Filed 4/1/21 P. v. Brown CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303072
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070234)
v.
JERRY EMANNUEL BROWN II,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Christopher G. Estes, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Blythe J. Leszkay and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jerry Emannuel Brown, II
(defendant) appeals from the denial of his Proposition 64 petition
for resentencing or dismissal under Health and Safety Code
section 11361.8, subdivision (b).1 Defendant contends that the
trial court erred in rejecting his argument that when Proposition
64 legalized simple possession of cannabis by people 21 years of
age or older, it was meant to extend to those incarcerated in state
prisons. We agree with respondent that defendant does not
qualify for relief under section 11361.8, and thus we affirm the
trial court’s order.
BACKGROUND
In 2017, defendant was charged with one count of
possession of a controlled substance in a custodial facility, in
violation of Penal Code section 4573.6, subdivision (a). In 2018,
defendant agreed to plead no contest to the charge in exchange
for a sentence of four years, to run consecutively to the prison
term he was currently serving, without admitting the two prior
serious felonies alleged in the information. Defendant entered
his plea and stipulated that the incident report and the probation
officer’s report provided the factual basis for his plea. The
probation report and incident report provide that on
December 24, 2016, while defendant was incarcerated and with a
visitor, correctional officers monitoring the visiting room
observed defendant holding a blue bindle in his hand. The bindle
was recovered and determined to contain 1.5 grams of marijuana.
Defendant was then x-rayed, and another bindle was observed in
his stomach, which was later determined to contain 1.5 grams of
marijuana.
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1 All further statutory references are to the Health and
Safety Code, unless otherwise indicated.
2
On February 5, 2018, the court sentenced defendant to a
consecutive term of four years in prison and ordered him to pay
fines and fees.
In September 2019, defendant filed a Proposition 64
petition for resentencing or dismissal under section 11361.8,
subdivision (b). On December 3, 2019, following a hearing at
which defendant was present with counsel, the trial court denied
defendant’s petition.
Defendant filed a timely notice of appeal from the trial
court’s order. Finding no error, we affirm the order.
DISCUSSION
Defendant contends that the order must be reversed
because the prosecution did not prove by clear and convincing
evidence that defendant failed to satisfy the criteria set forth in
section 11361.8.
Section 11361.8 was enacted by Proposition 64, the Control,
Regulate and Tax Adult Use of Marijuana Act (the Act), effective
November 9, 2016. With certain limitations, Proposition 64
legalized possession of not more than 28.5 grams2 of marijuana3
by persons 21 years of age or older. (See § 11362.1, subd. (a)(1).)
Section 11361.8 established a procedure by which “[a] person
currently serving a sentence for a conviction, whether by trial or
by open or negotiated plea, who would not have been guilty of an
offense, or who would have been guilty of a lesser offense under
__________________________________________________________
2 28.5 grams of marijuana is about one ounce. (People v.
Kelly (2010) 47 Cal.4th 1008, 1023.)
3 The Act was later amended to change “marijuana” to
“cannabis” throughout Health and Safety Code. (See Stats. 2017,
ch. 27, § 133.)
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[the Act] had that act been in effect at the time of the offense[,]
[to] petition for a recall or dismissal of sentence. . . .”
Defendant was convicted upon a plea of no contest to a
violation of Penal Code section 4573.6, subdivision (a), 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 . . . without
being authorized to so possess the same by the rules of the
Department of Corrections, rules of the prison . . . or by the
specific authorization of the warden . . . is guilty of a felony . . . .”
There is a split of authority as to whether Proposition 64
legalized simple possession of cannabis in state prisons, and the
issue is currently pending before the California Supreme Court.
The First, Fourth, and Sixth District Courts of Appeal hold
Proposition 64 did not affect existing prohibitions against the
possession of cannabis in prison. (People v. Perry (2019) 32
Cal.App.5th 885, 890 (Perry), review denied; People v. Whalum
(2020) 50 Cal.App.5th 1, review granted Aug. 12, 2020, S262935;
People v. Herrera (2020) 52 Cal.App.5th 982, review granted
Oct. 14, 2020, S264339.) The Third District reached the opposite
conclusion in People v. Raybon (2019) 36 Cal.App.5th 111
(Raybon), review granted August 21, 2019, S256978. The trial
court considered the decisions in Raybon and Perry, found Perry’s
analysis persuasive, and therefore denied the petition.
Defendant argues that Raybon had the better analysis, and
invites this court to follow its reasoning to hold that Proposition
64 decriminalizes the possession of less than 28.5 grams of
cannabis in prison by persons 21 years of age or older. We
disagree with Raybon’s analysis, and like the trial court, find the
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analysis in Perry, supra, 32 Cal.App.5th 885, to be more
persuasive. We thus adopt its reasoning; however, we need not
undertake a summary of Perry’s analysis or explain the legal
principles involved in determining whether the changes made by
Proposition 64 should be applied to defendant, as we agree with
respondent that Proposition 64 does not apply to defendant, and
thus section 11361.8 does not afford defendant relief.
Respondent points out that defendant was sentenced after
Proposition 64 became effective, and argues that section 11361.8
does not apply here, as it sets forth the procedure for retroactive
application of Proposition 64, which clearly limits those who may
petition for a recall or dismissal to persons “who would not have
been guilty of an offense . . . had [the Act] been in effect at the
time of the offense . . . .” (§ 11361.8, subd. (a).)
Respondent compares Proposition 64 to Proposition 47,
which enacted a similar procedure, which allowed a person
“whether by trial or plea, of a felony or felonies who would have
been guilty of a misdemeanor . . . had [Proposition 47] been in
effect at the time of the offense [to] petition for a recall of
sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code . . . , as those sections have been amended or
added by this act.” (Pen. Code, § 1170.18, subd. (a).) Where a
defendant has not been sentenced prior to the effective date of
Proposition 47, the resentencing provisions of Penal Code
section 1170.18 do not apply, as such a defendant is entitled to
initial sentencing under the statutes amended by the proposition.
(See People v. Lara (2019) 6 Cal.5th 1128, 1135.) By analogy to
Proposition 47, respondent contends that the petitioning
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procedures of Proposition 64 similarly do not apply to defendant,
who had not been charged or sentenced prior to the proposition’s
effective date.
We agree. Not only had defendant not been charged or
sentenced prior to the effective date of Proposition 64, he had not
yet committed the offense. He was thus entitled to raise the
issue in the initial proceedings against him. (See People v. Lara,
supra, 6 Cal.5th at p. 1135.) It follows that any time prior to
entering his no contest plea defendant could have raised the
contention that possession of less than an ounce of cannabis in
prison was no longer a crime.
“[W]hen the Legislature repeals a criminal statute -- or
otherwise removes state sanctions from conduct formerly deemed
criminal -- its action requires the dismissal of pending criminal
proceedings charging such conduct . . . [as] the repeal of a
criminal statute without a saving clause terminates all criminal
prosecutions not reduced to final judgment.” (People v. Collins
(1978) 21 Cal.3d 208, 212, citing Spears v. County of Modoc
(1894) 101 Cal. 303, 305.) When a judgment is entered in
violation of this rule, it will be reversed on appeal, and if the
judgment was obtained by a plea bargain, the remedy on remand
must “restore[] to the state the benefits for which it bargained
without depriving defendant of the bargain to which he remains
entitled.” (People v. Collins, supra, at pp. 212, 216.) The instant
appeal was not taken from the 2018 judgment, but from the
denial of defendant’s petition. Under such circumstances,
defendant’s remedy, if any, is by way of habeas corpus. (See
People v. Jerome (1984) 160 Cal.App.3d 1087, 1095-1096.) Thus,
the trial court’s denial of defendant’s Proposition 64 petition was
not error.
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DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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