Filed 3/26/21 P. v. Jones CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077396
Plaintiff and Respondent,
v. (Super. Ct. No. SCS147831)
EDWARD JONES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael T. Smyth, Judge. Affirmed.
Nancy J. King, 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 James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
This case involves the sole question of whether defendant’s conviction
for possession of cannabis while incarcerated in a state prison, in violation of
Penal Code1 section 4573.8, must be dismissed. We conclude the defendant’s
petition to dismiss the conviction was properly denied.
FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 1999, defendant’s locker in his prison cell at Donovan
State Prison was searched. He opened the locker for correctional officers and
reached into the locker, grabbed a blue “state issued” shirt and fled from the
cell. He was chased and caught. In the pocket of the shirt, officers found a
leafy green substance consistent with cannabis. Testing of the substance
revealed it to be approximately 3.85 grams of cannabis.
On April 7, 2000, defendant entered a plea of no contest to a felony
charge of possession of a controlled substance while in prison, in violation of
section 4573.8. He received a stipulated sentence of 16 months, to be served
consecutive to a term he was then serving in case No. SCD146141. He also
was required to pay a $200 restitution fine, pursuant to section 1202.4,
subdivision (b), with a matching parole revocation fine imposed and stayed
pursuant to section 1202.45.
On the ground that possession of cannabis was no longer a felony,
defendant on February 7, 2020, filed a petition for dismissal of the conviction
and for resentencing pursuant to Proposition 64. The prosecution on
February 14, 2020, filed an opposition arguing Proposition 64 did not include
section 4573.8 violations. The trial court denied the petition.
Defendant filed a timely notice of appeal.
We conclude the trial court properly denied the petition.
1 Further statutory references are to the Penal Code unless otherwise
specified.
2
ANALYSIS
In 2016, California voters decriminalized the possession of less than
28.5 grams (approximately one ounce) of marijuana, or cannabis.2
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,
S256978 (Raybon) and People v. Whalum (2020) 50 Cal.App.5th 1, review
granted, August 12, 2020, S262935 (Whalum). 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); People v. Hererra (2020) 52
Cal.App.5th 982, review granted, October 14, 2020, S264339 (Hererra) (Sixth
District); Whalum, at pp. 12–13, review granted (Fourth District).)
In Whalum, this court addressed whether an inmate convicted of
possessing cannabis in prison under section 4573.8, which prohibits
possession of drugs in any manner while in prison, remained a felony. We
concluded that a conviction under section 4573.8 for possession of cannabis
remained a felony after Proposition 64 and the inmate was therefore not
entitled to relief. (Whalum, supra, 50 Cal.App.5th at p. 3.) Although the
court noted it need not weigh in on the issues unique to the impact of
Proposition 64 on section 4573.6, the court agreed with Perry that
“Proposition 64 did not affect laws specifically directed at criminalizing the
2 In 2017, the legislature replaced references to “marijuana” in the
Health and Safety Code with the term “cannabis.” We use the term
“cannabis.” (Proposition 64; see Health & Saf. Code, § 11362.1, subd. (a); also
see People v. Perry (2019) 32 Cal.App.5th 885, 888 (Perry).)
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possession of cannabis as contraband in a correctional institution.” (Whalum,
p. 5.) Whalum also concluded that even though “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.)
More recently the Sixth District Court of Appeal has addressed the
question of whether 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. (Ibid.) That 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 which expressly
states that section 11362.1 “does not amend, repeal, affect, restrict, or
preempt” “[l]aws pertaining to smoking or ingesting” of cannabis or cannabis
products on the grounds of, or within, any prison or jail. (Herrera, at p. 991,
quoting Health and Saf. Code, § 11362.45, subd. (d).) Because section 4573.6
subdivision (a) is a “law pertaining to smoking or ingesting cannabis in jail
under Health and Safety Code section 11362.45 subdivision (d),” (Herrera, at
p. 991), 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.” (Id. at
p. 990.)
Relatedly, 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 section 4573.6. (Perry, supra, 32
Cal.App.5th at p. 890.) The court there explained Proposition 64 was
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expressly subject to the exception carved out by Health and Safety Code
section 11362.45, subdivision (d) for laws pertaining to smoking or ingesting
cannabis or cannabis products, which remain prohibited. (Perry, at pp. 892–
896.)
The Third District in Raybon reached a result opposite Perry,
concluding 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.) As noted, our Supreme Court has
granted review in Raybon.
As we await the decision in Raybon, case law tilts heavily in favor of
Perry, including authority from this court. (Whalum, supra, 50 Cal.App.5th
at p. 3, review granted.) We agree with the reasoning offered by Whalum,
which is this court’s holding on the issue before us.
In sum, the trial court properly determined that Proposition 64 did not
impact the crime of possessing unauthorized cannabis in prison in violation of
section 4573.8. We therefore affirm the court’s order denying defendant relief
from his prior conviction pursuant to section 4573.8, possession of a
controlled substance in prison.
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DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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