation report was not a stipulation. This opportunistic 

reversal is untenable. 

The reasonable interpretation of Banda’s words at 

sentencing is that he was not contesting the probation report: he 

was waiving any possible objection. Had Banda intended some 

other and more limited meaning, evidence law (as well as 

ordinary courtroom procedure and simple fairness) required 

Banda to state a timely and specific objection to the probation 

report. Crossing fingers behind your back should not work in 

court.

B

Second, Banda argues the probation report was admissible 

only if it was reliable. This is incorrect: Banda stipulated to the 

probation report. 

Banda’s stipulation was akin to an evidentiary stipulation, 

the making of which is a tactical decision entrusted to trial 

counsel. Such a stipulation is conclusive without reference to 

additional evidentiary support. (People v. Palmer, supra, 

58 Cal.4th at pp. 117–118.)
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This rule is consistent with defense counsel’s broad 

authority to stipulate to factual and procedural matters on his 

client’s behalf. Even at trial, counsel may stipulate to the 

existence or nonexistence of essential facts. Counsel may also 

stipulate to the admissibility of evidence or to narrow the range 

of litigable issues. Stipulations obviate the need for proof and are 

independently sufficient to resolve the matter at issue in the 

stipulation. (People v. Palmer, supra, 58 Cal.4th at p. 118.)

Unless the trial court, in its discretion, permits a party to 

withdraw from a stipulation, it is conclusive upon the parties, 

and the truth of the facts it contains cannot be contradicted. 

(Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141–142 

(Traynor, J.); cf. CALCRIM No. 222 [“During the trial, you were 

told that the People and the defense agreed, or stipulated, to 

certain facts. This means that they both accept those facts as 

true. Because there is no dispute about those facts you must also 

accept them as true.”] [Citing Palmer v. City of Long Beach, 

supra, 33 Cal.2d at pp. 141–142].)

Parties routinely stipulate to documents that would be 

inadmissible absent the stipulation. (E.g., People v. Holmes

(2004) 32 Cal.4th 432, 436 [when taking a guilty plea, trial court 

should ask defense to stipulate to a particular document that 

provides an adequate factual basis, such as a police report or a 

probation report].) 

Why would someone stipulate to an inadmissible 

document? The usual reason is because the stipulation is true 

and the other side can prove it. 

Hearsay can be objectionable and inadmissible, but that 

does not mean the hearsay is untrue. If Abby tells Barry that 
6

Carol told her the sky is blue, that is multiple hearsay. 

Nonetheless, the sky truly is blue. That is easy to prove. There 

are many witnesses. It can be advantageous simply to agree to 

hearsay that is true.

Many stipulations are to documents drafted by counsel for 

purposes of litigation. These documents would be inadmissible 

hearsay without a stipulation. Those otherwise inadmissible 

documents, however, can summarize the inevitable result of 

proving the documents’ contents through formal and timeconsuming evidentiary processes. A stipulation saves the time 

and effort of summoning witnesses from their daily 

responsibilities to a courthouse where they will have to wait to 

testify in a trial court with a sizable docket of its own. A 

stipulation can achieve the same end, swiftly and cleanly, with 

complete fidelity to the truth.

Banda stipulated to the probation report. Such a 

stipulation is conclusive without reference to additional 

evidentiary support. (People v. Palmer, supra, 58 Cal.4th. at 

pp. 117–118.) 

C

Third, Banda claims his stipulation was of a limited scope. 

This claim has no basis in the record. When the court asked if 

Banda submitted to the probation report, Banda’s attorney gave 

a one-word answer: “Yes.” Banda’s stipulation was counseled, 

unqualified, and unlimited. (Cf. People v. French (2008) 

43 Cal.4th 36, 42, 50–51 [defendant pleaded no contest and 

defense counsel qualified the factual basis stipulation 

accordingly].)
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Banda suggests he stipulated to the probation report 

without stipulating to the facts it recited. This argument puzzles 

me. It suggests that, despite having stipulated to a factual 

summary, Banda remained free to contest the summarized facts. 

I know of no precedent for this suggestion, which would have the 

practical effect of making stipulations meaningless. Rendering 

courtroom agreements meaningless would be an unhappy result, 

with unfortunate consequences for all.

D

Fourth, Banda claims the facts about his offense were not 

relevant when he pleaded guilty and was sentenced. This is 

inaccurate. The facts of Banda’s crime indeed were relevant.

When parties negotiate a plea deal and sentence, the 

magnitude of culpability is relevant. The goal of criminal law is 

to determine whether the defendant has committed a crime, and, 

if so, to impose a punishment that fits the crime. What 

punishment fit Banda’s crime? In contraband cases, the presence 

of the contraband, and in what magnitude, is relevant. Banda 

and the prosecution negotiated his plea deal before Banda 

pleaded guilty. Negotiated plea deals are adjustable in degrees: 

how many days in custody, how many days of community service 

work, how many dollars in fines, and so on. The degree of 

Banda’s culpability was relevant to this negotiated adjustment. 

One cannot reasonably maintain the prosecution would have 

given Banda the same deal no matter his level of culpability. 

Orders of magnitude matter.
8

The Supreme Court required stipulations of the sort Banda 

made when pleading guilty. One reason is to provide a more 

adequate record of the conviction process. (People v. Holmes, 

supra, 32 Cal.4th at p. 438, fn. 2.) This more adequate record of 

the conviction process shows Banda pleaded guilty on the same 

factual basis as in the stipulated probation report: 269 plants; 

flight from the Green Star Collective; Banda telling police he 

resided at and was performing construction at the location. 

The police report to which Banda stipulated during his 

guilty plea is longer than the probation report and elaborates on 

some details. A “small” marijuana plant was six to 10 inches tall, 

while a “medium” plant was two and a half to three feet tall. The 

room with the marijuana plants was a hydroponic facility. Banda 

told police that most of the tools inside the location were his and 

that he was familiar with hydroponics. In the opinion of the 

arresting officer, the location was the beginning stages of an 

advanced hydroponic marijuana grow. 

Proposition 64 introduced a new distinction between 

growing six versus seven plants. The distinction did not exist at 

the time of Banda’s sentencing. This new distinction does not 

imply the facts of Banda’s crime were irrelevant to his plea and 

sentence. No defense attorney expects a prosecutor to treat a 

small time personal-use hobbyist the same as someone building a 

large scale commercial drug supply site. 

Banda twice agreed the number of plants was 269. This 

fact about 269 plants was the basis for the deal that the 

prosecution and the defense negotiated and that the court 

accepted and imposed. The magnitude of culpability, including 

the magnitude of contraband, was relevant when Banda chose to 
9

stipulate. It remains relevant today. Banda’s stipulation is 

binding. 

E

Fifth, Banda at oral argument claimed there were 

inconsistencies between the police report and the probation 

report. Banda did not identify these inconsistencies. I see none. 

The probation report accurately summarized the longer and 

more detailed police report. The two documents are consistent in 

every detail. 

For instance, the probation report stated police detained 

Banda and the other arrestee while the two were “attempting to 

flee the location.” The police report contains additional detail. It 

states an officer observed the other arrestee “run from the rear” 

of the location into a parking lot, where police detained him. “A 

few minutes later” the same officer observed Banda “exit the 

rear” of the same location, and the same officer “detained Banda 

in the rear without incident.” So police detained both Banda and 

the other man while they were attempting to flee the location. 

The probation report is consistent with the more detailed police 

report.

In another example of consistent and additional detail, the 

police report states the location of the Green Star Collective 

marijuana operation encompassed two adjoining street addresses 

while the probation report summarily refers to a single “location” 

without including the immaterial point about two street 

addresses. 

The two reports are consistent, despite Banda’s assertion to 

the contrary. Most significantly, there can be no claim there was 
10

inconsistency about the number of plants. Both documents agree 

there were 192 medium plants and 77 small ones, for a total of 

269 plants.

F

Sixth, Banda cites case law. None of it construes the 

statute at issue here, which is Proposition 64. None of it permits 

Banda to ignore his binding stipulations. 

Banda argues two Supreme Court opinions, Trujillo and 

Reed, limit the effect of his stipulation to the facts necessary to 

the charged offense itself. (See People v. Trujillo (2006) 

40 Cal.4th 165; People v. Reed (1996) 13 Cal.4th 217.) But 

neither Trujillo nor Reed involved stipulations. Neither holding 

permits Banda to disregard the facts to which he twice has 

stipulated.

There is a second and independent reason why Trujillo and 

Reed cannot control this case. Trujillo and Reed are recidivism 

cases. Trujillo held that, within the meaning of the “Three 

Strikes” law, a probation officer’s report is not part of the record 

of conviction that a trial court may consider in determining 

whether a defendant’s past conviction was a serious or violent 

felony. (People v. Trujillo, supra, 40 Cal.4th at pp. 175, 178, 181.) 

Reed held that, for purposes of the habitual criminals statute, a 

statement in a probation report cannot prove a past conviction 

was for a serious felony. (People v. Reed, supra, 13 Cal.4th at 

pp. 220, 230.) 

These cases do not interpret the statute in this case, which 

is Proposition 64. Trujillo and Reed interpreted statutes that 

differ fundamentally from Proposition 64.
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Recidivism statutes embody principles contrary to 

Proposition 64. The goal is to punish recidivism by lengthening 

current sentences based on past convictions. The recidivism laws 

allow prosecutors to collect old facts about past convictions as a 

way to increase the punishment imposed for later offenses. By 

contrast, Proposition 64 aims to decrease sentences, and in some 

cases to abolish convictions altogether, because social attitudes 

about marijuana have changed. Proposition 64 heads the 

opposite way from the recidivism statutes.

The concerns that animate the recidivism holdings are 

missing from the Proposition 64 setting. In the recidivism arena, 

defendants can be in danger of being prosecuted and punished 

twice for the same offense. There is also a speedy trial issue. 

Permitting prosecutors to litigate the circumstances of a crime 

committed years in the past thus raises serious problems akin to 

denial of speedy trial and double jeopardy. (See People v. 

Trujillo, supra, 40 Cal.4th at pp. 176, 177, 179, 180; People v. 

Reed, supra, 13 Cal.4th at p. 223.) 

Speedy trial and double jeopardy concerns do not exist in 

the Proposition 64 setting. Under Proposition 64, events are 

triggered not by prosecutors but by people like Banda. There is 

no speedy trial concern because Banda decided when to petition. 

Banda, not prosecutors, controlled the timing. And there is no 

double jeopardy concern, as Banda conceded at oral argument. 

Banda faces no danger of being prosecuted twice for a single 

culpable action. (Cf. People v. Tran, supra, 242 Cal.App.4th at 

pp. 889–890 [“Defendant argues People v. Trujillo (2006) 

40 Cal.4th 165 (Trujillo) supports his claim the probation report 

could not be considered by the trial court, as the court in Trujillo 
12

stated postplea probation reports ‘do not “reflect[] the facts of the 

offense for which the defendant was convicted.”’ [Citation.] 

Trujillo does not assist defendant, as it deals with a different 

circumstance than the one at issue here. . . . Here, the 

prosecution is not attempting to prove an enhancement allegation 

to increase defendant’s sentence. Rather, defendant is seeking 

leniency from the court to reduce his offense. . . . Accordingly, 

there is no risk akin to double jeopardy or forcing defendant to 

relitigate the circumstances of the crime.”].)

Banda also cites People v. Thoma (2007) 150 Cal.App.4th 

1096, but that opinion is a recidivism holding as well. (See id. at 

pp. 1099, 1101, 1102–1104 [decision is based on Trujillo and 

Reed].) Thoma did not interpret Proposition 64. Thoma also 

predated the Supreme Court’s 2013 statement in People v. 

Palmer that stipulations are conclusive without reference to 

additional evidentiary support. (People v. Palmer, supra, 

58 Cal.4th at pp. 117–118.) 

“[Banda] has offered no authority for his position that 

considering the facts and circumstances of an offense, as related 

in a probation report, somehow transforms the conviction itself or 

redefines the crime for which defendant has been convicted. 

[Banda] has offered no cogent reason why the trial court should 

not have been able to consider the crime summaries of the 

conduct supporting his conviction . . . . Just as it was appropriate 

for the trial court to consider the facts and circumstances of the 

offense in determining the appropriate sentence at the original 

sentencing hearing [citation], it was appropriate to consider those 

same facts and circumstances of the offense in making” later 

Proposition 64 adjustments. (People v. Tran, supra, 
13

242 Cal.App.4th at p. 891 [interpreting Pen. Code, § 17, 

subd. (b)].)

In sum, the trial court result was correct. It followed the 

law, it honored the truth to which the parties had agreed, and it 

achieved justice. I would affirm.

WILEY, J.

 

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

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

Constitution.