People v. Watkins CA6 ( 2021 )

Filed 4/20/21 P. v. Watkins CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047453
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS011298A)
v.
JAMES WATKINS,
Defendant and Appellant.
Proposition 64, also known as the Control, Regulate and Tax Adult Use of
Marijuana Act (the Act or Proposition 64), made various changes to California’s
regulation of marijuana.1 The Act generally permits adults (with certain exceptions) to
engage in conduct that was previously criminal—including the use, possession, purchase,
or cultivation of nonmedical marijuana. The Act also created a statutory procedure,
codified at Health and Safety Code section 11361.8,2 which allows individuals currently
serving a sentence for an offense subsequently decriminalized by Proposition 64 to
1
Proposition 64 was enacted in 2016. In 2017, the Legislature changed references
to marijuana in the Health and Safety Code to cannabis. (See People v. Herrera (2020)
52 Cal.App.5th 982, 987, fn. 2, review granted Oct. 14, 2020, S264339 (Herrera).) In
this opinion, we use the terms marijuana and cannabis interchangeably.
2
Unspecified statutory references are to the Health and Safety Code.
request resentencing for or dismissal of the conviction. This appeal turns on whether
possession of 28.5 grams or less of marijuana in prison is such an offense.
Appellant James Watkins appeals from a trial court order denying his petition
under section 11361.8 to dismiss his conviction for possession of a controlled substance
in prison (Pen. Code, § 4573.6). For the reasons explained below, we affirm the trial
court’s order.
I. FACTS AND PROCEDURAL BACKGROUND
The parties agree that on March 11, 2001, Watkins—then an inmate of Salinas
Valley State Prison—was found with a 5-inch sharpened piece of metal and three
marijuana cigarettes. On June 27, 2001, the Monterey County District Attorney filed an
information charging Watkins with possession of a deadly weapon by a prisoner (Pen.
Code, § 4502, subd. (a); count 1) and possession of a controlled substance in prison (Pen.
Code, § 4573.6; count 2). The information also alleged that Watkins had four “strike”
priors (Pen. Code, § 1170.12, subd. (c)(2)) and had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)). On September 13, 2001, a jury found Watkins guilty of counts 1 and
2. On October 31, 2001, the trial court found true the allegations that Watkins had
incurred four prior strike convictions and had served a prior prison term. The trial court
denied Watkins’s motion to strike the prior strike convictions and sentenced him to 25
years to life with the possibility of parole on counts 1 and 2, to be served concurrently,
and one year on the Penal Code section 667.5 enhancement, to be served consecutively to
counts 1 and 2.
On October 1, 2019, Watkins filed a petition for resentencing or dismissal under
section 11361.8, arguing that his conviction for count 2 qualified for dismissal under that
provision as interpreted in People v. Raybon (2019) 36 Cal.App.5th 111, 119, review
granted Aug. 21, 2019, S256978 (Raybon). Watkins further maintained that granting his
petition for dismissal of the conviction would not pose an unreasonable risk of danger to
public safety. The district attorney opposed Watkins’s petition, contending that
2
Watkins’s petition did not qualify for relief under section 11361.8 and People v. Perry
(2019) 32 Cal.App.5th 885, review den. June 12, 2019, S255148 (Perry). On October 17,
2019, the trial court found Perry “more applicable” than Raybon and denied Watkins’s
petition. Watkins timely appealed the trial court’s order.
II. DISCUSSION
The California Courts of Appeal have reached different conclusions as to whether
possession of 28.5 grams or less of marijuana or cannabis in prison or jail remains
unlawful under Penal Code section 4573.6 after the passage of Proposition 64. (Compare
Perry, supra, 32 Cal.App.5th 885, review den. June 12, 2019, S255148, People v.
Whalum (2020) 50 Cal.App.5th 1(Whalum), review granted Aug. 12, 2020, S262935, and
Herrera, supra, 52 Cal.App.5th at p. 982, review granted, with Raybon, supra, 36
Cal.App.5th 111, review granted.) The California Supreme Court will ultimately resolve
the issue, but it has not yet done so.3
Watkins argues in this court that Perry, supra, 32 Cal.App.5th 885, review den.
was wrongly decided. Watkins contends that the plain language of section 11362.45,
subdivision (d) (which sets out an exception to the legalization of the possession of
marijuana otherwise provided for by section 13362.1) applies only to ingesting or
smoking marijuana in prison—not to its possession. Watkins argues that Proposition 64
has made possession of marijuana in prison legal, and therefore his conviction in count 2
was for an act that is no longer prohibited, rendering him entitled to relief under section
11361.8. He requests that this court vacate the trial court’s order and order the trial court
to grant his petition.
3
The question before the California Supreme Court in Raybon is “Did Proposition
64 [the ‘Adult Use of Marijuana Act’] decriminalize the possession of up to 28.5 grams
of marijuana by adults 21 years of age or older who are in state prison as well as those
not in prison?” In Whalum, S262935, and in Herrera, S264339, the Supreme Court
ordered briefing deferred pending its decision in Raybon, S256978.
3
The Attorney General does not contest the facts of Watkins’s case but, citing
Perry and this court’s more recent decision in Herrera, supra, 52 Cal.App.5th 982,
review granted, argues the trial court correctly denied Watkins’s petition for resentencing
as a matter of law because possession of marijuana in prison remains a crime, even after
the passage of Proposition 64.
This appeal presents a question of law with no facts in dispute to which we apply
de novo review. (People v. Drayton (2020) 47 Cal.App.5th 965, 981.)
We briefly summarize the relevant statutes. In 2016 voters enacted Proposition
64. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 1, p. 178
(Voter Information Guide).) Proposition 64 added section 11362.1 to the Health and
Safety Code. This section generally allows the possession, smoking, and ingestion of
cannabis, as well as the cultivation of cannabis plants by people 21 years of age or older,
which previously had largely been unlawful. (See generally Herrera, supra, 52
Cal.App.5th at pp. 986–990, review granted.) Section 11362.1, in turn, carves out several
statutory exceptions to the general rule that the use of marijuana is now lawful. One such
exception appears at section 11362.45, subdivision (d), which retains the prohibition on
“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 [s]ection 4573 of the Penal Code.”
(§ 11362.45, subd. (d) (hereafter § 11362.45(d)).)
Section 11361.8, also added by Proposition 64 (Voter Information Guide, supra,
text of Prop. 64, § 8.7, pp. 207–208), establishes a postjudgment procedure for filing a
petition “for recall or dismissal of sentence . . . to request resentencing or dismissal”
when “[a] person currently serving a sentence for a conviction . . . would not have been
guilty of an offense, or . . . would have been guilty of a lesser offense under the Control,
Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of
4
the offense.”4 (§ 11361.8, subd. (a).) Watkins brought his petition under section
11361.8, arguing that his conviction on count 2 for violating Penal Code section 4573.6
should be dismissed because he would not on these facts have been guilty of an offense
post-Proposition 64.
In Herrera, supra, 52 Cal.App.5th 982, review granted, a case on direct appeal,
this court considered whether the exception to section 11362.1 set out in section
11362.45(d) extends to Penal Code section 4573.6, which prohibits the possession of
certain controlled substances in jail or prison—including, as in this case, marijuana.
(Herrera, at p. 987.) Reviewing the history of Proposition 64, the relevant statutory
texts, and principles of statutory construction, this court in Herrera concluded that
“possession of cannabis in jail under Penal Code section 4573.6[, subdivision] (a) is a
‘[l]aw[] pertaining to smoking or ingesting’ cannabis in prison or jail under Health and
Safety Code section 11362.45(d)” (Herrera, at p. 991) and therefore remains a crime,
notwithstanding Proposition 64.
In People v. Taylor (2021) 60 Cal.App.5th 115, 138, review granted Apr. 14,
2021, S267344, this court embraced and expanded upon its prior analysis in Herrera, and
4
Upon receiving such a petition, the court must “presume the petitioner satisfies
the criteria in [section 11361.8, subdivision (a)] unless the party opposing the petition
proves by clear and convincing evidence that the petitioner does not satisfy the criteria.”
(§ 11361.8, subd. (b).) If there is not an adequate showing that the petitioner does not
satisfy that criteria, the court must “grant the petition to recall the sentence or dismiss the
sentence because it is legally invalid unless the court determines that granting the petition
would pose an unreasonable risk of danger to public safety.” (Ibid.) Section 11361.8
also permits “[a] person who has completed his or her sentence for a conviction under
[s]ections 11357, 11358, 11359, and 11360 . . . , who would not have been guilty of an
offense or who would have been guilty of a lesser offense under the Control, Regulate
and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense,
[to] file an application . . . to have the conviction dismissed and sealed because the prior
conviction is now legally invalid or redesignated as a misdemeanor or infraction in
accordance with [s]ections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and
11362.4 as those sections have been amended or added by that act.” (§ 11361.8,
subd. (e).)
5
similarly concluded that “ ‘Proposition 64 did not decriminalize the possession of
cannabis in a penal institution.’ ” (Ibid.) In Taylor, this court affirmed the trial court’s
order denying relief under section 11361.8 for a conviction of Penal Code section 4573.6.
(Ibid.)
We continue to adhere to the statutory analysis set forth in Herrera and Taylor and
rely upon those opinions in deciding this appeal. Based on the legal analysis set forth
therein, we conclude that possession of marijuana in a penal institution under Penal Code
section 4573.6 remains a crime following the passage of Proposition 64. Therefore
Watkins was not entitled to relief under section 11361.8.
III. DISPOSITION
The October 17, 2019 order denying the petition brought pursuant to Health and
Safety Code section 11361.8 is affirmed.
6
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Elia, Acting P.J.
____________________________________
Bamattre-Manoukian, J.
H047453
People v. Watkins