People v. Lynch CA4/1

Filed 11/18/20 P. v. Lynch CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076181

Plaintiff and Respondent,

v. (Super. Ct. No. JCF38345)

ARNOLD LYNCH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County,
Marco D. Nunez, 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, Charles C.
Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2018, Arnold Lynch was convicted of violating Penal Code
section 4573.6, which prohibits possession of controlled substances (in his
case, marijuana) in prison. Lynch 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,
Lynch petitioned the trial court for recall or dismissal of his 2018 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 Lynch’s petition. On appeal, Lynch challenges the
trial court’s denial of his petition and asserts an additional contention
regarding the trial court’s failure to consider his ability to pay various fines
and fees when it imposed sentence in connection with his no contest plea in
2018, in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
We conclude the trial court properly denied Lynch’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 January 2015, correctional officers noticed a strong odor of
marijuana as they passed by Lynch’s cell at Calipatria State Prison. Officers
directed Lynch to step out of the cell, but rather than promptly complying,
officers witnessed Lynch attempt to conceal contraband in his rectum. In a
subsequent search, officers found a plastic-wrapped bindle in Lynch’s rectum.
Lynch admitted to the officers the bindle contained marijuana. Subsequent
tests confirmed the bindle contained 8.35 grams of marijuana.

1 Unless otherwise indicated, statutory references are to the Health and
Safety Code.

2
 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 September 2017, an indictment charged Lynch with one felony count
of possessing contraband in prison in violation of Penal Code section 4573.6.
The indictment also alleged one serious or violent felony prior (id.,
§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and further alleged that Lynch
committed the offense while confined in state prison (id., § 1170.1, subd. (c)).
In April 2018, Lynch pled no contest to one count of violating Penal
Code section 4573.6 with the following agreement: “Probation denied; impose
LT [lower term] of [two] years state prison consecutive to Los Angeles County
Case No. TA067451; balance of indictment is dismissed [and] prior strike
allegation is stricken[.]” The trial court sentenced Lynch to state prison for
the lower term of two years to run consecutive to his current sentence. The
trial court also imposed a restitution fine of $300 (Pen. Code, § 1202.4,
subd. (b)), a criminal conviction assessment of $30 (Gov. Code, § 70373), a
court security fee of $40 (Pen. Code, § 1465.8), and imposed and stayed a
parole revocation restitution fine of $300 (id., § 1202.45). At sentencing,
Lynch’s counsel requested that the court consider his ability to pay the
restitution fine, considering he was already paying a $10,000 obligation in
“the controlling . . . case,” and that “any additional state[-]imposed fines will

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
impact his ability to pay off restitution to actual victims.”3 The trial court
remarked, “as I understand it, those fines are absolutely mandatory, and I
don’t have an option to not order them. So, sorry.”
In June 2019, Lynch—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 (a), 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. Lynch 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.4 The district attorney opposed Lynch’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. The
district attorney did not contend that Lynch had forfeited relief under
Proposition 64 by failing to raise the issue at the time of his conviction and
sentencing for the offense.
After hearing argument, the trial court denied Lynch’s petition,
concluding Lynch was not entitled to relief under section 11361.8.

3 In 2005, in Los Angeles Superior Court Case No. TA067451, Lynch was
convicted of first degree murder while armed with a firearm (Pen. Code,
§§ 187, subd. (a), 12022, subd. (a)(1), count 1), conspiracy to commit robbery
(id., § 182, subd. (a)(1), count 2), second degree robbery (id., § 211, count 3),
and second degree burglary (id., § 459, count 4). The trial court sentenced
Lynch to a total term of 26 years to life in prison and imposed a $10,000
restitution fine (id., § 1202.4, subd. (b)) and various additional fines and fees.

4 The Raybon opinion had been filed just days before Lynch filed his
petition.

4
 On appeal, Lynch 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 challenges the trial court’s failure to
consider his ability to pay various fines and fees when it imposed sentence in
connection with his no contest plea in 2018, 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
cannabis in prison. We therefore conclude the trial court correctly denied
Lynch’s petition to recall or dismiss his sentence pursuant to section 11361.8.
A. Governing Legal Principles
Lynch 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

5
felony punishable by imprisonment pursuant to subdivision (h) of

Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6, subd. (a).)5
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
more than 28.5 grams of cannabis not in the form of concentrated cannabis.”

(§ 11362.1, subd. (a).)6
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,

5 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).)

6 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.)

6
991, review granted Oct. 14, 2020, S264339 (Herrera)7 [“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).)
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

7 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.)
7
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
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.)8 The court rejected this argument because it would render

8 “As amended by Proposition 64, section 11357 no longer defines
8
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.)

“Cannabis remains a controlled substance under division 10.[9] 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)

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).)

9 Section 11054, subdivision (d)(13).

9
20 Cal.App.4th 965 and People v. Harris (2006) 145 Cal.App.4th 1456, 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.)10 With regard to the scope 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.)11 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

10 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.)

11 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
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
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.)

11
 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, 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
The Attorney General contends that Lynch is not eligible for relief
under Health and Safety Code section 11361.8 because it applies only to
persons who were serving a sentence affected by Proposition 64 at the time of

its enactment—which Lynch was not.12 This contention is not supported by
the language of Health and Safety Code section 11361.8, which provides, “A
person currently serving a sentence for a conviction, whether by trial or by

12 The People did not raise this claim in the trial court.

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open or negotiated plea, who would not have been guilty of an offense, or who
would have been guilty of a lesser offense under the Control, Regulate and
Tax Adult Use of Marijuana Act had that act been in effect at the time of the
offense may petition for a recall or dismissal of sentence before the trial court
that entered the judgment of conviction in his or her case to request
resentencing or dismissal . . . .” (Health & Saf. Code, § 11361.8, subd. (a),
italics added.) Lynch was indeed convicted and sentenced for violating Penal
Code section 4573.6 after the enactment of Proposition 64, but the offense
occurred in January 2015, prior to the passage of Proposition 64. Lynch
meets the criteria set forth in the statute: he is “currently serving a sentence
for a conviction” and claims that he would not have been guilty of the Penal
Code section 4573.6 offense had Proposition 64 “been in effect at the time of
the offense.” (Health & Saf. Code, § 11361.8, subd. (a).) Therefore, he
properly pursued relief by petitioning for recall or dismissal of his sentence
under the statute.
The Attorney General also contends that Lynch’s certificate of probable
cause contains a material misstatement of fact—that Lynch was sentenced
prior to the enactment of Proposition 64—and was therefore wrongly
obtained. Lynch’s request for a certificate of probable cause, which was
prepared by counsel, stated that Lynch entered his plea and was sentenced
on April 12, 2018, and additionally stated, “[a]fter sentencing, Proposition 64
was enacted by ballot initiative.” This is not accurate, as Proposition 64 was
enacted by ballot initiative on November 8, 2016 (Perry, supra,
32 Cal.App.5th at p. 888), after Lynch committed his offense but before he
was convicted and sentenced. The misstatement appears to have been
accidental, and we decline to find it to be “material.” In any event, Lynch’s
appeal is properly before this court. (See Teal v. Superior Court (2014)

13
60 Cal.4th 595, 601 [denial of defendant’s claim of eligibility for resentencing
under the Three Strikes Reform Act was appealable as an order after
judgment affecting the defendant’s substantial rights].) We therefore
consider the merits of Lynch’s claims.
Lynch’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. Lynch 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 Lynch’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
prison, in violation of Penal Code section 4573.6, remains a felony after the
passage of Proposition 64.

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 Lynch 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.)
Lynch 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. Lynch’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
intact prohibitions against smoking and ingesting cannabis in prison, while
allowing inmates to possess cannabis. Indeed, “[i]n the context of possession

15
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.)
Lynch 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.13 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 Lynch’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. Lynch’s contentions are policy-

13 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.)

16
related 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
Lynch’s petition for relief from his prior conviction pursuant to Health and
Safety Code section 11361.8, subdivision (a).
II.
Dueñas
Lynch 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 2018, 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.)14
The Attorney General contends Lynch’s claim amounts to an
impermissible attack on his prior judgment, which is now final, and his claim

14 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 Lynch’s claim is not cognizable on this appeal.

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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.”].)
Lynch does not dispute this contention in his reply brief. We agree with the
Attorney General that Lynch’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
Lynch’s Dueñas claim is not cognizable on this appeal from an order denying
Lynch’s section 11361.8 petition, we decline to entertain it.
DISPOSITION
The order denying defendant’s petition under Health and Safety Code
section 11361.8 is affirmed.

GUERRERO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

DATO, J.

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