People v. Raybon ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
GOLDY RAYBON,
Defendant and Appellant.
[And four other cases*]
S256978
Third Appellate District
C084853
Sacramento County Superior Court
09F08248
August 12, 2021 (reposted corrected version)
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, and
Jenkins concurred.
Justice Kruger filed a concurring and dissenting opinion, in
which Justice Cuéllar concurred.
*
People v. Cooper (No. C084911 [Super. Ct. No. 13F03230]);
People v. Davis (No. C084960 [Super. Ct. No. 08F07402]); People
v. Haynes (No. C084964 [Super. Ct. No. 12F00411]); People v.
Potter (No. C085101 [Super. Ct. No. 06F11185]).
PEOPLE v. RAYBON
S256978
Opinion of the Court by Groban, J.
This case requires us to interpret Proposition 64, the
Control, Regulate and Tax Adult Use of Marijuana Act (Prop.
64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition
64 or the Act)). The question we must answer is whether
Proposition 64 invalidates cannabis-related convictions under
Penal Code section 4573.6, which makes it a felony to possess a
controlled substance in a state correctional facility. Although
Proposition 64 generally legalizes adult possession of cannabis, 1
it contains several exceptions. One such exception provides that
the Act 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 Penal Code
section 4573.6, meaning that possession of cannabis in a
correctional facility remains a felony. Defendants2 disagree,
1
In 2017, the Legislature replaced all references to
“marijuana” in the Health and Safety Code with the term
“cannabis.” (Stats. 2017, ch. 27, §§ 113–160.) Thus, although
Proposition 64 used the term “marijuana,” we refer to the
amended terminology “cannabis” throughout this opinion.
2
Defendants are Goldy Raybon (No. C084853), Anthony L.
Cooper (No. C084911), Dwain Davis (No. C084960), Scott
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
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)3 to be more persuasive. As discussed below, the phrase
“[l]aws pertaining to smoking or ingesting cannabis” (ibid.) 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. (People v. Low (2010) 49
Cal.4th 372, 388 (Low).) 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]” (§ 11362.45), 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” (§
11362.45, subd. (d)) to convey that, as of the date of the
initiative’s enactment, possessing and using up to 28.5 grams of
Wendell Haynes (No. C084964), and James Potter (No.
C085101).
3
Unless otherwise noted, all further statutory citations are
to the Health and Safety Code.
2
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
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 (2019) 32 Cal.App.5th 885,
893 (Perry).) Thus, possession of cannabis in prison remains a
violation of Penal Code section 4573.6.
I. BACKGROUND
The five defendants in this case were each found in
possession of less than 28.5 grams of cannabis in a state prison
and were subsequently convicted of violating Penal Code section
4573.6. Most of the defendants were serving time for a prior
serious or violent felony at the time of their possession offenses,
resulting in second-strike sentences that added several years to
their current term.4
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. (See Voter Information Guide, Gen. Elec.
4
Four of the five defendants were incarcerated at the time
of their possession violation: defendant Goldy Raybon, who
admitted a prior strike and was sentenced to a consecutive term
of four years; defendant James Potter, who was found to have a
prior strike and was sentenced to a consecutive term of six years;
defendant Anthony Cooper, who was found to have a prior strike
and was sentenced to a consecutive term of six years; and
defendant Dwayne Davis, whose sentence is not indicated in the
record. The fifth defendant, Scott Haynes, brought concentrated
cannabis into a prison to give to an inmate. Haynes’s sentence
is not stated in the record, but he was on probation at the time
he filed his petition for relief.
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
(Nov. 8, 2016) text of Prop. 64, § 4.4, p. 180 (Voter Guide); Health
& Saf. Code, § 11362.1, subd. (a).)5 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. (Voter Guide, supra, text of Prop.
64, § 8.7, p. 207; § 11361.8, subd. (a).) Acting pursuant to that
new provision, defendants filed petitions in the Sacramento
County Superior Court arguing that their sentences for
violating Penal Code section 4573.6 should be dismissed because
adult possession of less than an ounce of cannabis in prison no
longer qualifies as a crime.
The district attorney opposed the petitions, asserting that
Penal Code section 4573.6 falls within an exception set forth in
Health and Safety Code section 11362.45, subdivision (d) stating
that Proposition 64 has no effect on laws “pertaining to smoking
or ingesting cannabis or cannabis products” in state correctional
facilities. (§ 11362.45, subd. (d) (hereafter section 11362.45(d)).)
The trial court agreed and issued orders denying the petitions.
Defendants appealed to the Third District and their cases were
consolidated for purposes of argument and decision.
While the appeal was pending, the First District issued
Perry, supra, 32 Cal.App.5th 885, which held that “Proposition
64 did not affect existing prohibitions against the possession of
marijuana in prison or otherwise affect the operation of Penal
5
The Voter Guide is available at
(as of Aug. 10, 2021); all Internet citations in this
opinion are archived by year, docket number, and case name at
.
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Opinion of the Court by Groban, J.
Code section 4573.6.” (Id. at p. 890, italics omitted.) Like the
trial court in this case, the First District concluded that the
phrase “ ‘[l]aws pertaining to smoking or ingesting cannabis [in
prison]’ ” implicitly extends to possession under Penal Code
section 4573.6 because the possession of cannabis is directly
related to smoking or ingesting the substance. (Perry, at p. 891.)
The Third District disagreed with Perry and held that the
phrase “pertaining to smoking and ingesting” was not
“intend[ed] to include a third distinct activity, possession.”
(People v. Raybon (2019) 36 Cal.App.5th 111, 121 (Raybon).)
The court further held that the clear and unambiguous intent of
the phrase “pertaining to” was “to describe the . . . means of
[cannabis] consumption” that do “not strictly involv[e] smoking
or ingesting, such as inhal[ing] as a non-burning vapor or
appl[ying] topically such that it is absorbed through the skin.”
(Ibid. [“there is no ambiguity [in section 11362.45(d)]”].) Having
found the “conduct underlying [defendants’] convictions is no
longer criminal under Penal Code section 4573.6,” the Court of
Appeal directed the superior court “to enter orders granting the
petitions for relief.” (Raybon, at p. 126.)
The Attorney General filed a petition for review seeking
resolution of the following question: “Did Proposition 64, which
generally legalized the simple possession of less than an ounce
of cannabis, also legalize such possession in state prisons and
other custodial institutions?”6
6
During the pendency of our review, the Fourth and Sixth
Districts issued published decisions rejecting Raybon, supra, 36
Cal.App.5th 111, and agreeing with Perry’s conclusion that
Proposition 64 was not intended to affect laws criminalizing the
possession of cannabis in prison. We granted review in those
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Opinion of the Court by Groban, J.
II. DISCUSSION
A. Legal Framework
1. Statutory prohibitions on cannabis possession prior
to Proposition 64
Division 10 of the Health and Safety Code comprises the
California Uniform Controlled Substances Act. (§ 11000 et seq.)
Chapter 2 of the act contains schedules listing the controlled
substances that are subject to the provisions of division 10,
which includes cannabis.7 (See § 11054, subd. (d)(13).) Chapter
6 of the act describes offenses associated with controlled
substances, and article 2 (§ 11357 et seq.) sets forth offenses
related to cannabis. Prior to Proposition 64, section 11357 made
it a crime to possess nonmedical cannabis and set forth the
applicable punishments for such conduct. (See former § 11357,
subd. (a); Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–
205.)
Penal Code section 4573 et seq. “place restrictions
on possessing and importing drugs and other contraband in
custody.” (Low, supra, 49 Cal.4th at p. 382.) Two of these
provisions target the possession of drugs in custodial settings.
The offense at issue here, Penal Code section 4573.6 , makes it
a felony to knowingly “possess[] in any state prison, . . . or in any
county . . . or city jail, . . . any controlled substances, the
matters and deferred further action pending our resolution of
this case. (See People v. Whalum (2020) 50 Cal.App.5th 1,
review granted Aug. 12, 2020, S262935 (Whalum); People v.
Herrera (2020) 52 Cal.App.5th 982, review granted Oct. 14,
2020, S264339 (Herrera).) To date, no published Court of Appeal
decision has agreed with Raybon.
7
Unspecified statutory references to “division 10” in this
majority opinion are to this act.
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
possession of which is prohibited by Division 10 . . . of the
Health and Safety Code . . . , without being authorized to so
possess . . . by the rules of the Department of Corrections, [the]
rules of [the correctional facility] or by the specific authorization
of the [persons in charge of the facility] . . . .” (Pen. Code, §
4573.6, subd. (a).) A violation of this section is “punishable by
imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years.” (Ibid.) Penal Code section 4573.8 has
broader application, making it a crime to possess “in any state
prison . . . drugs in any manner . . . or alcoholic
beverages, without being authorized to [so] possess the same by
[the] rules of the [prison].” This latter section is also a felony,
but carries a lesser sentencing range of 16 months, two or three
years. (See Pen. Code, §§ 18, 4573.8.) Because both offenses are
felonies, persons convicted under Penal Code section 4573.6 or
4573.8 who have previously been convicted of a serious or violent
felony — likely a common situation given that both statutes
involve conduct committed while on the grounds of a
correctional facility — will have their sentence doubled unless
the trial court elects to remove the prior strike. (See Pen. Code,
§§ 667, subd. (e)(1), 1385, subd. (b); People v. Romero (1996) 13
Cal.4th 497, 504 (Romero).) Other similar provisions prohibit
bringing controlled substances and other forms of drugs into
prisons or causing such substances to be brought into prisons.
(See Pen. Code, §§ 4573, 4573.5.)
These statutes, which target the possession rather than
the consumption of unauthorized drugs in prison, “flow from the
assumption that drugs . . . and other contraband promote
disruptive and violent acts in custody, including gang
involvement in the drug trade. Hence, these provisions are
viewed as ‘ “prophylactic” ’ measures that attack the ‘ “very
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
presence” ’ of such items in the penal system.” (Low, supra, 49
Cal.4th at p. 388.) There is no law that criminalizes the actual
consumption of drugs in a custodial setting.
2. Proposition 64
In November 2016, voters enacted Proposition 64, which
was intended “to establish a comprehensive system to legalize,
control and regulate the cultivation, processing, manufacture,
distribution, testing, and sale of nonmedical marijuana,
including marijuana products, for use by adults 21 years and
older, and to tax the commercial growth and retail sale of
marijuana.” (Voter Guide, supra, text of Prop. 64, § 3, p. 179.)
In addition to regulating the production and sale of nonmedical
cannabis, the Act was intended to “[p]ermit adults 21 years and
older to use, possess, purchase and grow nonmedical marijuana
within defined limits . . . as set forth in [the Act].” (Id., § 3, subd.
(l).)
Proposition 64’s legalization provision, set forth in newly
added section 11362.1, subdivision (a), provides in relevant part:
“Subject to Sections 11362.2, 11362.3, 11362.4, and 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; [¶] (2) Possess . . . not more than
eight grams of cannabis in the form of concentrated
cannabis . . . ; [¶] (3) Possess, plant, cultivate, harvest, dry, or
process not more than six living cannabis plants . . . ; [¶] (4)
Smoke or ingest cannabis or cannabis products; and [¶] (5)
Possess, . . . use, . . . or give away cannabis accessories to
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
persons 21 years of age or older without any compensation
whatsoever.”
Section 11362.3, subdivision (a) places limitations on the
possession and use of cannabis, directing that “[s]ection 11362.1
does not permit any person to” (among other things): “Smoke or
ingest cannabis or cannabis products” in a public place (§
11362.3, subd. (a)(1)); “Smoke cannabis or cannabis products
within 1,000 feet of a school” while children are present (id.,
subd. (a)(3)); “Possess an open container . . . of cannabis or
cannabis products” while in a car or other form of motor vehicle
(id., subd. (a)(4)); “Possess, smoke, or ingest cannabis or
cannabis products” on the grounds of a school when children are
present (id., subd. (a)(5)); “Smoke or ingest cannabis or cannabis
products while driving” a motor vehicle or while “riding in the
passenger seat or compartment of a motor vehicle” (id., subd.
(a)(7), (8)).
The penalties for engaging in any of these prohibited
activities are set forth in newly added section 11362.4. (See
Voter Guide, supra, text of Prop. 64, § 4.7, pp. 181–182.)
Proposition 64 also amended former section 11357, which had
previously criminalized the possession of nonmedical cannabis.
(See ante, at p. 6.) As amended, section 11357 now sets forth the
penalties for possessing cannabis in quantities that exceed the
limits described in section 11362.1 or by persons under the age
of 21. (See Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–
205.)
Section 11362.45, also added by Proposition 64, describes
various categories of laws and rules the Act does not affect or
restrict. Of particular importance here, the section provides:
“Section 11362.1 does not amend, repeal, affect, restrict, or
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
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 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.” (§ 11362.45(d).)
Other subdivisions of section 11362.45 exempt “[l]aws
making it unlawful to drive or operate a vehicle . . . while
smoking, ingesting, or impaired by, cannabis or cannabis
products . . .” (§ 11362.45, subd. (a)) and “[l]aws providing that
it would constitute negligence or professional malpractice to
undertake any task while impaired from smoking or ingesting
cannabis or cannabis products” (§ 11362.45, subd. (e)). The
section also preserves the “rights . . . of public and private
employers to maintain a drug and alcohol free workplace . . . .”
(§ 11362.45, subd. (f)) and allows government and private
entities to prohibit any of the conduct permitted under section
11362.1 in government buildings or on private property (§
11362.45, subds. (f) & (g)).
Finally, Proposition 64 added remedial provisions for
persons convicted of a cannabis-related crime “who would not
have been guilty of an offense, or who would have been guilty of
a lesser offense under [the Act].” (§ 11361.8, subd. (a); see id.,
subd. (e).) Section 11361.8, subdivision (a) allows persons
currently serving a sentence for such an offense to “petition for
a recall or dismissal of sentence before the trial court that
entered the judgment of conviction in his or her case to request
resentencing or dismissal in accordance with Sections 11357,
11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as
those sections have been amended or added by [the Act].”
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
B. Rules of Construction Governing Voter
Initiatives
“ ‘In interpreting a voter initiative . . . , we apply the same
principles that govern statutory construction.’ [Citation.]
Where a law is adopted by the voters, ‘their intent governs.’
[Citation.] In determining that intent, ‘we turn first to the
language of the statute, giving the words their ordinary
meaning.’ [Citation.] But the statutory language must also be
construed in the context of the statute as a whole and the overall
statutory scheme. [Citation.] We apply a presumption, as we
similarly do with regard to the Legislature, that the voters, in
adopting an initiative, did so being ‘aware of existing laws at the
time the initiative was enacted.’ ” (People v. Buycks (2018) 5
Cal.5th 857, 879–880.)
“ ‘Absent ambiguity, we presume that the voters intend
the meaning apparent on the face of an initiative measure
[citation] and the court may not add to the statute or rewrite it
to conform to an assumed intent that is not apparent in its
language.’ [Citation.]” (Professional Engineers in California
Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
However, where “statutory ambiguity exists,” our role is “to
ascertain the most reasonable interpretation.” (People v. Canty
(2004) 32 Cal.4th 1266, 1277 (Canty).) In making that
determination, we may “ ‘refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in
the official ballot pamphlet.’ [Citation.]” (People v. Rizo (2000)
22 Cal.4th 681, 685 (Rizo).)
C. Analysis
The question we must decide in this case is whether, after
Proposition 64, possession of less than an ounce of cannabis in a
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
state correctional facility remains a violation of Penal Code
section 4573.6. The Attorney General argues Proposition 64 has
no effect on section 4573.6 offenses because the statute qualifies
as a “[l]aw[] pertaining to smoking or ingesting cannabis” within
the meaning of Health and Safety Code section 11362.45(d).
Defendants disagree, contending that section 11362.45(d) only
exempts laws “involving [the] consumption of marijuana in
prison,” and therefore does not extend to possession offenses.
As an initial matter, we disagree with the Court of
Appeal’s conclusion that “there is no ambiguity” (Raybon, supra,
36 Cal.App.5th at p. 121) in section 11362.45(d). In our view,
both parties have presented reasonable interpretations of the
statute. (See People v. Dieck (2009) 46 Cal.4th 934, 940 [“A
statutory provision is ambiguous if it is susceptible of two
reasonable interpretations”].) As the defendants argue, had the
drafters intended to carve out laws that prohibit possession of
cannabis in prison, they could have simply included the word
“possession” in section 11362.45(d), just as they did in other
sections of the Act. (See, e.g., § 11362.3, subd. (a)(5) [the Act
does not permit a person to “[p]ossess, smoke, or ingest cannabis
or cannabis products” on school grounds].) On the other hand,
as the Attorney General asserts, had the drafters meant to limit
section 11362.45(d)’s application to laws that actually prohibit
smoking or ingesting cannabis in prison, they could have simply
used the phrase “laws prohibiting smoking or ingesting.”
Instead, the drafters chose the modifying term “pertaining to”
(ibid.), suggesting they intended some broader application of the
provision. Complicating matters further, apart from the text of
section 11362.45(d) itself, the Act and the Voter Guide do not
contain any other statements referencing how Proposition 64
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was intended to affect laws relating to cannabis in correctional
facilities.
Despite such ambiguity, we must nonetheless attempt to
discern which of the parties’ interpretations is most reasonable.
(See Canty, supra, 32 Cal.4th at p. 1277.) For the reasons that
follow, we agree with the Attorney General that Proposition 64
is most reasonably construed as having no effect on section
4573.6 offenses.
1. Section 11362.45(d) is most reasonably construed
as encompassing laws that prohibit the possession
of cannabis in prison
Section 11362.45 expressly provides that Proposition 64
does “not amend, repeal, affect, restrict, or preempt” various
categories of laws and rules related to cannabis, including “(d)
Laws pertaining to smoking or ingesting cannabis [in
correctional facilities].” As Perry and other decisions have
observed, on its face, the phrase “laws pertaining to smoking or
ingesting cannabis” is broad enough to encompass statutes that
prohibit the possession of cannabis. (See Perry, supra, 32
Cal.App.5th at p. 891 [the term “pertain” has “wide reach”];
Whalum, supra, 50 Cal.App.5th at p. 11, rev. granted; Herrera,
supra, 52 Cal.App.5th at p. 991, rev. granted.) In interpreting a
statute, we generally “accord words their usual, ordinary, and
common sense meaning.” (In re Rojas (1979) 23 Cal.3d 152,
155.) Black’s Law Dictionary defines “pertain” to mean “[t]o
relate directly to; to concern or have to do with.” (Black’s Law
Dict. (11th ed. 2019) p. 1383, col. 1.) Webster’s Third New
International Dictionary defines the term to mean, among other
things, “to have some connection with or relation to something:
have reference: relate.” (Webster’s 3d New Internat. Dict.
(2002) p. 1688, col. 1.) Numerous other dictionary sources
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similarly define “pertain” in terms of having reference to or a
relation to.8 As the Fourth District has aptly explained, “[a]ll of
these definitions demonstrate that ‘pertaining to’ has a
definition similar to the phrase ‘relating to.’ The phrase is
plainly meant to refer to a relation between two things rather
than an exact correspondence.” (Whalum, at p. 11; see Garner,
Dict. of Modern American Usage (1998), p. 47 [“pertain usually
means ‘to relate to; concern’ ”].) Thus, the text of section
11362.45(d) suggests the drafters did not intend the statute to
encompass only laws that explicitly regulate ingesting or
smoking cannabis in prison, but rather intended it to include
laws that relate to smoking or ingesting cannabis in prison.
We think it clear that laws barring possession of cannabis
in prison relate to drug use. The act of possessing cannabis and
the act of using cannabis have an obvious relation insofar as “a
person has to possess cannabis to smoke or ingest it.” (Whalum,
supra, 50 Cal.App.5th at p. 12, rev. granted; see Perry, supra, 32
Cal.App.5th at p. 891 [“[w]e would be hard pressed to conclude
that possession of cannabis is unrelated to smoking or ingesting
the substance”].) Long before Proposition 64 was passed, our
8
See Dictionary.com
(as of Aug. 10,
2021) (“to have reference or relation; relate”); Oxford English
Dictionary Online
(as of Aug. 10, 2021) (“To relate to; to refer to.
Frequently in present participle in pertaining to” (boldface
omitted)); Cambridge Dict.
(Aug. 10, 2021) (defining “pertain to
something” to mean “to relate to or have a connection with
something” (boldface omitted)).)
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courts had repeatedly observed that while Penal Code section
4573.6 and its ancillary provisions (see Pen. Code § 4573 et seq.)
target possession of drugs in prison rather than their use, the
primary purpose of those provisions is nonetheless to deter drug
use in such facilities: “ ‘[T]he ultimate evil with which the
Legislature was concerned [when enacting Penal Code section
4573 et seq.] was drug use by prisoners. Nevertheless, it chose
to take a prophylactic approach to the problem by attacking the
very presence of drugs and drug paraphernalia in prisons and
jails.’ [Citation.]” (People v. Harris (2006) 145 Cal.App.4th 1456,
1461 (Harris); see Low, supra, 49 Cal.4th at p. 388; People v.
Parodi (2011) 198 Cal.App.4th 1179, 1186, fn. 4; People v.
Gutierrez (1997) 52 Cal.App.4th 380, 386.) Indeed, there is no
statute that specifically criminalizes the use of cannabis or any
other type of drug in prison, nor did any such provision exist
when Proposition 64 was adopted. Instead, through the
adoption of Penal Code section 4573 et seq., the Legislature has
aimed to eliminate drug use in prison by targeting the
possession of those illicit substances. In that way, the Penal
Code’s prohibitions on drug possession in prison directly pertain
to drug use.
The Attorney General’s proposed reading of section
11362.45(d) finds further support in the text of the other
subdivisions within that statute. Unlike subdivision (d), several
of section 11362.45’s other subdivisions utilize the terms “laws
prohibiting” or “laws making it unlawful” when describing the
categories of statutes that Proposition 64 does not amend or
affect. Section 11362.45, subdivision (a), for example, exempts
from Proposition 64’s legalization provision laws making it
“unlawful to” operate a vehicle while “smoking, ingesting, or
impaired by, cannabis”; subdivision (b) exempts laws
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“prohibiting” the sale or furnishing of cannabis to persons under
21 years of age; and subdivision (c) exempts laws “prohibiting”
minors from engaging in any of the activities listed in section
11362.1. Had the drafters intended to limit subdivision (d) in
the manner defendants suggest, they could have incorporated
language similar to that used in subdivisions (a) through (c) by
exempting laws that “prohibit” smoking or ingesting cannabis
in prison, or laws that make it “unlawful” to do so. Instead, the
drafters chose to use the modifying term “pertaining to,” which
implies an intent to encompass not only laws that actually
prohibit smoking or ingesting cannabis, but also laws that have
a relation to smoking or ingesting cannabis.
We also find it significant that the only existing laws
regulating cannabis use and possession in correctional facilities
target the act of possession, rather than use. Thus, if section
11362.45(d) is interpreted to apply only to laws that bar the use
of cannabis, the statute would not preserve any existing law
relating to cannabis in prison from being “amend[ed], repeal[ed],
affect[ed], restrict[ed], or preempt[ed].” (Ibid.) To the contrary,
the statute would effectively operate to remove all of the central
existing criminal prohibitions on cannabis in prisons, making it
lawful to both possess and use the drug while incarcerated.9
Stated differently, defendants contend that the phrase “[s]ection
11362.1 does not amend, repeal, affect, restrict, or preempt” any
9
Smoking (but not ingesting) cannabis in a correctional
facility would presumably remain chargeable as an infraction
under section 11362.3, subdivision (a)(2), which prohibits
smoking cannabis “in a location where smoking tobacco is
prohibited.” (See § 11362.4, subd. (b) [violation of § 11362.3,
subd. (a)(2) is an infraction].)
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Opinion of the Court by Groban, J.
“[l]aws pertaining to smoking or ingesting cannabis or cannabis
products” in prison (§ 11362.45(d)) is intended 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. We agree with the Attorney General
that if the drafters had intended to so dramatically change the
laws regarding cannabis in prison, we would expect them to
have been more explicit about their goals. Moreover, we think
it likely that voters, who we must assume were aware that
existing laws governing cannabis in prisons targeted possession
rather than use (see People v. Orozco (2020) 9 Cal.5th 111, 118;
Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326,
1332 [electorate is “conclusively presumed to have enacted the
new laws in light of existing laws having direct bearing upon
them”]), would have read section 11362.45(d) to retain those
laws, rather than repeal them.
Finally, between the parties’ two proposed
interpretations, we find the Attorney General’s construction to
be more “ ‘compatible with common sense.’ ” (In re Estate of
Todd (1941) 17 Cal.2d 270, 275 [“ ‘the language of a statute must
be given a reasonable interpretation . . . and . . . , when
opportunity arises, made compatible with common sense’ ”]; City
of Chula Vista v. Sandoval (2020) 49 Cal.App.5th 539, 560
[“ ‘ “ ‘if the clear meaning of the statutory language is not
evident . . . , we will “apply reason, practicality, and common
sense to the language at hand. If possible, the words should be
interpreted to make them workable and reasonable
[citations], . . . practical [citations], in accord with common
sense . . . ” ’ ” ’ ”].) While perhaps not illogical to distinguish
between the possession and use of cannabis, it is nonetheless
difficult to understand why the electorate would want to
17
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
preclude laws criminalizing cannabis possession in prison, but
permit laws criminalizing cannabis consumption in prison.
Defendants theorize that voters may have wanted to
“decriminalize[] simple possession” while “retaining sanctions
for those who actually use it” because “it is the consumption of
marijuana that is the problem . . . .” But if voters were truly
concerned about cannabis use in prison, why would they want
to remove the existing penal provisions that target that very
problem? Moreover, defendants have not identified any reason
why a person might possess cannabis within a correctional
facility other than to have it consumed by someone. (See Perry,
supra, 32 Cal.App.5th at p. 892 [“For what purpose would an
inmate possess cannabis that was not meant to be smoked or
ingested by anyone?”].) Simply put, we are dubious that the
voters intended to legalize the possession of cannabis in prison
but permit laws that criminalize the use of cannabis in prison
(of which there are currently none).
2. Defendants’ counterarguments
Defendants raise numerous counterarguments in support
of their assertion that Proposition 64 invalidates cannabis-
related convictions under Penal Code section 4573.6. We find
these arguments unavailing.
a. Defendants’ arguments regarding the text of
section 11362.45(d)
Defendants’ primary contention is that if the drafters had
meant section 11362.45(d) to extend to offenses involving the
possession of cannabis, they would have expressly stated as
much, just as they did in other provisions of Proposition 64.
(See, e.g., §§ 11362.1, subd. (a)(1), (2), (3) & (5), 11362.3, subd.
(a)(4), (5), 11362.45, subd. (f).) Section 11362.3, subdivision (4),
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
for example, states that persons are not permitted to “possess”
an open container of cannabis in a vehicle, while subdivision (5)
states that persons are not permitted to “possess, smoke or
ingest cannabis” on school grounds while children are present.
In defendants’ view, these provisions demonstrate the “drafters
knew how to reference possession when they wanted to. A voter
would view possession outside the purview of section
11362.45(d) because the distinct acts of ‘smoking or ingesting’
are explicitly flagged but possession is not.”
If section 11362.45(d) merely stated that Proposition 64
was not intended to affect laws prohibiting or criminalizing
smoking or ingesting cannabis in prison, we would attach more
significance to the absence of the term “possession.” But the
drafters chose broader language, exempting “[l]aws pertaining
to smoking and ingesting” cannabis in prison. (Ibid., italics
added.) While using the word “possession” may well have
provided a simpler means of encompassing laws that bar
possession of cannabis in prison, we must nonetheless give effect
to “pertaining,” a term that generally “signals a relation to
something.” (Whalum, supra, 50 Cal.App.5th at p. 12, rev.
granted.) And as explained above, we think it clear that
possession of cannabis is directly related to smoking or ingesting
the substance. (See ante, at pp. 13–15.) The conclusion that
laws prohibiting possession of cannabis relate to cannabis
consumption accords with our courts’ long-standing
acknowledgment that the primary intent of section 4573.6’s
prohibition of possession is in fact to stop “drug use by
prisoners.” (Harris, supra, 145 Cal.App.4th at p. 1461.) Indeed,
there is no criminal provision that makes it unlawful to use
cannabis or other controlled substances in prison; instead, the
Legislature has elected to attack drug use in correctional
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
facilities by prohibiting “the ‘ “very presence” ’ of such
[substances] in the penal system.” (Low, supra, 49 Cal.4th at p.
388.) For all those reasons, we reject defendants’ assertion that
the absence of the term “possession” precludes section
11362.45(d)’s application to possessory offenses. 10
10
Defendants similarly argue that if “pertaining to” was
meant to include possession, the drafters could have used the
phrase “pertaining to marijuana.” In their view, reading
possession into the statute effectively “writes the limiting words
[‘smoking or ingesting’] out of the statute completely.” We do
not agree that interpreting the term “pertaining to smoking or
ingesting cannabis” to include possession offenses necessarily
renders the words “smoking or ingesting” meaningless. Rather,
the inclusion of that language seems intended to signal that
section 11362.45(d) is meant to encompass laws that relate to
the use of cannabis. The drafters could quite logically endeavor
to limit the possible range of laws in this way (i.e., to all laws
pertaining to smoking or ingesting of cannabis) to avoid
invoking the much broader category of laws that relate in any
conceivable way to cannabis, many of which would have no
applicability in a prison setting, such as laws related to labeling,
advertising, packaging, or transporting in an automobile.
Moreover, “like all . . . interpretive canons, the canon
against surplusage is a guide to statutory interpretation and is
not invariably controlling.” (People v. Valencia (2017) 3 Cal.5th
347, 381 (conc. opn. of Kruger, J.) (Valencia), citing People v.
Cruz (1996) 13 Cal.4th 764, 782; see In re J.W. (2002) 29 Cal.4th
200, 209; Arlington Central School Dist. Bd. of Ed. v. Murphy
(2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee
(2004) 540 U.S. 526, 536.) To the extent our interpretation
results in some level of redundancy, we nonetheless believe it “is
more consistent with voter intent” than defendants’ proposed
reading (Rizo, supra, 22 Cal.4th at p. 687 [canon against
surplusage “is only a ‘guide[] and will not be used to defeat
legislative intent’ ”]), which would render section 11362.45(d)
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Recognizing that the term “pertaining to” cannot be read
out of the statute entirely, defendants posit that such language
was simply intended to “encapsulate” other methods of cannabis
consumption that “do not strictly involve smoking or ingesting.”
Defendants assert those alternative means include, for example,
vaping and absorption through the skin. The Court of Appeal
found this argument persuasive, explaining that “[b]y including
the language ‘pertaining to smoking and ingesting,’ the drafters
allowed for these various [additional] forms of consumption in
prison to remain unlawful.” (Raybon, supra, 36 Cal.App.5th at
p. 122 [“We agree with defendants that consumption can be
achieved in ways not strictly involving smoking or ingesting,
such as inhaled as a nonburning vapor or applied topically such
that it is absorbed through the skin”].)
We find defendants’ proposed interpretation of “pertaining
to” in section 11362.45(d) unpersuasive. First, we question
defendants’ unexamined assumption that the term “smoking or
ingesting” is not broad enough to encompass the alternative
means of consumption they have identified. Section 11362.3,
subdivision (b)(2), for example, demonstrates that regardless of
whether vaping is technically a form of smoking, the drafters
appear to have equated those activities. (See ibid. [“ ‘Smoke’
includes the use of an electronic smoking device that creates an
aerosol or vapor, in any manner or in any form, or the use of any
oral smoking device for the purpose of circumventing the
prohibition of smoking in a place”].) Moreover, the term “ingest”
is commonly defined to mean “to take in: swallow, absorb.”
inapplicable to any existing statute and effectively legalize the
possession and use of cannabis in prison.
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
(Merriam-Webster’s Unabridged Dict. Online

[as of Aug. 10, 2021], italics added; see Webster’s 3d New
Internat. Dict. (1993) p. 1162, col. 2; Roget’s Thesaurus (5th ed.
1992) p. 938 [listing “absorb” as synonym of “ingest”].) That
definition seems broad enough to incorporate cannabis
consumed through topical applications or other forms of
absorption.
Second, and more importantly, other sections of
Proposition 64 strongly suggest the drafters intended the words
“smoking or ingesting” to encompass all forms of consumption.
Section 11362.1, subdivision (a)(4), for example, makes it legal
to “[s]moke or ingest cannabis.” Similarly, section 11362.3
prohibits “[s]mok[ing] or ingest[ing] cannabis” in public (id.,
subd. (a)(1)), while on school grounds when children are present
(subd. (a)(5)) and while driving or operating a motor vehicle (id.,
subd. (a)(7)). Section 11362.45, subdivision (e) additionally
provides that Proposition 64’s legalization provision does not
affect “[l]aws providing that it would constitute negligence or
professional malpractice to undertake any task while impaired
from smoking or ingesting cannabis.”
In each of these circumstances, we believe the drafters
intended “smoking or ingesting” to cover all forms of cannabis
consumption. We find it doubtful, for example, that the drafters
meant to prohibit people from smoking or eating cannabis while
driving but permit them to vape or absorb cannabis products
while driving. We are equally dubious that the drafters
intended to allow laws providing that it would constitute
professional negligence to undertake a task while impaired from
smoking or eating cannabis, but not while impaired from vaping
or absorbing cannabis. Because numerous other sections of
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Proposition 64 appear to use the phrase “smoking or ingesting”
to refer to all methods of consumption, we are not persuaded
that the term “pertaining to” was merely intended to capture
alternative means of consumption that do not strictly involve
smoking or ingesting. Instead, as described above, we conclude
that term is most reasonably construed as intending to broaden
the scope of section 11362.45(d) to laws that relate to cannabis
use, which necessarily includes possession offenses. 11
Defendants also discount the absence of any law making
it a crime to smoke, ingest or consume cannabis in prison or jail.
They argue that section 11362.45(d) was never intended to carve
out preexisting laws involving cannabis in prison, but rather was
meant to authorize the Legislature to pass future laws that
“proscrib[e] smoking or ingesting (or other forms of consuming)
marijuana on jail or prison grounds, should legislators consider
them appropriate.” Defendants contend that in the absence of
11
Moreover, if the drafters were truly concerned that
“smoking or ingesting” was not broad enough to encompass
different forms of consumption, adding the term “pertaining to”
would seem an odd way of trying to capture those alternative
means of consumption. As we have explained, the term
“pertain” generally signifies a direct relationship with
something else. (See ante, at pp. 13–14.) Thus, using the phrase
“laws pertaining to smoking or ingesting” seems a
counterintuitive way to convey the concept that the law was
intended to capture smoking or ingesting cannabis, along with
any other different forms of consumption. (See Whalum, supra,
50 Cal.App.5th at p. 12, fn. 8, rev. granted [“Because ‘pertaining
to’ means ‘relating to,’ someone would not normally describe the
topical application or vaporizing of cannabis as ‘pertaining to’
the smoking or ingesting of cannabis, as they are different ways
of using cannabis and therefore do not relate to one another”].)
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
section 11362.45(d), our Constitution would prevent the
Legislature from passing such laws without the electorate’s
approval. (See Cal. Const. art. 2, § 10, subd. (c) [Legislature
must obtain the electorate’s approval before amending “an
initiative statute by another statute . . . unless the initiative
statute permits amendment . . . without [their] approval”].)
Assuming arguendo that the language of section
11362.45(d) permits the Legislature to pass or repeal laws that
pertain to cannabis use in prison without electorate approval,
we are not persuaded a reasonable voter would interpret that to
be the sole intent of the provision. As explained above, if section
11362.45(d) were only meant to permit the Legislature to pass
future laws criminalizing cannabis use in prison, one would
expect some language clarifying that prospective intent.
Instead, the statute states only that Proposition 64 does not
“amend, repeal, affect, restrict, or preempt” any “[l]aws
pertaining to smoking or ingesting cannabis” in prison.
(§ 11362.45(d).) The clear implication is that the initiative
would leave intact some existing restriction on cannabis in
prison. We find defendants’ proposed reading of this
language — to convey that the initiative would remove existing
penal restrictions regulating cannabis in prison but authorize
the Legislature to pass future laws criminalizing cannabis use
in prison — to be far more strained. (See People v. Nuckles
(2013) 56 Cal.4th 601, 611–612 [a reviewing court should “ ‘not
strain to interpret a penal statute in defendant’s favor if it can
fairly discern a contrary legislative intent’ ”].)12
12
Although multiple subdivisions of section 11362.45 are
clearly intended to preserve preexisting laws (see § 11362.45,
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Defendants next contend that section 11362.1, subdivision
(a)’s use of the statutory phrase “notwithstanding any other
provision of law” makes clear that adult possession of less than
28.5 grams of cannabis in prison no longer qualifies as a
violation of Penal Code section 4573.6. The relevant clause of
section 11362.1, subdivision (a)(1) states: “Subject to Sections
11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding
any other provision of law, it shall be lawful . . . for persons 21
years of age to . . . [¶] . . . [p]ossess . . . not more than 28.5 grams
of cannabis.” As defendants note, “ ‘[t]he statutory phrase
“notwithstanding any other provision of law” has been called a
“ ‘term of art’ ” [citation] that declares the legislative intent to
override all contrary law.’ [Citation.]” (Arias v. Superior Court
(2009) 46 Cal.4th 969, 983.) Defendants assert that because
Penal Code section 4573.6’s prohibition on cannabis possession
in prison conflicts with Health and Safety Code section 11362.1’s
subds. (a), (i)), other subdivisions seem intended to operate on a
prospective basis. Subdivisions (g) and (h), for example,
preserve public and private entities’ “ability . . . to prohibit or
restrict any of the actions or conduct otherwise permitted under
Section 11362.1” within government buildings and on private
property. Subdivision (d), however, does not speak in terms of
retaining the Legislature’s “ability” to act, and the preexisting
statutory provisions barring drug possession in prison (see Pen.
Code, §§ 4573.6, 4573.8) have long been understood as
prophylactic measures intended to deter drug use in such
facilities (see ante, at pp. 14–15). In light of these factors, we
think section 11362.45(d) is more reasonably construed as
incorporating preexisting possessory offenses, rather than
operating solely to allow the Legislature to adopt laws
prohibiting cannabis consumption in the future.
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
legalization provision, it is necessarily rendered inapplicable by
the “notwithstanding” clause. This argument, however,
overlooks the limiting language in section 11362.1 that
expressly lists section 11362.45 as an exception to the
“notwithstanding any other provision of law” clause. For the
reasons discussed above, we are of the view that section
11362.45, subdivision (d) carves out from Proposition 64’s
legalization provision offenses involving the possession of
cannabis in prison. Accordingly, the “notwithstanding”
provision is of no aid to defendants’ interpretation.
Finally, defendants argue the Voter Guide provides
“rich . . . support” for the conclusion that Proposition 64 was
intended to legalize the possession of cannabis in prison. They
note that the Voter Guide contains no language informing voters
that Proposition 64 would leave in place existing prohibitions on
cannabis possession in prison. Defendants also cite to a table in
the Legislative Analyst’s summary listing what activities would
become lawful under the measure and what activities would
remain unlawful. The section of the table addressing possession
states that while it would be allowable for persons 21 or over to
possess up to 28.5 grams of cannabis, it would not be allowable
to possess cannabis on school grounds while children are
present. (See Voter Guide, supra, analysis of Prop. 64 by the
Legis. Analyst, p. 92, figure 2.) According to defendants, the
electorate would have likely inferred from this table that
possession in prison would become legal because such conduct
was not listed as an activity that would remain unlawful.
We find nothing in the Voter Guide that provides
substantial support for either side’s interpretation. As
defendants acknowledge, the Voter Guide does not contain a
single reference to laws regulating cannabis in prisons nor does
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
it explain how Proposition 64 would impact those laws. While
defendants argue voters would have inferred from such silence
that possession in prison would become legal, we think it just as
likely they would have interpreted such silence to mean that
Proposition 64 would have no effect on existing laws prohibiting
the possession of cannabis in prison. Moreover, it is clear the
table that defendants have identified provided only an
incomplete summary of what forms of conduct the Act would
preclude. That table, for example, fails to note that possession
of an open container of cannabis in a vehicle would remain
unlawful and omits numerous other forms of conduct and laws
that fall outside Proposition 64’s purview, including most of the
activities referenced in section 11362.45. Given the Voter
Guide’s total silence on the issue of cannabis in prison, we do not
believe it would have any appreciable effect on voters’
understanding of section 11362.45(d).
b. Defendants’ arguments regarding the text of
Penal Code section 4573.6
Defendants additionally argue that even if section
11362.45(d) does generally extend to possession offenses, their
convictions should nonetheless be dismissed because the act of
possessing cannabis in prisons no longer falls within the
category of conduct proscribed under Penal Code section 4573.6.
Defendants note that the text of Penal Code section 4573.6 does
not state that it is unlawful to possess any controlled substance
in prison; rather, the statute states that it is unlawful to possess
“a[] controlled substance[ ], the possession of which is prohibited
by Division 10 . . . of the Health and Safety Code.” In defendants’
view, this statutory language means that Penal Code section
4573.6 applies only when the circumstances of the person’s
possession in prison would also violate an independent
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
prohibition on possession set forth in division 10. They further
contend that while cannabis remains listed as a controlled
substance, Proposition 64’s addition of section 11362.1 and its
amendments to section 11357 mean that there is no longer any
provision in division 10 that prohibits an adult from possessing
less than 28.5 grams of cannabis (except in limited
circumstances not at issue here). As a result, defendants reason,
their conduct no longer constitutes a violation of Penal Code
section 4573.6, and their convictions must be dismissed. 13
13
The Attorney General argues that even if cannabis
possession no longer violates Penal Code section 4573.6 on a
prospective basis, we must nonetheless reject defendants’
petitions because “the remedial procedure in Health and Safety
Code section 11361.8” does not extend retroactive relief to
persons who were previously convicted of violating that statute.
Section 11361.8, subdivision (a) allows any person “who would
not have been guilty of an offense, or who would have been guilty
of a lesser offense” under Proposition 64 to file a petition seeking
dismissal or resentencing “in accordance with Sections 11357,
11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as
those sections have been amended or added by that act.” The
Attorney General appears to argue that because Penal Code
section 4573.6 is not among the statutes listed in section
11361.8, subdivision (a), persons convicted of violating that
section are not eligible for relief. We disagree with that analysis.
If defendants are correct that cannabis possession is no longer a
violation of Penal Code section 4573.6, that is a result of
Proposition 64’s new legalization provision (§ 11362.1) and the
Act’s amendments to section 11357, which had previously made
it unlawful to possess nonmedical cannabis. Thus, defendants
are in fact seeking relief “in accordance with” two of the statutes
listed in section 11362.8, subdivision (a) “as those sections have
been amended or added by the act.” (Ibid.)
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Our Courts of Appeal are currently divided as to the
meaning of the phrase “any controlled substance[], the
possession of which is prohibited by Division 10 . . . of the
Health and Safety Code,” which appears in multiple Penal Code
sections regulating drugs in prisons. (Pen. Code, § 4573.6, subd.
(a); see Pen. Code, §§ 4573, subd. (a) [“any controlled substance,
the possession of which is prohibited by Division 10 . . . of the
Health and Safety Code”], 4573.9 [same].) In People v. Fenton
(1993) 20 Cal.App.4th 965 (Fenton), the Court of Appeal
considered the meaning of that phrase within the context of
Penal Code section 4573, which makes it unlawful to bring or
send into a prison “any controlled substance, the possession of
which is prohibited by Division 10.” (Pen. Code, § 4573, subd.
(a).) The defendant, who was found smuggling hydrocodone into
a jail, argued that he could not be convicted under Penal Code
section 4573 because he had had a physician’s prescription for
the substance, and thus his possession was not “prohibited by
Division 10” of the Health and Safety Code. (See § 11350, subd.
(a) [prohibiting possession of hydrocodone “unless upon the
written prescription of a physician”].) The Fenton court agreed,
concluding that Penal Code section 4573 was inapplicable
because the manner of defendant’s possession did not violate
any provision in division 10. (Fenton, at p. 969.)
In People v. Taylor (2021) 60 Cal.App.5th 115, review
granted April 14, 2021, S267344 (Taylor), the defendants relied
on Fenton in arguing that Proposition 64’s amendments to
section 11357 mean that possession of less than 28.5 grams of
cannabis in prison by an adult no longer qualifies as a violation
of Penal Code section 4573.6. The court rejected that argument
(and Fenton), concluding that “[b]ased on the entire statutory
scheme, . . . the phrase ‘any controlled substance, the possession
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
of which is prohibited by Division 10 . . .’ [citation] refers to a
general category of controlled substances, rather than a
particular instance of possession, and encompasses those
controlled substances, the possession of which is in any way
prohibited by Division 10.” (Taylor, at p. 130.) In the Taylor
court’s view, because cannabis possession remains unlawful
under some circumstances, possession of cannabis in prison
continues to qualify as a violation of Penal Code section 4573.6.
We need not resolve that dispute here. Regardless of how
Penal Code section 4573.6 might apply with respect to other
controlled substances, the unique language of Health and Safety
Code section 11362.45(d) makes clear that the voters intended
cannabis possession to remain a violation of that felony
provision. There is no question that before the enactment of
Proposition 64, possession of cannabis in prison qualified as a
violation of Penal Code section 4573.6. Section 11362.45(d), in
turn, expressly directs that Proposition 64’s newly added
legalization provision, which declares it is now lawful for adults
to possess up to 28.5 grams of cannabis in most circumstances
(§ 11362.1, subd. (a)(1)), does not “amend” or “affect” any laws
pertaining to cannabis use in prison, which we have found to
include possessory offenses. (See ante, at pp. 13–18.) Voters
would have reasonably understood this language to mean that
any preexisting laws regulating cannabis possession in prison
would remain in place. Under that view, voters would expect
cannabis possession to remain a violation of Penal Code section
4573.6 unless and until further amendments are made to the
statutory scheme. (See Voter Guide, supra, text of Prop. 64, §
10, p. 210 [authorizing the Legislature to “amend, add, or repeal
any provisions to further reduce the penalties for any of the
offenses addressed by this [Act]”].) Under defendants’
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PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
interpretation of Penal Code section 4573.6, in contrast,
Proposition 64 would directly “amend” or “affect” a law
pertaining to smoking of ingesting cannabis. More specifically,
their interpretation would “amend” and “affect” the scope of
Penal Code section 4573.6 by making it no longer applicable to
cannabis possession. (See Perry, supra, 32 Cal.App.5th at p.
896 [“We decline to adopt an interpretation of . . . Penal Code
section 4573.6 that appears to be so at odds with the intent
behind and language of Proposition 64”]; Herrera, supra, 52
Cal.App.5th at pp. 994–995, rev. granted [adopting Perry’s
reasoning].)14
The dissent takes a different view, though for reasons that
are distinct from the arguments made by defendants or any
other court that has addressed this issue. While agreeing that
Health and Safety Code section 11362.45(d)’s carve-out
provision operates to preserve cannabis-related convictions
under Penal Code section 4573.8 (which makes it a felony to
14
The Court of Appeal concluded that this case was
controlled by its prior decision in Fenton, supra, 20 Cal.App.4th
965. (See Raybon, supra, 36 Cal.App.5th at pp. 116–119.) As
the Perry court explained, however, the situation in Fenton was
substantially different than the one presented here.
Specifically, Fenton’s conclusion that Penal Code section 4573
“ ‘permit[s] controlled substances to be in penal institutions
under proper circumstances’ [citation] . . . . did not conflict with
any other provision of law. Here, a conclusion that Division 10
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. (§ 11362.45, subd.
(d).)” (Perry, supra, 32 Cal.App.5th at p. 894.)
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possess any drug or alcohol in prison), the dissent does not
believe the carve-out provision preserves cannabis-related
convictions under Penal Code section 4573.6, subdivision (a)
(which applies to “controlled substances, the possession of which
is prohibited in Division 10”). (See conc. & dis. opn. of Kruger,
J., post, at pp. 1, 7.) According to the dissent, whether cannabis
possession remains a violation of Penal Code section 4573.6
turns instead solely on the meaning of the clause, “controlled
substance[], the possession of which is prohibited by Division
10.” (Id., subd. (a).) As noted above, the meaning of that
language has divided our courts. (See ante, at pp. 28–30.) The
dissent, however, declines to choose a side in that debate and
would leave the question open. (See conc. & dis. opn. of Kruger,
J., post, at p. 6.)
Before turning to the merits of the dissent’s proposed
interpretation of Proposition 64, we first address the dissent’s
assertion that there is no reason for this court to even decide
whether cannabis possession remains a violation of Penal Code
section 4573.6. The dissent reasons that it is unnecessary to
address that issue because the defendants’ petitions seek
dismissal of their sentences, but the most relief they could
possibly obtain under Proposition 64 would be resentencing
pursuant to Penal Code section 4573.8’s “relatively lighter”
(conc. & dis. opn. of Kruger, J., post, at p. 8, fn. 3) triad of
penalties. That reasoning rests on the assumption that Penal
Code section 4573.8 might qualify as a “lesser offense” of Penal
Code section 4573.6 within the meaning of Proposition 64’s
remedial provision. (See § 11361.8, subd. (a) [persons “currently
serving a sentence for a conviction . . . who would not have been
guilty of an offense, or who would have been guilty of a lesser
offense [under Proposition 64]” may petition for “resentencing or
32
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
dismissal”].) In the dissent’s view, regardless of whether the
defendants would be entitled to resentencing had they sought
that remedy (another issue the dissent would leave open), they
are not entitled to dismissal, negating the need to address
Proposition 64’s effect on Penal Code section 4573.6.
While the dissent concludes that we should avoid this
issue entirely based on the manner the defendants have styled
their request for relief, we think the question is properly before
us and should be decided now. Indeed, the defendants’ briefs in
both the Court of Appeal and this court include an entire section
expressly arguing that even if section Health and Safety Code
section 11362.45(d) generally extends to possessory offenses, the
other changes Proposition 64 made to division 10 mean that
cannabis possession no longer qualifies as a violation of Penal
Code section 4573.6. Moreover, whether cannabis possession
remains a violation of Penal Code section 4573.6 is an issue that
has already divided our lower courts and therefore requires
resolution by this court. We think the better course is to decide
this fully briefed legal question now rather than avoid it merely
because defendants described their request for relief as one
seeking dismissal rather than resentencing.15
15
Deciding whether cannabis possession remains a violation
of Penal Code section 4573.6 now also furthers the interest in
judicial economy. During the pendency of this case, we have
granted and held over 40 cases addressing whether Proposition
64 legalized possession of cannabis in prisons. A vast majority
of those cases involve defendants who were convicted of
violating Penal Code section 4573.6. The dissent’s proposed
course would effectively force the five defendants in this case
(along with every other similarly situated person seeking relief
under Proposition 64) to refile new petitions under section
33
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Turning to the merits of the dissent’s interpretation, a
brief review of Proposition 64’s structure is helpful. The central
provision of Proposition 64 is newly added section 11362.1,
which declares that, subject to certain exceptions, it is now legal
for persons age 21 years or older to engage in a wide array of
cannabis-related conduct, including possessing up to 28.5 grams
of the drug. To conform to section 11362.1’s broad legalization
provision, Proposition 64 also amended language in section
11357 that had previously made possession of up to 28.5 grams
of cannabis an infraction. That amended language modifies
section 11357 to state the penalties for conduct that falls outside
the parameters of section 11362.1’s legalization provision (i.e.,
possessing more than 28.5 grams of cannabis or possession by
persons under the age of 21). Section 11362.45(d), in turn, states
11361.8 seeking resentencing (rather than dismissal), requiring
our lower courts to decide anew whether cannabis possession
remains a violation of Penal Code section 4573.6. Given that the
defendants have expressly raised and briefed whether cannabis
possession remains a violation of Penal Code section 4573.6, we
see no need to force them to relitigate (and for our lower courts
to redecide) that pure question of law. The dissent suggests
there might be some benefit to proceeding in that way because
our lower courts would then be able to consider defendants’
entitlement to resentencing “in a case in which the relevant
arguments had been appropriately raised and litigated, which is
not the case here.” (Conc. & dis. opn., Kruger, J., post, at p. 8,
fn. 3.) But whether cannabis possession remains a violation of
Penal Code section 4573.6 is a precursor question our lower
courts would have to answer before considering any possible
entitlement to resentencing. The resolution of the Penal Code
section 4573.6 issue here means our lower courts do not need to
even reach the resentencing issue.
34
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
that Proposition 64’s affirmative legalization provision has no
effect on laws pertaining to cannabis use in prison. 16
As described above, we think the key statutory language
is not that complicated: Section 11362.45(d) references section
11362.1, which is the broadly worded catch all provision from
Proposition 64 that declares it is now legal for adults to possess
up to 28.5 grams of cannabis under most circumstances.
Section 11362.45(d) then says that this broad legalization
provision does not “amend, repeal, affect, restrict, or preempt”
any “[l]aws pertaining to smoking or ingesting cannabis,” which
the dissent agrees encompasses possessory offenses. We think
that when voters were told the broad pronouncement legalizing
cannabis contained in section 11362.1 would not affect laws
16
While at times referencing to section 11362.1 as a
“legalization provision” (see, e.g., conc. & dis. opn. of Kruger, J.,
post, at p. 4), the dissent characterizes it as “in essence, a
preemption provision” (ibid.), while describing section 11357 as
a separate “legalization provision” (conc. & dis. opn. of Kruger,
J., post, at p. 11). We disagree with those characterizations.
Although section 11362.1 contains a preemption clause, that
new provision — one of the very first provisions presented in
Proposition 64 — also broadly pronounces that a wide range of
cannabis-related conduct is now lawful, including the possession
of not more than 28.5 grams of cannabis by persons over the age
of 21. The amendments to section 11357, in comparison, appear
far later in the text of Proposition 64 and in our view were made
to conform to the broad legalization pronouncement made in
section 11362.1. Stated differently, section 11362.1, not section
11357, is the “legalization provision” and the amendments to
section 11357 simply ensure consistency with section 11362.1.
Indeed, it would seem to make little sense to adopt a new
provision declaring cannabis possession generally legal (section
11362.1), while leaving in place a preexisting statute declaring
cannabis possession generally unlawful (section 11357).
35
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
prohibiting possession in prison, they would understand this
language to mean that existing laws prohibiting cannabis
possession in prison would remain in place.
The dissent disagrees, concluding that the language is, in
fact, quite complicated. The dissent concludes that the voters
were asked to journey through a phalanx of complex statutory
cross-references and legal conclusions and, at the end of the
journey, would have concluded that Proposition 64 might
actually “amend, repeal, affect, restrict, [and] preempt” some
laws prohibiting the possession of cannabis in prisons, but not
others. The journey goes something like this: The dissent first
contends that when voters were told Proposition 64’s key
legalization provision would have no effect on in-prison
possession offenses, they would have understood that language
to mean the initiative would have no effect on convictions under
Penal Code section 4573.8, but might have an effect on
convictions under Penal Code section 4573.6. In the dissent’s
view, voters would have come to this conclusion because they
would have understood that section 11362.45(d)’s “no effect”
clause references Proposition 64’s legalization provision (§
11362.1), but not the amendments made to section 11357. They
then would have understood that Proposition 64 removed
section 11357’s previous general prohibition on cannabis
possession and replaced it with more narrow prohibitions. They
then would have realized that section 11357 is part of division
10 of the Health and Safety Code. And they would have noted
that Penal Code section 4573.6 cross-references the prohibitions
in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a
felony to possess a “controlled substance[], the possession of
which is prohibited under Division 10”].) Voters would then
realize that because division 10 no longer contains a general
36
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
prohibition on cannabis possession (it instead conforms to
Proposition 64’s legalization provision by prohibiting a more
narrow class of cannabis-related crimes involving persons under
the age of 21 and quantities in excess of 28.5 grams), and
because section 11362.45(d) fails to state that the amendments
to section 11357 were not intended to affect prison offenses (it
only cross-references section 11362.1’s general legalization
prohibitions), cannabis possession might no longer qualify as a
violation of Penal Code section 4573.6.
But the work of the voter would still not be done. From
that, the voters would then deduce that whether Proposition 64
affects convictions under Penal Code section 4573.6 will
ultimately depend on how courts interpret the phrase “the
possession of which is prohibited under Division 10” (which the
dissent declines to do here). More specifically, they would
understand that if the courts ultimately side with the Fenton’s
line of analysis (see ante, at pp. 28–29), then criminal
convictions under Penal Code section 4573.6 would be
prohibited under most circumstances, but if courts side with
Taylor’s line of analysis (see ante, at pp. 29–30) criminal
convictions under Penal Code section 4573.6 would remain
unaffected by Proposition 64.
While the dissent has come up with an intricate
interpretation, we do not think it is the most reasonable
interpretation of the initiative. (See People v. Jones (1993) 5
Cal.4th 1142, 1150 (Jones) [when faced with ambiguous
statutory language, our duty is to discern “the most reasonable
reading of” the law].) Simply put, we are dubious that when
voters were told Proposition 64’s new legalization provision
would have no effect on laws regulating possession of cannabis
in prison, they would have understood that language to require
37
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
the complex series of deductions and statutory cross-references
that the dissent’s interpretation is built upon. (See Valencia,
supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to
“ ‘study and understand the content of complex initiative
measures’ ” “it is unreasonable to presume that the voters had
such a ‘degree of thoroughness’ that they . . . analyzed various
provisions using the acumen of a legal professional”].) We do
not read the language, “Section 11362.1 does not amend, repeal,
affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to
smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning,
as the dissent seems to read it: “We hereby (might) do away
with the more serious criminal sanctions for cannabis
possession in a penal setting under Penal Code section 4573.6,
but people in prison may continue to be prosecuted and receive
shorter sentences pursuant to Penal Code section 4573.8.” If
Proposition 64 were truly intended to have no effect on
possessory offenses under Penal Code section 4573.8, but
potentially preclude possessory offenses under Penal Code
section 4573.6, we would expect the text to say so in a less
convoluted manner.17
17
The dissent finds it significant that while two published
appellate decisions have concluded that Health and Welfare
Code section 11362.45(d) operates to preserve cannabis
convictions under Penal Code section 4573.6 (see Perry, supra,
32 Cal.App.5th at p. 896; Herrera, supra, 52 Cal.App.5th at
pp. 994–995, rev. granted), the Attorney General did not
expressly rely on that argument here and his briefing appears
to leave open whether cannabis possession remains chargeable
under that provision. (See conc. & dis. opn., Kruger, J., post, at
pp. 8–9.) At oral argument, however, the Attorney General
clarified that the People do believe cannabis possession remains
a violation of Penal Code section 4573.6, citing the Sixth
38
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
The dissent’s reading of section 11362.45(d) would also
have curious consequences regardless of how our courts
ultimately interpret the language in Penal Code section 4573.6
(which again, the dissent has declined to take a position on).
Under the view espoused in Taylor, supra, 60 Cal.App.5th 115,
review granted, cannabis possession, regardless of the
defendant’s age, would remain a violation of Penal Code section
4573.6 because division 10 still prohibits possession under some
circumstances. (See ante, at pp. 29–30.) But under the view
espoused in Fenton, only inmates under the age of 21 could be
prosecuted under Penal Code section 4573.6, and therefore
inmates under the age of 21 would face harsher felony treatment
for possession of cannabis than inmates over the age of 21.18
This means that if the dissent’s theory ultimately came to
fruition, culminating in the application of Fenton, 20-year-old
inmates (or any 20 year old who happens to be on prison
grounds) could be prosecuted under Penal Code section 4573.6,
District’s decision in Taylor, supra, 60 Cal.App.5th 115 (see ante
at pp. 29–30). Having embraced Taylor’s conclusion that
cannabis possession remains a violation of Penal Code section
4573.6, we find little significance in the fact that the Attorney
General did not expressly approve of an alternative legal theory
that results in the same outcome.
18
As discussed above, Fenton, supra, 20 Cal.App.4th 965,
concluded that Penal Code section 4573 (which includes the
same operational language as Penal Code section 4573.6)
applies only when the circumstances of defendant’s possession
would independently violate a provision in division 10. (See
ante, at pp. 28–29.) Section 11357, in turn, retains prohibitions
on possession by persons under the age of 21 (see § 11357, subd.
(a)), meaning that possession by such persons would violate a
provision in division 10. Thus, under Fenton, persons under the
age of 21 could still be prosecuted under Penal Code section
4573.6.
39
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
but 21 year olds could not. We find it unlikely that the voters
would have understood the text of sections 11362.45(d) and
11357 to mean that a 20-year-old inmate found in possession of
cannabis would remain chargeable under Penal Code section
4573.6, but a 21-year-old inmate — perhaps in the same
correctional facility and even sharing the same cell — who
engaged in the same conduct would not. Indeed, such an
outcome, particularly punishing less mature inmates more
harshly than more mature inmates, would seem to make little
sense in a penological setting. 19 So in the end, the dissent’s
interpretation either ends in the same place as the majority view
(albeit, through a more winding road) or would mean that
possession of cannabis in prison by persons under the age of 21
would face harsher felony treatment than persons over the age
of 21.
It is true that the amendments Proposition 64 made to
division 10 have created tension between the “no effect”
principle set forth in Health and Safety Code section
11362.45(d) and Penal Code section 4573.6, subdivision (a)’s
reference to controlled substances “the possession of which is
prohibited under Division 10.” When faced with such ambiguity,
however, our task is “ ‘to identify the interpretation that best
effectuates the [voters’] intent.’ ” (Rossa v. D.L. Falk
19
While the dissent contends “the possibility that
Proposition 64 affected charging under Penal Code section
4573.6 is not so far-fetched that we can dismiss it out of hand”
(conc. & dis. opn., Kruger, J., post, at p. 13), it offers no
justification for why the electorate would want to punish
younger people more harshly for cannabis offenses in prison
than more mature people. (See Jones, supra, 5 Cal.4th at p.
1150 [when interpreting ambiguous language, court’s role is to
ascertain “the most reasonable reading of” the law].)
40
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
Construction, Inc. (2012) 53 Cal.4th 387, 392; see Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735 [“The intent prevails over
the letter, and the letter will, if possible, be so read as to conform
to the spirit of the act”].) In this case, we think a more plausible
conclusion is that when voters read language stating that the
newly added statute legalizing adult possession of cannabis in
most situations would have no effect on laws prohibiting
possession of cannabis in prison, they would have understood
that language as an assurance that Proposition 64 would not
affect any preexisting laws prohibiting possession of cannabis in
prison. (See Perry, supra, 32 Cal.App.5th at pp. 895–896;
Herrera, supra, 52 Cal.App.5th at p. 995, rev. granted.)
Indeed, as far as we are aware, no court has ever
concluded (nor has any party ever argued) that voters would
construe section 11362.45(d)’s reference to Proposition 64’s
central legalization provision, but not to the conforming
amendments made to section 11357, as a signal that the
initiative was intended to have different effects on convictions
under Penal Code section 4573.6 versus those under Penal Code
section 4573.8. Or rather, that the initiative might have
different effects on those two provisions depending on how our
courts ultimately interpret the language of Penal Code section
4573.6. By offering an interpretation that no other court or
party has ever articulated, it seems it is the dissent that has
“step[ped] out on its own.” (Conc. & dis. opn. of Kruger, J., post,
at p. 9.)
c. Defendants’ policy arguments
Defendants also raise a series of policy-related arguments,
contending that the consequences of continuing to treat
possession of small amounts of cannabis in prison as a violation
41
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
of Penal Code section 4573.6 is inconsistent with the public’s
evolving attitude toward the drug and its “changing views about
the societal costs of incarceration.” (See, e.g., Prop. 215, as
approved by voters, Gen. Elec. (Nov. 5, 1996) [decriminalizing
possession of cannabis possession if the person has a physician’s
oral or written recommendation]; Stats. 2010, ch. 708, § 1
[reclassifying possession of less than 28.5 grams of cannabis as
an infraction]; Prop. 36, as approved by voters, Gen. Elec. (Nov.
6, 2012) [removing three strikes life sentences for those
committing nonviolent felonies]; Prop. 47, as approved by voters,
Gen. Elec. (Nov. 4, 2014) [reducing certain drug-related and
theft-related offenses that previously were felonies or wobbler
offenses]; Prop. 57, as approved by voters, Gen. Elec. (Nov. 8,
2016) [reducing prison terms for nonviolent offenders by
advancing parole consideration dates].) They note that while
possession of cannabis is now generally legal outside the
confines of prison, the Attorney General’s interpretation would
subject inmates (and potentially anyone else on prison grounds)
to two to four years of imprisonment for engaging in that same
conduct when inside a custodial facility. Adding to the severity,
for many inmates found in possession of cannabis, a section
4573.6 offense can constitute an in-custody second strike,
resulting in a consecutive sentence adding anywhere from four
to eight years of incarceration to their present term. This is
likely to be a common result given that Penal Code section
4573.6 involves conduct committed on the grounds of a
correctional facility. The present case is illustrative. As the
result of strike enhancements, two of the five defendants
received six-year consecutive sentences for possessing small
amounts of cannabis, while a third defendant received a four-
year consecutive sentence. (See ante, at p. 3, fn. 4.) In Herrera,
42
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
supra, 52 Cal.App.5th 982, review granted, the defendant was
punished even more harshly, receiving an eight-year prison
term after being found in possession of less than one gram of
cannabis. (See id. at pp. 985–986.)
We are sympathetic to the view that section 11362.45(d)
creates extreme disparity between how our legal system treats
the possession of cannabis generally versus the possession of
such a substance inside a correctional facility. That is also true
of many other substances, including alcohol. (See Pen. Code, §
4573.8 [unauthorized possession of alcohol in prison constitutes
a felony].) Some may well view an eight-year prison sentence
for the possession of less than one gram of cannabis (one gram
is the approximate weight of a single paper clip or a quarter
teaspoon of sugar) as unduly harsh. The wisdom of those policy
judgments, however, are not relevant to our interpretation of
the statutory language. (See Superior Court v. County of
Mendocino (1996) 13 Cal.4th 45, 53 [“The judiciary, in reviewing
statutes . . ., may not undertake to evaluate the wisdom of the
policies embodied in such legislation; absent a constitutional
prohibition, the choice among competing policy considerations
in enacting laws is a legislative function”].) Rather, our role is
limited to determining the most reasonable construction of
Proposition 64. For the reasons set forth above, we believe
section 11362.45(d) is most reasonably construed to leave in
place the prohibitions against cannabis possession in prison.
Our interpretation notwithstanding, prosecutors of course
retain discretion whether a person found in possession of a small
quantity of cannabis on prison grounds warrants felony
treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477
[“Prosecutors have broad discretion to decide whom to charge,
and for what crime. . . . ‘[A] district attorney’s enforcement
43
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
authority includes the discretion either to prosecute or to decline
to prosecute an individual when there is probable cause to
believe he has committed a crime’ ”].) As defendants note, “there
are already [prison] regulations in place . . . to punish and deter
this conduct.” Cannabis possession in prison remains classified
as a serious rules violation that is subject to a custody credit
forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15,
§ 3323, subd. (d)(7)), which effectively translates into an
additional four to five month jail sentence. Such conduct can
also result in substantial loss of visitation rights, including up
to three months of no visitation and three additional months of
no contact visitation for a first offense, with increasing loss of
visitation rights with each consecutive offense. (See Cal. Code
Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the
nature of the defendant’s sentence, a rules violation involving
the possession of cannabis could also impact parole eligibility.
(See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances
tending to show unsuitability for parole for life prisoners include
“Institutional Behavior. The prisoner has engaged in serious
misconduct in prison or jail”].)
In cases where prosecutors do elect to pursue criminal
punishment, they may consider a charge under Penal Code
section 4573.8, which carries a lower sentence than Penal Code
section 4573.6.20 (See ante, at p. 7; see also Whalum, supra, 50
Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a
20
The Attorney General appears to agree with this
suggestion, arguing that while possession of cannabis in prison
remains chargeable under either Penal Code section 4573.6 or
Penal Code section 4573.8, “going forward [such conduct] might
be better charged . . . as a violation of Penal Code section
4573.8.”
44
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
controlled substance regulated in division 10 of the Health and
Safety Code [citations], both statutes have been used to convict
prisoners who possesses cannabis” (italics omitted)].)
Alternatively, depending on the defendant’s circumstances, a
prosecutor might recommend a disposition that does not require
a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in
this subdivision shall be construed to prevent other dispositions
authorized by law, including pretrial diversion, deferred entry
of judgment, or an order granting probation pursuant to Section
1203.1”].) Similarly, in cases where a defendant is convicted
under Penal Code section 4573.6 and has a prior strike (as most
of the defendants here did), the prosecution may move to dismiss
the strike allegation, or the trial court may elect to do so on its
own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd.
(a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases
where the defendant is already serving a sentence for a prior
conviction under Penal Code section 4573.6, the prosecution or
prison officials might recommend that the court recall the
sentence previously ordered and resentence the defendant in the
interests of justice pursuant to Penal Code section 1170,
subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.)
The Legislature, in turn, remains free to revisit whether
the harm associated with possessing small quantities of
cannabis in or on the grounds of a correctional facility, conduct
that is now generally lawful outside the confines of a
correctional facility, continues to justify the substantial
penalties set forth in Penal Code section 4573.6. (See Voter
Guide, supra, text of Prop. 64, § 10, p. 210 [permitting the
Legislature, by majority vote, to reduce the penalties for any
offense addressed in Prop. 64]; People v. Wilkinson (2004) 33
Cal.4th 821, 840 [“ ‘The Legislature is responsible for
45
PEOPLE v. RAYBON
Opinion of the Court by Groban, J.
determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others’ ”]; In re
Lynch (1972) 8 Cal.3d 410, 414 [“it is the function of the
legislative branch to define crimes and prescribe punishments,
and that such questions are in the first instance for the
judgment of the Legislature alone”].)
III. DISPOSITION
The judgment of the Court of Appeal is reversed, and the
case is remanded for further proceedings consistent with this
opinion.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
JENKINS, J.
46
PEOPLE v. RAYBON
S256978
Concurring and Dissenting Opinion by Justice Kruger
I agree with the majority that Proposition 64, fairly read,
did not legalize cannabis possession in California’s prisons and
jails, even as it either overrode or lifted state and local
prohibitions on possessing small quantities of cannabis in most
other places.
It is, however, a separate question whether, after
Proposition 64, prosecutors may continue to charge in-prison
cannabis possession exactly as they have been — that is, by
choosing at will between two overlapping felony statutes, one of
which carries steeper penalties than the other, and whose
coverage is expressly tied to the scope of state-law prohibitions
applicable outside of prison. The majority concludes that
prosecutors are still permitted to choose (though the majority
encourages them to make their choices wisely). (Maj. opn., ante,
at pp. 30–31, 43–45.) Because I do not think the particular
reasons the majority gives for extending this permission can be
squared with the statutory text, and because the majority’s
conclusions on this subject are unnecessary to resolve this case
in any event, I do not join this portion of the majority opinion.
I.
For many decades, Penal Code section 4573.6 (section
4573.6) served as a general criminal prohibition on possessing
contraband substances in prisons, jails, and other detention
facilities. As originally enacted in 1949, former section 4573.6
1
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
made it a felony to possess “any narcotics, or drugs . . . , or
alcoholic beverage” without authorization. (Stats. 1949, ch. 833,
§ 3, p. 1583.) So it remained (with occasional modifications not
pertinent here) until 1990, when the Legislature determined
that possession offenses involving controlled substances
generally should be punished more harshly than the possession
of other drugs or alcohol. (Legis. Counsel’s Dig., Sen. Bill
No. 2863 (1989–1990 Reg. Sess.) 5 Stats. 1990, Summary Dig.,
pp. 647–648; see Stats. 1990, ch. 1580, § 4, pp. 7555–7556.)
The result was a new two-part scheme for addressing the
in-prison possession of contraband substances. As currently
written, Penal Code section 4573.8 (section 4573.8) provides the
basic prohibition, making it a felony to possess “drugs . . . or
alcoholic beverages” without authorization. Like violations of
the old version of section 4573.6, violations of section 4573.8 are
punishable by imprisonment for 16 months, or two or three
years in state prison. (Pen. Code, § 18.)
Section 4573.6, meanwhile, was recast as a prohibition on
the possession of controlled substances, punishable by a steeper
triad of penalties: two, three, or four years in state prison. By
its terms, however, the revamped section 4573.6 does not
purport to punish the possession of all controlled substances;
rather, it punishes the possession of substances “the possession
of which is prohibited by Division 10 (commencing with Section
11000) of the Health and Safety Code” — a division otherwise
known as the California Uniform Controlled Substances Act.
(Pen. Code, § 4573.6, subd. (a); see Health & Saf. Code, § 11000.)
Possession of other drugs — i.e., drugs the possession of which
is not prohibited by division 10 — may be prosecuted only under
section 4573.8.
2
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
Since 1990, both section 4573.8 and section 4573.6 have
been used to prosecute prisoners found in possession of
cannabis. (See People v. Whalum (2020) 50 Cal.App.5th 1, 5,
review granted Aug. 12, 2020, S262935.) Cannabis is, of course,
a drug within the meaning of the basic prohibition in section
4573.8. (Whalum, at p. 5.) And before Proposition 64, division
10 also generally prohibited the unauthorized possession of
cannabis (Health & Saf. Code, former § 11357), making
cannabis a controlled substance “the possession of which is
prohibited” for purposes of section 4573.6 (Pen. Code, § 4573.6,
subd. (a)). (See also Health & Saf. Code, § 11054, subd. (d)(13)
[provision of div. 10 listing cannabis as a Schedule I
hallucinogenic drug]; id., § 11007 defining “ ‘[c]ontrolled
substance’ ” to include Schedule I drugs.)
Enter Proposition 64, the Control, Regulate and Tax Adult
Use of Marijuana Act (the Act), which amended division 10 to
substantially loosen cannabis restrictions. 1 In enacting the
statute, voters found and declared an intent to, among other
things, “incapacitate the black market” in cannabis “and move
[cannabis] purchases into a legal structure with strict
safeguards against children accessing it.” (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 2, subd. D.,
p. 178.) Voters also declared an intent to “alleviate pressure on
the courts” handling nonviolent drug offenses, “but continue to
allow prosecutors to charge the most serious [cannabis]-related
offenses as felonies, while reducing the penalties for minor
[cannabis]-related offenses.” (Id., § 2, subd. G., p. 179.)
1
Like the majority, I use the term “cannabis” instead of the
original statutory term “marijuana,” in keeping with
subsequent legislative revisions to the statutory text. (See maj.
opn., ante, at p. 1, fn. 1.)
3
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
Three provisions of Proposition 64 are particularly
relevant to our analysis here, listed in the order in which they
appear in the current version of the Health and Safety Code.
First, voters amended Health and Safety Code section 11357 to
lift its prohibitions on possessing small amounts of cannabis
(28.5 grams or less) for most adults (prohibitions remain in place
for individuals under 21) in most places (prohibitions remain for
possession on school grounds). (Health & Saf. Code, § 11357, as
amended by Prop. 64, § 8.1.)
Second, voters added a legalization provision displacing
other state and local prohibitions on cannabis possession:
“Subject to” various provisions, including newly added Health
and Safety Code 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” possess 28.5 grams of cannabis or
less. (Id., § 11362.1, subd. (a)(1), added by Prop. 64, § 4.4.) This
legalization provision is also, in effect, a preemption provision;
through the use of the “notwithstanding” clause, section 11362.1
signals that “its provisions prevail over all contrary laws
prohibiting the activities that it legalizes, except as ‘[s]ubject
to’ ” certain other provisions, including section 11362.45.
(People v. Whalum, supra, 50 Cal.App.5th at p. 7, review
granted, citing In re Greg F. (2012) 55 Cal.4th 393, 406.)
Third, voters enacted Health and Safety Code section
11362.45, which specifies certain exceptions from the
legalization provision in section 11362.1 for various categories
of laws. It provides, as relevant here: “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
4
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
under the jurisdiction of the Department of Corrections and
Rehabilitation or the Division of Juvenile Justice,” or on the
grounds of, or within, other detention facilities including local
jails. (Health & Saf. Code, § 11362.45, subd. (d), added by Prop.
64, § 4.8 and amended by Stats. 2017, ch. 27, § 133.)
The central question presented in this case concerns the
relationship between these latter two provisions, the
legalization provision in Health and Safety Code section 11362.1
and the savings provision in Health and Safety Code section
11362.45, subdivision (d). Petitioner Goldy Raybon argues,2 and
the Court of Appeal below agreed, that the legalization
provision — which says that “notwithstanding any other
provision of law, it shall be lawful under state and local law” to
possess 28.5 grams of cannabis or less (Health & Saf. Code,
§ 11362.1, subd. (a)(1)) — by its plain terms overrides any
statute prohibiting possession of small amounts of cannabis,
including both sections 4573.6 and 4573.8. Raybon further
argues, and the Court of Appeal further agreed, that the savings
provision in Health and Safety Code section 11362.45,
subdivision (d), for prisons and other detention facilities does
not apply because that provision refers only to “[l]aws pertaining
to smoking or ingesting,” and does not speak of laws pertaining
to possession. It follows, in Raybon’s telling, that in-prison
cannabis possession is now lawful, and because it is lawful, he
is entitled to have his prior section 4573.6 conviction wiped away
under Proposition 64’s resentencing provision. (Health & Saf.
Code, § 11361.8, subd. (a).)
2
Raybon’s case has been consolidated in this court with that
of four other petitioners; references in this opinion to arguments
made by Raybon include those made by the petitioners in the
consolidated cases.
5
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
I agree with the majority that Raybon takes too cramped
a view of the savings provision, and thus too broad a view of the
preemptive effect of the legalization provision. The phrase
“[l]aws pertaining to smoking or ingesting” (id., § 11362.45,
subd. (d)) is perhaps inartful. But, fairly read, the language
indicates that voters did not wish for section 11362.1’s
legalization provision to override laws prohibiting cannabis
possession in prison — laws that bear an obvious and close
logical relationship to smoking or ingesting cannabis in prison.
(Maj. opn., ante, at pp. 13–27.)
The majority goes on, however, to answer the separate
question whether, after Proposition 64, in-prison cannabis
possession remains chargeable under section 4573.6. As the
majority explains, this question raises an interpretive dilemma.
Section 4573.6 incorporates the scope of prohibitions in division
10 of the Health and Safety Code, which Proposition 64
largely — but not completely — eliminated. The issue, then, is
how section 4573.6 applies to the possession of controlled
substances that division 10 prohibits in some situations but not
others. This is an interpretive issue that predates Proposition
64, but which Proposition 64’s regime of partial legalization has
brought to the fore, and that has now become the subject of a
conflict in the Courts of Appeal. (Compare People v. Fenton
(1993) 20 Cal.App.4th 965, 966–967 [identical language in Pen.
Code, § 4573 criminalizes the possession of substances only to
the extent possession would be prohibited in like circumstances
by div. 10] with People v. Taylor (2021) 60 Cal.App.5th 115, 131,
review granted Apr. 14, 2021, S267344 [§ 4573.6 criminalizes
possession of substances that are prohibited in any
circumstances under div. 10]; see maj. opn., ante, at pp. 29–31.)
6
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
The majority decides to avoid this interpretive dilemma —
which has not been adequately briefed in this court in any
event — because it sees in Proposition 64’s savings provision an
alternative path to answering the charging question. In the
majority’s view, Health and Safety Code section 11362.45,
subdivision (d), means not only that prison laws are exempt
from the provision of Proposition 64 generally making it lawful
to possess small quantities of cannabis (id., § 11362.1), but that
prison laws are not affected in any way by any other provision
of the Act — not even indirectly, through section 4573.6’s
express incorporation of other provisions that were amended by
Proposition 64.
For a number of reasons, I do not join this portion of the
majority opinion. For one thing, it is unnecessary. We do not
need to answer questions about post-Proposition 64 charging
practices to resolve Raybon’s claim concerning his pre-
Proposition 64 conviction. Raybon’s only argument here is that
he is entitled to the retroactive dismissal of his prior conviction
under Proposition 64 because he is a person “who would not
have been guilty of an offense” had Proposition 64 been in effect
at the time. (Health & Saf. Code, § 11361.8, subd. (a).) As the
Attorney General notes, it is a full answer to observe that
Proposition 64 did not legalize cannabis possession in prison;
whatever indirect effect Proposition 64 may have had on future
prosecutions under section 4573.6, cannabis possession remains
punishable as a felony under section 4573.8. Because Raybon
would have been guilty of that offense even had Proposition 64
7
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
been in effect at the time, he is not entitled to the only form of
relief he has sought in this proceeding.3
The majority’s alternative resolution of the issue also
depends entirely on an argument about the import of
Proposition 64’s savings provision that none of the parties have
made. While the Attorney General relies on the savings
provision to argue that Proposition 64 did not legalize cannabis
possession in prison, he expressly acknowledges that
Proposition 64 might still “have an effect on future charging
decisions.” He explains that “due to the removal of certain
3
Perhaps we would have needed to address the future of
section 4573.6 if Raybon had asked the court for resentencing
based on the differences between section 4573.6’s relatively
heavier penalties and section 4573.8’s relatively lighter ones.
(See Health & Saf. Code, § 11361.8, subd. (a) [authorizing
resentencing for a person “who would have been guilty of a
lesser offense under [Proposition 64] had that act been in effect
at the time of the offense”].) But Raybon did not do so, instead
opting to seek outright dismissal. There is therefore no need for
us to decide here whether in-prison cannabis possession remains
punishable under section 4573.6 as well as section 4573.8. Nor
is there any reason for us to address any other interpretive issue
that might arise in a case involving a request for resentencing
under section 4573.8, including whether section 4573.8 qualifies
as a lesser offense of section 4573.6. (Cf. maj. opn., ante, at
p. 32.)
The majority observes that it is more efficient to reach this
question here; were we instead to reserve it, Raybon and others
like him would have to file new petitions seeking this more
modest form of relief. (Maj. opn., ante, at pp. 33–34, fn. 15.)
True. But were they to do so, we would presumably be able to
address their statutory entitlement to that form of relief in a
case in which the relevant arguments had been appropriately
raised and fully litigated, which is not the case here.
8
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
prohibitions from division 10 of the Health and Safety Code,
going forward, the possession of cannabis in a custodial
institution might be better charged prospectively as a violation
of Penal Code section 4573.8 (which prohibits the possession of
drugs) rather than of Penal Code section 4573.6 (which prohibits
the possession of controlled substances ‘the possession of which
is prohibited by Division 10’).” Despite ample encouragement
from the two published appellate decisions adopting arguments
much like the majority’s (see maj. opn., ante, at pp. 31–32 &
fn. 14 [citing cases]), the Attorney General has studiously
avoided arguing that Proposition 64’s savings provision for
prison-related laws means that prosecutors may treat section
4573.6 as though it were partly suspended in amber, preserving
division 10’s cannabis-related prohibitions as they existed
before the proposition passed. In reaching this conclusion
anyway, the majority steps out on its own.
But the most fundamental reason I do not join the
majority on this issue — and the crux of our disagreement
here — is that the majority’s resolution of the issue depends on
a reading of the savings provision that departs from its plain
text. As noted, Health and Safety Code section 11362.45,
subdivision (d), is written as an exception to Proposition 64’s
legalization and preemption provision, providing that
“Section 11362.1 does not amend, repeal, affect, restrict, or
preempt” prison laws. The majority reads this language as
though it instead provided that the Act — as a whole — should
not be understood to amend or affect laws relating to in-prison
cannabis. (E.g., maj. opn., ante, at pp. 40–41.) This subtle but
important substitution is what leads the majority to conclude
that no matter how section 4573.6 “might apply with respect to
other controlled substances,” the “unique language” of the
savings provision in section 11362.45, subdivision (d), requires
9
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
applying Health and Safety Code division 10’s restrictions on
cannabis precisely as they existed before Proposition 64. (Maj.
opn., ante, at p. 30.)
The “unique language” of the savings provision is more
limited than the majority acknowledges. The provision does not
preserve prison-related laws from the Act in its entirety.
(Accord, maj. opn., ante, at pp. 40–41.) Rather, by its terms, the
savings provision carves prison laws out from only the
legalization provision in Health and Safety Code section
11362.1, which had made cannabis possession lawful
notwithstanding state and local laws to the contrary. This
means prison laws are not subject to the preemptive effects of
section 11362.1. But it says nothing about other effects that
other provisions of Proposition 64 might have on the operation
of prison-related laws such as section 4573.6. And it is
ultimately the operation of those other provisions — in
particular, the dramatically narrowed scope of restrictions on
cannabis possession in Health and Safety Code section 11357 —
that matters here.
Recall that section 4573.6 was written in a manner that
explicitly ties its prohibition on in-prison possession of
controlled substances to whether possession of that controlled
substance is prohibited outside of prison under division 10.
Recall also that before Proposition 64, it was understood that
former section 4573.6 could be used to prosecute in-prison
cannabis possession because division 10 (in Health & Saf. Code,
former § 11357) generally prohibited cannabis possession
without authorization. (See People v. Whalum, supra, 50
Cal.App.5th at p. 5, review granted.) Now, finally, recall that
one of the many changes made by Proposition 64 was to lift the
prohibitions in section 11357 on the possession of small
10
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
quantities of cannabis, for most people and in most settings.
(See ante, at p. 3.)
Had Proposition 64 repealed all of Health and Safety Code
division 10’s restrictions on cannabis possession, then, as a
textual matter, there could be no genuine question about
whether in-prison cannabis possession could be prosecuted
under section 4573.6. The answer would be no — possession
could be punished only under section 4573.8, and the savings
provision in Health and Safety Code section 11362.45,
subdivision (d), would have nothing to do with it. The savings
provision is not more relevant because Proposition 64 stopped
short of full repeal.
The majority acknowledges the textual limitations of the
savings provision, but dismisses them as a technicality. Yes,
Health and Safety Code section 11362.45, subdivision (d), does
no more than carve prison laws out from preemption through
Proposition 64’s affirmative legalization provision, Health and
Safety Code section 11362.1. But, the majority argues, the
amended Health and Safety Code section 11357 is a kind of
legalization provision, too, as are various other provisions of the
measure. (Maj. opn., ante, at p. 35, fn. 16 [arguing that the
amendments to § 11357 were necessary “to conform to the broad
legalization pronouncement made in section 11362.1”]; accord,
People v. Perry (2019) 32 Cal.App.5th 885, 894.) Surely the
voters who chose to save prison laws from preemption under
section 11362.1 would also have wished to save prison
possession laws from the indirect effects of cannabis legalization
in these other provisions. (See maj. opn., ante, at pp. 35–36.)
The initial difficulty with this argument is that there is
nothing in the materials before us to support this set of
11
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
assumptions about voter intent. Had voters intended to wall off
prison laws from Proposition 64 entirely, it would have been
easy enough to say so. Instead of referring specifically to Health
and Safety Code section 11362.1, the savings provision in
Health and Safety Code section 11362.45 could have been
written to say that the Act as a whole “does not amend, repeal,
affect, restrict, or preempt” prison laws, period. That is not how
the provision was written, and the ballot materials contain no
indication that this is how voters would have understood it. To
the extent the ballot materials shed any light on voter intent at
all, they point to a general intent to prescribe more lenient
treatment for possessing small quantities of cannabis. While
the savings provision indicates that voters intended to maintain
restrictions on cannabis possession in prison, nothing in the
ballot materials indicates that voters also intended to foreclose
any possible, limited measure of leniency for individuals
prosecuted under the harsher of two potentially applicable
felony statutes forbidding cannabis possession in prisons and
jails.
But the difficulty is even greater than attributing this sort
of unexpressed intent to Proposition 64 voters, because here it
is not only the voters’ intent that counts; it is also the intent of
the legislators who enacted the current versions of sections
4573.6 and 4573.8. The legislators who enacted the current set
of prison possession laws deliberately chose to make possession
of drugs in prison a felony offense punishable by the default
penalties prescribed in Penal Code section 18, while reserving
heightened felony punishment for possession of controlled
substances whose possession would be prohibited under division
10. Even if we accepted for argument’s sake that the voters who
enacted Proposition 64 assumed no aspect of the measure would
12
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
have an effect on prison possession laws, it is unclear why, in
the event of a conflict between the two sets of provisions, that
assumption would or should prevail over legislators’ intent to
reserve harsher punishment for possession cases where
possession would also be prohibited outside of prison under
Health and Safety Code division 10.
The majority’s remaining justifications for its approach
focus on what the majority sees as its practical advantages over
concluding that Proposition 64 did, in fact, affect charging under
section 4573.6. The majority worries that the relationship
between section 4573.6 and Proposition 64 is overly complicated,
and that giving effect to that relationship could yield some
“curious” results (maj. opn., ante, at p. 39). The majority also
worries about the various additional questions we would need to
answer, none of which have been briefed here, should a
defendant in Raybon’s position seek resentencing based on the
different penalties prescribed in section 4573.6 and section
4573.8. None of these points, in my view, justifies refusing to
read Health and Safety Code section 11362.45, subdivision (d),
in accordance with its plain text.
As to the first point, the relationship between Penal Code
section 4573.6 and Proposition 64 is not, near as I can tell,
appreciably more complex than issues we have seen in other
cases concerning the relationship between voter-initiated
reform measures and preexisting criminal laws. (See, e.g.,
People v. Romanowski (2017) 2 Cal.5th 903; People v. Gonzales
(2017) 2 Cal.5th 858.) Sometimes statutes are, in fact,
complicated. And our cases have recognized that the most
faithful reading of a statutory scheme is not always the simplest
one — even when the scheme has been enacted in whole or in
part by voters.
13
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
As to the majority’s second point, the possibility that
Proposition 64 affected charging under section 4573.6 is not so
far-fetched that we can dismiss it out of hand. The practical
result would be that prosecutors would be limited in most cases
to charging cannabis possession in prison the same way the
possession of other drugs or alcohol is charged, instead of
charging it the same way as the possession of, say, heroin or
methamphetamines. That result creates no obvious
inconsistency with the overarching objectives of Proposition 64.
But to the majority’s final point, I do share many of the
majority’s concerns about the various questions that could arise
in future cases concerning the relationship between Proposition
64 and section 4573.6. This is precisely why I would not attempt
to answer these questions here, and would instead await an
appropriate case where the necessary arguments have been
briefed and the issues joined. I write separately here because I
do not think we should foreclose further exploration of these
issues by leaning on Proposition 64’s savings provision. The text
will not withstand the weight.
II.
The practical upshot of the majority opinion is this: Even
though the heightened penalties under section 4573.6 are
directly tied to the scope of prohibitions that were dramatically
scaled back by Proposition 64, prosecutors may continue to
charge in-prison cannabis offenses under that provision (at least
in the absence of further legislation directing otherwise). For
individuals previously convicted under section 4573.6 who
might wish to have their sentences adjusted downward to the
less harsh penalties prescribed by section 4573.8, any pathway
that might otherwise have existed for resentencing under
14
PEOPLE v. RAYBON
Kruger, J., concurring and dissenting
current law has been closed off. All this in a case that did not
require laying down a rule with these broad consequences.
Because I do not think the majority’s reasons for reaching
this result fit with the relevant statutes, and because it is
unnecessary to resolve the issue in this case in any event, I do
not join this portion of the majority opinion. In all other
respects, I concur.
KRUGER, J.
I Concur:
CUÉLLAR, J.
15
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Raybon
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 36 Cal.App.5th 111Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S256978
Date Filed: August 12, 2021
__________________________________________________________
Court: Superior
County: Sacramento
Judge: Curtis M. Fiorini
__________________________________________________________
Counsel:
Paulino G. Durán and Steven Garrett, Public Defenders, David Lynch
and Leonard K. Tauman, Assistant Public Defenders, for Defendants
and Appellants.
Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan,
State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Janill L. Richards, Principal Deputy
State Solicitor General, Michael P. Farrell, Assistant Attorney
General, Ryan B. McCarroll, Deputy State Solicitor General, Julie A.
Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
David Lynch
Assistant Public Defender
700 H Street, Suite 0270
Sacramento, CA 95814
(916) 874-6958
Ryan B. McCarroll
Deputy State Solicitor General
1300 I Street
Sacramento, CA 95814
(916) 210-7668