P. v. Holmes CA4/1

Filed 11/19/20 P. v Holmes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076560
Plaintiff and Respondent,
v. (Super. Ct. No. JCF27104
COREY HOLMES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Affirmed.
Alex Kreit, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys
General, for Plaintiff and Respondent.
In 2011, Corey Holmes pleaded no contest to possession of an illegal
substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced
Holmes to a two-year prison term.
In August 2019, Holmes filed a petition to vacate his conviction under
Proposition 64. The court appointed counsel and held a hearing. The court
denied the petition finding Proposition 64 did not affect Penal Code section
4573.6. Specifically, the trial court relied on People v. Perry (2019) 32
Cal. App. 5th 885 (Perry), in determining possession of not more than 28.5
grams of marijuana in prison remained a felony. The trial court declined to
adopt the reasoning in People v. Raybon (2019) 36 Cal. App. 5th 111, review
granted August 21, 2019, S256978 (Raybon), to the effect that use of
marijuana in prison remains a felony under Penal Code section 4573.8, but
that a very narrow reading of Proposition 64 renders possession of a small
amount of marijuana while in prison no longer a crime. Apparently, under
that reasoning, one can bring small amounts of marijuana into the prison and
possess it, so long as they do not use it.
Holmes appeals, contending we should follow the Raybon decision and
declare that possession of “small amounts” of marijuana in prison is no longer
a crime. As we will discuss, we agree with the court’s analysis in Perry and
find Proposition 64 did not affect the section used in this case. Accordingly,
we will affirm the denial of Holmes’s petition.
DISCUSSION
A. The Contentions
Relying on Raybon, Holmes contends his conviction under Penal Code
section 4573.6 must be vacated because it has been impliedly repealed (at
least in part) by Proposition 64. He recognizes there is no specific language
in the proposition indicating it impacts statutes that prohibit either the
possession or use of marijuana by prison or jail inmates.
Holmes’s challenge has two principal anchors. First, he contends the
proposition makes possession of not more than 28.5 grams of marijuana
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outside of a prison or jail by persons who are 21 years old no longer a crime;
therefore, it necessarily means that under the language of Penal Code
section 4573.6 that possession of such small amounts in prison is no longer a
crime.
The second basis for his contention is that the so called carve-out
provision in the proposition that exempts statutes “pertaining” to use of
controlled substances in prison means Penal Code section 4573.6, which deals
with possession, does not “pertain” to the use or ingestion of controlled
substances. Thus, he argues the section was not exempted from
Proposition 64 as it relates to possessing small amounts of marijuana in
prison.
Both arguments which Holmes makes here were correctly rejected in
Perry, supra, 32 Cal. App. 5th 885. As we will explain, we agree with the
decision in Perry and decline to follow the contrary views expressed in
Raybon.
B. Legal Principles
Proposition 64 made a number of changes in statutes relating to the
use of marijuana. Relevant here is the proposition decriminalized simple
possession of not more than 28.5 grams of marijuana by persons over
21 outside of prisons or jails. It does not mention the crime of possession of
marijuana by inmates, except in what has been called the carve out section
indicating those marijuana-related statutes were not affected by the
proposition.
Health and Safety Code1 section 11362.45, subdivision (d) provides in
part, that section 11362.1 “ ‘does not amend, repeal, affect, restrict, or
1 All further statutory references are to the Health and Safety Code
unless otherwise specified.
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preempt: [¶] . . . [¶] . . . [l]aws 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 . . . .’ (§ 11362.45, subd. (d).)” (Perry, supra, 32 Cal.App.5th at
p. 891.)
The court in Perry specifically rejected the contention that the carve-
out does not apply to Penal Code section 4573.6 because the language of that
section deals with possession and not use, thus the contention it does not
“pertain” to smoking or ingestion. The court in Perry recognized the
theoretical possibility that one could use drugs in prison without “possessing”
them in a legal sense. However, someone must possess the physical product
in prison in order for anyone to use it. The court in Perry found limitation of
possession of marijuana in prison clearly pertained to the ultimate goal of
preventing the unlawful use of controlled substances by inmates. (Perry,
supra, 32 Cal.App.5th at p. 892.)
The court in Perry also rejected the contention that Penal Code
section 4573.6 is no longer valid because it prohibits possession of controlled
substances in prison if they are regulated by division 10 of the Health and
Safety Code. (Perry, supra, 32 Cal.App.5th at p. 893.) The contention is
premised on the fact that personal possession of not more than 28.5 grams by
persons 21 years old is no longer criminal. Thus, the argument continues
that possession of small amounts of marijuana is not regulated by
division 10.
In Perry, the court rejected the argument and stated: “Here, a
conclusion that division 10 [of the Health and Safety Code] does not prohibit
the possession of not more than 28.5 grams of cannabis for purposes of Penal
Code section 4573.6 would make meaningless the express provision of
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Proposition 64 that its legalization of cannabis did not ‘amend, repeal, affect,
restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting
cannabis’ in penal institutions. (§ 11362.45, subd. (d).)” (Perry, supra, 32
Cal.App.5th at p. 894.)
The court went on to say that cannabis remains controlled by
division 10 and declined to adopt the interpretation offered that would
impliedly exclude possession of a “small amount” as not being subject to the
statute. (Perry, supra, 32 Cal.App.5th at p. 896.)
Our Supreme Court has granted review in Raybon, supra, 36
Cal. App. 5th 111, which takes a contrary position on both facets of Holmes’s
argument. Ultimately, the high court will resolve the differences in the
opinions.
C. Analysis
In People v. Whalum (2020) 50 Cal. App. 5th 1, review granted
August 12, 2020, S262935, we addressed Penal Code section 4573.8, a more
broadly worded prohibition of use or ingesting of unauthorized drugs in
prison. We found the statute had not been preempted or amended by
Proposition 64. We found the carve-out provisions of the proposition retained
the validity of the statute. We did not address the validity of Penal Code
section 4573.6, as it was not challenged in that case.
We did discuss the Perry opinion at length. In regard to the carve-out
provision, we said: “[W]e agree with Perry’s analysis regarding the scope of
the carve out section 11362.45, subdivision (d), and we accordingly concluded
that Proposition 64 does not affect laws, including Penal Code section 4573.8,
which make it a crime to possess cannabis in a correctional institution.”
(Whalum, supra, 50 Cal.App.5th at p. 10.)
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We are faced with choosing between the analysis in Perry and the
opposing views expressed in Raybon. Pending direction to the contrary from
our high court, we will follow the reasoning of Perry and hold that Penal Code
section 4573.6 remains valid after Proposition 64, and, therefore, we will
affirm the order denying Holmes’s petition to vacate his conviction.
DISPOSITION
The order denying the petition to vacate Holmes’s conviction of
violating Penal Code section 4573.6, is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.
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