Opinion
D076418
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. DONEISHA RENEE LIVINGSTON, Defendant and Appellant.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF001578) APPEAL from an order of the Superior Court of Imperial County, Marco D. Nunez, Judge. Affirmed. Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
In February 2019, Doneisha Renee Livingston was convicted of violating Penal Code section 4573.8, which prohibits possession of drugs or drug paraphernalia (in her case, marijuana) in prison. Livingston contends this is no longer a felony under Health and Safety Code section 11362.1, subdivision (a), which was enacted pursuant to the passage of Proposition 64 and which decriminalizes possession of small amounts of cannabis. (Prop. 64, § 4.4, approved Nov. 8, 2016, eff. Nov. 9, 2016; amended by Stats. 2017, ch. 27, § 129 (Prop. 64).) Livingston petitioned the trial court for recall or dismissal of her 2019 conviction. (Health & Saf. Code, § 11361.8, subd. (a).) The trial court concluded Penal Code section 4573.8 remains a felony following the passage of Proposition 64 and denied Livingston's petition. We agree with the trial court and affirm the order denying Livingston relief.
Unless otherwise indicated, statutory references are to the Penal Code.
FACTS
In 2016, California voters decriminalized the possession of less than 28.5 grams (approximately one ounce) of marijuana, or cannabis, by a person over 21 years of age. (Prop. 64; Health & Saf. Code, § 11362.1, subd. (a); see People v. Perry (2019) 32 Cal.App.5th 885, 888 (Perry), People v. Raybon (2019) 36 Cal.App.5th 111, 114, review granted, Aug. 21, 2019, S256978 (Raybon).)
In 2017, the Legislature replaced references to "marijuana" in the Health and Safety Code with the term "cannabis." (See, e.g., Stats. 2017, ch. 27, § 121, eff. June 27, 2017.) For consistency, we use the amended terminology of "cannabis" throughout this opinion.
In February 2018, Livingston brought four grams of marijuana into the Calipatria State Prison. She was subsequently charged with three felony counts: bringing contraband into a prison (§ 4573, subd. (a); count 1), possession of contraband in a prison (§ 4573.6, subd. (a); count 2), and unauthorized possession of drugs or drug paraphernalia in prison (§ 4573.8; count 3).
In February 2019, Livingston pled guilty to one count of violating section 4573.8. The trial court subsequently placed Livingston on three years of formal probation, ordered her to perform 80 hours of community work service, and ordered her to participate in a "cognitive based counseling and educational program as directed by the probation officer."
In August 2019, Livingston petitioned the trial court for a recall of sentence and dismissal of her Penal Code section 4573.8 conviction pursuant to Health and Safety Code section 11361.8, subdivision (b), on the ground that Health and Safety Code section 11362.1 provides that possession by an individual 21 years of age and older of not more than 28.5 grams of cannabis is not a felony. Livingston argued that, under Raybon, possession of less than one ounce of cannabis in prison is no longer a felony. The District Attorney opposed Livingston's petition, contending that Penal Code section 4573.8 remained a felony following the passage of Proposition 64 and encouraged the trial court to follow Perry, which concluded Proposition 64 did not decriminalize possession of cannabis in prison. After hearing oral argument, the trial court denied Livingston's petition, concluding it would follow the opinion in Perry. Livingston requested and obtained a certificate of probable cause to pursue this appeal.
DISCUSSION
Livingston was convicted of violating section 4573.8, which provides in relevant part: "Any person who knowingly has in his or her possession in any state prison, . . . drugs in any manner, . . . any device, . . . 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, . . . is guilty of a felony."
Proposition 64, approved by voters on November 8, 2016, enacted the Control, Regulate and Tax Adult Use of Marijuana Act, which decriminalized the possession of small quantities of cannabis for persons 21 years of age or older. (See Perry, supra, 32 Cal.App.5th at p. 894.) Among other things, it added Health and Safety Code section 11362.1, which provides in part: "Subject to Section[] . . . 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, for persons 21 years of age or older to: [¶] (1) Possess . . . not more than 28.5 grams of cannabis not in the form of concentrated cannabis; [¶] . . . [¶] (3) Possess . . . not more than six living cannabis plants and possess the cannabis produced by the plants; [¶] (4) Smoke or ingest cannabis or cannabis products; and [¶] (5) Possess . . . cannabis accessories . . . ." (Health & Saf. Code, § 11362.1, subd. (a).)
Decriminalization is expressly subject to Health and Safety Code section 11362.45, which states in relevant part: "Section 11362.1 does not amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) Laws 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 or . . . any other facility or institution referenced in Section 4573 of the Penal Code." The facilities referenced in Penal Code section 4573 include state prisons and county jails. (Pen. Code, § 4573, subd. (a).)
Section 11362.45 provides in full: "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. "(d) Laws 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 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. "(e) Laws providing that it would constitute negligence or professional malpractice to undertake any task while impaired from smoking or ingesting cannabis or cannabis products. "(f) The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law. "(g) The ability of a state or local government agency to prohibit or restrict any of the actions or conduct otherwise permitted under Section 11362.1 within a building owned, leased, or occupied by the state or local government agency. "(h) The ability of an individual or private entity to prohibit or restrict any of the actions or conduct otherwise permitted under Section 11362.1 on the individual's or entity's privately owned property. "(i) Laws pertaining to the Compassionate Use Act of 1996."
A person serving a sentence for a conviction which would not have been an offense after passage of Proposition 64 may petition the trial court for a recall or dismissal of his or her sentence. (Health & Saf. Code, § 11361.8, subd. (a).) Livingston seeks relief under this provision, contending that, because Proposition 64 legalized adult possession up to 28.5 grams of cannabis (except in specifically identified circumstances), it is no longer a crime under Penal Code section 4573.8 to possess cannabis in a prison. She observes that the carve out in Health and Safety Code section 11361.45, subdivision (d) refers only to laws criminalizing the "smoking or ingesting [of] cannabis" in prison, and does not reference possession of cannabis.
The issue of whether Proposition 64 affected the existing prohibitions against the possession of cannabis in prison is currently pending before our Supreme Court in Raybon, supra, 36 Cal.App.5th 111 (review granted) which expressly disagreed with the opinion in People v. Perry.
We decline Livingston's invitation to delay our ruling until Raybon is decided by the Supreme Court.
In Perry, a panel of the First District Court of Appeal addressed the question of whether an inmate's conviction for possessing cannabis in prison under Penal Code section 4573.6 was subject to dismissal after the passage of Proposition 64. (Perry, supra, 32 Cal.App.5th at p. 890.) The Perry court reviewed the provisions added and amended by Proposition 64 and observed that the phrase " 'pertaining to' " as used in Health and Safety Code section 11362.45, subdivision (d) has "wide reach." (Perry, at pp. 890-891.) The court acknowledged that possession was "not necessarily an inherent aspect of smoking or ingesting [cannabis]," but observed that possessing cannabis was certainly "related" to smoking or ingesting it, and found that "possession must 'pertain' to smoking or ingesting." (Id. at p. 892.) The court concluded that Proposition 64, which decriminalized possession of not more than 28.5 grams of cannabis (Health & Saf. Code, § 11362.1, subd. (a)) but did not affect "[l]aws pertaining to smoking or ingesting cannabis" in prison (id., § 11362.45, subd. (d)), did not affect Penal Code section 4573.6's prohibition against the possession of cannabis in prison. (Perry, at pp. 891-893.)
Both Perry and Raybon addressed convictions under Penal Code section 4573.6, subdivision (a), a statute similar, but not identical, to section 4573.8, which is at issue in this appeal. Penal Code section 4573.6, subdivision (a) 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, . . . is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years." Even after the passage of Proposition 64, cannabis remains a controlled substance under Division 10 of the Health and Safety Code. (Health & Saf. Code, § 11054, subd. (d)(13).)
In Raybon, a panel of the Third District Court of Appeal addressed the same question and came to the opposite conclusion as Perry. The Raybon court declined to construe so widely the "pertaining to" language within the exception to the decriminalization of cannabis laws (Health & Saf. Code, § 11362.45, subd. (d)), and concluded that, pursuant to the plain language of the statutes, only smoking or ingesting cannabis in prison remains a felony. (Raybon, supra, 36 Cal.App.5th at p. 113, review granted.)
In People v. Whalum (2020) 50 Cal.App.5th 1 (Whalum), this court addressed the issue identical to that presented in this appeal, and similar to the one presented in Perry and Raybon: whether an inmate convicted of Penal Code section 4573.8 (unauthorized possession of drugs in prison) is eligible for relief under Health and Safety Code section 11361.8, subdivision (a). (Whalum, at p. 3.) Whalum concluded that a conviction under Penal Code section 4573.8 remained a felony after Proposition 64, and the petitioner was not eligible for relief. (Whalum, at p. 3.) Whalum noted it "need not, and d[id] not, weigh in on the issues unique to the impact of Proposition 64 on Penal Code section 4573.6." (Id. at p. 10.) However, Whalum expressly "agree[d] with Perry's analysis regarding the scope of the carve out in [Health and Safety Code] section 11362.45, subdivision (d) . . . ." (Id. at p. 10.) Whalum observed that "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 prophylactic approach to prevent prisoners from using drugs." (Id. at p. 12.) Whalum concluded "that Proposition 64 does not affect laws, including Penal Code section 4573.8, which make it a crime to possess cannabis in a correctional institution." (Id. at p. 10.)
Whalum was filed after the parties filed their opening briefs on appeal. The Attorney General submitted a letter of additional authority citing the case; Livingston did not file a reply brief and has not sought to file a supplemental brief.
More recently, the Sixth District Court of Appeal addressed the question of whether Penal Code section 4573.6 remains a felony following the approval of Proposition 64 in People v. Herrera (2020) 52 Cal.App.5th 982. The Herrera court adhered to the analysis in Perry and Whalum and rejected the analysis in Raybon, concluding that "possession of a controlled substance in jail under Penal Code section 4573.6[, subdivision] (a) is a '[l]aw[] pertaining to smoking or ingesting' cannabis in prison or jail (Health & Saf. Code, § 11362.45[, subd.] (d))." (Herrera, at p. 995.) --------
We find no reason to depart from this court's holding in Whalum, which is dispositive of the issue presented in this appeal. Based on Whalum, we conclude the trial court properly determined that Proposition 64 does not impact the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8. We therefore affirm the trial court's order denying Livingston's petition for relief pursuant to Health and Safety Code section 11361.8.
DISPOSITION
The order is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.