People v. Williams CA2/7 ( 2020 )

Filed 11/19/20 P. v. Williams CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302197
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075136-02)
v.
PRENTICE TYRELL
WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher G. Estes, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
Prentice Williams’s wife was observed passing him a small
packet containing 6.6 grams of marijuana while she was visiting
him at California State Prison, County of Los Angeles. Williams,
serving a six-year state prison term for robbery, pleaded no
contest to violating Penal Code section 4573, subdivision (a),
which prohibits bringing, or assisting in bringing, any
unauthorized controlled substance into a prison or other custodial
institution. He was sentenced to serve an additional four-year
term as a second strike offender.
On July 24, 2019 Williams petitioned pursuant to Health
and Safety Code section 11361.8 for resentencing or dismissal of
his marijuana-related conviction on the ground that
Proposition 64 (the Control, Regulate, and Tax Adult Use of
Marijuana Act), adopted by the voters in November 2016, had,
with certain limitations, legalized possession of not more than
28.5 grams of marijuana1 by persons 21 years of age or older.
(Health & Saf. Code, § 11362.1, subd. (a)(1).)
Recognizing the question whether Proposition 64 effectively
repealed laws prohibiting possession of marijuana in custodial
institutions was before the Supreme Court in People v. Raybon
(2019) 36 Cal.App.5th 111, review granted August 21, 2019,
S256978 (Raybon), the trial court denied Williams’s petition,
relying on the analysis in People v. Perry (2019) 32 Cal.App.5th
885 (Perry), which, unlike Raybon, had held Proposition 64 did
not affect those laws.
On appeal Williams urges us to adopt the reasoning of
Raybon, not Perry. We need not contribute our voice to that
debate. Because Williams entered his plea two years after the
1 An ounce contains 28.35 grams.
2
effective date of Proposition 64, he is not entitled to petition for
resentencing under Health and Safety Code section 11361.8. If
the Supreme Court ultimately agrees with the court of appeal’s
analysis in Raybon, Williams’s proper remedy, if any, will be by
way of a petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Offense and Plea
Williams was charged in a felony complaint, filed
November 19, 2018, with violating Penal Code section 4573,
subdivision (a), which prohibits knowingly bringing or sending a
prohibited controlled substance into a state prison or other
custodial institution or knowingly assisting that act.2 Williams
2 Penal Code section 4573, subdivision (a), provides, “Except
when otherwise authorized by law, or when authorized by the
person in charge of the prison or other institution referred to in
this section or by an officer of the institution empowered by the
person in charge of the institution to give the authorization, any
person, who knowingly brings or sends into, or knowingly assists
in bringing into, or sending into, any state prison, prison road
camp, prison forestry camp, or other prison camp or prison farm
or any other place where prisoners of the state are located under
the custody of prison officials, officers or employees, or into any
county, city and county, or city jail, road camp, farm or other
place where prisoners or inmates are located under custody of
any sheriff, chief of police, peace officer, probation officer or
employees, or within the grounds belonging to the institution,
any controlled substance, the possession of which is prohibited by
Division 10 (commencing with Section 11000) of the Health and
Safety Code, any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or
consuming a controlled substance, is guilty of a felony punishable
by imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years.”
3
at the time was serving a six-year state prison term for robbery.
His wife, Lizbeth Williams, who was not in custody, was charged
in the same complaint with furnishing a controlled substance to a
state prisoner in violation of Penal Code section 4573.9.
According to the probation officer’s preconviction report,
Lizbeth Williams was captured by a video surveillance camera on
November 17, 2018 exchanging an object with Williams while
visiting him on prison grounds. Subsequent investigation
determined the object was 6.6 grams of marijuana wrapped in
black latex tape.
On December 18, 2018 Williams pleaded no contest to the
charge and also admitted he had suffered a prior serious or
violent felony conviction within the meaning of the three strikes
law. His counsel stipulated to a factual basis for the plea “based
on the incident reports and [Williams’s] criminal history.”
Pursuant to a negotiated agreement Williams was sentenced to
an additional, consecutive state prison term of four years (the
lower term of two years, doubled).
2. The Petition for Recall and Resentencing
On July 24, 2019, representing himself and using Judicial
Council optional form CR-400, Williams petitioned for recall and
resentencing or dismissal of his marijuana-related conviction,
checking the box stating, incorrectly, he had been convicted of
violating Health and Safety Code section 11357, possession of
marijuana.3 The public defender’s office, which had represented
Williams at his plea hearing, was notified and thereafter
reappointed to represent Williams in connection with the petition
for resentencing.
3 Williams waived his right to have the matter heard by the
original sentencing judge.
4
At a hearing on the petition on September 20, 2019
Williams’s counsel referred the court to Raybon, supra,
36 Cal.App.5th 111, which held possession of less than an ounce
of marijuana was no longer a felony even if it occurred within a
prison, and which, although under review by the Supreme Court,
could nonetheless be considered for its potentially persuasive
value under California Rules of Court, rule 8.1115(e). Although
stating it believed (mistakenly) that review had also been
granted in Perry, supra, 32 Cal.App.5th 885 and, therefore, not
citing it as controlling authority,4 the court found Perry’s
“analysis is akin” and ruled that Proposition 64 “did not legalize
the possession of marijuana in prison or otherwise affect the
operation of Penal Code section 4573, sub[division] (a),” the
statute under which Williams had been convicted. Accordingly,
the court denied Williams’s petition.5
4 The advisory committee comment to California Rules of
Court, rule 8.1115(e)(1), explains, “[W]hen a decision that is
pending review conflicts with another published Court of Appeal
decision that is not under review, only that other published
decision will continue to have binding or precedential effect on
the superior court.” (Advisory Com. com., 23 pt. 4 West’s Ann.
Codes, Rules (2020 supp.) foll. rule 8.1115, p. 112.)
5 After the court ruled, Williams’s counsel asked, “Your
Honor, is that without prejudice pending, perhaps, the outcome of
the Supreme Court decision?” The court replied, “Well, it’s
denied. If he wants to reapply and it’s retroactive, we can deal
with it at that time.”
5
DISCUSSION
1. Proposition 64
a. Health and Safety Code section 11362.1
Prior to passage of Proposition 64 in November 2016,
medical use of marijuana was legal under California law, but
nonmedical use was illegal. (See Voter Information Guide, Gen.
Elec. (Nov. 8, 2016) text of Prop. 64, § 2, subd. B, p. 178.) The
stated purpose of Proposition 64 was “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.” (Id., text of Prop. 64, § 3,
p. 179.) The intent of the Act included “[p]ermit[ting] adults
21 years and older to use, possess, purchase and grow nonmedical
marijuana within defined limits for use by adults 21 years and
older as set forth in [the Act].” (Id., text of Prop. 64, § 3, subd. (l),
p. 179.)
Cannabis remains identified as a Schedule I controlled
substance. (Health & Saf. Code, § 11054, subd. (d)(13).)
However, Proposition 64 added section 11362.1 to the Health and
Safety Code generally allowing possession, smoking and ingestion
of small amounts of marijuana, as well as the cultivation of
marijuana plants. Section 11362.1, subdivision (a), states:
“Subject to Sections 11362.2 [imposing restriction on personal
cultivation of cannabis], 11362.3 [limiting locations where use of
cannabis is permitted, including school grounds], 11362.4
[establishing penalties for violating section 11362.3], and
11362.45 [identifying laws not affected by Proposition 64], but
notwithstanding any other provision of law, it shall be lawful
6
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,
process, transport, purchase, obtain, or give away to persons
21 years of age or older without any compensation whatsoever,
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,
including as contained in cannabis products; [¶] (3) Possess,
plant, cultivate, harvest, dry, or process not more than six living
cannabis plants and possess the cannabis produced by the plants;
[¶] (4) Smoke or ingest cannabis or cannabis products; and [¶]
(5) Possess, transport, purchase, obtain, use, manufacture, or
give away cannabis accessories to persons 21 years of age or older
without any compensation whatsoever.”6
Health and Safety Code section 11362.45 expressly limits
the scope of Proposition 64’s legalization of marijuana use. That
provision currently reads, in 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 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.”7 The facilities referred to include state prisons and
county jails. (Pen. Code, § 4573, subd. (a).)
6 Effective June 27, 2017 Senate Bill No. 94 (2017-2018 Reg.
Sess.) changed “marijuana” to “cannabis” throughout Health and
Safety Code section 11362.1. (See Stats. 2017, ch. 27, § 129.)
7 Senate Bill No. 94 (2017-2018 Reg. Sess.) changed
“marijuana” to “cannabis” throughout Health and Safety Code
7
b. Health and Safety Code section 11361.8
Proposition 64 also established a procedure by which “[a]
person currently serving a sentence for a conviction, whether by
trial or by open or negotiated plea, who would not have been
guilty of an offense, or who would have been guilty of a lesser
offense under [Proposition 64] had that act been in effect at the
time of the offense may petition for a recall or dismissal of
sentence” in accordance with various provisions of the Health and
Safety Code added or amended by Proposition 64. (Health & Saf.
Code, § 11361.8, subd. (a).) Similarly, a person who has already
completed a sentence for a crime who would not have been guilty
of an offense or would have been guilty of a lesser offense under
Proposition 64 may file an application to have the conviction
dismissed and sealed “because the prior conviction is now legally
invalid” or to have it redesignated as a misdemeanor or infraction
in accordance with provisions of the Health and Safety Code that
were amended or added by Proposition 64. (Health & Saf. Code,
§ 11361.8, subd. (e).)
2. Statutes Restricting Access to and Use of Drugs in Prison
Penal Code section 4573, which prohibits bringing
controlled substances into prisons or jails and is at issue in this
case, “appears in part 3, title 5 of the Penal Code, concerning
‘Offenses Relating to Prisons and Prisoners.’ [Citation.] Much
like section 4573, several adjacent provisions place restrictions on
possessing and importing drugs and other contraband in custody.
(See §§ 4573.5 [knowingly bringing alcoholic beverages, drugs
other than controlled substances, or drug paraphernalia into
section 11362.45 and made other nonsubstantive language
changes to the section. (See Stats. 2017, ch. 27, § 133.)
8
prison or jail], 4573.6 [knowingly possessing controlled
substances in prison or jail], 4574(a) [knowingly bringing
firearms, deadly weapons, or explosives into prison or jail].)”
(People v. Low (2010) 49 Cal.4th 372, 382; see id. at p. 388
[“[s]ection 4573 and similar laws flow from the assumption that
drugs, weapons, 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 presence”’ of such items in the
penal system”].) Related provisions of the Penal Code also
include sections 4573.5 (bringing alcoholic beverages, drugs other
than controlled substances, or drug paraphernalia into prison or
jail), 4573.8 (possessing alcoholic beverages, drugs, or drug
paraphernalia in prison or jail) and 4573.9 (selling or furnishing
controlled substances to any person held in prison or jail).
3. Perry, Raybon and Subsequent Decisions
At issue in Perry, supra, 32 Cal.App.5th 885 and Raybon,
supra, 36 Cal.App.5th 111 was the proper interpretation of Penal
Code section 4573.6, which prohibits the unauthorized possession
of prohibited controlled substances in prisons and other custodial
institutions, and Health and Safety Code section 11362.45,
subdivision (d)’s language “pertaining to smoking or ingesting
cannabis or cannabis products on the grounds of” prisons and
other custodial institutions, which, as discussed, limits the
decriminalization of marijuana laws effected by Proposition 64.
In Perry Division Two of the First Appellate District held
an inmate’s conviction for possession of a controlled substance in
prison, predicated on his possession of less than an ounce of
marijuana, was not subject to dismissal after the passage of
Proposition 64. The court explained the phrase “pertaining to” in
9
Health and Safety Code section 11362.45, subdivision (d), has a
“wide reach”: “It means ‘to belong as an attribute, feature, or
function’ [citation], ‘to have reference or relation; relate’
[citation], ‘[b]e appropriate, related, or applicable to’ [citation].”
(Perry, supra, 32 Cal.App.5th at p. 891.) While acknowledging
possession was not necessarily an inherent aspect of smoking or
ingesting marijuana—“[a] person can smoke marijuana without
possessing it, for example, by smoking a joint in the possession of
another person” (id. at p. 892, citing cases)—the court held
possessing marijuana was certainly “related” to smoking or
ingesting it: “In the context of possession in prison, it is
particularly obvious that possession must ‘pertain’ to smoking or
ingesting. For what purpose would an inmate possess cannabis
that was not meant to be smoked or ingested by anyone?” (Ibid.)
Accordingly, although possession of less than an ounce of
marijuana is no longer generally prohibited by the Health and
Safety Code, the court concluded Proposition 64 did not affect
Penal Code section 4573.6’s prohibition against the possession of
marijuana in prison. (Perry, at pp. 891-893.)8
8 The Perry court also analyzed information in the official
ballot pamphlet for Proposition 64 to the extent there was any
ambiguity concerning the impact of the proposition on possession
of marijuana in prison. (Perry, supra, 32 Cal.App.5th at p. 894.)
The court observed, “[T]here is nothing in the ballot materials for
Proposition 64 to suggest the voters were alerted to or aware of
any potential impact of the measure on cannabis in correctional
institutions, much less that the voters intended to alter existing
proscriptions against the possession or use of cannabis in those
institutions. The only mention of the subject is in the text of the
measure itself and, as we have said, states the opposite intent in
the strongest of terms.” (Id. at p. 895.)
10
Three months after the decision in Perry, the Third
Appellate District in Raybon, also addressing an inmate’s
conviction for possession of marijuana in prison in violation of
Penal Code section 4573.6, came to the opposite conclusion, more
narrowly construing the “pertaining to” language. According to
the Raybon court, the plain meaning of the relevant Penal Code
provision and Health and Safety Code section 11362.45,
subdivision (d), is clear: The electorate specifically addressed the
issue of cannabis in prisons and expressly prohibited use, not
possession. (Raybon, supra, 36 Cal.App.5th at p. 113.) Rejecting
the linguistic analysis in Perry, the court stated, “[I]t stretches
the imagination to conclude that the drafters listed two distinct
activities, ‘smoking or ingesting,’ intending to include a
third distinct activity, possession, by using the vague reference
‘pertaining to.’ This is particularly suspect given that the
drafters differentiated smoking or ingesting from possession in
other sections and when they wanted to denote possession, they
explicitly said so. For example, they indicated that it was still
illegal to ‘[p]ossess, smoke, or ingest cannabis or cannabis
products’ on school grounds and other similar places.” (Raybon,
at p. 121.)9
The Supreme Court denied Perry’s petition for review on
June 12, 2019. (People v. Perry (June 12, 2019, S255148)
[2019 Cal. Lexis 4393].)
9 Addressing the Attorney General’s argument that “there is
no evidence in Proposition 64’s official title and summary, the
Legislative Analyst’s analysis, or any of the arguments for or
against the proposition in the voters’ pamphlets of an intent to
decriminalize possession of cannabis in prison,” the court
responded, “The Attorney General glosses over the plain
language of the proposition itself, which happens to state the
11
In People v. Whalum (2020) 50 Cal.App.5th 1, review
granted August 12, 2020, S262935, Division One of the Fourth
Appellate District addressed an issue similar to the one
presented in Perry and Raybon: whether an inmate convicted of
violating Penal Code section 4573.8 (unauthorized possession of
drugs in prison) based on possession of marijuana is eligible for
relief under Health and Safety Code section 11361.8,
subdivision (a). The Whalum court concluded the conviction
remained a felony after Proposition 64, expressly agreeing with
Perry’s analysis regarding the scope of Health and Safety Code
section 11362.45, subdivision (d). (Whalum, at p. 10.)
Similarly, in People v. Herrera (2020) 52 Cal.App.5th 982,
review granted October 14, 2020, S264339, a direct appeal from a
2018 felony conviction for possessing marijuana in a jail, the
Sixth Appellate District concluded Penal Code section 4573.6,
subdivision (a), is a law “pertaining to smoking or ingesting”
cannabis in prison or jail; Proposition 64 did not decriminalize
the possession of cannabis in a penal institution; and the
defendant was properly convicted of the offense. (Herrera, at
pp. 985, 995.)
voters’ intention quite clearly. Nothing more is needed when the
words themselves reflect the voters’ intent.” (Raybon, supra,
36 Cal.App.5th at p. 124.) Noting the Attorney General’s public
policy concerns, the court commented, “The remedy for clearly
written language that achieves a dubious policy outcome is not
judicial intervention but correction by the people or the
Legislature.” (Id. at p. 125.)
12
4. Williams Is Not Eligible for Resentencing Under Health
and Safety Code Section 11361.8, Subdivision (a)
Health and Safety Code section 11361.8, subdivision (a),
permits an inmate currently serving a sentence for a marijuana-
related offense to petition for recall or dismissal of the sentence if
he or she “would not have been guilty of an offense” or “would
have been guilty of a lesser offense” had Proposition 64 “been in
effect at the time of the offense.” That is, it applies to individuals
who were properly convicted of an offense at the time, but who
would not have been guilty of that offense (either because they
were guilty of a lesser crime or not guilty at all) under the law as
revised by Proposition 64. Williams does not fit that description:
His conduct (assisting his wife in bringing marijuana into a state
prison), plea and sentence all occurred after Proposition 64 took
effect. Therefore, he is not eligible for resentencing under
section 11361.8. (See People v. Lara (2019) 6 Cal.5th 1128, 1135
[Proposition 47’s resentencing provisions do not apply to a
defendant who had not been charged or sentenced prior to the
proposition’s effective date, regardless of when the alleged offense
took place].)
The unavailability of resentencing relief under Health and
Safety Code section 11361.8, subdivision (a), does not necessarily
leave Williams without any potential remedy if the Supreme
Court agrees with his (and Raybon’s) view of Proposition 64’s
effect on marijuana-related offenses involving state prison
inmates.
When a trial court takes a conditional plea of guilty or no
contest to an accusatory pleading charging a felony, Penal Code
section 1192.5, third paragraph, requires the court to “‘cause an
inquiry to be made of the defendant to satisfy itself that the plea
13
is freely and voluntarily made, and that there is a factual basis
for the plea.’” (See People v. Palmer (2013) 58 Cal.4th 110, 112.)
“‘The purpose of the requirement is to protect against the
situation where the defendant, although he realizes what he has
done, is not sufficiently skilled in law to recognize that his acts do
not constitute the offense with which he is charged. [Citation.]
Inquiry into the factual basis for the plea ensures that the
defendant actually committed a crime at least as serious as the
one to which he is willing to plead.’” (People v. French (2008)
43 Cal.4th 36, 50; see People v. Marlin (2004) 124 Cal.App.4th
559, 571 [“Although not constitutionally required [citation], such
an inquiry furthers constitutional considerations attending a
guilty plea [citation], protects against the entry of a guilty plea by
an innocent defendant, and makes a record in the event of
appellate or collateral attacks on that plea. . . . A sufficient
factual inquiry must be considered a necessary component of the
legality of the proceedings”].)
Properly framed, Williams’s contention is, post-
Proposition 64, there was not a factual basis for his plea—that is,
under the Raybon analysis, the conduct he admitted is no longer
a crime, and therefore his conviction and sentence must be
reversed. (Cf. People v. Collins (1978) 21 Cal.3d 208, 213
[“Defendant’s conviction had not been reduced to final judgment
when new section 288a became effective—and under the new
section the act that he admitted [oral copulation between
consenting, nonprisoner adults], and upon which his guilty plea
and conviction were based, was no longer punishable. It follows
that the sentence cannot be allowed to stand”], fn. omitted.)
Whether, in light of the Supreme Court’s ultimate decision in
Raybon, the trial court’s inquiry of Williams’s defense counsel
14
satisfied its obligation to determine the factual basis for
Williams’s plea (see generally People v. Palmer, supra, 58 Cal.4th
at p. 118 [“the trial court may satisfy its statutory duty by
accepting a stipulation from counsel that a factual basis for the
plea exists without also requiring counsel to recite facts or refer
to a document in the record where, as here, the plea colloquy
reveals that the defendant has discussed the elements of the
crime and any defenses with his or her counsel and is satisfied
with counsel’s advice”]); whether his counsel provided Williams
constitutionally ineffective assistance by agreeing a factual basis
for the plea existed based on “the incident reports”; and whether
Williams’s conviction for violating Penal Code section 4573,
subdivision (a), was a legal impossibility, and therefore invalid,
are all questions that must be raised by a petition for writ of
habeas corpus. (See People v. Jerome (1984) 160 Cal.App.3d
1087, 1095-1096 [“‘a defendant is entitled to habeas corpus if
there is no material dispute as to the facts relating to his
conviction and if it appears that the statute under which he was
convicted did not prohibit his conduct’”]; see also People v. Turner
(2020) 45 Cal.App.5th 428, 441, fn. 10.)
DISPOSITION
The order denying Williams’s petition is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
15