People v. Garcia CA6

Filed 5/25/21 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H047466
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1894274)
v.
ALEJANDRO GARCIA,
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
request resentencing for or dismissal of the conviction.
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.
Appellant Alejandro Garcia appeals from a trial court order denying his petition
under section 11361.8 to dismiss his conviction for bringing a controlled substance into a
prison or jail (Pen. Code, § 4573). For the reasons explained below, we conclude Garcia
is not entitled to relief under section 11361.8 because he was convicted after Proposition
64 took effect. We therefore affirm the trial court’s order.
I. FACTS AND PROCEDURAL BACKGROUND
Garcia is serving a four-year prison sentence for possessing approximately one
gram of marijuana in jail. On June 27, 2018, the Santa Clara County District Attorney
filed a complaint charging Garcia with bringing a controlled substance into a prison or
jail (Pen. Code, § 4573; count 1) and misdemeanor resisting, delaying, or obstructing an
officer (Pen. Code, § 148, subd. (a)(1); count 2). The complaint also alleged that Garcia
had one “strike” prior (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subd. (c)(2)). On
August 30, 2018, Garcia entered into a written plea agreement in which he agreed to
plead guilty or no contest to count 1, in exchange for promises that he would receive four
years in state prison and count 2 would be dismissed. That same day, he entered a plea of
no contest to count 1. On September 28, 2018, consistent with the plea agreement, the
trial court sentenced Garcia on count 1 to four years in state prison for the violation of
Penal Code section 4573 and dismissed count 2.
On July 9, 2019, Garcia filed a petition for resentencing or dismissal under section
11361.8, arguing that his conviction qualified for dismissal under that provision as
interpreted in People v. Raybon (2019) 36 Cal.App.5th 111, 119 (Raybon), review
granted Aug. 21, 2019, S256978. The district attorney opposed Garcia’s petition,
contending that he did not qualify for relief under section 11361.8 On August 29, 2019,
the trial court denied Garcia’s petition, relying on the authority of People v. Perry (2019)
32 Cal.App.5th 885 (Perry), review den. June 12, 2019, S255148, which concluded
Proposition 64 did not decriminalize possession of marijuana in jail or prison. (Id. at
p. 891.) Garcia timely appealed the trial court’s order.
2
II. DISCUSSION
Proposition 64 took effect on November 9, 2016. (See Perry, supra, 32
Cal.App.5th at p. 888, review den.) Section 11361.8, subdivision (a), which was enacted
as part of Proposition 64, provides “[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 the Control,
Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of
the offense may 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 that act.” (Italics added.)
As its plain text indicates, section 11361.8 applies only to individuals who were
convicted of an offense prohibited by law at the time of the offense’s commission, 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. Therefore,
one of the preconditions to recall or dismissal of the sentence under section 11361.8 is
that Proposition 64 was not in effect when the defendant committed the offense.
Based on the text of section 11361.8, we decide that, as Proposition 64 was in
effect when Garcia committed the offense he now challenges, he is ineligible for relief
under that provision. The California Supreme Court reached a similar conclusion when
examining the remedial provisions of Proposition 47. It held that 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. (People v. Lara (2019) 6 Cal.5th 1128, 1135.)
Garcia asserts that he is nevertheless eligible for relief under section 11361.8
“based on the intended retroactivity of the statute and the change in application of the law
as set forth in the published appellate opinion, [Raybon, supra, 36 Cal.App.5th 111,
3
review granted].” However, the retroactive application of a statute is irrelevant to a crime
committed after the statute has gone into effect, and Garcia cites no authority holding that
section 11361.8 relief is available for crimes committed after the effective date of
Proposition 64. In any event, this court has disagreed with Raybon and concluded that
“ ‘Proposition 64 did not decriminalize the possession of cannabis in a penal
institution.’ ” (People v. Taylor (2021) 60 Cal.App.5th 115, 138, review granted Apr. 14,
2021, S267344); Herrera, supra, 52 Cal.App.5th 982, review granted.)
In short, Garcia is not eligible for resentencing under section 11361.8 because he
committed his crime after Proposition 64’s effective date. We therefore affirm the trial
court’s order denying his petition. We observe that, should the California Supreme Court
decide that Proposition 64 decriminalized possession of 28.5 grams or less of marijuana
or cannabis in prison or jail,3 Garcia may seek relief pursuant to a petition for a writ of
habeas corpus for having been convicted for conduct that is not criminal. (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.’ ”].)
III. DISPOSITION
The August 29, 2019 order denying the petition brought pursuant to Health and
Safety Code section 11361.8 is affirmed.
3
The California Supreme Court is considering that question in Raybon, S256978.
4
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Elia, J.
H047466
People v. Garcia