Filed 6/29/21 P. v. Caliz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B304315
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA071133)
v.
KENYA MELISSA CALIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
Laini Millar Melnick, 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, Supervising
Deputy Attorney General, Peggy Z. Huang, Deputy Attorney
General, for Plaintiff and Respondent.
In 2017, defendant and appellant Kenya Melissa Caliz
(defendant) entered a state prison and attempted to transfer
contraband—marijuana—to an inmate in the prison’s visiting
area. In a subsequent search of her person, prison authorities
found several small packages of marijuana. The People charged
defendant with violating Penal Code section 4573.6, subdivision
(a), which makes it a crime to possess a controlled substance
(listed in a specified division of the Health and Safety Code,
including marijuana) in a prison. Defendant pled no contest to
the charge, and the trial court sentenced her to three-years’
probation with a condition that she perform 30 days of
community service.
Later, in 2019, defendant petitioned for “dismissal and
sealing or reduction and resentencing” of her conviction, under
Health and Safety Code section 11361.8, a statute enacted as
part of Proposition 64, the Control, Regulate and Tax Adult Use
of Marijuana Act (Proposition 64).1 The People opposed
defendant’s petition, asserting Proposition 64 did not authorize
retroactive relief for those, like defendant, who were convicted of
possessing marijuana in a prison. (Health & Saf. Code,
§ 11362.45, subd. (d) [Health and Safety Code section 11362.1,
which generally legalizes adult possession 28.5 grams or less of
cannabis under California law, “does not amend, repeal, affect,
restrict, or preempt [¶] . . . [¶] [l]aws pertaining to smoking or
1
Section 11361.8 allows a person “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 [Proposition 64] had that act been
in effect at the time of the offense . . . [to] petition for a recall or
dismissal of sentence . . . .”
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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 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”].) The trial court recognized there was a split of authority
in the Courts of Appeal as to whether Proposition 64
decriminalized or otherwise affected criminal prohibitions on
cannabis possession in prisons, and the trial court sided with
authority holding laws criminalizing prison cannabis possession
were unaffected. (See, e.g., People v. Perry (2019) 32 Cal.App.5th
885, 894 (Perry); but see People v. Raybon (2019) 36 Cal.App.5th
111, 121 [“[The Legislature] limits the criminalized controlled
substances to those prohibited by division 10. Possession of less
than one ounce of cannabis is no longer prohibited by division 10,
and therefore, . . . it is no longer a felony to possess less than one
ounce in prison”], review granted Aug. 21, 2019, S256978.)
Our Supreme Court will soon definitively resolve the
question we are asked to decide: whether Proposition 64’s general
decriminalization of marijuana possession means that a person
like defendant can no longer be punished for possessing small
amounts of marijuana in a state prison. As we await guidance
from our Supreme Court, we resolve this appeal by siding with
Court of Appeal authority holding Proposition 64 does not provide
retroactive relief for the type of marijuana possession offense at
issue here.2 (People v. Herrera (2020) 52 Cal.App.5th 982, 995
2
There is a substantial question as to whether defendant is
entitled to seek relief under Health and Safety Code section
11361.8 at all because she committed her offense after
Proposition 64 took effect. Because it does not affect our
3
[“[W]e conclude that possession of a controlled substance in jail
under Penal Code section 4573.6(a) is a ‘[l]aw[ ] pertaining to
smoking or ingesting’ cannabis in prison or jail (Health & Saf.
Code, § 11362.45(d)). Defendant was therefore properly convicted
of violating Penal Code section 4573.6(a) for possession of
cannabis in jail”], review granted Oct. 14, 2020, S264339; see also
People v. Taylor (2021) 60 Cal.App.5th 115, 122 [“In this case, we
determine that cannabis is a controlled substance ‘the possession
of which is prohibited by Division 10 (commencing with [s]ection
11000) of the Health and Safety Code.’ (Pen. Code, § 4573.6,
subd. (a).) We also confirm that the phrase ‘[l]aws pertaining to
smoking or ingesting cannabis or cannabis products’ in
subdivision (d) of section 11362.45 (section 11362.45(d))
encompasses laws that govern possession of cannabis. Therefore,
under the dictates of section 11362.45(d), although section
11362.1(a) partially decriminalizes possession of cannabis, it does
not ‘amend, repeal, affect, restrict, or preempt’ 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 . . .’”]; Perry, supra, 32
Cal.App.5th at 894 [concluding that Division 10 of the Health and
Safety Code does not prohibit possession of small amounts of
cannabis for purposes of Penal Code section 4573.6 would render
meaningless the proviso in Health and Safety Code section
11362.45, subdivision (d), which states Proposition 64’s
legalization of cannabis did not amend, repeal, affect, restrict, or
disposition of the appeal, we assume for argument’s sake that we
would not be unable to grant defendant relief if it were warranted
on the merits.
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preempt laws pertaining to smoking or ingesting cannabis in
penal institutions].)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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