Filed 11/18/20 P. v. Lynch CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ARNOLD LYNCH,

Defendant and Appellant.

 D076181

 (Super. Ct. No. JCF38345)

APPEAL from an order of the Superior Court of Imperial County, 

Marco D. Nunez, Judge. Affirmed.

Shay Dinata-Hanson, 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, Charles C. 

Ragland and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and 

Respondent.

In 2018, Arnold Lynch was convicted of violating Penal Code 

section 4573.6, which prohibits possession of controlled substances (in his 
2

case, marijuana) in prison. Lynch contends this is no longer a felony under 

Health and Safety Code section 11362.1, subdivision (a),1 which was enacted 

pursuant to the passage of Proposition 64 and which decriminalizes 

possession of small amounts of cannabis. (Prop. 64, § 4.4, approved Nov. 8, 

2016, eff. Nov. 9, 2016; amended by Stats. 2017, ch. 27, § 129.) In 2019, 

Lynch petitioned the trial court for recall or dismissal of his 2018 conviction. 

(Health & Saf. Code, § 11361.8, subd. (a).) The trial court concluded Penal 

Code section 4573.6, subdivision (a) remains a felony following the passage of 

Proposition 64 and denied Lynch’s petition. On appeal, Lynch challenges the 

trial court’s denial of his petition and asserts an additional contention 

regarding the trial court’s failure to consider his ability to pay various fines 

and fees when it imposed sentence in connection with his no contest plea in 

2018, in violation of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). 

We conclude the trial court properly denied Lynch’s section 11361.8 petition 

and his Dueñas claim is not cognizable on this appeal from the denial of his 

petition. We therefore affirm the court’s order.

FACTS

In January 2015, correctional officers noticed a strong odor of 

marijuana as they passed by Lynch’s cell at Calipatria State Prison. Officers 

directed Lynch to step out of the cell, but rather than promptly complying, 

officers witnessed Lynch attempt to conceal contraband in his rectum. In a 

subsequent search, officers found a plastic-wrapped bindle in Lynch’s rectum. 

Lynch admitted to the officers the bindle contained marijuana. Subsequent 

tests confirmed the bindle contained 8.35 grams of marijuana. 

1 Unless otherwise indicated, statutory references are to the Health and 

Safety Code.
3

In 2016, California voters decriminalized the possession of less than 

28.5 grams (approximately one ounce) of marijuana, or cannabis.2 (Prop. 64; 

§ 11362.1, subd. (a); see People v. Perry (2019) 32 Cal.App.5th 885, 888 

(Perry), People v. Raybon (2019) 36 Cal.App.5th 111, 114, review granted 

Aug. 21, 2019, S256978 (Raybon).)

In September 2017, an indictment charged Lynch with one felony count 

of possessing contraband in prison in violation of Penal Code section 4573.6. 

The indictment also alleged one serious or violent felony prior (id., 

§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and further alleged that Lynch 

committed the offense while confined in state prison (id., § 1170.1, subd. (c)). 

In April 2018, Lynch pled no contest to one count of violating Penal 

Code section 4573.6 with the following agreement: “Probation denied; impose 

LT [lower term] of [two] years state prison consecutive to Los Angeles County 

Case No. TA067451; balance of indictment is dismissed [and] prior strike 

allegation is stricken[.]” The trial court sentenced Lynch to state prison for 

the lower term of two years to run consecutive to his current sentence. The 

trial court also imposed a restitution fine of $300 (Pen. Code, § 1202.4, 

subd. (b)), a criminal conviction assessment of $30 (Gov. Code, § 70373), a 

court security fee of $40 (Pen. Code, § 1465.8), and imposed and stayed a 

parole revocation restitution fine of $300 (id., § 1202.45). At sentencing, 

Lynch’s counsel requested that the court consider his ability to pay the 

restitution fine, considering he was already paying a $10,000 obligation in 

“the controlling . . . case,” and that “any additional state[-]imposed fines will 

2 In 2017, the Legislature replaced references to “marijuana” in the 

Health and Safety Code with the term “cannabis.” (See, e.g., Stats. 2017, 

ch. 27, § 121, eff. June 27, 2017.) For consistency, we primarily use the 

amended terminology of “cannabis” throughout the remainder of this opinion.
4

impact his ability to pay off restitution to actual victims.”3 The trial court 

remarked, “as I understand it, those fines are absolutely mandatory, and I 

don’t have an option to not order them. So, sorry.” 

In June 2019, Lynch—through counsel—petitioned the trial court for a 

recall of sentence and dismissal of his Penal Code section 4573.6 conviction 

pursuant to Health and Safety Code section 11361.8, subdivision (a), on the 

ground that Health and Safety Code section 11362.1 provides that possession 

by an individual 21 years of age and older of not more than 28.5 grams of 

cannabis is not a felony. Lynch encouraged the court to follow Raybon, which 

concluded that, after Proposition 64, possession of small amounts of cannabis 

in prison is no longer a felony.4 The district attorney opposed Lynch’s 

petition, contending that Penal Code section 4573.6 remained a felony. The 

district attorney encouraged the trial court to follow Perry, which concluded 

Proposition 64 did not decriminalize possession of cannabis in prison. The 

district attorney did not contend that Lynch had forfeited relief under 

Proposition 64 by failing to raise the issue at the time of his conviction and 

sentencing for the offense. 

After hearing argument, the trial court denied Lynch’s petition, 

concluding Lynch was not entitled to relief under section 11361.8. 

3 In 2005, in Los Angeles Superior Court Case No. TA067451, Lynch was 

convicted of first degree murder while armed with a firearm (Pen. Code, 

§§ 187, subd. (a), 12022, subd. (a)(1), count 1), conspiracy to commit robbery 

(id., § 182, subd. (a)(1), count 2), second degree robbery (id., § 211, count 3), 

and second degree burglary (id., § 459, count 4). The trial court sentenced 

Lynch to a total term of 26 years to life in prison and imposed a $10,000 

restitution fine (id., § 1202.4, subd. (b)) and various additional fines and fees. 

4 The Raybon opinion had been filed just days before Lynch filed his 

petition. 
5

On appeal, Lynch contends that the passage of Proposition 64 entitles 

him to relief from his Penal Code section 4573.6 conviction. He urges this 

court to adopt the reasoning of Raybon, which he contends is “more 

persuasive” than Perry. He also challenges the trial court’s failure to 

consider his ability to pay various fines and fees when it imposed sentence in 

connection with his no contest plea in 2018, in violation of Dueñas. 

DISCUSSION

I.

Proposition 64

The principal question before this court is whether, as a result of 

Proposition 64, it is permissible to possess small quantities of cannabis in 

prison. The Courts of Appeal have reached contrary conclusions on this 

issue. We outline the conflicting appellate decisions below and adopt the 

reasoning of cases holding it remains illegal to possess small amounts of 

cannabis in prison. We therefore conclude the trial court correctly denied 

Lynch’s petition to recall or dismiss his sentence pursuant to section 11361.8. 

A. Governing Legal Principles

Lynch was convicted of violating Penal Code section 4573.6, which 

provides: “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 . . . or paraphernalia intended to be used for unlawfully injecting 

or consuming controlled substances, without being authorized to so possess 

the same by the rules of the Department of Corrections . . . is guilty of a 
6

felony punishable by imprisonment pursuant to subdivision (h) of 

Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6, subd. (a).)5 

Proposition 64 decriminalized the possession of small quantities of 

cannabis for persons 21 years of age or older. (See Perry, supra, 

32 Cal.App.5th at pp. 889-890.) Among other things, it added Health and 

Safety Code section 11362.1, which provides in part: “Subject to 

Section[] . . . 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.” 

(§ 11362.1, subd. (a).)6

Decriminalization is expressly subject to Health and Safety Code 

section 11362.45, which has been characterized as an exception or “carve out” 

provision—i.e., section 11362.45 limits what is otherwise made lawful by 

section 11362.1. (See, e.g., Perry, supra, 32 Cal.App.5th at p. 895 

[section 11362.45 is “an exception to the legalization of possession and use 

authorized by section 11361.2”]; People v. Herrera (2020) 52 Cal.App.5th 982, 

5 Penal Code section 4573.8 similarly proscribes “knowingly . . . 

possess[ing] in any state prison . . . drugs in any manner . . . .” Cannabis 

remains a controlled substance under Division 10 of the Health and Safety 

Code. (Health & Saf. Code, § 11054, subd. (d)(13).)

6 As noted, Proposition 64 legalizes certain activity involving 28.5 grams 

or less of cannabis by persons 21 years of age or older. When we refer to the 

decriminalization of the use and possession of cannabis in this opinion, for 

ease of reference, we do not always restate these age restrictions and 

amounts. (See Perry, supra, 32 Cal.App.5th at p. 890, fn. 8.) 
7

991, review granted Oct. 14, 2020, S264339 (Herrera)7 [“section 11362.45[, 

subd.] (d) carves out from Proposition 64’s legalization of cannabis ‘[l]aws 

pertaining to smoking or ingesting’ cannabis in a penal institution”].) This 

carve out provision states in relevant part: “Section 11362.1 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 . . . any other facility or institution referenced in 

Section 4573 of the Penal Code.” (Health & Saf. Code, § 11362.45, subd. (d).) 

The facilities referenced in Penal Code section 4573 include state prisons and 

county jails. (Pen. Code, § 4573, subd. (a).)

A person serving a sentence for a conviction which would not have been 

an offense after passage of Proposition 64 may petition the trial court for a 

recall or dismissal of his or her sentence. (§ 11361.8, subd. (a).) “If the 

petitioner satisfies the criteria in subdivision (a), the court shall grant the 

petition to recall the sentence or dismiss the sentence because it is legally 

invalid unless the court determines that granting the petition would pose an 

unreasonable risk of danger to public safety.” (§ 11361.8, subd. (b).) Whether 

a petitioning party is eligible for relief under section 11361.8, subdivision (a), 

presents a question of statutory interpretation which we review de novo. 

(People v. Whalum (2020) 50 Cal.App.5th 1, 9 (Whalum); Raybon, supra, 

36 Cal.App.5th at p. 113, review granted.) 

In Perry, the First District Court of Appeal addressed the question of 

whether an inmate’s conviction for possessing cannabis in prison under Penal 

Code section 4573.6 was subject to dismissal after the adoption of 

7 On October 14, 2020, our Supreme Court granted review in Herrera

“pending consideration and disposition of related issues in People v. Raybon, 

S256978.” (Herrera, supra, 52 Cal.App.5th 982, review granted.)
8

Proposition 64. (Perry, supra, 32 Cal.App.5th at p. 890.) The Perry court 

concluded Proposition 64 did not change any existing “prohibitions against 

the possession of marijuana in prison or otherwise affect the operation of 

Penal Code section 4573.6.” (Ibid.) The court explained that Proposition 64 

legalized possession of not more than 28.5 grams of cannabis, but it was 

expressly subject to the exception carved out by Health and Safety Code 

section 11362.45, subdivision (d) for “ ‘[l]aws pertaining to smoking or 

ingesting cannabis or cannabis products,’ ” which remain prohibited. (Perry,

at p. 891.) The court addressed the parties’ competing contentions as to 

whether this exception applies to “possession,” as well as “smoking or 

ingesting” cannabis, and concluded that it does. (Id. at pp. 890-891.) In 

response to the defendant’s argument that possession was “not necessarily an 

inherent aspect of smoking or ingesting [cannabis],” the court found the 

concepts of possession and use were related, noting in “the context of 

possession in prison, it is particularly obvious that possession must ‘pertain’ 

to smoking or ingesting. For what purpose would an inmate possess cannabis 

that was not meant to be smoked or ingested by anyone?” (Id. at p. 892.) The 

court also rejected defendant’s argument premised on Penal Code 

section 4573.6’s reference to what is prohibited under Division 10 of the 

Health and Safety Code—i.e., “that Penal Code section 4573.6 no longer 

applies to possession by an adult in prison of not more than 28.5 grams of 

cannabis because the offense is defined by reference to ‘controlled substances, 

the possession of which is prohibited by Division 10,’ and Proposition 64, by 

its amendment of Health and Safety Code section 11357, eliminated the 

prohibition against such possession that previously existed in division 10.” 

(Perry, at p. 893.)8 The court rejected this argument because it would render 

8 “As amended by Proposition 64, section 11357 no longer defines 
9

the exception, or carve out language, meaningless: “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 

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.” (Id. at p. 894.) By contrast, interpreting 

Penal Code section 4573.6’s language (“controlled substance, the possession of 

which is prohibited by Division 10”) as including possession of cannabis in 

prison, “does no violence to the words of the” statute. (Perry, at p. 896.) 

“Cannabis remains a controlled substance under division 10.[9] Under the 

Health and Safety Code provisions affected by Proposition 64, all of which are 

part of division 10, cannabis possession is prohibited in a number of specific 

circumstances and its possession or use in penal institutions is excluded from 

the initiative’s affirmative legalization provision.” (Ibid.) 

In Raybon, the Third District Court of Appeal addressed the same 

question of whether possession of cannabis in prison remains a crime after 

the passage of Proposition 64, and it came to the opposite conclusion of Perry. 

The Raybon court concluded “the plain language of Health and Safety Code 

section 11362.1, enacted as part of Proposition 64,” compelled a finding that 

“possession of less than an ounce of cannabis in prison is no longer a felony.” 

(Raybon, supra, 36 Cal.App.5th at p. 113, review granted.) The court found 

support for its position in two prior cases, People v. Fenton (1993) 

possession of not more than 28.5 grams of marijuana by a person age 21 or 

older as an offense.” (Perry, supra, 32 Cal.App.5th at p. 889; see § 11357, 

subd. (a).)

9 Section 11054, subdivision (d)(13).
10

20 Cal.App.4th 965 and People v. Harris (2006) 145 Cal.App.4th 1456, which 

the court noted rejected many of the same arguments the Attorney General 

was asserting that were “at odds with the plain meaning of the statute.” 

(Raybon, at pp. 117-119.)10 With regard to the scope of the carve out in 

section 11362.45, subdivision (d), the court rejected the notion that the 

“drafters of Proposition 64 intended to include possession not by naming it, 

but by the use of a tangential reference ‘pertaining to.’ ” (Raybon, at p. 121.) 

The court further explained “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.’ ” (Ibid.)11 The court rejected the Attorney General’s 

arguments based on public policy grounds, and his claim that allowing the 

possession of small amounts of cannabis in prison leads to absurd results, 

stating: “None of the policy arguments he advances can undermine the will 

10 In Fenton, the Court of Appeal ruled that the defendant did not violate 

Penal Code section 4573, which prohibits bringing into a jail “ ‘any controlled 

substance, the possession of which is prohibited by Division 10 (commencing 

with Section 11000) of the Health and Safety Code,’ ” because he had a 

physician’s prescription for the controlled substance in his possession. 

(Fenton, supra, 20 Cal.App.4th at pp. 966-967, 971.) In Harris, the appellate 

court reversed the defendant’s conviction for violating Penal Code 

section 4573.5, prohibiting bringing “drugs ‘other than controlled 

substances’ ” into a correctional facility, because the statute does not apply to 

controlled substances such as the “ ‘medical marijuana’ ” which the defendant 

brought into the prison. (Harris, supra, 145 Cal.App.4th at pp. 1460-1461, 

1465.) 

11 According to the court, the purpose of the “ ‘pertaining to’ ” language 

was to “describe the vast array of means of consumption,” such as 

“inhal[ing] . . . a nonburning vapor” or topical application resulting in 

“absor[ption] through the skin,” which remain unlawful. (Raybon, supra, 

36 Cal.App.5th at p. 122, review granted, italics added.) 
11

of the electorate and none of the disasters he foresees constitute the type of 

absurdity that allows us to disregard the voters’ clear intent.” (Id. at p. 124.) 

In response to concerns about the loss of control over correctional facilities 

resulting from the decriminalization of cannabis in prisons, the court 

concluded “rules prohibiting the possession of cannabis can be established 

and managed administratively.” (Id. at p. 119.) 

In Whalum, this court addressed the similar issue of whether an 

inmate convicted of Penal Code section 4573.8, which prohibits possession of 

“drugs in any manner” in prison, was eligible for relief under Health and 

Safety Code section 11361.8, subdivision (a). (Whalum, supra, 

50 Cal.App.5th at p. 3.) Whalum concluded that a conviction under Penal 

Code section 4573.8 remained a felony after Proposition 64, and the inmate 

was not eligible for relief. (Whalum, at p. 3.) The court noted it “need not, 

and d[id] not, weigh in on the issues unique to the impact of Proposition 64 

on Penal Code section 4573.6.” (Id. at p. 10.) However, the court agreed with 

Perry that “Proposition 64 did not affect laws specifically directed at 

criminalizing the possession of cannabis as contraband in a correctional 

institution.” (Id. at p. 5.) Whalum further “agree[d] with Perry’s 

analysis regarding the scope of the carve out in [Health and Safety Code] 

section 11362.45, subdivision (d), and . . . accordingly conclude[d] 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.” (Id.

at p. 10.) Whalum concluded that “even though Penal Code section 4573.8 

criminalizes possession rather than use of drugs in a correctional institution, 

it is nevertheless properly described as a law ‘pertaining to smoking or 

ingesting cannabis’ in such a setting, as it is part of [a] prophylactic approach 

to prevent prisoners from using drugs.” (Id. at p. 12.)
12

More recently, the Sixth District Court of Appeal addressed the 

question of whether Penal Code section 4573.6 remains a felony following the 

approval of Proposition 64 in Herrera. The Herrera court adhered to the 

analysis in Perry and Whalum and rejected the analysis in Raybon,

concluding that “Proposition 64 did not decriminalize the possession of 

cannabis in a penal institution.” (Herrera, supra, 52 Cal.App.5th at p. 985, 

review granted.) The Herrera court reasoned that Health and Safety Code 

section 11362.45, as enacted by Proposition 64, contains an exception to “the 

general provision authorizing adult possession of cannabis” (Herrera, at 

p. 990)—which expressly states that “Section 11362.1 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” 

prison or jail. (Health & Saf. Code, § 11362.45, subd. (d).) Because Penal 

Code section 4573.6, subdivision (a) is a “ ‘[l]aw[] pertaining to smoking or 

ingesting cannabis’ in jail within the meaning of Health and Safety Code 

section 11362.45[, subdivision] (d),” the Herrera court held that 

“Proposition 64 did ‘not amend, repeal, affect, restrict, or preempt’ Penal 

Code section 4573.6[, subdivision] (a), and possession of cannabis in jail 

remains a crime under that Penal Code provision.” (Herrera, at p. 990.)

B. Analysis

The Attorney General contends that Lynch is not eligible for relief 

under Health and Safety Code section 11361.8 because it applies only to 

persons who were serving a sentence affected by Proposition 64 at the time of 

its enactment—which Lynch was not.12 This contention is not supported by 

the language of Health and Safety Code section 11361.8, which provides, “A 

person currently serving a sentence for a conviction, whether by trial or by 

12 The People did not raise this claim in the trial court.
13

open or negotiated plea, who would not have been guilty of an offense, or who 

would have been guilty of a lesser offense under the Control, Regulate and 

Tax Adult Use of Marijuana Act had that act been in effect at the time of the 

offense may petition for a recall or dismissal of sentence before the trial court 

that entered the judgment of conviction in his or her case to request 

resentencing or dismissal . . . .” (Health & Saf. Code, § 11361.8, subd. (a), 

italics added.) Lynch was indeed convicted and sentenced for violating Penal 

Code section 4573.6 after the enactment of Proposition 64, but the offense 

occurred in January 2015, prior to the passage of Proposition 64. Lynch 

meets the criteria set forth in the statute: he is “currently serving a sentence 

for a conviction” and claims that he would not have been guilty of the Penal 

Code section 4573.6 offense had Proposition 64 “been in effect at the time of 

the offense.” (Health & Saf. Code, § 11361.8, subd. (a).) Therefore, he 

properly pursued relief by petitioning for recall or dismissal of his sentence 

under the statute. 

The Attorney General also contends that Lynch’s certificate of probable 

cause contains a material misstatement of fact—that Lynch was sentenced 

prior to the enactment of Proposition 64—and was therefore wrongly 

obtained. Lynch’s request for a certificate of probable cause, which was 

prepared by counsel, stated that Lynch entered his plea and was sentenced 

on April 12, 2018, and additionally stated, “[a]fter sentencing, Proposition 64 

was enacted by ballot initiative.” This is not accurate, as Proposition 64 was 

enacted by ballot initiative on November 8, 2016 (Perry, supra, 

32 Cal.App.5th at p. 888), after Lynch committed his offense but before he 

was convicted and sentenced. The misstatement appears to have been 

accidental, and we decline to find it to be “material.” In any event, Lynch’s 

appeal is properly before this court. (See Teal v. Superior Court (2014) 
14

60 Cal.4th 595, 601 [denial of defendant’s claim of eligibility for resentencing 

under the Three Strikes Reform Act was appealable as an order after 

judgment affecting the defendant’s substantial rights].) We therefore 

consider the merits of Lynch’s claims.

Lynch’s arguments are largely based on the contention that this court 

should follow Raybon, rather than Perry. He claims that, under the plain 

meaning of Proposition 64 and the statutes affected thereby, he is eligible for 

relief from his conviction because possession of less than one ounce of 

cannabis in prison is no longer illegal. Lynch further contends that strictly 

interpreting Health and Safety Code section 11362.45, subdivision (d) to

exclude “simple possession” does not lead to absurd results or make Penal 

Code section 4573.6 a nullity. We reject Lynch’s claims and conclude he is 

not entitled to relief.

Pending further guidance from the Supreme Court, and recognizing 

that Raybon reached a different conclusion, we agree with Perry, Whalum, 

and Herrera that Proposition 64’s decriminalization of cannabis “does not 

amend, repeal, affect, restrict, or preempt” “[l]aws pertaining to smoking or 

ingesting” cannabis in prison (Health & Saf. Code, § 11362.45, subd. (d)), and 

possession of cannabis in prison under Penal Code section 4573.6, 

subdivision (a) is a “[l]aw[] pertaining to smoking or ingesting” cannabis in 

prison or jail under Health and Safety Code section 11362.45, subdivision (d). 

In other words, the wide scope of the carve out in Health and Safety Code 

section 11362.45, subdivision (d)—for “[l]aws pertaining to smoking or 

ingesting cannabis” in prison—encompasses possession as well as use of 

cannabis in prison. We therefore conclude the possession of cannabis in 

prison, in violation of Penal Code section 4573.6, remains a felony after the 

passage of Proposition 64. 
15

Lynch argues his conduct would not be a crime if Proposition 64 had 

been in effect when he committed his offense because Proposition 64 removed 

small amounts of cannabis from the category of “controlled substances, the 

possession of which is prohibited by Division 10” of the Health and Safety 

Code (Pen. Code, § 4573.6). (See Raybon, supra, 36 Cal.App.5th at pp. 121-

122, review granted.) We disagree because this position disregards the 

overall structure of Proposition 64 and the statutes which it added and 

amended. Although Proposition 64 generally decriminalized the possession 

of less than an ounce of cannabis, it did not change those laws prohibiting the 

possession of cannabis in prisons and other correctional facilities. (Perry, 

supra, 32 Cal.App.5th at p. 890 [“Proposition 64 did not affect existing 

prohibitions against the possession of [cannabis] in prison.”]; Whalum, supra, 

50 Cal.App.5th at p. 5.) 

Lynch contends that, because section 11362.45, subdivision (d) refers to 

smoking cannabis in prison but omits “possession,” it can be inferred that 

possession of cannabis in prison was intended to be decriminalized. Lynch’s 

argument is consistent with the Raybon court’s interpretation of the carve 

out language in section 11362.45, subdivision (d), and contrary to Perry, 

Whalum, and Herrera, which we find persuasive. As correctly stated in 

Perry, in view of the “wide reach” of the phrase “ ‘pertaining to,’ ” “[w]e would 

be hard pressed to conclude that possession of cannabis is unrelated to 

smoking or ingesting the substance.” (Perry, supra, 32 Cal.App.5th at p. 891; 

accord, Whalum, supra, 50 Cal.App.5th at pp. 11-12; Herrera, supra, 

52 Cal.App.5th at p. 991, review granted.) Based on the breadth of the carve 

out provision, it defies logic to conclude Proposition 64 was intended to leave 

intact prohibitions against smoking and ingesting cannabis in prison, while 

allowing inmates to possess cannabis. Indeed, “[i]n the context of possession 
16

in prison, it is particularly obvious that possession must ‘pertain’ to smoking 

or ingesting. For what purpose would an inmate possess cannabis that was 

not meant to be smoked or ingested by anyone?” (Perry, at p. 892.) 

Lynch additionally contends that strictly interpreting Health and 

Safety Code section 11362.45, subdivision (d) to exclude “simple possession” 

“does not lead to absurd results or make [Penal Code] section 4573.6 a

nullity.” He argues that, following passage of Proposition 64, unauthorized 

possession of cannabis (or any other controlled substance) can be controlled 

administratively.13 He contends decriminalizing the possession of small 

amounts of cannabis in prison is consistent with Proposition 64’s intention to 

alleviate the burdens placed on courts by high volumes of minor cannabisrelated offenses. We reject Lynch’s contentions. We have already concluded 

that the possession of cannabis in prison, in violation of Penal Code 

section 4573.6, remains a felony after the passage of Proposition 64. (See 

Perry, supra, 32 Cal.App.5th at p. 890 [Proposition 64 did not change any 

existing “prohibitions against the possession of marijuana in prison or 

otherwise affect the operation of Penal Code section 4573.6.”].) We arrived at 

this conclusion by analyzing the language of the statutes enacted pursuant to 

the passage of Proposition 64—specifically, the carve out in Health and 

Safety Code section 11362.45, subdivision (d), for “[l]aws pertaining to 

smoking or ingesting cannabis” in prison. Lynch’s contentions are policy13 The court in Raybon made a similar point: “Bringing less than an

ounce of cannabis into a prison and giving it away in prison are serious rule 

violations that result in significant consequences for both inmates and 

visitors.” (Raybon, supra, 36 Cal.App.5th at p. 124, review granted, citing 

Cal. Dept. of Corrections & Rehabilitation, Operations Manual (2019) ch. 5, 

§ 52080.5; Cal. Code Regs., tit. 15, §§ 3176, 3315, 3323, & 3335.) 
17

related arguments that are irrelevant to our analysis and interpretation of 

Proposition 64, and, as such, we find them unpersuasive and unavailing.

In sum, the trial court properly determined that Proposition 64 did not 

impact the crime of possessing unauthorized cannabis in prison in violation of 

Penal Code section 4573.6. We therefore affirm the court’s order denying 

Lynch’s petition for relief from his prior conviction pursuant to Health and 

Safety Code section 11361.8, subdivision (a).

II.

Dueñas

Lynch contends the trial court failed to consider his ability to pay 

various fines and fees when it imposed sentence in connection with his no

contest plea in 2018, in violation of Dueñas. Dueñas relied on due process 

principles to require an ability to pay hearing before a trial court may impose 

certain fines and fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) It further 

held that “although Penal Code section 1202.4 bars consideration of a 

defendant’s ability to pay unless the judge is considering increasing the fee 

over the statutory minimum, the execution of any restitution fine imposed 

under this statute must be stayed unless and until the trial court holds an 

ability to pay hearing and concludes that the defendant has the present 

ability to pay the restitution fine.” (Ibid.)14

The Attorney General contends Lynch’s claim amounts to an 

impermissible attack on his prior judgment, which is now final, and his claim 

14 Some courts have disagreed with Dueñas’s reliance on due process 

principles. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326, review 

granted Nov. 26, 2019, S258946; People v. Kopp (2019) 38 Cal.App.5th 47, 94, 

96, review granted Nov. 13, 2019, S257844.) We need not address these 

areas of disagreement to resolve this appeal because we agree with the 

Attorney General that Lynch’s claim is not cognizable on this appeal.
18

is outside the scope of resentencing contemplated by Proposition 64. (See 

§ 11361.8, subd. (k) [“Nothing in this and related sections is intended to 

diminish or abrogate the finality of judgments in any case not falling within 

the purview of the Control, Regulate and Tax Adult Use of Marijuana Act.”].) 

Lynch does not dispute this contention in his reply brief. We agree with the 

Attorney General that Lynch’s current claim of Dueñas error constitutes an 

impermissible collateral attack on his final judgment of conviction and 

sentence. (People v. Barlow (1980) 103 Cal.App.3d 351, 360-364.) Because 

Lynch’s Dueñas claim is not cognizable on this appeal from an order denying 

Lynch’s section 11361.8 petition, we decline to entertain it.

DISPOSITION

The order denying defendant’s petition under Health and Safety Code 

section 11361.8 is affirmed. 

GUERRERO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

DATO, J.