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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. ALBERT ADAMS, Defendant and Appellant. F081025
(Super. Ct. No. DF014662A)



### OPINION

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.2

. 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 p ossession 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, a ppellant 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 posses sion 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 R aybon 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 argument s 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 s tate prison as well as those not in prison? ”3

. 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 w e 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 pers uasive. 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

t he 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 ” p ossession of less than 28.5 grams of ma rijuana 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 servi ng 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 di d not decriminalize marijuana use and possession in all circumstances. Relevant here, Proposition 64 added section 11362.45 , which limits the application of section 1136 2 .1 in prisons: “ Section 11362.1 does not amend, repeal, affect, restrict, or preempt : [¶]

... [¶]

... [l]aws pertaining to smoking or4

.

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 o n 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 exclud ed from
decriminalization “ ‘ smoking[,] ingesting[,] ’ ” and otherwise consuming marijuana in prison. ( Raybon , supra , 36 Cal.App.5th at p. 122, review granted.) It explained the l aws 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 by5

.

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 posse ssion 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 j udgment is affirmed

.