Filed 10/21/20 P. v. Randall CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076619
Plaintiff and Respondent,
v. (Super. Ct. No. JCF30391)
DIJON RANDALL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli
Flores, Jr., Judge. Affirmed.
Shay Dinata-Hanson, 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, Steve
Oetting and Paige B. Hazar, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2013, Dijon Randall was convicted of violating Penal Code
section 4573.6, which prohibits possession of controlled substances (in his
case, marijuana) in prison. Randall 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,
Randall 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 Randall’s petition. On
appeal, Randall challenges the trial court’s dismissal of his petition and
asserts an additional contention regarding the trial court’s failure to consider
his ability pay various fines and fees when it imposed sentence in connection
with his no-contest plea in 2013, in violation of People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). We conclude the trial court properly denied
Randall’s section 11361.8 petition and his Dueñas claim is not cognizable on
this appeal from the denial of his petition. We therefore affirm the court’s
order.
FACTS
In February 2012 during visiting hours at Calipatria State Prison,
correctional officers observed Randall reach into his visitor’s waist area,
remove an item, and place it in his waist area. In a subsequent search,
correctional officers retrieved a bindle containing 25 grams of marijuana.
An indictment charged Randall with two felony charges: bringing
drugs into a prison (Penal Code, § 4573, count 1) and possession of illegal
substances (marijuana) in a prison facility (id., § 4573.6, count 2). The
indictment also alleged one serious or violent felony prior as to counts 1 and 2
1 Unless otherwise indicated, statutory references are to the Health and
Safety Code.
2
(id., §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and further alleged that
Randall committed the offenses while confined in state prison (id., § 1170.1,
subd. (c)).
In June 2013, Randall pled no contest to one count of violating Penal
Code section 4573.6 with the following agreement: “Probation denied[.]
Lower term [of] 24 months doubled for total of 48 months[.] Consecutive[.]
Balance dismissed[.] Mr. Randall waives right to presentence interview[.]”
Randall stipulated that the factual basis for the charge “exists in [the] grand
jury transcript.”
In August 2013, the trial court sentenced Randall to state prison for the
lower term of two years plus an additional two years for the prior conviction,
for a total prison term of four 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, Randall filed a petition in propria persona requesting his
“felony sentence of [four] years be recalled and resentenced . . . .” In July,
Randall—through counsel—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
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
21 years of age and older of not more than 28.5 grams of cannabis is not a
felony. Randall 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 Randall’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. Randall filed a reply
brief, encouraging the trial court to follow People v. Fenton (1993)
20 Cal.App.4th 965 (Fenton) and People v. Harris (2006) 145 Cal.App.4th
1456 (Harris), on which Raybon relied. (See Raybon, supra, 36 Cal.App.5th
at pp. 117-119, review granted.) After hearing oral argument, the trial court
denied Randall’s petition, concluding it would “adopt the rationale and the
holding of” Perry, which it found to be “dispositive.” On appeal, Randall
contends that the passage of Proposition 64 entitles him to relief from his
Penal Code section 4573.6 conviction. He urges this court to adopt the
reasoning of Raybon, which he contends is “more persuasive” than Perry. He
also contends the trial court failed to consider his ability to pay various fines
and fees when it imposed sentence in connection with his no-contest plea in
2013, in violation of Dueñas.
DISCUSSION
I.
Proposition 64
The principal 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
4
cannabis in prison. We therefore conclude the trial court correctly denied
Randall’s petition to recall or dismiss his sentence pursuant to
section 11361.8.
A. Governing Legal Principles
Randall 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
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
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).)
5
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, review granted Oct. 14, 2020, S264339 (Herrera)5 [“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 On October 14, 2020, our Supreme Court granted review in Herrera
“pending consideration and disposition of related issues in People v. Raybon,
S256978.” (Herrera, supra, 52 Cal.App.5th 982, review granted.)
6
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
7
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.”
(Perry, at p. 893.)6 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 substance, 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.)
6 “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).)
8
“Cannabis remains a controlled substance under division 10.[7] 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, Fenton and 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.” (Id. at
pp. 117-119.)8 With regard to the scope of the carve out in section 11362.45,
subdivision (d), the court rejected the notion that the “drafters of
7 Section 11054, subdivision (d)(13).
8 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.)
9
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.)9 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 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.) The court noted it “need not,
and d[id] not, weigh in on the issues unique to the impact of Proposition 64
9 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.)
10
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,
review granted.) 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. (Health & Saf. Code, § 11362.45(d).) Because Penal Code
section 4573.6, subdivision (a) is a “ ‘[l]aw[] pertaining to smoking or
11
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
Randall’s arguments are largely based on the contention that this court
should follow Raybon, rather than Perry. He claims that, under the plain
meaning of Proposition 64 and the statutes affected thereby, he is eligible for
relief from his conviction because possession of less than one ounce of
cannabis in prison is no longer illegal. Randall further contends that strictly
interpreting Health and Safety Code section 11362.45, subdivision (d) to
exclude “simple possession” does not lead to absurd results or make Penal
Code section 4573.6 a nullity. We reject Randall’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
12
prison, in violation of Penal Code section 4573.6, remains a felony after the
passage of Proposition 64.
Randall 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.)
Randall 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 intended to be decriminalized. Randall’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, review granted.) Based on the breadth of the carve
out provision, it defies logic to conclude Proposition 64 was intended to leave
13
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.)
Randall additionally contends that strictly interpreting Health and
Safety Code section 11362.45, subdivision (d) to exclude “simple possession”
“does not lead to absurd results or make [Penal Code] section 4573.6 a
nullity.” He argues that, following passage of Proposition 64, unauthorized
possession of cannabis (or any other controlled substance) can be controlled
administratively.10 He contends decriminalizing the possession of small
amounts of cannabis in prison is consistent with Proposition 64’s intention to
alleviate the burdens placed on courts by high volumes of minor cannabis-
related offenses. We reject Randall’s contentions. We have already
concluded that the possession of cannabis in prison, in violation of Penal
Code section 4573.6, remains a felony after the passage of Proposition 64.
(See Perry, supra, 32 Cal.App.5th at p. 890 [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.”].) We arrived at
this conclusion by analyzing the language of the statutes enacted pursuant to
the passage of Proposition 64—specifically, the carve out in Health and
Safety Code section 11362.45, subdivision (d), for “[l]aws pertaining to
smoking or ingesting cannabis” in prison. Randall’s contentions are policy-
10 The court in Raybon made a similar point: “Bringing less than an
ounce of cannabis into a prison and giving it away in prison are serious rule
violations that result in significant consequences for both inmates and
visitors.” (Raybon, supra, 36 Cal.App.5th at p. 124, review granted, citing
Cal. Dept. of Corrections & Rehabilitation, Operations Manual (2019) ch. 5,
§ 52080.5; Cal. Code Regs., tit. 15, §§ 3176, 3315, 3323, & 3335.)
14
driven arguments that are irrelevant to our analysis and interpretation of
Proposition 64, and, as such, we find them unpersuasive and unavailing.
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
Randall’s petition for relief from his prior conviction pursuant to Health and
Safety Code section 11361.8, subdivision (a).
II.
Dueñas
Randall contends the trial court failed to consider his ability to pay
various fines and fees when it imposed sentence in connection with his
no-contest plea in 2013, in violation of Dueñas. Dueñas relied on due process
principles to require an ability to pay hearing before a trial court may impose
certain fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) It further
held that “although Penal Code section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the fee
over the statutory minimum, the execution of any restitution fine imposed
under this statute must be stayed unless and until the trial court holds an
ability to pay hearing and concludes that the defendant has the present
ability to pay the restitution fine.” (Ibid.)11
The Attorney General contends Randall’s claim amounts to an
impermissible attack on his prior judgment, which is now final, and his claim
11 Some courts have disagreed with Dueñas’s reliance on due process
principles. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review
granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94,
96, review granted Nov. 13, 2019, S257844.) We need not address these
areas of disagreement to resolve this appeal because we agree with the
Attorney General that Randall’s claim is not cognizable on this appeal.
15
is outside the scope of resentencing contemplated by Proposition 64. (See
§ 11361.8, subd. (k) [“Nothing in this and related sections is intended to
diminish or abrogate the finality of judgments in any case not falling within
the purview of the Control, Regulate and Tax Adult Use of Marijuana Act.”].)
Randall does not dispute this contention in his reply brief. We agree with the
Attorney General that Randall’s current claim of Dueñas error constitutes an
impermissible collateral attack on his final judgment of conviction and
sentence. (People v. Barlow (1980) 103 Cal.App.3d 351, 360-364.) Because
Randall’s Dueñas claim is not cognizable on this appeal from an order
denying Randall’s section 11361.8 petition, we decline to entertain it.
DISPOSITION
The order is affirmed.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
16