Opinion
D076755
09-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JULIO SANCHEZ, Defendant and Appellant.
Elisabeth A. Bowman, 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, Michael Pulos 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF27926) APPEAL from an order of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Elisabeth A. Bowman, 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, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
In 2013, Julio Sanchez was convicted of violating Penal Code section 4573.6, which prohibits possession of controlled substances (in his case, marijuana) in prison. Sanchez 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.) In 2019, Sanchez petitioned the trial court for recall or dismissal of his 2013 conviction. (Health & Saf. Code, § 11361.8, subd. (a).) The trial court concluded Penal Code section 4573.6, subdivision (a) remains a felony following the passage of Proposition 64 and denied Sanchez's petition. We agree with the trial court and affirm the order denying Sanchez relief.
Unless otherwise indicated, statutory references are to the Health and Safety Code.
FACTS
In December 2010, while Sanchez was an inmate at Calipatria State Prison, a correctional officer searched Sanchez and discovered a bindle in his shoe containing 0.8 grams of marijuana.
An indictment charged Sanchez with possession of illegal substances (marijuana) in a prison facility (Penal Code, § 4573.6). The indictment also alleged one serious or violent felony prior as to the count (id., §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and further alleged that Sanchez committed the offense while confined in state prison (id., § 1170.1, subd. (c)).
In February 2013, Sanchez pled no contest to violating Penal Code section 4573.6. Pursuant to the plea agreement, the People agreed to strike the alleged prior and enhancement. Sanchez was sentenced to the lower term of two years in state prison, to run consecutive to his current sentence.
In 2016, California voters decriminalized the possession of less than 28.5 grams (approximately one ounce) of marijuana, or cannabis. (Prop. 64; § 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 primarily use the amended terminology of "cannabis" throughout the remainder of this opinion.
In July 2019, Sanchez petitioned the trial court for a recall of sentence and dismissal of his Penal Code section 4573.6 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. Sanchez argued that, under Raybon, and after Proposition 64, possession of less than one ounce of cannabis in prison is no longer a felony. The district attorney opposed Sanchez's petition, contending that Penal Code section 4573.6 remained a felony. The district attorney encouraged the trial court to follow Perry, which concluded Proposition 64 did not decriminalize possession of cannabis in prison. Sanchez filed a reply brief, encouraging the trial court to follow People v. Fenton (1993) 20 Cal.App.4th 965 (Fenton) and People v. Harris (2006) 145 Cal.App.4th 1456 (Harris), on which Raybon relied. (See Raybon, supra, 36 Cal.App.5th at pp. 117-119, review granted.) After hearing oral argument, the trial court denied Sanchez's petition, concluding Perry was "the better reasoned case." Sanchez obtained a certificate of probable cause to pursue this appeal.
On appeal, Sanchez contends that, under the plain meaning of Proposition 64 and the statutes affected thereby, he is eligible for relief from his conviction because possession of less than one ounce of cannabis in prison is no longer illegal. He further contends that policy considerations should not preclude the decriminalization of possession of cannabis in prison because state regulations still punish prisoners for unauthorized possession of cannabis in prison. He encourages this court to follow the holding in Raybon.
DISCUSSION
The question before this court is whether, as a result of Proposition 64, it is permissible to possess small quantities of cannabis in prison. The Courts of Appeal have reached contrary conclusions on this issue. We outline the conflicting appellate decisions below, and adopt the reasoning of cases holding it remains illegal to possess small amounts of cannabis in prison. We therefore conclude the trial court correctly denied Sanchez's petition to recall or dismiss his sentence pursuant to section 11361.8.
A. Governing Legal Principles
Sanchez was convicted of violating Penal Code section 4573.6, 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 . . . or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, 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." (Pen. Code, § 4573.6, subd. (a).)
Penal Code section 4573.8 similarly proscribes "knowingly . . . possess[ing] in any state prison . . . drugs in any manner . . . ." Cannabis remains a controlled substance under Division 10 of the Health and Safety Code. (Health & Saf. Code, § 11054, subd. (d)(13).)
Proposition 64 decriminalized the possession of small quantities of cannabis for persons 21 years of age or older. (See Perry, supra, 32 Cal.App.5th at pp. 889-890.) 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." (§ 11362.1, subd. (a).)
As noted, Proposition 64 legalizes certain activity involving 28.5 grams or less of cannabis by persons 21 years of age or older. When we refer to the decriminalization of the use and possession of cannabis in this opinion, for ease of reference, we do not always restate these age restrictions and amounts. (See Perry, supra, 32 Cal.App.5th at p. 890, fn. 8.)
Decriminalization is expressly subject to Health and Safety Code section 11362.45, which has been characterized as an exception or "carve out" provision—i.e., section 11362.45 limits what is otherwise made lawful by section 11362.1. (See, e.g., Perry, supra, 32 Cal.App.5th at p. 895 [section 11362.45 is "an exception to the legalization of possession and use authorized by section 11361.2"]; People v. Herrera (2020) 52 Cal.App.5th 982, 991 (Herrera) ["section 11362.45[, subd.] (d) carves out from Proposition 64's legalization of cannabis '[l]aws pertaining to smoking or ingesting' cannabis in a penal institution"].) This carve out provision 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." (Health & Saf. Code, § 11362.45, subd. (d).) The facilities referenced in Penal Code section 4573 include state prisons and county jails. (Pen. Code, § 4573, subd. (a).)
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. (§ 11361.8, subd. (a).) "If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).) Whether a petitioning party is eligible for relief under section 11361.8, subdivision (a), presents a question of statutory interpretation which we review de novo. (People v. Whalum (2020) 50 Cal.App.5th 1, 9 (Whalum); Raybon, supra, 36 Cal.App.5th at p. 113, review granted.)
In Perry, 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 adoption of Proposition 64. (Perry, supra, 32 Cal.App.5th at p. 890.) The Perry court concluded Proposition 64 did not change any existing "prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6." (Ibid.) The court explained that Proposition 64 legalized possession of not more than 28.5 grams of cannabis, but it was expressly subject to the exception carved out by Health and Safety Code section 11362.45, subdivision (d) for " '[l]aws pertaining to smoking or ingesting cannabis or cannabis products,' " which remain prohibited. (Perry, at p. 891.) The court addressed the parties' competing contentions as to whether this exception applies to "possession," as well as "smoking or ingesting" cannabis, and concluded that it does. (Id. at pp. 890-891.) In response to the defendant's argument that possession was "not necessarily an inherent aspect of smoking or ingesting [cannabis]," the court found the concepts of possession and use were related, noting in "the context of possession in prison, it is particularly obvious that possession must 'pertain' to smoking or ingesting. For what purpose would an inmate possess cannabis that was not meant to be smoked or ingested by anyone?" (Id. at p. 892.) The court also rejected defendant's argument premised on Penal Code section 4573.6's reference to what is prohibited under Division 10 of the Health and Safety Code—i.e., "that Penal Code section 4573.6 no longer applies to possession by an adult in prison of not more than 28.5 grams of cannabis because the offense is defined by reference to 'controlled substances, the possession of which is prohibited by Division 10,' and Proposition 64, by its amendment of Health and Safety Code section 11357, eliminated the prohibition against such possession that previously existed in division 10." (Id. at p. 893.) The court rejected this argument because it would render the exception, or carve out language, meaningless: "Here, a conclusion that division 10 [of the Health and Safety Code] does not prohibit the possession of not more than 28.5 grams of cannabis for purposes of Penal Code section 4573.6 would make meaningless the express provision of Proposition 64 that its legalization of cannabis did not 'amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting cannabis' in penal institutions." (Id. at p. 894.) By contrast, interpreting Penal Code section 4573.6's language ("controlled substances, the possession of which is prohibited by Division 10") as including possession of cannabis in prison, "does no violence to the words of the" statute. (Perry, at p. 896.) "Cannabis remains a controlled substance under division 10. Under the Health and Safety Code provisions affected by Proposition 64, all of which are part of division 10, cannabis possession is prohibited in a number of specific circumstances and its possession or use in penal institutions is excluded from the initiative's affirmative legalization provision." (Ibid.)
"As amended by Proposition 64, section 11357 no longer defines possession of not more than 28.5 grams of marijuana by a person age 21 or older as an offense." (Perry, supra, 32 Cal.App.5th at p. 889; see § 11357, subd. (a).)
Section 11054, subdivision (d)(13).
In Raybon, the Third District Court of Appeal addressed the same question of whether possession of cannabis in prison remains a crime after the passage of Proposition 64, and it came to the opposite conclusion of Perry. The Raybon court concluded "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.) The court found support for its position in two prior cases, Fenton and Harris, which the court noted rejected many of the same arguments the Attorney General was asserting that were "at odds with the plain meaning of the statute." (Raybon, at pp. 117-119.) With regard to the scope of the carve out in section 11362.45, subdivision (d), the court rejected the notion that the "drafters of Proposition 64 intended to include possession not by naming it, but by the use of a tangential reference 'pertaining to.' " (Raybon, at p. 121.) The court further explained "it stretches the imagination to conclude that the drafters listed two distinct activities, 'smoking or ingesting,' intending to include a third distinct activity, possession, by using the vague reference 'pertaining to.' " (Ibid.) The court rejected the Attorney General's arguments based on public policy grounds, and his claim that allowing the possession of small amounts of cannabis in prison leads to absurd results, stating: "None of the policy arguments he advances can undermine the will of the electorate and none of the disasters he foresees constitute the type of absurdity that allows us to disregard the voters' clear intent." (Id. at p. 124.) In response to concerns about the loss of control over correctional facilities resulting from the decriminalization of cannabis in prisons, the court concluded "rules prohibiting the possession of cannabis can be established and managed administratively." (Id. at p. 119.)
In Fenton, the Court of Appeal ruled that the defendant did not violate Penal Code section 4573, which prohibits bringing into a jail " 'any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code,' " because he had a physician's prescription for the controlled substance in his possession. (Fenton, supra, 20 Cal.App.4th at pp. 966-967, 971.) In Harris, the appellate court reversed the defendant's conviction for violating Penal Code section 4573.5, prohibiting bringing "drugs 'other than controlled substances' " into a correctional facility, because the statute does not apply to controlled substances such as the " 'medical marijuana' " which the defendant brought into the prison. (Harris, supra, 145 Cal.App.4th at pp. 1460-1461, 1465.)
According to the court, the purpose of the " 'pertaining to' " language was to "describe the vast array of means of consumption," such as "inhal[ing] . . . a nonburning vapor" or topical application resulting in "absor[ption] through the skin," which remain unlawful. (Raybon, supra, 36 Cal.App.5th at p. 122, review granted, italics added.)
In Whalum, this court addressed the similar issue of whether an inmate convicted of possessing cannabis in prison under Penal Code section 4573.8, which prohibits possession of "drugs in any manner" in prison, was eligible for relief under Health and Safety Code section 11361.8, subdivision (a). (Whalum, supra, 50 Cal.App.5th at p. 3.) Whalum concluded that a conviction under Penal Code section 4573.8 remained a felony after Proposition 64, and the inmate was not eligible for relief. (Whalum, at p. 3.) The court 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, the court agreed with Perry that "Proposition 64 did not affect laws specifically directed at criminalizing the possession of cannabis as contraband in a correctional institution." (Id. at p. 5.) Whalum further "agree[d] with Perry's analysis regarding the scope of the carve out in [Health and Safety Code] section 11362.45, subdivision (d), and . . . accordingly conclude[d] 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 concluded 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 [a] prophylactic approach to prevent prisoners from using drugs." (Id. at p. 12.)
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 Herrera. The Herrera court adhered to the analysis in Perry and Whalum and rejected the analysis in Raybon, concluding that "Proposition 64 did not decriminalize the possession of cannabis in a penal institution." (Herrera, supra, 52 Cal.App.5th at p. 985.) The Herrera 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" (Herrera, at p. 990)—which expressly states that "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" prison or jail. (Health & Saf. Code, § 11362.45, subd. (d).) Because Penal Code section 4573.6, subdivision (a) is a " '[l]aw[] pertaining to smoking or ingesting cannabis' in jail within the meaning of Health and Safety Code section 11362.45[, subdivision] (d)," the Herrera court held that "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." (Herrera, at p. 990.)
B. Analysis
Sanchez's arguments are largely based on the contention that this court should follow Raybon, rather than Perry. He claims that, under the plain meaning of Proposition 64 and the statutes affected thereby, he is eligible for relief from his conviction because possession of less than one ounce of cannabis in prison is no longer illegal. Sanchez further contends that policy considerations should not preclude the decriminalization of possession of cannabis in prison because state regulations still punish prisoners for unauthorized possession of cannabis in prison. We reject Sanchez's claims and conclude he is not entitled to relief.
Pending further guidance from the Supreme Court, and recognizing that Raybon reached a different conclusion, we agree with Perry, Whalum, and Herrera that Proposition 64's decriminalization of cannabis "does not amend, repeal, affect, restrict, or preempt" "[l]aws pertaining to smoking or ingesting" cannabis in prison (Health & Saf. Code, § 11362.45, subd. (d)), and possession of cannabis in prison under Penal Code section 4573.6, subdivision (a) is a "[l]aw[] pertaining to smoking or ingesting" cannabis in prison or jail under Health and Safety Code section 11362.45, subdivision (d). In other words, the wide scope of the carve out in Health and Safety Code section 11362.45, subdivision (d)—for "[l]aws pertaining to smoking or ingesting cannabis" in prison—encompasses possession as well as use of cannabis in prison. We therefore conclude the possession of cannabis in prison, in violation of Penal Code section 4573.6, remains a felony after the passage of Proposition 64.
Sanchez argues his conduct would not be a crime if Proposition 64 had been in effect when he committed his offense because Proposition 64 removed small amounts of cannabis from the category of "controlled substances, the possession of which is prohibited by Division 10" of the Health and Safety Code (Pen. Code, § 4573.6). (See Raybon, supra, 36 Cal.App.5th at pp. 121-122, review granted.) We disagree because this position disregards the overall structure of Proposition 64 and the statutes which it added and amended. Although Proposition 64 generally decriminalized the possession of less than an ounce of cannabis, it did not change those laws prohibiting the possession of cannabis in prisons and other correctional facilities. (Perry, supra, 32 Cal.App.5th at p. 890 ["Proposition 64 did not affect existing prohibitions against the possession of [cannabis] in prison."]; Whalum, supra, 50 Cal.App.5th at p. 5.)
Sanchez contends that, because section 11362.45, subdivision (d) refers to smoking cannabis in prison but omits "possession," it can be inferred that possession of cannabis in prison was not intended to be exempted and is therefore not unlawful. He argues that the plain language of the statute is unambiguous and should be construed in a manner that limits the language rather than broadens it. Sanchez's argument is consistent with the Raybon court's interpretation of the carve out language in section 11362.45, subdivision (d), and contrary to Perry, Whalum, and Herrera, which we find persuasive. As correctly stated in Perry, in view of the "wide reach" of the phrase " 'pertaining to,' " "[w]e would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance." (Perry, supra, 32 Cal.App.5th at p. 891; accord, Whalum, supra, 50 Cal.App.5th at pp. 11-12; Herrera, supra, 52 Cal.App.5th at p. 991.) Based on the breadth of the carve out provision, it defies logic to conclude Proposition 64 was intended to leave intact prohibitions against smoking and ingesting cannabis in prison, while allowing inmates to possess cannabis. Indeed, "[i]n the context of possession in prison, it is particularly obvious that possession must 'pertain' to smoking or ingesting. For what purpose would an inmate possess cannabis that was not meant to be smoked or ingested by anyone?" (Perry, at p. 892.)
Sanchez additionally argues that policy considerations should not preclude the decriminalization of possession of cannabis in prison because state regulations still punish prisoners for unauthorized possession of cannabis in prison. He contends that, following passage of Proposition 64, unauthorized possession of cannabis (or any other controlled substance) remains a violation of prison regulations which could result in a credit forfeiture of between 121 and 150 days. (See Cal. Code Regs., tit. 15, § 3323, subd. (d)(7).) The court in Raybon made a similar point: "Bringing less than an ounce of cannabis into a prison and giving it away in prison are serious rule violations that result in significant consequences for both inmates and visitors." (Raybon, supra, 36 Cal.App.5th at p. 124, review granted, citing Cal. Dept. of Corrections & Rehabilitation, Operations Manual (2019) ch. 5, § 52080.5; Cal. Code Regs., tit. 15, §§ 3176, 3315, 3323, & 3335.) We reject Sanchez's argument. We have already concluded that the possession of cannabis in prison, in violation of Penal Code section 4573.6, remains a felony after the passage of Proposition 64. (See Perry, supra, 32 Cal.App.5th at p. 890 [Proposition 64 did not change any existing "prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6."].) We arrived at this conclusion by analyzing the language of the statutes enacted pursuant to the passage of Proposition 64—specifically, the carve out in Health and Safety Code section 11362.45, subdivision (d), for "[l]aws pertaining to smoking or ingesting cannabis" in prison. Sanchez's contention that, notwithstanding Proposition 64, administrative regulations are in place to punish inmates who possess cannabis in prison, is a policy-driven argument that is irrelevant to our analysis and interpretation of Proposition 64, and, as such, we find it unpersuasive and unavailing.
The Attorney General counters that administrative regulations might help control the conduct of inmates, but they provide no control over prison visitors. Additionally, the reliance solely on administrative regulations, rather than established statutory guidelines, would make it exceedingly difficult for correctional officers to enforce Proposition 64's provisions because they would be required to carefully weigh the cannabis they found (as an inmate with 28.4 grams of cannabis would not violate Penal Code section 4573.6, but one with 28.6 grams would, and inmates under age 21 could not legally possess up to an ounce of cannabis, but older inmates could. (See Health & Saf. Code, § 11357, subds. (a), (b).)
In sum, the trial court properly determined that Proposition 64 did not impact the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.6. We therefore affirm the court's order denying Sanchez's petition for relief from his prior conviction pursuant to Health and Safety Code section 11361.8, subdivision (a).
DISPOSITION
The order is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.