People v. Wilbarn CA6

Filed 1/26/21 P. v. Wilbarn CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047537
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS102036B)

v.

JOEL WILBARN,

Defendant and Appellant.

Proposition 64 was approved by the voters in 2016 and is known as “the Control,
Regulate and Tax Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act’).”
(Voter Information Guide, Gen. Elec. (Nov. 8, 2016)1 text of Prop. 64, § 1, p. 178.)
Health and Safety Code section 11362.1 was added by Proposition 64.2 (Voter
Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) Subject to specified statutory
exceptions, section 11362.1, subdivision (a) (section 11362.1(a)) declares it “lawful
under state and local law . . . for persons 21 years of age or older to” “[p]ossess, process,
transport, purchase, obtain, or give away to persons 21 years of age or older without any

1
The Voter Information Guide cited in this opinion is available at the website of
the California Secretary of State.
( [as of Jan. 26, 2021],
archived at: .)
2
All further statutory references are to the Health and Safety Code unless
otherwise stated.
compensation whatsoever, not more than 28.5 grams of cannabis not in the form of
concentrated cannabis.”
Section 11361.8, which was also added by Proposition 64 (Voter Information
Guide, supra, text of Prop. 64, § 8.7, pp. 207-208), establishes a postjudgment procedure
for filing a petition “for recall or dismissal of sentence . . . to request resentencing or
dismissal” when “[a] person currently serving a sentence for a conviction . . . would not
have been guilty of an offense, or . . . 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.”3 (§ 11361.8, subd. (a) [§ 11361.8(a)].)
Pursuant to section 11361.8, Joel Wilbarn filed a petition seeking to dismiss a
conviction of possession of a controlled substance in prison (Pen. Code, § 4573.6). Penal
Code section 4573.6 makes unauthorized possession of a controlled substance, “the
possession of which is prohibited by Division 10 (commencing with Section 11000) of
the Health and Safety Code,” in prison—among other custodial settings—a felony.4 The
trial court denied the petition.

3
Upon receiving such a petition, the court must “presume the petitioner satisfies
the criteria in [section 11361.8(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).) If there is not an adequate showing that the petitioner does not satisfy that
criteria, the court must “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.” (Ibid.) Section 11361.8 also
permits “[a] person who has completed his or her sentence for a conviction under
[s]ections 11357, 11358, 11359, and 11360 . . . , 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,
[to] file an application . . . to have the conviction dismissed and sealed because the prior
conviction is now legally invalid or redesignated as a misdemeanor or infraction in
accordance with [s]ections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and
11362.4 as those sections have been amended or added by that act.” (§ 11361.8,
subd. (e).)
4
All further references to Division 10 are to Division 10 of the Health and Safety
Code. Division 10 is known as the Uniform Controlled Substances Act. (§ 11000)

2
 The California Courts of Appeal have split on the issue of whether after
Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail
is unlawful under Penal Code section 4573.6. (Compare People v. Perry (2019) 32
Cal.App.5th 885 (Perry), review denied June 12, 2019, S255148, People v. Whalum
(2020) 50 Cal.App.5th 1 (Whalum), review granted Aug. 12, 2020, S262935, and People
v. Herrera (2020) 52 Cal.App.5th 982 (Herrera), review granted Oct. 14, 2020, S264339,
with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review granted
Aug. 21, 2019, S256978.) The California Supreme Court has granted review of several
of these cases so that it may resolve the issue.5
On appeal, Wilbarn argues that Perry was “wrongly decided” and that contrary to
the Perry decision, the plain statutory language of “the relevant statutes” establishes that
possession of marijuana in prison “does not violate” section 11362.45, subdivision (d)
(11362.45(d)). He maintains that the “plain language” of section 11362.45(d), which
states an exception to the declaration of lawfulness in section 11362.1(a), “applies only to
ingesting or smoking marijuana in prison.”
In Raybon, the Third District Court of Appeal held that section 11362.45(d)
plainly did not encompass laws governing possession (Raybon, supra, 36 Cal.App.5th at
p. 122, review granted) and that accordingly, under “the plain language” of
section 11362.1(a), “possession of less than an ounce of cannabis in prison is no longer a
felony.” (Raybon, at p. 113.)
Consistent with our recent decision in People v. Taylor (2021) ___
Cal.App.5th ___ (Taylor), this court again concludes that the phrase “[l]aws pertaining to

5
The California Supreme Court has indicated that Raybon “presents the following
issue: Did Proposition 64 [the ‘Adult Use of Marijuana Act’] decriminalize the
possession of up to 28.5 grams of marijuana by adults 21 years of age or older who are in
state prison as well as those not in prison?” In Whalum, S262935, and in Herrera,
S264339, the Supreme Court ordered briefing deferred pending its decision in Raybon,
S256978.

3
smoking or ingesting cannabis or cannabis products” in section 11362.45(d) encompasses
laws that govern possession of cannabis. Consequently, although section 11362.1(a)
partially decriminalizes possession of cannabis, “[s]ection 11362.1 does not amend,
repeal, affect, restrict, or preempt” (§ 11362.45) laws governing the possession of
cannabis “on the grounds of, or within, any facility or institution under the jurisdiction of
the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or
on the grounds of, or within, any other facility or institution referenced in Section 4573 of
the Penal Code.” (§ 11362.45(d).) Accordingly, Wilbarn was not eligible for relief under
section 11361.8.
We affirm the order denying Wilbarn’s petition pursuant to section 11361.8.
I
Procedural History
A criminal complaint filed on August 31, 2010 alleged in count 1 that on or about
August 28, 2010, Wilbarn committed the crime of possession of a controlled substance in
prison in violation of Penal Code section 4573.6 by willfully, unlawfully, and knowingly
possessing marijuana while in Salinas Valley State Prison. The complaint also alleged
that Wilbarn had a prior conviction—carjacking in violation Penal Code section 215—
within the meaning of Penal Code section 1170.12.
On September 8, 2010, Wilbarn pleaded no contest to the charge of possession of
a controlled substance in prison.6 Wilbarn admitted the Three Strikes allegation that he
had a prior conviction within the meaning of Penal Code section 1170.12. The trial court
sentenced Wilbarn to a four-year term—a two-year term that was doubled pursuant to
Penal Code section 1170.12, subdivision (c)(1)—and ordered the term to be served
consecutive to the sentence that Wilbarn was then serving.

6
Nothing in the record of conviction that is part of the appellate record reflects the
amount of marijuana involved.

4
 On August 29, 2019, Wilbarn filed a petition for resentencing or dismissal
pursuant to section 11361.8. On September 11, 2019, counsel for Wilbarn filed a notice
of motion and motion pursuant to section 11361.8 and supporting points and authorities.
Counsel urged the trial court to follow Raybon because the decision “adhere[d] to the
plain language of the relevant statutes.”
The People opposed the petition, citing Perry, supra, 32 Cal.App.5th 885. Perry
held that Proposition 64 “did not remove possession of marijuana in prison from the
reach of Penal Code section 4573.6, the statute under which appellant [Perry] was
convicted.” (Perry, supra, 32 Cal.App.5th at p. 887.) The People argued in their
opposition papers that the holding in Perry controlled because the Supreme Court had
granted review in Raybon but not in Perry. They did not assert that Wilbarn had
possessed more than 28.5 grams of marijuana in prison.
A hearing on Wilbarn’s petition was held on November 7, 2019. The trial court
denied the petition. A notice of appeal was filed on November 7, 2019.
II
Discussion
A. Statutory Construction
This case presents a question of statutory construction or interpretation. “Statutory
interpretation is a question of law that we review de novo. [Citation.]” (Bruns v. E-
Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) We are asked again to consider
the proper construction of section 11362.45(d).
“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. We do not examine that language in
isolation, but in the context of the statutory framework as a whole in order to determine
its scope and purpose and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a literal

5
interpretation would result in absurd consequences [that] the Legislature did not intend.
If the statutory language permits more than one reasonable interpretation, courts may
consider other aids, such as the statute’s purpose, legislative history, and public policy.’
[Citation.]” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 381.)
“[O]ur interpretation of a ballot initiative is governed by the same rules that apply
in construing a statute enacted by the Legislature. [Citations.]” (People v. Park (2013)
56 Cal.4th 782, 796.) “ ‘Thus, “we turn first to the language of the statute, giving the
words their ordinary meaning.” [Citation.] The statutory language must also be
construed in the context of the statute as a whole and the overall statutory scheme [in
light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer
to other indicia of the voters’ intent, particularly the analyses and arguments contained in
the official ballot pamphlet.” [Citation.]’ (People v. Rizo (2000) 22 Cal.4th 681, 685.)
In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters
who passed the initiative measure.’ (In re Littlefield (1993) 5 Cal.4th 122, 130.)”
(People v. Briceno (2004) 34 Cal.4th 451, 459.)
We turn now to Proposition 64 and the parties’ competing statutory constructions
of section 11362.45(d).
B. Proposition 64
Section 11362.1 was added by Proposition 64. (Voter Information Guide, supra,
text of Prop. 64, § 4.4, p. 180.) Former section 11362.1, as added by Proposition 64,
made it largely lawful under state and local law for persons 21 years of age or older to
“[p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age
or older without any compensation whatsoever” (1) “not more than 28.5 grams of
marijuana not in the form of concentrated cannabis” and (2) “not more than eight grams
of marijuana in the form of concentrated cannabis, including as contained in marijuana

6
products.”7 (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) A 2017
amendment of section 11362.1 replaced the word “marijuana” with the word “cannabis.”8
(Stats. 2017, ch. 27, § 129, eff. June 27, 2017.)
Section 11362.1(a) does not make it universally lawful for a person 21 years of
age or older to possess 28.5 grams or less of cannabis. Section 11362.1(a) begins:
“Subject to [s]ections 11362.2, 11362.3, 11362.4, and 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 . . . .” Importantly, the mere existence of a statutory
exception to section 11362.1’s general declaration of lawfulness does not by itself create
a criminal offense subject to statutorily prescribed punishment.

7
Section 11362.1(a), as added by Proposition 64, made it lawful under state and
local law, subject to exceptions, for “persons 21 years of age or older to: [¶] (1) Possess,
process, transport, purchase, obtain, or give away to persons 21 years of age or older
without any compensation whatsoever, not more than 28.5 grams of cannabis not in the
form of concentrated cannabis; [¶] (2) Possess, process, transport, purchase, obtain, or
give away to persons 21 years of age or older without any compensation whatsoever, not
more than eight grams of cannabis in the form of concentrated cannabis, including as
contained in cannabis products; [¶] (3) Possess, plant, cultivate, harvest, dry, or process
not more than six living marijuana plants and possess the marijuana produced by the
plants; [¶] (4) Smoke or ingest marijuana or marijuana products; and [¶] (5) Possess,
transport, purchase, obtain, use, manufacture, or give away marijuana accessories to
persons 21 years of age or older without any compensation whatsoever.” (Voter
Information Guide, supra, text of Prop. 64, § 4.4, p. 180.)
8
Section 11018 now defines “cannabis” to mean “all parts of the plant Cannabis
sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of
the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of
the plant, its seeds or resin.” The definition “does not include either of the following:
[¶] (a) Industrial hemp, as defined in [s]ection 11018.5. [¶] (b) The weight of any other
ingredient combined with cannabis to prepare topical or oral administrations, food, drink,
or other product.” (§ 11018.) Former section 11018, as amended by Proposition 64,
defined “marijuana.” (Voter Information Guide, supra, text of Prop. 64, § 4.1, p. 180.)
In 2010, when Wilbarn committed the crime of which he was convicted, section 11018
defined “marijuana” as “cannabis” is now defined, but the exceptions to the basic
definition were different. (See Stats. 1972, ch. 1407, § 3, p. 2989.)

7
 “ ‘The statutory phrase “notwithstanding any other provision of law” has been
called a “ ‘term of art’ ” [citation] that declares the legislative intent to override all
contrary law.’ [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969, 983.)
Accordingly, the prefatory phrase “notwithstanding any other provision of law” has a
broad sweep. But it renders inapplicable “only those provisions of law that conflict with
the act’s provisions” (ibid.) and not “every provision of law.” (Ibid.) Moreover, the
“notwithstanding any other provision of law” proviso in section 11362.1 is expressly
limited by the stated exceptions. Accordingly, section 11362.45(d), one of the provisions
to which section 11362.1(a) is subject, necessarily overrides its “notwithstanding any
other provision of law” language.
Section 11362.45 was also added by Proposition 64. (Voter Information Guide,
supra, text of Prop. 64, § 4.8, p. 182.) Section 11362.45(d), as enacted, made clear that
“[n]othing in [s]ection 11362.1 shall be construed or interpreted to amend, repeal, affect,
restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting marijuana
or marijuana products on the grounds of, or within, any facility or institution under the
jurisdiction of the Department of Corrections and Rehabilitation or the Division of
Juvenile Justice, or on the grounds of, or within, any other facility or institution
referenced in [s]ection 4573 of the Penal Code.” (Voter Information Guide, supra, text
of Prop. 64, § 4.8, p. 182, italics added.) In 2017, section 11362.45 was amended to refer
to “cannabis” and “cannabis products” instead of “marijuana” and “marijuana products.”
(Stats. 2017, ch. 27, § 133, eff. June 27, 2017.)
Wilbarn recognizes that section 11362.45(d) is an exception to section 11362.1(a).
Wilbarn frames the issue as whether the crime of which he was convicted, which he
describes as possession of less than 28.5 grams of marijuana, remains unlawful pursuant
to section 11362.45(d). Wilbarn insists that the only issue is the scope of
section 11362.45(d) and that “the plain language of [section 11362.45(d)] must be
interpreted to exclude possession of marijuana.” He maintains that the “plain language”

8
of section 11362.45(d) “leads to the inevitable conclusion that possession of marijuana in
prison is no longer criminal, while smoking or ingesting marijuana in prison remains a
felony.” Wilbarn insists that “Perry was wrongly decided because it re-wrote section
11362.45” by inserting the word “possession” into its subdivision (d).
In support of his “plain meaning” argument, Wilbarn points out that
section 11362.1(a) separately uses the word “possess” and the phrase “smoke or ingest.”
(See ante, fn. 7.) He maintains that this language establishes that “the drafters of
Proposition 64 knew how to differentiate between possession and ingestion and applied
this distinction in [section 11362.45(d)].”
In his reply brief, Wilbarn contends that “the import” of People v. Fenton (1993)
20 Cal.App.4th 965 (Fenton) is that an appellate court “must follow the plain meaning of
a statute when such meaning is clear.” He asserts that “[h]ere, the plain meaning of
[section 11362.45(d)] is clear and this court must follow it.”9
The People argue that “[t]he text of [section 11362.45(d)] is dispositive.”
Focusing on the phrase “[l]aws pertaining to smoking or ingesting cannabis or cannabis
products,” they assert that given the broad definition of the word “pertain,” “it is
reasonable to assume that voters intended to save not only laws focused narrowly on
prohibiting smoking or ingesting cannabis in custodial institutions, but also laws that
relate to, are concerned with, or are adjunct to such activity.” They argue that the
language of section 11362.45(d) is a “savings clause,” which “establish[es] that the voters
did not intend to repeal or otherwise affect contraband laws prohibiting the possession of

9
Recently, in Taylor, supra, ___ Cal.App.5th ___, this court concluded that in
Fenton, supra, 20 Cal.App.4th 965, the Third District incorrectly construed Penal Code
section 4573. (Taylor, at p. ___.) This court determined that under Penal Code section
4573.6, cannabis is a controlled substance, the possession of which is prohibited by
Division 10. (Taylor, at pp. ___-___.)

9
cannabis in prison.”10 The People further assert that Penal Code “[s]ection 4573.6 and
the other contraband statutes are well within the broad language of the savings clause [in
section 11362.45(d)].”
Citing Perry, supra, 32 Cal.App.5th 885, the People suggest that “there is little
purpose for possessing 28.5 grams or less of cannabis in a custodial institution other than
for someone in that institution ultimately to smoke or ingest it.” The People reason that
“if the voters meant to limit [section 11362.45(d)] to laws that are focused narrowly on
smoking or ingesting, one would expect the exception to cover ‘[l]aws prohibiting
smoking or ingesting marijuana’ in the custodial context, rather than laws ‘pertaining to’
the same.” They maintain that “the only way to make the savings clause [of section
11362.45(d)] effectual is to construe it as saving laws predating Proposition 64 that relate
to cannabis use in prison, as section 4573.6 and other contraband statutes do.”
The People ask us to consider related statutes (see Pen. Code, §§ 4573, 4573.5,
4573.6, 4573.8, 4573.9; Welf. & Inst. Code, §§ 871.5, 1001.5) that are aimed at
controlling contraband—including controlled substances or drugs—in prisons or other
custodial settings. They argue that the prohibitions in these statutory provisions
“ ‘pertain to’ smoking or ingesting cannabis in a custodial institution[] because they are
all part of the prophylactic approach of interdicting cannabis, [and] thereby preventing its
use.”
The People point out that “the analyses [of] Proposition 64 [in the Voter
Information Guide] . . . did not mention the contraband statutes or suggest that [the
proposition] would amend or repeal them.” They argue that therefore “[t]he most careful
of voters would have had no reason to believe that Proposition 64 would alter the
comprehensive statutory scheme addressing cannabis and other controlled substances as

10
On appeal, the People do not dispute that the marijuana possessed by Wilbarn in
violation of Penal Code section 4573.6 meets the current definition of “cannabis.” (See
§ 11018; ante, fn. 8.)

10
contraband in custodial institutions.” The People claim that the “ballot materials” for the
proposition “confirm that the voters did not intend to legalize the possession of cannabis
in custodial institutions.” The People suggest that their assessment of voters’ intent is
bolstered by the fact that Penal Code section 4573.6 is not one of the specific statutory
provisions, in accordance with which a person “may petition for a recall or dismissal of
sentence . . . to request resentencing or dismissal” (§ 11361.8(a)).
The People further contend that construing section 11362.45(d) “as preserving
[Penal Code] section 4573.6 and the other contraband statutes” avoids the “unreasonable
and unintended consequences” of a contrary construction making it lawful to possess
28.5 grams or less of cannabis in custodial settings. The People reiterate their claim that
such consequences “were not disclosed to, or intended by, those who voted in favor of
Proposition 64.”
This court remains convinced that the analysis recently articulated in Taylor,
supra, ___ Cal.App.5th ___ is correct. We adopt that reasoning here.
Wilborn’s argument and the analysis of the Third District in Raybon fail to
account for differences in the language used in various subdivisions of section 11362.45,
such as the use of the phrase “[l]aws making it unlawful to” in subdivision (a) and the use
of the phrase “[l]aws prohibiting” in subdivisions (b) and (c).11 We continue to adhere to
the previous conclusion of this court that “[t]he use of the phrase ‘pertaining to’ in
subdivision (d) [of section 11362.45], in contrast to the language used in subdivisions (a)

11
Section 11362.45 provides in part: “Section 11362.1 does not amend, repeal,
affect, restrict, or preempt: [¶] (a) Laws making it unlawful to drive or operate a vehicle,
boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis
products, including, but not limited to, subdivision (e) of Section 23152 of the Vehicle
Code, or the penalties prescribed for violating those laws. [¶] (b) Laws prohibiting the
sale, administering, furnishing, or giving away of cannabis, cannabis products, or
cannabis accessories, or the offering to sell, administer, furnish, or give away cannabis,
cannabis products, or cannabis accessories to a person younger than 21 years of age.
[¶] (c) Laws prohibiting a person younger than 21 years of age from engaging in any of
the actions or conduct otherwise permitted under Section 11362.1.”

11
through (c) [of that section], indicates an intent to carve out laws beyond those that only
make unlawful or only prohibit the smoking or ingesting of cannabis. [Citations.]”
(Herrera, supra, 52 Cal.App.5th at p. 992.)
We agree with the other cases finding that the phrase “pertaining to” in
section 11362.45(d) has a wide scope. (See Herrera, supra, 52 Cal.App.5th at p. 991,
review granted; Whalum, supra, 50 Cal.App.5th at pp. 11-12, review granted; Perry,
supra, 32 Cal.App.5th at p. 891.) The word “pertain” has been broadly defined to mean
“to have some connection with or relation to something: have reference: relate.”
(Merriam-Webster Unabridged Dict. [as of Jan. 26, 2021], archived at:
.) We concur with the Perry court, which stated:
“While section [11362.45(d)] does not expressly refer to ‘possession,’ its application to
possession is implied by its broad wording—‘[l]aws pertaining to smoking or ingesting
cannabis.’ Definitions of the term ‘pertain’ demonstrate its wide reach: It means ‘to
belong as an attribute, feature, or function (
[as of Feb. 28, 2019]), ‘to have reference or relation; relate’
( [as of Feb. 28, 2019]), ‘[b]e appropriate, related,
or applicable to’ ( [as of Feb. 28, 2019] ).
We 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.) As the
Perry court observed, “[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?” (Id. at
p. 892.)
In Perry, the First District Court of Appeal found that “Proposition 64, in
sections 11362.1 and 11362.45, was intended to maintain the status quo with respect to
the legal status of cannabis in prison.” (Perry, supra, 32 Cal.App.5th at p. 893.) It

12
determined that “a conclusion that [D]ivision 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.
(§ 11362.45, subd. (d).)” (Id. at p. 894.) We agree.
Following Proposition 64, smoking or ingesting cannabis remains unlawful in
many locations in California. (See, e.g., §§ 11362.3, subds. (a)(1) [“in a public place,
except in accordance with [s]ection 26200 of the Business and Professions Code”], (a)(2)
[“where smoking tobacco is prohibited”], (a)(3) [with specified exceptions, “within 1,000
feet of a school, day care center, or youth center while children are present”], (a)(5) [“in
or upon the grounds of a school, day care center, or youth center while children are
present”], 11362.4, subds. (a), (b), (c) [penalties for certain conduct described in
section 11362.3, subd. (a)]; see also § 11357, subd. (c).) In addition, the declaration of
lawfulness in section 11362.1 “does not permit any person to: [¶] . . . [¶] . . . [s]moke or
ingest cannabis or cannabis products while driving, operating a motor vehicle, boat,
vessel, aircraft, or other vehicle used for transportation; [or to] [¶] . . . [s]moke or ingest
cannabis or cannabis products while riding in the passenger seat or compartment of a
motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation [with a
specified exception].” (§ 11362.3, subd. (a)(7), (a)(8).) Under legislation passed in 2017,
smoking or ingesting marijuana while driving or riding as a passenger in a motor vehicle
on highways or specified lands is punishable as an infraction. (Veh. Code, §§ 23220,
23221.)
However, nothing in the laws enacted or amended by Proposition 64 makes
smoking or ingesting marijuana or cannabis in prison or other custodial settings subject to
punishment. Further, nothing in Penal Code sections 4573 to 4573.9—or Welfare and
Institutions Code sections 871.5 and 1001.5—which were not amended by

13
Proposition 64, makes it a crime, subject to punishment, to smoke or ingest cannabis or
marijuana in prison or other custodial settings. Significantly, section 11362.45(d) does
not establish a new offense subject to punishment. Rather, section 11362.45 establishes
that “[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt” certain types
of laws.
“ ‘Statutes must be interpreted, if possible, to give each word some operative
effect.’ [Citation.] ‘We do not presume that the Legislature performs idle acts, nor do
we construe statutory provisions so as to render them superfluous.’ [Citation.]”
(Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) Wilbarn’s
proposed construction of section 11362.45(d) would leave the provision without any
operative effect. Therefore, it should be rejected because there is a contrary reasonable
construction that gives that provision effect.
In Whalum, the Fourth District Court of Appeal concluded that the crime of
violating Penal Code section 4573.812 (unauthorized possession of drugs, related
paraphernalia, or alcoholic beverages in prison, jail, and other specified custodial
settings) was “not affected by Proposition 64” and that “the trial court properly
determined that Whalum was not entitled to relief [pursuant to section 11361.8].”

12
Penal Code section 4573.8 states in pertinent part: “Any person who knowingly
has in his or her possession in any state prison, prison road camp, prison forestry camp,
or other prison camp or prison farm or any place where prisoners of the state are located
under the custody of prison officials, officers, or employees, or in any county, city and
county, or city jail, road camp, farm, or any place or institution, where prisoners or
inmates are being held under the custody of any sheriff, chief of police, peace officer,
probation officer, or employees, or within the grounds belonging to any jail, road camp,
farm, place, or institution, drugs in any manner, shape, form, dispenser, or container, any
device, contrivance, instrument, or paraphernalia intended to be used for unlawfully
injecting or consuming drugs, or alcoholic beverages, without being authorized to possess
the same by rules of the Department of Corrections, rules of the prison or jail, institution,
camp, farm, or place, or by the specific authorization of the warden, superintendent,
jailer, or other person in charge of the prison, jail, institution, camp, farm, or place, is
guilty of a felony.”

14
(Whalum, supra, 50 Cal.App.5th at p. 3.) The court reasoned: “[L]ong before
Proposition 64 was adopted, case law recognized that although ‘the ultimate evil with
which the Legislature was concerned was drug use by prisoners,’ the Legislature ‘ “chose
to take a prophylactic approach to the problem by attacking the very presence of drugs
and drug paraphernalia in prisons and jails.” ’ [Citation.] Thus, 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, fn. omitted.) The court found: “[I]t does not
strain the meaning of ‘pertaining to’ for someone to say that a law criminalizing the
possession of cannabis is a law ‘pertaining to’ the smoking or ingestion of cannabis, as
one has a causal relationship to the other. Specifically, it is necessary to possess cannabis
in order to smoke or ingest it, and cannabis is usually possessed in prison because
someone wants to use it.” (Id. at p. 12, fn. 8.)
In Herrera, a direct appeal from a judgment, this court concluded that “[the]
defendant was properly convicted under Penal Code section 4573.6 for possession of
cannabis in jail.” (Herrera, supra, 52 Cal.App.5th at p. 985.) This court determined that
“Proposition 64 did not decriminalize the possession of cannabis in a penal institution”
(ibid.) and that the “defendant was properly convicted under Penal Code section 4573.6
for possession of cannabis in jail” after Proposition 64. (Herrera, supra, 52 Cal.App.5th
at p. 987.) Agreeing with the analysis in Perry, this court observed that “in order for
section 11362.45(d), which carves out “ ‘[l]aws pertaining to smoking or ingesting”
cannabis in prison or jail, to have any meaning in view of the preexisting statutory
scheme, section 11362.45(d) must be construed as having a broader application than to
just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail,
as no such law exists.’ ” (Id. at p. 992.) We continue to adhere to that view.

15
 Nothing in the legislative history undermines our construction of section
11362.45(d). As the Perry court observed: “The Voter Guide did not in any way address
the subject of cannabis possession or use in prison.” (Perry, supra, 32 Cal.App.5th at
p. 895; see Voter Information Guide, supra, analysis of Prop. 64 by the Legislative
Analyst, pp. 9-97; id., argument in favor of Prop. 64 and rebuttal to the argument in favor
of Prop. 64, p. 98; id., argument against Prop. 64 and rebuttal to the argument against
Prop. 64, p. 99.)
Wilbarn was not eligible for relief pursuant to section 11361.8.
DISPOSITION
The order denying the petition brought pursuant to section 11361.8 is affirmed.

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 _________________________________
ELIA, ACTING P.J.

WE CONCUR:

_______________________________
BAMATTRE-MANOUKIAN, J.

_______________________________
DANNER, J.

People v. Wilbarn
H047537