People v. Campbell CA2/3

Filed 2/23/22 P. v. Campbell CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B302318
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA067879)
v.
ELMER CAMPBELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Stephanie C.
Brenan, Blythe Leszkay, Toni R. Johns Estaville and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Elmer Campbell appealed from an order denying his
petition to have his conviction for possessing marijuana in prison
reduced or dismissed under the Control, Regulate and Tax Adult
Use of Marijuana Act (Proposition 64) (Voter Information Guide,
Gen. Elec. (Nov. 8, 2016) Prop. 64, § 1, p. 178).
In our original opinion filed in 2020, we noted a split of
authority, soon to be resolved by the California Supreme Court,
about whether Proposition 64 meant that possessing a small
amount of marijuana in prison was no longer a felony. We sided
with those courts holding that Proposition 64 barred felony
charges in those circumstances. We therefore ruled in Campbell’s
favor and reversed the trial court.
After we issued our opinion, the California Supreme Court
decided People v. Raybon (2021) 11 Cal.5th 1056 (Raybon), which
held, contrary to our conclusion, that possession of marijuana in
prison remained a felony violation notwithstanding the passage
of Proposition 64. The Supreme Court also granted review in this
case and has now transferred the matter with directions to vacate
our decision and to reconsider the cause in light of Raybon.
The California Supreme Court’s decision in Raybon is
dispositive. Accordingly, we vacate our prior decision and affirm
the trial court’s order denying Campbell’s petition.
BACKGROUND
In 2016, Campbell pleaded nolo contendere to possessing
contraband cannabis in prison (Pen. Code, § 4573.6, subd. (a))
and received a sentence of three years in state prison. Later that
year, the electorate passed Proposition 64, which reduced
cannabis-related crimes to misdemeanors. In 2019, Campbell
petitioned to have his conviction redesignated and dismissed
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under Health and Safety Code1 section 11361.8, which allows a
person currently serving a sentence for a conviction to petition for
resentencing or dismissal if he or she would have been guilty of a
lesser offense had Proposition 64 been in effect at the time of the
offense.
The trial court denied his petition. We reversed, holding
that Campbell’s conduct was no longer a felony under Proposition
64. The People petitioned for review, which the California
Supreme Court granted on March 10, 2021. On December 29,
2021, the Supreme Court transferred the matter to us with
directions to vacate our decision and to reconsider the cause in
light of Raybon, supra, 11 Cal.5th 1056.
DISCUSSION
Penal Code section 4573.6 makes it a felony to knowingly
possess any controlled substances in any state prison or similar
custodial facility. Cannabis, or marijuana, is a controlled
substance under division 10 of the Health and Safety Code.
(§§ 11007, 11054, subds. (d)(13), (20).)
Proposition 64 legalized the possession of up to 28.5 grams
of marijuana except in specific identified circumstances. “Subject
to Sections 11362.2, 11362.3, 11362.4, and 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; [¶] (2) Possess . . . not more than
eight grams of cannabis in the form of concentrated cannabis . . . ;
1 All
further statutory references are to the Health and
Safety Code.
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[¶] (3) Possess, plant, cultivate, harvest, dry, or process not more
than six living cannabis plants . . . ; [¶] (4) Smoke or ingest
cannabis or cannabis products; and [¶] (5) Possess, . . .
use, . . . or give away cannabis accessories to persons 21 years of
age or older without any compensation whatsoever.” (§ 11362.1,
subd. (a).)
Section 11362.45 describes various categories of laws and
rules that Proposition 64 did not affect. Section 11362.45,
subdivision (d) states that Proposition 64 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.”
Raybon, supra, 11 Cal.5th at page 1060, resolved a split of
authority about whether Proposition 64 meant that possession of
small amounts of marijuana in prison was no longer a felony
under Penal Code section 4573.6. After analyzing Proposition 64,
Penal Code section 4573.6, and section 11362.45, Raybon held
that Proposition 64 did not legalize possession of cannabis in
prison. (Id. at p. 1066.) Our Supreme Court reasoned that the
statutory directive in section 11362.45, subdivision (d), stating
that Proposition 64 does not repeal “ ‘laws pertaining to smoking
or ingesting cannabis’ ” in prison “is broad enough to encompass
statutes that prohibit the possession of cannabis.” (Raybon, at
p. 1066.) Thus, “possession of cannabis in prison remains a
violation of Penal Code section 4573.6.” (Id. at p. 1060.)
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We are bound by Raybon’s holding. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) The only issue
raised by Campbell on appeal was his claim that Proposition 64
precluded charging him with a felony for possessing less than a
gram of marijuana in prison. Raybon decided that issue
adversely to Campbell. Thus, upon reconsideration, we agree
with the People that the trial court properly denied Campbell’s
petition on the merits.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LIPNER, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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