People v. Adams CA5

Filed 6/22/21 P. v. Adams CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081025
Plaintiff and Respondent,
(Super. Ct. No. DF014662A)
v.
ALBERT ADAMS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David Wolf,
Judge.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Erin
Doering, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.
INTRODUCTION
In 2016, the voters adopted Proposition 64, which (with certain limitations)
legalized possession of “not more than 28.5 grams of cannabis” by persons 21 years of
age or older. (Health & Saf. Code, § 11362.1, subd. (a)(1);1 People v. Perry (2019) 32
Cal.App.5th 885, 888 (Perry).)
In 2019, appellant Albert Adams was charged with possession of marijuana while
incarcerated in prison in violation of Penal Code section 4573.6. He pleaded no contest
to an amended charge of possession of any drug or alcohol in prison in violation of Penal
Code section 4573.8. As part of the plea, the parties agreed appellant could appeal the
question of whether possession of less than 28.5 grams of marijuana in prison is
unlawful. In 2020, appellant was sentenced to 32 months in prison.
California Courts of Appeal are split on whether possession of less than 28.5
grams of marijuana in prison is unlawful. (Compare Perry, supra, 32 Cal.App.5th 885[Proposition 64 did not decriminalize possession of cannabis in prison] with People v.
Raybon (2019) 36 Cal.App.5th 111 (Raybon) [Proposition 64 decriminalized possession
of less than 28.5 grams of marijuana in prison], review granted Aug. 21, 2019,
S256978.)2 Appellant contends we should follow Raybon and reverse his judgment. In
the alternative, he argues his judgment should be conditionally reversed and the matter
remanded to afford the People an opportunity to show he possessed more than 28.5 grams
of marijuana in prison. Appellant’s arguments are without merit. We affirm.
1 All future statutory references are to the Health and Safety Code unless otherwise
noted.
2 In granting review of Raybon, the Supreme Court stated it would decide the
following issue: “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?”
2.
DISCUSSION
Appellant relies on Raybon, supra, 36 Cal.App.5th at page 113, review granted,
for the proposition that Proposition 64 modified Penal Code section 4573.6 such that
possession of less than 28.5 grams of marijuana in prison is no longer criminal. The
People contend we should instead accept the reasoning of Perry, supra, 32 Cal.App.5th at
page 887, for the proposition that Penal Code section 4573.6 was unaffected by
Proposition 64. We find Perry more persuasive.
Penal Code section 4573.6 provides in relevant part: “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, … without being authorized to so possess the same by the
rules of the Department of Corrections, rules of the prison … or by the specific
authorization of the warden … is guilty of a felony punishable by imprisonment pursuant
to subdivision (h) of [Penal Code] [s]ection 1170 for two, three, or four years.” (Pen.
Code, § 4573.6, subd. (a).)
As Perry and Raybon both note, Proposition 64 added section 11362.1, which
“affirmatively legalized” possession of less than 28.5 grams of marijuana by a person age
21 or older, except in certain circumstances. (Perry, supra, 32 Cal.App.5th at pp. 889–
890; accord, Raybon, supra, 36 Cal.App.5th at p. 114, review granted.) That
decriminalization was designed to also apply to those already serving sentences for
offenses decriminalized by Proposition 64. To that end, Proposition 64 added section
11361.8, which created a mechanism for those serving a sentence to petition for recall or
dismissal of the sentence.
As we have noted, Proposition 64 did not decriminalize marijuana use and
possession in all circumstances. Relevant here, Proposition 64 added section 11362.45,
which limits the application of section 11362.1 in prisons: “Section 11362.1 does not
amend, repeal, affect, restrict, or preempt: [¶] … [¶] … [l]aws pertaining to smoking or
3.
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 .…”
(§ 11362.45, subd. (d).) After much discussion, the Perry court found that, “[w]hile
section 11362.45, subdivision (d), does not expressly refer to ‘possession,’ its application
to possession is implied by its broad wording—‘[l]aws pertaining to smoking or
ingesting cannabis.’ ” (Perry, supra, 32 Cal.App.5th at p. 891; see id. at pp. 894–895 [to
the extent Proposition 64 created any ambiguity regarding possession of marijuana in
prison, the fact that the official voter guide made no mention of the act impacting the
prohibition on possession of marijuana in prison suggests the electorate did not intend to
decriminalize it].) On that basis, it concluded a defendant convicted of an offense
pursuant to Penal Code section 4573.6, subdivision (a), for possession of marijuana in
prison is not entitled to relief pursuant to section 11361.8. (Perry, supra, 32 Cal.App.5th
at pp. 896–897.)
The Raybon court rejected the reasoning of Perry, instead concluding the plain
language of section 11362.45, subdivision (d), unambiguously only excluded from
decriminalization “ ‘smoking[,] ingesting[,]’ ” and otherwise consuming marijuana in
prison. (Raybon, supra, 36 Cal.App.5th at p. 122, review granted.) It explained the laws
pertaining to smoking or ingesting cannabis, the language of section 11362.45,
subdivision (d), is designed to “describe the vast array of means of consumption” or use
of cannabis. (Raybon, at p. 122, italics added.) It does not suggest the “distinct activity”
of possessing marijuana remains a criminal activity in a prison. (Id. at p. 121.) Raybon
reasoned if the electors intended to prevent possession of cannabis in prison it would
have expressly used the word “possession,” as was done elsewhere in Proposition 64.
(Raybon, at pp. 121–122, citing § 11362.3, subd. (a)(5).) The Raybon court also
considered and rejected the Attorney General’s argument that its reading of the statute
would amount to an absurdity. (Raybon, supra, 36 Cal.App.5th at pp. 123–124, review
granted.) It explained that allowing prisons to punish possession of marijuana by
4.
prisoners through prison rule violations rather than criminally is not absurd. (Ibid.) The
Raybon court therefore concluded that, while smoking, ingesting, or otherwise
consuming marijuana in prison remained illegal, possession of marijuana in prison was
decriminalized by Proposition 64.
Along with our colleagues in the Fourth and Sixth District Courts of Appeal, we
find Perry the more persuasive opinion and conclude Proposition 64 did not
decriminalize possession of marijuana in prison. (People v. Herrera (2020) 52
Cal.App.5th 982, 994–995; People v. Whalum (2020) 50 Cal.App.5th 1, 6–15.) On that
basis, we conclude appellant was properly convicted, and his judgment should not be
reversed.
DISPOSITION
The judgment is affirmed.
5.