People v. Meadows CA4/2

Filed 3/17/21 P. v. Meadows CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074143
v. (Super.Ct.No. BLF002634)
FRANK EDWARD MEADOWS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Stephanie M. Adraktas, 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, Robin Urbanski and Yvette M.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Frank Edward Meadows, Jr., pleaded guilty to possessing marijuana in prison in
2003. In 2019, Meadows moved to vacate his conviction under Proposition 64, which
legalized possession of less than 28.5 grams of marijuana by any person over the age of
21 and allowed those currently serving sentences for possession to modify or dismiss
those convictions. The trial court denied Meadows’s motion.
On appeal, Meadows argues Proposition 64’s legalization of certain kinds of
marijuana possession applies to simple possession of marijuana inside a prison. The
People argue Proposition 64’s legalization of marijuana possession did not legalize
possession inside prisons. We affirm.
I. FACTS
On April 24, 2003, Meadows pleaded guilty to possession of marijuana while
incarcerated in Ironwood State Prison. (Pen. Code, § 4573.6.) The trial court sentenced
Meadows to two years, to be served consecutive to the sentence he was already serving.
In July 2019, Meadows petitioned to vacate his conviction under Health and
Safety Code 11361.8, subdivision (f), unlabeled statutory citations refer to this code. The
Riverside County District Attorney opposed the petition. The trial court denied the
petition.
Meadows timely appealed.
II. ANALYSIS
The issue Meadows asks us to decide is whether Proposition 64 legalized a person
over 21 years old from possessing less than 28.5 grams of marijuana while incarcerated.
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In 2016, voters passed Proposition 64, which amended Division 10 of the Health
and Safety Code. In particular, Proposition 64 added section 11362.1, which made it legal
for a person over 21 to possess less than 28.5 grams of marijuana. It also allowed certain
people currently serving sentences for such possession to petition for recall and
resentencing. (§ 11361.8.) However, Proposition 64 also added section 11362.45, which
enacted a set of savings clauses. These savings clauses state that section 11362.1’s
legalization of marijuana possession “does not amend, repeal, affect, restrict, or preempt”
certain other laws regarding possession of marijuana, including “[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 or the Division of Juvenile Justice.” (§ 11362.45, subd. (d).)
Meadows acknowledges that Proposition 64’s savings clause means that anybody
smoking or ingesting cannabis within a prison may still be convicted of a felony under
Penal Code section 4573.6. However, Meadows argues that he was not convicted for
smoking or ingesting marijuana, only for possession. He points out that the savings
clause doesn’t specifically save the prohibition on possessing marijuana in a prison, and
therefore Proposition 64 legalized possession within a state prison along the same lines as
those without it. He argues he is therefore entitled to seek recall and resentencing under
section 11361.8 because his simple possession, whether inside or outside prison, would
be legal under the law as it exists now.
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Two recently published cases addressed Meadows’s argument. The first, People v.
Perry (2019) 32 Cal.App.5th 885, 890 (Perry), rejected Meadows’s argument. In that
case our colleagues in the First District held “Proposition 64 did not affect existing
prohibitions against the possession of marijuana in prison or otherwise affect the
operation of Penal Code section 4573.6.” (Id. at p. 890.) The court so held because
“[w]hile section 11362.45, subdivision (d), does not expressly refer to ‘possession,’ its
application to possession is implied by its broad wording,” in particular its use of the
phrase “ ‘pertaining to.’ ” (Id. at p. 891, italics omitted.) The court held that
Proposition 64’s exception for “ ‘[l]aws pertaining to smoking or ingesting cannabis’ ” in
a prison may reasonably be read to include laws regarding possession of cannabis alone,
even without evidence of smoking or ingestion. It reasoned this was the appropriate
reading of section 11362.45, subdivision (d), because possession is imminently related to
smoking or ingesting, there is no reason for an inmate to possess cannabis but to
eventually ingest it, and possession has historically been treated as more culpable than
simple use, not less. (Perry, at pp. 891-892, italics omitted.) Accordingly, it concluded
that “[i]t is apparent that Proposition 64 . . . was intended to maintain the status quo with
respect to the legal status of cannabis in prison.” (Id. at pp. 892-893.)
However, in People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review
granted August 21, 2019, S256978, the Third District explicitly rejected the court’s
holding in Perry. Instead, the court decided that Proposition 64’s savings clause was not
ambiguous, and that the plain meaning should prevail. That is, the Raybon court
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concluded “it 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.’ ” (Id. at p. 121.) They concluded
that the purpose of the “pertaining to” language “is to describe the vast array of means of
consumption and consumption, not possession, is the act the voters determined should
remain criminalized if the user is in prison.” (Id. at p. 122.) In particular the court noted
the “pertaining to” language would continue to criminalize the ways “inhaled as a
nonburning vapor or applied topically such that it is absorbed through the skin.” (Id. at
p. 122.) Our Supreme Court has since granted review in Raybon.1
We agree with Perry and decline to follow Raybon. In particular, we agree with
Perry that section 11362.45, subdivision (d), is ambiguous, and disagree with Raybon
that it either has a plain meaning or that the plain meaning is what they say it is. Perry
correctly argues the phrase “pertaining to” renders subdivision (d) both more broad and
more ambiguous than similar provisions in section 11362.45 because the question of
what pertains to smoking or ingesting marijuana is open-ended. As the court in Perry
pointed out, the word pertain throws a wide net, as it can mean “ ‘to belong as an
attribute, feature, or function’ [citation], ‘to have reference or relation; relate’ [citation],
[or] ‘[b]e appropriate, related, or applicable to’ [citation].” (Perry, supra, 32 Cal.App.5th
1 The court in Raybon also addressed certain arguments, not raised here, that
Proposition 64 effectively rendered cannabis no longer a controlled substance for
purposes of Penal Code section 4573.6. We do not consider this issue because it was not
raised and because it is effectively resolved if we conclude, as we do here, that
section 11362.45, subdivision (d), continues to criminalize marijuana possession in
prison.
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at p. 891.) Given this, we are “hard pressed to conclude that possession of cannabis is
unrelated to smoking or ingesting the substance.” (Ibid.)
Moreover, Raybon does not properly address Perry’s most compelling argument:
that there is no reason for any prisoner to possess marijuana without a medical
prescription except to consume it illegally or allow another prisoner to consume it
illegally. Circumstances where possessing and use are decoupled do exist elsewhere and
are regulated separately in those circumstances. For instance, we can imagine innocent
scenarios in which a responsible marijuana user could want to possess marijuana in
certain circumstances without intending to use it, likely because they are legally
transporting it from one location to another. This explains why section 11362.45 would
save laws prohibiting possession in drug-free workplaces under subdivision (f), or why
section 11362.3 subdivision (a)(5), prohibits possessing cannabis on school grounds. This
is because there may be reasons someone could possess marijuana at work or school
without intending to smoke or ingest it, and the voters of California wanted to make clear
that such possession was still prohibited.
No such similar reasons exist in prison. Prisoners do not possess marijuana merely
to transport it legally from one location to another. Smoking or ingesting are always
criminal regardless of the location within the prison. Indeed, Meadows himself doesn’t
offer any proposed scenarios where possession of marijuana in a prison would be
unrelated to the consumption or ingestion of that marijuana. Thus, there is no reason to
possess marijuana except to consume it illegally. Because of this, section 11362.45,
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subdivision (d), did not need to specify that possession was still prohibited in prisons,
because prohibiting smoking or ingesting and those activities “pertaining to” the same
necessarily includes possession within a prison in ways it does not outside a prison.
Similarly, the absence of such “pertaining to” language in other subdivisions of
section 11362.45 demonstrates that the drafters, and the voters, were capable of saving
only those laws strictly related to consumption and chose not to. For instance,
subdivision (a) saves “[l]aws making it unlawful to drive or operate a vehicle . . . while
smoking, ingesting, or impaired by, cannabis.” (§11362.45, subd. (a).) The drafters of
Proposition 64 could have phrased subdivision (d) the same way, saving only those laws
prohibiting smoking or ingesting cannabis in a prison. They did not. Instead, they saved
any law “pertaining to” smoking or ingesting marijuana. That the statute does not use this
phrasing in one case where it would make sense to do so, but does in another, implies the
drafters, and the voters who approved Proposition 64, intended to save more of the
relevant laws regulating marijuana in prison than those regulating marijuana elsewhere.
The absence of “pertaining to” language in subdivision (a) of section 11362.45
also directly contradicts one of Raybon’s conclusions. Namely, Raybon found that the
“pertaining to” language is not surplusage because it “describe[s] the vast array of means
of consumption and consumption,” as “consumption can be achieved in ways not strictly
involving smoking or ingesting.” (Raybon, supra, 36 Cal.App.5th at p. 122.) If so, the
lack of any “pertaining to” language in subdivision (a) would compel us to conclude it
only applies to smoking or ingesting marijuana. In other words, reading the “pertaining
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to” language in subdivision (d) to have the narrow meaning ascribed to it in Raybon also
narrows subdivision (a). This would mean subdivision (a) only saves those laws
regulating smoking or ingesting marijuana while operating a vehicle and not those laws
regulating, for instance, vaping, dabbing, or absorbing marijuana through the skin while
operating a vehicle. Thus, under Raybon’s interpretation, the “pertaining to” language is
either surplusage, or subdivision (a) prohibits consuming marijuana while operating a
vehicle only if you are smoking or ingesting it. We think both conclusions are absurd.
Instead, we agree with our colleagues in Perry that section 11362.45,
subdivision (d), continues to criminalize marijuana possession in prison, because such
possession necessarily pertains to smoking or ingesting it.
III. DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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