Filed 10/21/20 P. v. Donaldson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D076957
Plaintiff and Respondent,
v. (Super. Ct. No. JCF000898)
CHRISTOPHER DONALDSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene L. Sevidal, Randall D. Einhorn and Susan Elizabeth Miller,
Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2017, while he was in prison, defendant was found in
possession of 23.10 grams of marijuana. He pleaded no contest to possession
of marijuana in prison, a felony, in violation of Penal Code section 4573.6. He
was sentenced to four years in prison, to be served consecutive to the
sentence he was then serving on an earlier charge.
In August of 2019, defendant petitioned to recall his sentence and
dismiss the case pursuant to Proposition 64 and Health and Safety Code
section 11361.8.1 The People opposed the petition.
On November 6, 2019, and December 4, 2019, the court held hearings
on the matter and denied the relief requested. It issued a written denial.
Defendant filed a timely notice of appeal from the denial of his petition.
Defendant’s sole issue on appeal is whether the trial court was required
to grant his petition for resentencing. We conclude the petition was properly
denied.
ANALYSIS
In 2016, California voters decriminalized the possession of less than
28.5 grams (approximately one ounce) of marijuana, or cannabis.2
(Proposition 64; § 11362.1, subd. (a); also see People v. Perry (2019) 32
Cal.App.5th 885, 888 (Perry).) In August 2019 defendant petitioned to recall
his sentence and dismiss his section 4573.6 conviction on the ground his
offense was no longer a felony pursuant to section 11361.8, subdivision (a).
Appellate courts have split on the question of Proposition 64’s effect on
criminal laws prohibiting the possession of cannabis in a correctional
institution. The issue is currently pending before our Supreme Court in
People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019,
1 Further statutory references are to the Health and Safety Code unless
otherwise specified.
2 In 2017, the legislature replaced references to “marijuana” in the
Health and Safety Code with the term “cannabis.” We use the term
“cannabis.”
2
S256978 (Raybon), People v. Whalum (2020) 50 Cal.App.5th 1, review
granted, August 12, 2020, S262935 (Whalum), and People v. Hererra (2020)
52 Cal.App.5th 982, 991–992, review granted Oct. 14, 2020, S264339
(Hererra). The Third District in Raybon concluded that possession of less
than 28.5 grams of cannabis in prison is no longer unlawful, due to
Proposition 64. The First District, Sixth District, and our district have all
reached the opposite conclusion. (Perry, supra, 32 Cal.App.5th at pp. 891–
893 [First District]; Hererra, at pp. 991–992 [Sixth District]; Whalum, at
pp. 12–13 [Fourth District].)
In Perry, the First District concluded Proposition 64 did not change any
existing prohibitions against the possession of cannabis in prison or
otherwise affect the operation of Penal Code section 4573.6. The court there
explained Proposition 64 was expressly subject to the exception carved out by
section 11362.45, subdivision (d), for laws pertaining to smoking or ingesting
cannabis or cannabis products, which remain prohibited. (Perry, supra, 32
Cal.App.5th at pp. 891–893.)
In Raybon, the Third District reach a result opposite Perry, concluding
the plain language of section 11362.1, enacted as part of Proposition 64,
compelled a finding that less than an ounce of cannabis in prison is no longer
a felony. (Raybon, supra, 36 Cal.App.5th at p. 113, review granted.) Our
Supreme Court is reviewing the decision in Raybon. As Raybon awaits a
decision, case law tilts heavily in favor of Perry including authority from this
court.
In Whalum, this court addressed whether an inmate convicted of
possessing cannabis in prison under Penal Code section 4573.8, which
prohibits possession of drugs in prison in any manner. We concluded that a
conviction under Penal Code section 4573.8 remained a felony after
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Proposition 64 and the inmate was therefore not entitled to relief. (Whalum,
supra, 50 Cal.App.5th at p. 3, review granted). Although the court noted it
need not weigh in on the issues unique to the impact of Proposition 64 on
Penal Code section 4573.6, 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
also concluded that even though Penal Code section 4573.8 criminalizes
possession rather than use of drugs in a correctional institution, it
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. p. 12.)
More recently the Sixth District Court of Appeal has addressed the
question of whether Penal Code section 4573.6 remains a felony following
approval of Proposition 64. (Herrera, supra, 52 Cal.App.5th at p. 991, review
granted.) It concluded Proposition 64 did not decriminalize the possession of
cannabis in a penal institution. (Id at p. 995.) That court reasoned that
section 11362.45 as enacted by Proposition 64 contains an exception to the
general provision authorizing adult possession of cannabis, 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.
(§ 11362.45, subd. (d).) Because Penal Code section 4573.6 subdivision (a) is
a law pertaining to smoking or ingesting cannabis in jail within the meaning
of section 11362.45 subdivision (d), Herrera held, “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.)
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We agree with the reasoning offered by the latter cases, including
Whalum, from our court.
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
defendant relief from his prior conviction pursuant to Penal Code section
4573.6, possession of cannabis in prison.
DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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