Filed 10/15/20 P. v. Keshishian CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076284
Plaintiff and Respondent,
v. (Super. Ct. No. JCF30252)
SHAHEN KESHISHIAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
William D. Lehman, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers, Christopher P. Beesley, and Joy Utomi, Deputy Attorneys General,
for Plaintiff and Respondent.
In 2013, Shahen Keshishian was convicted of violating Penal Code
section 4573.6, which prohibits possession of controlled substances (in his
case, marijuana) in prison. Keshishian contends this is no longer a felony
under Health and Safety Code section 11362.1, subdivision (a),1 which was
enacted pursuant to the passage of Proposition 64 and which decriminalizes
possession of small amounts of cannabis. (Prop. 64, § 4.4, approved Nov. 8,
2016, eff. Nov. 9, 2016; amended by Stats. 2017, ch. 27, § 129.) In 2019,
Keshishian petitioned the trial court for recall or dismissal of his 2013
conviction. (Health & Saf. Code, § 11361.8, subd. (a).) The trial court
concluded Penal Code section 4573.6, subdivision (a) remains a felony
following the passage of Proposition 64 and denied Keshishian’s petition. We
agree with the trial court and affirm the order denying Keshishian relief.
FACTS
In March 2012, a correctional officer searched Keshishian’s cell at
Calipatria State Prison and discovered a bindle containing 0.08 grams of
marijuana and a pipe fashioned from foil.
A first amended indictment charged Keshishian with two felony
charges: possession of illegal substances (marijuana) in a prison facility
(Pen. Code, § 4573.6, count 1) and possession of drug paraphernalia (pipe) in
prison (id., § 4573.6, count 2). The indictment also alleged two serious or
violent felony priors as to counts 1 and 2 (id., §§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)) and further alleged that Keshishian committed the offenses
while confined in state prison (id., § 1170.1, subd. (c)).
In June 2013, Keshishian pled no contest to one count of violating
Penal Code section 4573.6 with the following agreement: “Probation denied[.]
Lower term: 24 months/consecutive sentence[.] All other counts
dismissed/strike struck for sentencing[.] People will agree to dismiss [a
second case,] JCF-30253.”
1 Unless otherwise indicated, statutory references are to the Health and
Safety Code.
2
In August 2013, the trial court sentenced Keshishian to state prison for
the lower term of two years, to run consecutive to his current sentence.
In 2016, California voters decriminalized the possession of less than
28.5 grams (approximately one ounce) of marijuana, or cannabis.2 (Prop. 64;
§ 11362.1, subd. (a); see People v. Perry (2019) 32 Cal.App.5th 885, 888
(Perry), People v. Raybon (2019) 36 Cal.App.5th 111, 114, review granted,
Aug. 21, 2019, S256978 (Raybon).)
In June 2019, Keshishian petitioned the trial court for a recall of
sentence and dismissal of his Penal Code section 4573.6 conviction pursuant
to Health and Safety Code section 11361.8, subdivision (b), on the ground
that Health and Safety Code section 11362.1, provides that possession by an
individual 21 years of age and older of not more than 28.5 grams of cannabis
is not a felony. Keshishian encouraged the court to follow Raybon, which
concluded that, after Proposition 64, possession of small amounts of cannabis
in prison is no longer a felony. The district attorney opposed Keshishian’s
petition, contending that Penal Code section 4573.6 remained a felony. The
district attorney encouraged the trial court to follow Perry, which concluded
Proposition 64 did not decriminalize possession of cannabis in prison. After
hearing oral argument, the trial court denied Keshishian’s petition,
concluding Perry was the “better decided” case. Keshishian obtained a
certificate of probable cause to pursue this appeal.
On appeal, Keshishian contends that the passage of Proposition 64
entitles him to relief from his Penal Code section 4573.6 conviction. He urges
2 In 2017, the Legislature replaced references to “marijuana” in the
Health and Safety Code with the term “cannabis.” (See, e.g., Stats. 2017,
ch. 27, § 121, eff. June 27, 2017.) For consistency, we primarily use the
amended terminology of “cannabis” throughout the remainder of this opinion.
3
this court to adopt the reasoning of Raybon, which he contends “is much more
persuasive and better reasoned than [Perry].”
DISCUSSION
The question before this court is whether, as a result of Proposition 64,
it is permissible to possess small quantities of cannabis in prison. The Courts
of Appeal have reached contrary conclusions on this issue. We outline the
conflicting appellate decisions below and adopt the reasoning of cases holding
it remains illegal to possess small amounts of cannabis in prison. We
therefore conclude the trial court correctly denied Keshishian’s petition to
recall or dismiss his sentence pursuant to section 11361.8.
A. Governing Legal Principles
Keshishian was convicted of violating Penal Code section 4573.6, which
provides: “Any person who knowingly has in his or her possession in any
state prison . . . any controlled substances, the possession of which is
prohibited by Division 10 (commencing with Section 11000) of the Health and
Safety Code . . . or paraphernalia intended to be used for unlawfully injecting
or consuming controlled substances, without being authorized to so possess
the same by the rules of the Department of Corrections . . . is guilty of a
felony punishable by imprisonment pursuant to subdivision (h) of
Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6, subd. (a).)3
Proposition 64 decriminalized the possession of small quantities of
cannabis for persons 21 years of age or older. (See Perry, supra,
32 Cal.App.5th at pp. 889-890.) Among other things, it added Health and
3 Penal Code section 4573.8 similarly proscribes “knowingly . . .
possess[ing] in any state prison . . . drugs in any manner . . . .” Cannabis
remains a controlled substance under Division 10 of the Health and Safety
Code. (Health & Saf. Code, § 11054, subd. (d)(13).)
4
Safety Code section 11362.1, which provides in part: “Subject to
Section[] . . . 11362.45, but notwithstanding any other provision of law, it
shall be lawful under state and local law, and shall not be a violation of state
or local law, for persons 21 years of age or older to: [¶] (1) Possess . . . not
more than 28.5 grams of cannabis not in the form of concentrated cannabis.”
(§ 11362.1, subd. (a).)4
Decriminalization is expressly subject to Health and Safety Code
section 11362.45, which has been characterized as an exception or “carve out”
provision—i.e., section 11362.45 limits what is otherwise made lawful by
section 11362.1. (See, e.g., Perry, supra, 32 Cal.App.5th at p. 895
[section 11362.45 is “an exception to the legalization of possession and use
authorized by section 11361.2”]; People v. Herrera (2020) 52 Cal.App.5th 982,
991 (Herrera) [“section 11362.45[, subd.] (d) carves out from Proposition 64’s
legalization of cannabis ‘[l]aws pertaining to smoking or ingesting’ cannabis
in a penal institution”].) This carve out provision states in relevant part:
“Section 11362.1 does not amend, repeal, affect, restrict, or preempt:
[¶] . . . [¶] (d) Laws pertaining to smoking or ingesting cannabis or cannabis
products on the grounds of, or within, any facility or institution under the
jurisdiction of the Department of Corrections and Rehabilitation or . . . any
other facility or institution referenced in Section 4573 of the Penal Code.”
(Health & Saf. Code, § 11362.45, subd. (d).) The facilities referenced in Penal
Code section 4573 include state prisons and county jails. (Pen. Code, § 4573,
subd. (a).)
4 As noted, Proposition 64 legalizes certain activity involving 28.5 grams
or less of cannabis by persons 21 years of age or older. When we refer to the
decriminalization of the use and possession of cannabis in this opinion, for
ease of reference, we do not always restate these age restrictions and
amounts. (See Perry, supra, 32 Cal.App.5th at p. 890, fn. 8.)
5
A person serving a sentence for a conviction which would not have been
an offense after passage of Proposition 64 may petition the trial court for a
recall or dismissal of his or her sentence. (§ 11361.8, subd. (a).) “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 determines that granting the petition would pose an
unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b).) Whether
a petitioning party is eligible for relief under section 11361.8, subdivision (a),
presents a question of statutory interpretation which we review de novo.
(People v. Whalum (2020) 50 Cal.App.5th 1, 9 (Whalum); Raybon, supra,
36 Cal.App.5th at p. 113, review granted.)
In Perry, the First District Court of Appeal addressed the question of
whether an inmate’s conviction for possessing cannabis in prison under Penal
Code section 4573.6 was subject to dismissal after the adoption of
Proposition 64. (Perry, supra, 32 Cal.App.5th at p. 890.) The Perry court
concluded Proposition 64 did not change any existing “prohibitions against
the possession of marijuana in prison or otherwise affect the operation of
Penal Code section 4573.6.” (Ibid.) The court explained that Proposition 64
legalized possession of not more than 28.5 grams of cannabis, but it was
expressly subject to the exception carved out by Health and Safety Code
section 11362.45, subdivision (d) for “ ‘[l]aws pertaining to smoking or
ingesting cannabis or cannabis products,’ ” which remain prohibited. (Perry,
at p. 891.) The court addressed the parties’ competing contentions as to
whether this exception applies to “possession,” as well as “smoking or
ingesting” cannabis, and concluded that it does. (Id. at pp. 890-891.) In
response to the defendant’s argument that possession was “not necessarily an
inherent aspect of smoking or ingesting [cannabis],” the court found the
6
concepts of possession and use were related, noting in “the context of
possession in prison, it is particularly obvious that possession must ‘pertain’
to smoking or ingesting. For what purpose would an inmate possess cannabis
that was not meant to be smoked or ingested by anyone?” (Id. at p. 892.) The
court also rejected defendant’s argument premised on Penal Code
section 4573.6’s reference to what is prohibited under Division 10 of the
Health and Safety Code—i.e., “that Penal Code section 4573.6 no longer
applies to possession by an adult in prison of not more than 28.5 grams of
cannabis because the offense is defined by reference to ‘controlled substances,
the possession of which is prohibited by Division 10,’ and Proposition 64, by
its amendment of Health and Safety Code section 11357, eliminated the
prohibition against such possession that previously existed in division 10.”
(Id. at p. 893.)5 The court rejected this argument because it would render the
exception, or carve out language, meaningless: “Here, a conclusion that
division 10 [of the Health and Safety Code] does not prohibit the possession of
not more than 28.5 grams of cannabis for purposes of Penal Code
section 4573.6 would make meaningless the express provision of
Proposition 64 that its legalization of cannabis did not ‘amend, repeal, affect,
restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting
cannabis’ in penal institutions.” (Id. at p. 894.) By contrast, interpreting
Penal Code section 4573.6’s language (“controlled substances, the possession
of which is prohibited by Division 10”) as including possession of cannabis in
prison, “does no violence to the words of the” statute. (Perry, at p. 896.)
5 “As amended by Proposition 64, section 11357 no longer defines
possession of not more than 28.5 grams of marijuana by a person age 21 or
older as an offense.” (Perry, supra, 32 Cal.App.5th at p. 889; see § 11357,
subd. (a).)
7
“Cannabis remains a controlled substance under division 10.[6] Under the
Health and Safety Code provisions affected by Proposition 64, all of which are
part of division 10, cannabis possession is prohibited in a number of specific
circumstances and its possession or use in penal institutions is excluded from
the initiative’s affirmative legalization provision.” (Ibid.)
In Raybon, the Third District Court of Appeal addressed the same
question of whether possession of cannabis in prison remains a crime after
the passage of Proposition 64, and it came to the opposite conclusion of Perry.
The Raybon court concluded “the plain language of Health and Safety Code
section 11362.1, enacted as part of Proposition 64,” compelled a finding that
“possession of less than an ounce of cannabis in prison is no longer a felony.”
(Raybon, supra, 36 Cal.App.5th at p. 113, review granted.) The court found
support for its position in two prior cases, People v. Fenton (1993)
20 Cal.App.4th 965 (Fenton) and People v. Harris (2006) 145 Cal.App.4th
1456 (Harris), which the court noted rejected many of the same arguments
the Attorney General was asserting that were “at odds with the plain
meaning of the statute.” (Raybon, at pp. 117-119.)7 With regard to the scope
6 Section 11054, subdivision (d)(13).
7 In Fenton, the Court of Appeal ruled that the defendant did not violate
Penal Code section 4573, which prohibits bringing into a jail “ ‘any controlled
substance, the possession of which is prohibited by Division 10 (commencing
with Section 11000) of the Health and Safety Code,’ ” because he had a
physician’s prescription for the controlled substance in his possession.
(Fenton, supra, 20 Cal.App.4th at pp. 966-967, 971.) In Harris, the appellate
court reversed the defendant’s conviction for violating Penal Code
section 4573.5, prohibiting bringing “drugs ‘other than controlled
substances’ ” into a correctional facility, because the statute does not apply to
controlled substances such as the “ ‘medical marijuana’ ” which the defendant
brought into the prison. (Harris, supra, 145 Cal.App.4th at pp. 1460-1461,
1465.)
8
of the carve out in section 11362.45, subdivision (d), the court rejected the
notion that the “drafters of Proposition 64 intended to include possession not
by naming it, but by the use of a tangential reference ‘pertaining to.’ ”
(Raybon, at p. 121.) The court further explained “it stretches the imagination
to conclude that the drafters listed two distinct activities, ‘smoking or
ingesting,’ intending to include a third distinct activity, possession, by using
the vague reference ‘pertaining to.’ ” (Ibid.)8 The court rejected the Attorney
General’s arguments based on public policy grounds, and his claim that
allowing the possession of small amounts of cannabis in prison leads to
absurd results, stating: “None of the policy arguments he advances can
undermine the will of the electorate and none of the disasters he foresees
constitute the type of absurdity that allows us to disregard the voters’ clear
intent.” (Id. at p. 124.) In response to concerns about the loss of control over
correctional facilities resulting from the decriminalization of cannabis in
prisons, the court concluded “rules prohibiting the possession of cannabis can
be established and managed administratively.” (Id. at p. 119.)
In Whalum, this court addressed the similar issue of whether an
inmate convicted of possessing cannabis in prison under Penal Code
section 4573.8, which prohibits possession of “drugs in any manner” in prison,
was eligible for relief under Health and Safety Code section 11361.8,
subdivision (a). (Whalum, supra, 50 Cal.App.5th at p. 3.) Whalum concluded
that a conviction under Penal Code section 4573.8 remained a felony after
Proposition 64, and the inmate was not eligible for relief. (Whalum, at p. 3.)
8 According to the court, the purpose of the “ ‘pertaining to’ ” language
was to “describe the vast array of means of consumption,” such as
“inhal[ing] . . . a nonburning vapor” or topical application resulting in
“absor[ption] through the skin,” which remain unlawful. (Raybon, supra,
36 Cal.App.5th at p. 122, review granted, italics added.)
9
The court noted it “need not, and d[id] not, weigh in on the issues unique to
the impact of Proposition 64 on Penal Code section 4573.6.” (Id. at p. 10.)
However, the court agreed with Perry that “Proposition 64 did not affect laws
specifically directed at criminalizing the possession of cannabis as
contraband in a correctional institution.” (Id. at p. 5.) Whalum further
“agree[d] with Perry’s analysis regarding the scope of the carve out in [Health
and Safety Code] section 11362.45, subdivision (d), and . . . accordingly
conclude[d] that Proposition 64 does not affect laws, including Penal Code
section 4573.8, which make it a crime to possess cannabis in a correctional
institution.” (Id. at p. 10.) Whalum concluded that “even though Penal Code
section 4573.8 criminalizes possession rather than use of drugs in a
correctional institution, it is nevertheless properly described as a law
‘pertaining to smoking or ingesting cannabis’ in such a setting, as it is part of
[a] prophylactic approach to prevent prisoners from using drugs.” (Id. at
p. 12.)
More recently, the Sixth District Court of Appeal addressed the
question of whether Penal Code section 4573.6 remains a felony following the
approval of Proposition 64 in Herrera. The Herrera court adhered to the
analysis in Perry and Whalum and rejected the analysis in Raybon,
concluding that “Proposition 64 did not decriminalize the possession of
cannabis in a penal institution.” (Herrera, supra, 52 Cal.App.5th at p. 985.)
The Herrera court reasoned that Health and Safety Code section 11362.45, as
enacted by Proposition 64, contains an exception to “the general provision
authorizing adult possession of cannabis” (Herrera, at p. 990)—which
expressly states that “Section 11362.1 does not amend, repeal, affect, restrict,
or preempt: [¶] . . . [¶] (d) Laws pertaining to smoking or ingesting cannabis
or cannabis products on the grounds of, or within, any” prison or jail.
10
(Health & Saf. Code, § 11362.45, subd. (d).) Because Penal Code
section 4573.6, subdivision (a) is a “ ‘[l]aw[] pertaining to smoking or
ingesting cannabis’ in jail within the meaning of Health and Safety Code
section 11362.45[, subdivision] (d),” the Herrera court held that
“Proposition 64 did ‘not amend, repeal, affect, restrict, or preempt’ Penal
Code section 4573.6[, subdivision] (a), and possession of cannabis in jail
remains a crime under that Penal Code provision.” (Herrera, at p. 990.)
B. Analysis
Keshishian’s arguments are largely based on the contention that this
court should follow Raybon, rather than Perry. He claims he is entitled to
relief because he could not be convicted under section 4573.6 if he were
prosecuted today, and the prosecution presented no evidence to rebut the
presumption that he is entitled to relief under section 11361.8,
subdivision (a). We reject Keshishian’s claims and conclude he is not entitled
to relief.
Pending further guidance from the Supreme Court, and recognizing
that Raybon reached a different conclusion, we agree with Perry, Whalum,
and Herrera that Proposition 64’s decriminalization of cannabis “does not
amend, repeal, affect, restrict, or preempt” “[l]aws pertaining to smoking or
ingesting” cannabis in prison (Health & Saf. Code, § 11362.45, subd. (d)), and
possession of cannabis in prison under Penal Code section 4573.6,
subdivision (a) is a “[l]aw[] pertaining to smoking or ingesting” cannabis in
prison or jail under Health and Safety Code section 11362.45, subdivision (d).
In other words, the wide scope of the carve out in Health and Safety Code
section 11362.45, subdivision (d)—for “[l]aws pertaining to smoking or
ingesting cannabis” in prison—encompasses possession as well as use of
cannabis in prison. We therefore conclude the possession of cannabis in
11
prison, in violation of Penal Code section 4573.6, remains a felony after the
passage of Proposition 64.
Keshishian argues his conduct would not be a crime if Proposition 64
had been in effect when he committed his offense because Proposition 64
removed small amounts of cannabis from the category of “controlled
substances, the possession of which is prohibited by Division 10” of the
Health and Safety Code (Pen. Code, § 4573.6). (See Raybon, supra,
36 Cal.App.5th at pp. 121-122, review granted.) We disagree because this
position disregards the overall structure of Proposition 64 and the statutes
which it added and amended. Although Proposition 64 generally
decriminalized the possession of less than an ounce of cannabis, it did not
change those laws prohibiting the possession of cannabis in prisons and other
correctional facilities. (Perry, supra, 32 Cal.App.5th at p. 890
[“Proposition 64 did not affect existing prohibitions against the possession of
[cannabis] in prison.”]; Whalum, supra, 50 Cal.App.5th at p. 5.)
Keshishian contends that, because section 11362.45, subdivision (d)
refers to smoking cannabis in prison but omits “possession,” “it can be
inferred that possession of [cannabis] in prison was not intended to be
exempted” and is therefore not unlawful. Keshishian’s argument is
consistent with the Raybon court’s interpretation of the carve out language in
section 11362.45, subdivision (d), and contrary to Perry, Whalum, and
Herrera, which we find persuasive. As correctly stated in Perry, in view of
the “wide reach” of the phrase “ ‘pertaining to,’ ” “[w]e would be hard pressed
to conclude that possession of cannabis is unrelated to smoking or ingesting
the substance.” (Perry, supra, 32 Cal.App.5th at p. 891; accord, Whalum,
supra, 50 Cal.App.5th at pp. 11-12; Herrera, supra, 52 Cal.App.5th at p. 991.)
Based on the breadth of the carve out provision, it defies logic to conclude
12
Proposition 64 was intended to leave intact prohibitions against smoking and
ingesting cannabis in prison, while allowing inmates to possess cannabis.
Indeed, “[i]n the context of possession in prison, it is particularly obvious that
possession must ‘pertain’ to smoking or ingesting. For what purpose would
an inmate possess cannabis that was not meant to be smoked or ingested by
anyone?” (Perry, at p. 892.)
Keshishian additionally argues that he is presumptively entitled to
relief and the prosecution failed to present any evidence to rebut the
presumption. Unlike Propositions 36 and 47, Proposition 64 specifies that
“the court shall presume 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.” (§ 11361.8,
subd. (b).)9 We conclude Keshishian’s reliance on this language is misplaced
here. The prosecutor opposed Keshishian’s petition for relief on the ground
that he was not entitled to relief as a matter of law; further evidence in
support of the prosecutor’s legal position was not necessary. Moreover, the
trial court was authorized to grant Keshishian’s petition “[i]f the petitioner
satisfie[d] the criteria in subdivision (a).” (§ 11361.8, subd. (b).) Relief is
warranted only for those persons “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 . . . .” (Id., subd. (a).) As we have concluded,
9 Compare People v. Sherow (2015) 239 Cal.App.4th 875, 878-879
[holding that under Proposition 47 the petitioner has the “burden of showing
that he or she is eligible for resentencing of what was an otherwise valid
sentence”]; People v. Johnson (2016) 1 Cal.App.5th 953, 963 [“[U]nder both
Proposition 36 and Proposition 47, the petitioning defendant has the initial
burden of establishing eligibility, and if that burden is met, then the
prosecution has the opportunity to establish ineligibility on other grounds.”].
13
Keshishian’s offense under Penal Code section 4573.6 remains punishable as
a felony even after the passage of Proposition 64, and Keshishian is therefore
not entitled to relief under the statute.
In sum, the trial court properly determined that Proposition 64 did not
impact the crime of possessing unauthorized cannabis in prison in violation of
Penal Code section 4573.6. We therefore affirm the court’s order denying
Keshishian’s petition for relief from his prior conviction pursuant to Health
and Safety Code section 11361.8, subdivision (a).
DISPOSITION
The order is affirmed.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
14