Opinion
F080606
03-15-2022
THE PEOPLE, Plaintiff and Appellant, v. ROBERT LEE DAVIS, Defendant and Respondent.
Lisa A. Smittcamp, District Attorney, Traci Fritzler, Assistant District Attorney, and Kelsey C. Peterson, Deputy District Attorney, for Plaintiff and Appellant. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. CF97599628 Michael G. Idiart, Judge.
Lisa A. Smittcamp, District Attorney, Traci Fritzler, Assistant District Attorney, and Kelsey C. Peterson, Deputy District Attorney, for Plaintiff and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
POOCHIGIAN, ACTING P. J.
INTRODUCTION
Respondent Robert Lee Davis was convicted of unlawful possession of marijuana in state prison. After the enactment of Proposition 64, he filed a petition with the superior court to dismiss his conviction and argued possession of marijuana was no longer a crime based on the initiative's provisions. The court granted his petition and dismissed his conviction.
The People of the State of California, represented by the District Attorney of Fresno County, filed the instant appeal and argued Davis's conduct still constituted a felony and was not within the meaning of Proposition 64.
While this appeal was pending, the California Supreme Court held that an inmate's possession of a small amount of marijuana remained a criminal offense after the enactment of Proposition 64. (People v. Raybon (2021) 11 Cal.5th 1056, 1058-1060.) The parties agree this court is bound by this decision.
We reverse the trial court's order and remand the matter for further appropriate proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On or about February 10, 1997, Davis was an inmate at Pleasant Valley State Prison and found in possession of marijuana.
On or about November 3, 1997, an information was filed that charged Davis with unlawful possession of marijuana in state prison (Pen. Code, § 4573.6), with three prior strike convictions and one prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
Davis was also charged with possession of marijuana paraphernalia in prison (§ 4573.8), and the count was dismissed.
On May 21, 1998, after a jury trial, Davis was convicted of count 1, possession of a controlled substance, marijuana, in state prison without administrative authorization, and the prior conviction allegations were found true.
On June 25, 1998, the court held the sentencing hearing and denied Davis's request to dismiss his prior strike convictions. It imposed the third strike term of 25 years to life, plus one year for the prior prison term enhancement.
On October 1, 1999, this court affirmed the judgment (People v. Davis, Oct. 1, 1999, F031302 [nonpub. opn.]). On December 21, 1999, the California Supreme Court denied Davis's petition for review.
Additional Proceedings
On September 4, 2013, Davis pleaded guilty to felony possession of a weapon by a prisoner (§ 4502, subd. (a)) and was sentenced to a second strike term of four years.
On May 29, 2020, this court deferred ruling on the district attorney's request pending consideration of the matter on the merits, invited Davis to file an informal response, and stated that the failure to file a response may be deemed agreement that the request should be granted. Davis did not file a response. We grant the district attorney's request and take judicial notice of this court's records in case No. F079889. (See Evid. Code, §§ 450, 452, subd. (d), 459; In re W.R. (2018) 22 Cal.App.5th 284, 286-287, fn. 2.) On May 27, 2020, the district attorney requested this court take judicial notice of the record in case No. F079889, which was Davis's then-pending appeal from the denial of his first petition for relief under Proposition 64.
On July 11, 2016, the court denied Davis's petition for recall and resentencing filed pursuant to Proposition 47 and section 1170.126.
On September 18, 2018, the court denied Davis's petition for resentencing filed pursuant to Proposition 36, and found he was an unreasonable risk to society.
PROPOSITION 64
"In 2016, the voters passed Proposition 64, which makes it lawful for persons aged 21 years and older to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams of cannabis (approximately one ounce), subject to certain exceptions. [Citation.] The initiative also includes a remedial provision that allows persons currently serving a sentence for a cannabis-related crime that is no longer an offense under Proposition 64 to file a petition requesting the dismissal of their sentence. [Citation.]" (People v. Raybon, supra, 11 Cal.5th at p. 1060, fn. omitted.)
First Petition to Dismiss (Case No. F079889)
On July 11, 2019, Davis filed, in pro. per., a petition in the superior court to dismiss his conviction for violating section 4573.6 and argued that possession of less than an ounce of marijuana in state prison was no longer a crime after the enactment of Proposition 64.
On August 5, 2019, the district attorney filed a response and argued Davis was not entitled to relief because a violation of section 4573.6 was not included in the offenses affected by the enactment of Proposition 64.
On August 6, 2019, the court denied Davis's petition and held he was convicted of an offense that was not eligible for relief under Proposition 64 and Health and Safety Code section 11364.8. On August 30, 2019, Davis filed a notice of appeal.
Second Petition to Dismiss
On September 4, 2019, Davis, represented by counsel, filed a second petition under Proposition 64 with the superior court. Davis acknowledged his first petition was denied, but argued it was not clear whether the court considered additional authorities of People v. Raybon (2019) 36 Cal.App.5th 111 [rev. granted, August 12, 2019, and reversed by People v. Raybon, supra, 11 Cal.5th 1056] that held Proposition 64 applied to require dismissal of a conviction for possession of marijuana in prison in violation of section 4573.7; and People v. Perry (2019) 32 Cal.App.5th 885 [rev. den., June 12, 2019], which reached the opposite conclusion and held Proposition 64 did not apply if the offense was committed in prison.
On September 4, 2019, the district attorney filed a response and "non-opposition" to Davis's petition, and stated that it would not oppose the reduction, resentencing, and/or dismissal of the case based on "limited investigation" and People v. Raybon, supra, 36 Cal.App.5th 111.
The Court's Order
On December 9, 2019, the superior court granted Davis's second petition, reduced his offense to a misdemeanor violation of section 4573.6, and dismissed the matter. The court noted that Davis continued to serve a prison term at Pelican Bay State Prison.
On January 2, 2020, the district attorney filed a timely notice of appeal of the court's decision to grant relief in Davis's second petition.
On May 20, 2020, after the superior court granted Davis's second petition, the district attorney moved for this court to dismiss Davis's appeal in case No. F079889, and argued the appeal was moot since Davis filed the second petition, received the requested relief, and the district attorney filed a separate notice of appeal in that case (case No. F080606). On June 18, 2020, this court granted the People's motion, found Davis's appeal from the first petition was moot, and dismissed Davis's appeal in case No. F079889. When the superior court granted Davis's second petition, his appeal from the denial of his first petition (case No. F079889) was still pending with this court.
DISCUSSION
At the time the superior court considered Davis's second petition, there were two appellate opinions addressing whether an inmate's possession of a small amount of marijuana in violation of section 4573.6 remained a criminal offense after the enactment of Proposition 64.
In People v. Perry, supra, 32 Cal.App.5th 885, Division 2 of the First District held that Proposition 64 "did not remove possession of marijuana in prison from the reach of … section 4573.6," and affirmed the inmate's conviction. (Perry, at p. 887.)
In People v. Raybon, supra, 36 Cal.App.5th 111, the Third District reached the opposite conclusion, and held that based on the "plain language" of Health and Safety Code section 11362.1, enacted as part of Proposition 64, "possession of less than an ounce of cannabis in prison is no longer a felony," and concluded that the inmates' petitions to reverse their convictions for violating section 4573.6 must be granted. (Raybon, at pp. 113, 126.)
In the initial briefing on appeal, the district attorney argued that the Third District's opinion in People v. Raybon, supra, 36 Cal.App.5th 111 was erroneously decided, and Perry correctly held that Proposition 64 did not invalidate a conviction for violating section 4573.6. Davis replied that the district attorney waived any challenge to the superior court's order since it did not oppose his second petition for relief, and his conviction was properly dismissed because the charged offense was no longer a crime.
The California Supreme Court's Ruling
In People v. Raybon, supra, 11 Cal.5th 1056, the California Supreme Court settled the conflict and agreed with Perry that Proposition 64 did not invalidate convictions for violating section 4573.6. (Raybon, at p. 1058.)
"Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. One such exception provides that [Proposition 64] does not amend or affect '[l]aws 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 .…' (Health & Saf. Code, §11362.45, subd. (d).) The Attorney General contends this exception applies to violations of … section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to '[l]aws pertaining to smoking or ingesting cannabis,' it does not apply to laws that merely criminalize possession of cannabis.
"Ultimately, we find the Attorney General's proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase '[l]aws pertaining to smoking or ingesting cannabis' [citation] is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a '" 'prophylactic'"' approach to the problem of drug use in prison by criminalizing only the possession of such drugs. [Citation.] Thus, under defendants' interpretation, section 11362.45, subdivision (d)'s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being 'amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]' [citation], and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful. It seems unlikely that was the voters' intent. Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not 'amend, repeal, affect, restrict, or preempt' any '[l]aws pertaining to smoking or ingesting cannabis' [citation] to convey that, as of the date of the initiative's enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons. In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended 'to maintain the status quo with respect to the legal status of cannabis in prison.' (People v. Perry[, supra, 32 Cal.App.5th [at p. 893]….) Thus, possession of cannabis in prison remains a violation of … section 4573.6." (People v. Raybon, supra, 11 Cal.5th at pp. 1059-1060, fns. omitted.)
This court requested further briefing from the parties to address Raybon's impact on the issues raised in this appeal. The district attorney argued that, in light of the Supreme Court's ruling, Davis's conviction was not invalid and the superior court's order should be reversed. Davis acknowledged the Supreme Court concluded that possession of cannabis in prison remained a violation of section 4573.6, and "[t]his Court is bound by Raybon's holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)"
We are bound by the Supreme Court's ruling in People v. Raybon, supra, 11 Cal.5th 1056, and reverse the superior court's order that granted Davis's petition.
DISPOSITION
The superior court's order of December 9, 2019, granting Davis's petition for relief, reducing his conviction to a misdemeanor violation of section 4573.6, and dismissing the matter, is reversed and the matter remanded for further appropriate proceedings.
WE CONCUR: FRANSON, J. DE SANTOS, J.