Courtesy of James R. Touchstone, Esq.
In People v. Raybon, the California Third District Court of Appeal held the plain language of Health & Safety Code section 11362.1 demonstrated the electorate’s clear intent to decriminalize possession of less than ounce of marijuana, even in prison. In reaching its conclusion, the Court reversed the superior court’s rulings dismissing five inmate defendants’ petitions to dismiss their convictions for violations of Penal Code section 4573.6.
In 1949, the California Legislature enacted Penal Code sections 4573, 4573.5, 4573.6, 4573.8, and 4573.9 “‘to deter the presence of illicit drugs in custodial institutions’” and thereby “‘ensure the orderly administration and security within such institutions.’” Although the statutes must be construed together, each section targets different substances or different people possessing, using, selling, or smuggling the substances.
In the case discussed here, each of the five defendants is an inmate serving a sentence for a conviction of possession of cannabis in violation of Section 4573.6. 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 Section 1170 for two, three, or four years.” (Pen. Code section 4573.6 (a).)
In November 2016, state voters approved Proposition 64, titled the “Control, Regulate and Tax Adult Use of Marijuana Act” (the “Act”). The proposition, among other things, enacted Health and Safety Code section 11362.1, which provides: “(a) 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, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis;
“(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products;
“(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;
“(4) Smoke or ingest cannabis or cannabis products; and
“(5) Possess, transport, purchase, obtain, use, manufacture, or give away cannabis accessories to persons 21 years of age or older without any compensation whatsoever.
“(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of … 21 U.S.C. Sec. 863(f) … by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute cannabis accessories.
“(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”
Under Proposition 64, decriminalization prevails “notwithstanding any other provision of law.” (Section 11362.1 (a).) “When the Legislature intends for a statute to prevail over all contrary law, it typically signals this intent by using phrases like ‘notwithstanding any other law’ … “  The five inmate defendants petitioned for relief from their convictions, along with filing a motion to dismiss under Health and Safety Code section 11361.8. The defendants claimed the plain language of Proposition 64 no longer made possession of less than an ounce of cannabis a felony, and so their petitions dismissing their convictions must be granted.
They also argued that Section 11362.45 supported their claim because that section expressly lists the laws the electorate determined are not amended, repealed, affected, restricted, or preempted by Section 11362.1. Subdivision (d) of section 11362.45 pertains to custodial institutions. According to Section 11362.45(d), Section 11362.1 does not amend, repeal, affect, restrict, or preempt “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.” [Emphasis added.] The defendants argued that possession is clearly absent from subdivision (d). Thus, they maintained, voters specifically addressed the issue of cannabis in prisons and expressly prohibited use, not possession. The defendants argued that the plain language of the statutes clearly states that possession of less than an ounce of cannabis is no longer a prohibited controlled substance pursuant to Division 10 of the Health and Safety Code (“Division 10”); therefore, possession is no longer a felony, even in prison. The superior court denied each of the petitions, and the defendants appealed.
The California Third District Court of Appeal held that the plain language of Section 11362.1 made clear that possession of less than one ounce of cannabis in prison or a similar penal institution is not a felony, despite the Attorney General’s claims that the plain language reading of the statute would lead to an absurd result. The Court found that precedent also supported its view.
Section 4573.6 proscribes state prisoners from possession of “any controlled substances, the possession of which is prohibited by Division 10.” The Court explained that the insertion of the qualifier “prohibited by” before the reference to Division 10 means that “it limits the criminalized controlled substances to those prohibited by Division 10. Possession of less than one ounce of cannabis is no longer prohibited by Division 10, and therefore, according to the plain language of Penal Code section 4573.6, it is no longer a felony to possess less than one ounce in prison.”
Fenton and Harris Precedents
The Court reviewed precedents and found support for its “plain meaning” statutory construction. In People v. Fenton,defendantFenton was convicted of violating Penal Code sections 4573 and 4573.5 for smuggling in drugs for his back pain and sleep disorder while checking into a minimum security facility as a condition for probation and his work furlough program. Fenton had a doctor’s prescription for the smuggled pills, though he did not have the approval of the jail authorities for the drugs. Penal Code section 4573 prohibits smuggling a controlled substance, “the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code” into a jail. However, Health and Safety Code section 11350(a) proscribes possession of a controlled substance “unless upon the written prescription of a physician.”
The Third District said that the Attorney General, arguing in Fenton, “raised many of the arguments he recycles here.” The Attorney General maintained that the purpose of Section 4573 was to keep controlled substances out of jails, whether or not a physician prescribed them. The Fenton court rejected this view, finding that the plain meaning of the statute stated that one may bring controlled substances into a penal institution if an exception contained in Division 10 applied. Section 11350(a) did have such an exception, and allowed possession of controlled substances with a prescription.
The Fenton court also rejected the Attorney General’s argument that the plain meaning of the statutes was absurd because it would both permit the introduction of controlled substances into a penal institution and also render Section 4573 a nullity by just restating Section 11350. The Court there disagreed with both arguments, explaining that Section 4573 obviously permitted controlled substances in penal facilities under the proper circumstances. The Fenton Court distinguished criminal laws from prison rules, which meant that penal institutions could still impose “specific rules on whether controlled substances for which the inmate has a physician’s prescription can be introduced into the institution.” The Court also relied upon another opinion to support its holding.
In People v. Harris (2006) 145 Cal.App.4th 1456, the Court noted, the First District “once again rejected the Attorney General’s litany of arguments at odds with the plain meaning of the statute” where the defendant had brought medical marijuana into a state prison. Harris was qualified to use marijuana for chronic pain, but was convicted of a felony under Section 4573.5, which prohibits knowingly bringing into county correctional facilities, among other places, “any drugs, other than controlled substances.” Harris concluded that medical marijuana is a controlled substance after reviewing Division 10 for a definition of controlled substances. That Court said that the Section 4573.5’s “plain and commonsense meaning” showed that the Legislature intended to exclude controlled substances from the section’s scope.
The Attorney General in Harris argued “the same hackneyed and losing arguments,” said the Third District – i.e., a plain meaning interpretation would “effectively nullify” the Section’s original purpose in addressing “the ultimate evil” of drug use by prisoners, and result in an “absurd loophole.” Id. at 1465. The Harris court, like the Fenton court, rejected the Attorney General’s arguments: “The People’s interpretation is obviously incorrect in light of [Penal Code] section 4573.5’s plainly worded exclusion of controlled substances, which contains no ambiguity whatsoever. To add the qualification proposed by the People would require that we step beyond our judicial function and rewrite the statute, which we cannot do.” (Harris, supra, 145 Cal.App.4th at p. 1465.)
The Court also observed that the Harris courtalso found no absurdity, finding “it is conceivable that the Legislature has declined to criminalize the bringing of certain controlled substances, possession of which is allowed as stated in Division 10, into penal institutions and the like so as not to unnecessarily subject their possessors to criminal sanctions.” In response to the Attorney General’s reiterated argument that correctional officials would lose control over their facilities if the Harris court concluded that the electorate decriminalized possession of less than an ounce of cannabis, Harris noted, like Fenton, that rules prohibiting cannabis possession could be established and managed administratively. Harris explained: “Just because the electorate no longer characterizes possession of small amounts of cannabis as felonious conduct does not preclude prison authorities from banning possession to maintain order and safety in the prisons and other penal institutions.”
Section 11362.45’s Decriminalization Exception
The Third District also explained that “[c]onsumption, not possession, is the act voters determined should remain criminalized if the user is in prison.” This is why “smoking and ingesting” cannabis, as referred to in Section 11362.45, were not decriminalized under Section 11362.1 but possession was no longer a crime. The Court said that “[b]y expressly providing that laws pertaining to smoking and ingesting cannabis in prison are not affected by the decriminalization of possession of less than an ounce of cannabis, the drafters and voters demonstrated they were aware of the prison population and chose to distinguish possession from consumption. Thus, the plain meaning of the language prevails.”
Public Policy Argument
The Court also rejected the Attorney General’s public policy arguments as to why Section 11362.1 must not be construed to permit possession of less than an ounce of cannabis in prison facilities. The Court explained that Proposition 64 “voters, exercising their constitutional right to legislate through the initiative process, have changed the law and, in doing so, simply and plainly have decided to decriminalize that which the Attorney General would not. Judges cannot rewrite the statutes to conform to either our, or the Attorney General’s, notion of wise drug policy.” In addition, the Court did not find “the disasters
[the Attorney General]
foresees” likely, much less to “constitute the type of absurdity that allows us to disregard the voters’ clear intent.” Because the Attorney General offered “no viable way to escape the plain language of the statute,” the Third District rejected the argument that the legislative history or broader purposes of Penal Code section 4573.6 precluded “the amendment rightfully imposed by the initiative process.” Noting that “[a] result is not absurd because the outcome may be unwise,” the Court explained that a remedy for an undesirable public policy outcome should be supplied by the people or the Legislature, not by the Court rewriting enacted statutes to subscribe to a preferred version of sound public policy.
The Third District Court of Appeal thus found possession of under an ounce of cannabis in prison was no longer a crime, and that the defendants’ conduct underlying their convictions was consequently no longer criminal under Section 4573.6. The Court accordingly reversed the trial court’s rulings dismissing defendants’ petitions to dismiss their convictions for violations of Penal Code section 4573.6, and remanded for the trial court to enter orders granting their petitions for relief under Health and Safety Code section 11361.8.
HOW THIS AFFECTS YOUR AGENCY
Agencies should note that the Third District’s views of the Attorney General’s arguments differ completely from those expressed by the First District Court of Appeal in People v. Perry (2019) 32 Cal.App.5th 885. While the Third District only mentioned that case without discussing it, the First District expressed an opposite view of whether cannabis possession is allowed in prisons under the laws enacted by Proposition 64 and Section 4573.6. Perry expressly held that Proposition 64 did not legalize the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6. As noted in prior Client Alerts, when two separate appellate districts conflict on a legal issue, a trial court may technically choose which decision to follow. In practice, however, trial courts in a particular district will generally follow the decisions issued by their own appellate district.
In addition, agencies should also note that the Court repeatedly mentioned that correctional officials are not restricted by this case in imposing administrative rules and penalties to address the restriction of cannabis within correctional facilities.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at email@example.com.
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 2019 Cal. App. LEXIS 532 (3rd Dist. June 11, 2019).
 People v. Lee, 136 Cal.App.4th 522, 536 (5th Dist. 2006).
 People v. Gutierrez, 52 Cal.App.4th 380, 385 (1997).
 In re Greg F., 55 Cal.4th 393, 406–407 (2012).
 The Act also enacted Section 11361.8. The Attorney General conceded defendants are “currently serving a sentence for a conviction … .” (Section 11361.8 (a).) When a court receives a petition under Section 11361.8(a), the court “presume[s]” that the person qualifies for relief unless the People present “clear and convincing evidence” to the contrary. (Health & Saf. Code section 11361.8 (b).)
 These include laws: prohibiting driving a vehicle while smoking, ingesting, or impaired by cannabis or cannabis products (Section 11362.45 (a)); prohibiting sales or furnishing of cannabis or cannabis products to a person under the age of 21 (Section 11362.45 (b)); prohibiting a person younger than 21 from engaging in any of the conduct otherwise permitted under Section 11362.1 (Section 11362.45 (c)); and providing that undertaking any task while impaired from smokingor ingesting cannabis or cannabis products constitutes negligence or professional malpractice (Section 11362.45 (e)).
 Section 11362 is part of Division 10, which begins with Health and Safety Code section 11000.
 20 Cal.App.4th 965 (3rd Dist. 1993).
 Fenton, 20 Cal. App. 4th at p. 969.
 Id. at p. 970.