People v. Moorer CA4/1 ( 2021 )

Filed 12/22/21 P. v. Moorer CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078229
Plaintiff and Respondent,
v. (Super. Ct. No. JCF000354)
RODNELL MOORER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
Monica Lepe-Negrete, Judge. Affirmed.
Jay Temple, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for
Plaintiff and Respondent.
In 2018, Rodnell Moorer was convicted of possession of a controlled
substance (cannabis) in prison in violation of Penal Code section 4573.6.
Moorer petitioned the trial court for recall of his sentence for this conviction
in 2020, contending it is no longer a felony under Proposition 64, which added
Health and Safety Code section 11362.1, subdivision (a)1 to decriminalize
possession of small amounts of cannabis. (Prop. 64, § 4.4, approved Nov. 8,
2016, eff. Nov. 9, 2016; amended by Stats. 2017, ch. 27, § 129; § 11361.8,
subd. (a).) The trial court concluded a violation of Penal Code section 4573.6,
subdivision (a) remains a felony following the passage of Proposition 64 and
denied Moorer’s petition.
On appeal, Moorer challenges the trial court’s denial of his petition.
While this appeal was pending, the California Supreme Court issued an
opinion resolving a split in the Courts of Appeal as to “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.” (People v. Raybon (2021) 11 Cal.5th 1056, 1059
(Raybon).) The Supreme Court held that “possession of cannabis in prison
remains a violation of Penal Code section 4573.6.” (Id. at p. 1060.) We
therefore affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
In May 2015, after an unclothed body search following a family visit at
Calipatria State Prison, correctional officers discovered that Moorer was
concealing a bindle containing cannabis in a body cavity.
In 2016, California voters decriminalized the possession of less than
28.5 grams (approximately one ounce) of marijuana, or cannabis.3 (Prop. 64;
1 Unless otherwise indicated, statutory references are to the Health and
Safety Code.
2 We obtained the facts regarding the instant offense from the probation
report. We omit details regarding the incident underlying Moorer’s
conviction as unnecessary to our decision.
2
§ 11362.1, subd. (a); see Raybon, supra, 11 Cal.5th at p. 1063; People v. Perry
(2019) 32 Cal.App.5th 885, 888 (Perry).)
In January 2018, an indictment charged Moorer with one felony count
of possessing contraband in prison in violation of Penal Code section 4573.6,
subdivision (a). The indictment also alleged one serious or violent felony
prior (id., §§ 667, subd. (d), 1170.12, subd. (b)), and further alleged that
Moorer committed the offense while confined in state prison (id., § 1170.1,
subd. (c)).
Moorer pled guilty in April 2018 to one count of violating Penal Code
section 4573.6, subdivision (a), agreeing to the upper term of four years. The
trial court sentenced Moorer to four years to run consecutive to his current
sentence.
In July 2020, Moorer filed a petition in propria persona seeking to
recall the four-year sentence for his Penal Code section 4573.6 conviction
pursuant to Health and Safety Code section 11361.8, subdivision (a), on the
ground that Proposition 64 decriminalized possession of cannabis in prison.
The district attorney opposed Moorer’s petition, contending that Penal Code
section 4573.6 remained a felony. The district attorney encouraged the trial
court to follow Perry, which concluded Proposition 64 did not decriminalize
possession of cannabis in prison. The district attorney also addressed the
conflicting opinion in People v. Raybon (2019) 36 Cal.App.5th 111, overruled
by Raybon, supra, 11 Cal.5th 1056, which concluded that after
Proposition 64, possession of a small amount of cannabis in prison is no
longer a felony. At the time of briefing in the trial court, the Court of Appeal
3 In 2017, the Legislature replaced references to “marijuana” in the
Health and Safety Code with the term “cannabis.” (See, e.g., Stats. 2017,
ch. 27, § 121, eff. June 27, 2017.) For consistency, we primarily use the
amended terminology of “cannabis” throughout the remainder of this opinion.
3
opinion in People v. Raybon, supra, 36 Cal.App.5th 111 was under review by
the California Supreme Court, which the district attorney argued rendered it
merely persuasive, while the Perry opinion remained binding.4 Moorer filed
a reply brief contending that Perry’s reasoning and holding is without merit
and contrary to Proposition 64’s policies.
A court-appointed counsel represented Moorer at the hearing on his
petition. After hearing argument, the trial court denied Moorer’s petition
based on Perry, concluding Moorer was not entitled to resentencing under
section 11361.8.
On appeal, Moorer—through counsel—argues that the passage of
Proposition 64 decriminalizes possession of a small amount of cannabis and
entitles him to relief from his Penal Code section 4573.6 conviction. He urges
this court to adopt the reasoning of the Court of Appeal in People v. Raybon,
supra, 36 Cal.App.5th 111, which he contends is “more persuasive and better
reasoned” than Perry.
DISCUSSION
Moorer was convicted of violating Penal Code section 4573.6, which
provides: “Any person who knowingly has in his or her possession in any
state prison . . . any controlled substances, the possession of which is
prohibited by Division 10 (commencing with Section 11000) of the Health and
Safety Code . . . or paraphernalia intended to be used for unlawfully injecting
or consuming controlled substances, without being authorized to so possess
the same by the rules of the Department of Corrections . . . is guilty of a
felony punishable by imprisonment pursuant to subdivision (h) of [Penal
4 In August 2021, the California Supreme Court issued its opinion
reversing the Court of Appeal in Raybon. (See Raybon, supra, 11 Cal.5th
1056.)
4
Code] Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6,
subd. (a).)
Proposition 64 decriminalized the possession of small quantities
of cannabis for persons 21 years of age or older. (See Perry, supra,
32 Cal.App.5th at pp. 889-890.) Among other things, it added
section 11362.1, which provides in part: “Subject to Section[] . . . 11362.45,
but notwithstanding any other provision of law, it shall be lawful under state
and local law, and shall not be a violation of state or local law, for persons
21 years of age or older to: [¶] (1) Possess . . . not more than 28.5 grams of
cannabis not in the form of concentrated cannabis.” (§ 11362.1, subd. (a).)5
Decriminalization is expressly subject to Health and Safety Code
section 11362.45, which states in relevant part: “Section 11362.1 does not
amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) Laws pertaining to
smoking or ingesting cannabis or cannabis products on the grounds of, or
within, any facility or institution under the jurisdiction of the Department of
Corrections and Rehabilitation or . . . any other facility or institution
referenced in Section 4573 of the Penal Code.” (§ 11362.45, subd. (d).) The
facilities referenced in Penal Code section 4573 include state prisons and
county jails. (Pen. Code, § 4573, subd. (a).) Section 11362.45 has been
characterized as an exception or “carve out” provision—i.e., section 11362.45
limits what is otherwise made lawful by section 11362.1. (See, e.g., Perry,
supra, 32 Cal.App.5th at p. 895 [section 11362.45 is “an exception to the
legalization of possession and use authorized by section 11362.1”]; People v.
5 As noted, Proposition 64 legalizes certain activity involving 28.5 grams
or less of cannabis by persons 21 years of age or older. When we refer to the
decriminalization of the use and possession of cannabis in this opinion, for
ease of reference, we do not always restate these age and weight
specifications. (See Perry, supra, 32 Cal.App.5th at p. 890, fn. 8.)
5
Herrera (2020) 52 Cal.App.5th 982, 991 [“section 11362.45[, subd.] (d) carves
out from Proposition 64’s legalization of cannabis ‘[l]aws pertaining to
smoking or ingesting’ cannabis in a penal institution”].)
A person serving a sentence for a conviction that would not have been
an offense after passage of Proposition 64 may petition the trial court for a
recall or dismissal of his or her sentence. (§ 11361.8, subd. (a).) Whether a
petitioning party is eligible for relief under section 11361.8, subdivision (a),
presents a question of statutory interpretation which we review de novo.
(People v. Whalum (2020) 50 Cal.App.5th 1, 9.)
The principal question before this court is whether, as a result of
Proposition 64, it is permissible to possess small quantities of cannabis in
prison. The Courts of Appeal had reached contrary conclusions on this issue,
but our Supreme Court has since resolved the issue in Raybon, supra,
11 Cal.5th 1056.
Moorer’s appeal is based on his contention that this court should follow
the Court of Appeal in People v. Raybon, supra, 36 Cal.App.5th 111, rather
than Perry and the cases that follow Perry. He claims that, under the “plain
meaning” of Proposition 64 and the statutes affected thereby, he is eligible for
relief from his conviction because possession of less than one ounce of
cannabis in prison is no longer illegal. Specifically, Moorer urges that while
the language of section 11362.45, subdivision (d) provides a carve out for
smoking or ingesting cannabis in prison, it makes no such exception for mere
possession of cannabis in prison. The California Supreme Court addressed
and rejected these arguments when it reversed the Court of Appeal in Raybon
and held that “possession of cannabis in prison remains a violation of Penal
Code section 4573.6.” (Raybon, supra, 11 Cal.5th at p. 1060.) The Supreme
Court’s opinion in Raybon is dispositive of the issue presented in this appeal,
6
and we are bound to follow it. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) We therefore affirm the trial court’s order
denying Moorer’s petition for relief pursuant to section 11361.8,
subdivision (a).
DISPOSITION
The order denying Moorer’s petition under section 11361.8 is affirmed.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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