1

Filed 3/15/19 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

NISAIAH J. PERRY,

Defendant and Appellant.

 A153649

 (Solano County Super. Ct.

 No. FCR270999)

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:

The petition for rehearing, filed March 8, 2019, is denied. The opinion filed on 

March 1, 2019, is modified as follows:

1. On page 5, the second sentence in the second full paragraph (beginning with 

“As we will explain . . .”) is changed to read:

We disagree. As we will explain, 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.

2. On page 7, the fifth sentence of the first full paragraph (beginning with “Why 

then . . .”) is changed to read:

Why, then, would the electorate have intended to affect the 

legal status of possession of cannabis in prison? 
2

3. On page 7, the last sentence of the first full paragraph (beginning with “While 

appellant’s point . . .”) is changed to read:

While appellant’s point is that possession and use have been treated 

differently under state law, the fact that possession has been treated as 

the more culpable conduct makes it even more unreasonable to infer that 

Proposition 64 was meant to affect existing proscriptions against

possession of cannabis in prison while expressly not affecting 

proscriptions against its use.

4. On page 11, at the end of the first sentence in the last partial paragraph, add 

footnote 10: “ . . . Legislative attention.10” The footnote should read as follows:

10 The complication, of course, arises from the fact that Penal Code 

sections 4573, 4573.6 and 4573.9 continue to define the in-custody 

offense by reference to “any controlled substance, the possession of 

which is prohibited by Division 10” after Proposition 64 eliminated the 

prohibition against possession of cannabis by adults in many situations. 

As a result, the literal terms of these Penal Code sections and Health and 

Safety Code section 11357 can be read to support the proposition that 

possession of a small amount of cannabis by an adult is no longer 

“prohibited by Division 10” as required for conviction under Penal 

Code section 4573.6. 

Adding further complication, the provision that makes clear 

Proposition 64 was not intended to affect the legal status of cannabis in 

prison, section 11362.45, subdivision (d), might at first glance be read 

as excepting from the reach of Proposition 64 laws “pertaining to 

smoking or ingesting cannabis” in prison but not those “pertaining to” 

possession of cannabis in prison. While section 11362.45, subdivision 

(d), refers only to “smoking or ingesting” cannabis, other provisions 

expressly refer separately to possessing cannabis. (E.g., § 11362.45, 

subd. (f) [employer not required to permit or accommodate “the use, 

consumption, possession, transfer, display, transportation, sale, or 

growth of cannabis in the workplace . . .”]; § 11362.3 [impermissible to 

“[s]moke or ingest cannabis . . . in a public place” (id., subd. (a)(1)), to 

“[s]moke cannabis . . . in a location where smoking tobacco is 

prohibited” (id., subd. (a)(2)) or within 1,000 feet of a school, daycare 

center or youth center while children are present (id., subd. (a)(3)), to 

“[p]ossess an open container or open package of cannabis . . . while 

driving, operating or riding in the passenger seat or compartment . . . of 

vehicle” (id., subd. (a)(4)), to “[p]ossess, smoke, or ingest cannabis . . . 

in or upon the grounds of a school, day care center, or youth center 

while children are present” (id., subd. (a)(5)].) Under the maxim 
3

“ ‘expressio unius est exclusio alterius, where exceptions to a general 

rule are specified by statute, other exceptions are not to be implied or 

presumed’ ” (In re Lance W. (1985) 37 Cal.3d 873, 888, quoting 

Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195), the absence of 

specific reference to possession in section 11362.45, subdivision (d), 

could be seen as supporting the argument that the exception includes 

only smoking and ingesting cannabis. 

In our view, that interpretation is unwarranted because, as we have 

explained, the exception refers broadly to laws “pertaining to smoking 

or ingesting” cannabis in prison, which logically includes laws 

prohibiting possession in prison, and the contrary interpretation would 

lead to the absurd result of Proposition 64 leaving intact proscriptions 

against using cannabis in prison but invalidating proscriptions against 

possessing it. Expressly including “possessing” in subdivision (d) of 

section 11362.45 would eliminate any possible ambiguity.

There is no change in judgment.

Dated: __________ _________________________

Kline, P.J.
4

Trial Court: Solano County Superior Court

Trial Judge: Hon. Scott Kays

Counsel for Appellant: Under Appointment by the Court of Appeal

Walter K. Pyle

Counsel for Respondent: Xavier Becerra

Attorney General of California

Gerald A. Engler

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Seth K. Schalit

Supervising Deputy Attorney General

Arthur P. Beever

Deputy Attorney General
1

Filed 3/1/19 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

NISAIAH J. PERRY,

Defendant and Appellant.

 A153649

 (Solano County Super. Ct.

 No. FCR270999)

While serving a prison sentence for another offense, appellant Nisaiah J. Perry 

pled no contest to a charge of possession of marijuana in prison and was sentenced to a 

two-year term. He contends the trial court erred in summarily denying his petition to 

recall or dismiss this sentence after the passage of Proposition 64, which legalized 

possession of up to 25.8 grams of marijuana by adults 21 years of age and older. We 

conclude that Proposition 64 did not remove possession of marijuana in prison from the 

reach of Penal Code section 4573.6, the statute under which appellant was convicted, and 

therefore affirm.

BACKGROUND

In 2010, appellant entered a plea of no contest to a charge of unauthorized 

possession of marijuana in prison. (Pen. Code, § 4573.6, subd. (a).) A charge of 

bringing drugs into a prison (Pen. Code, § 4573) and an alleged prior conviction for first 

degree robbery (Pen. Code, § 211) were dismissed, and appellant was sentenced to the 

low term of two years, consecutive to the prison term he was already serving.1

 

1 According to appellant’s initial petition to recall or dismiss sentence, he was 

convicted on September 13, 2004, on a no contest plea to violations of Penal Code 
2

On November 8, 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,2§ 11362.1; Prop. 64, § 4.4, approved 

Nov. 8, 2016, eff. Nov. 9, 2016.) The new law provided that a person “serving a sentence 

for a conviction . . . 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 in accordance with 

Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 113632.3, and 11362.4 as those 

sections have been amended or added by that act.” (§ 11361.8.) 

On November 15, 2016, appellant and his wife each separately wrote to the Solano 

County Superior Court inquiring about having appellant’s conviction expunged in light of 

the passage of Proposition 64. Their letters were forwarded to the offices of the district 

attorney and public defender. 

On May 4, 2017, appellant filed a petition for recall or dismissal of sentence, 

alleging that his Penal Code section 4573.6 offense involved only 14 grams of marijuana 

and was therefore eligible for expungement under Proposition 64. The trial court’s May 

4, 2017, order denying the petition concluded that appellant failed to state a basis for 

relief because “Prop. 64 did not amend Penal Code section 4573.6, which remains a 

felony offense.” 

On January 10, 2018, appellant filed another petition in the trial court, arguing that 

he was entitled to relief under Proposition 64 despite having been convicted of violating 

Penal Code section 4573.6, rather than a provision of the Health and Safety Code, and 

that section 11361.8 required the court to presume he was eligible for resentencing or 

 

sections 192, subdivision (a), 211, and 212.5, subdivision (a), and sentenced to a prison 

term of 19 years and four months. 

2

Further statutory references will be to the Health and Safety Code unless 

otherwise specified.
3

dismissal. The trial court denied the petition on the basis that appellant had not cited new 

facts, circumstances or law to support reconsideration of its previous denial.3 

Appellant filed a notice of appeal, and this court appointed counsel to represent 

him. 

DISCUSSION

Penal Code section 4573.6, subdivision (a), provides in pertinent 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, superintendent, jailer, or other person in charge of 

the prison . . . is guilty of a felony punishable by imprisonment pursuant to subdivision 

(h) of Section 1170 for two, three, or four years.”

When appellant pled no contest to violating this statute in 2010, section 11357, 

subdivision (b), made possession of not more than 28.5 grams of marijuana a 

misdemeanor. As amended by Proposition 64, section 11357 no longer defines 

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

offense. (§11357, subd. (a).) Possession of cannabis by persons under age 21 remains an 

offense (§ 11357, subd. (a)(1), (2)),

4

as does possession of more than 28.5 grams of 

cannabis by persons over age 18 years. (§ 11357, subd. (b).)5 

 

3 Appellant also sought resentencing under Proposition 47, which the trial court 

denied. Appellant does not pursue this issue on appeal. 

4

Possession of not more than 28.5 grams of marijuana by a person under age 21 

years is an infraction. (§ 11357, subd. (a)(1), (a)(2).) Such possession by a person age 18 

years or older “upon the grounds of or within, any school providing instruction in 

kindergarten or any of grades 1 to 12, inclusive, during hours the school is open for 

classes or school-related programs” is a misdemeanor. (§ 11357, subd. (c).) 

5

Possession of more than 28.5 grams of marijuana by a person 18 years of age or 

older is a misdemeanor. (§ 11357, subd. (b)(2).) 
4

In addition, Proposition 64 affirmatively legalized possession of not more than 

28.5 grams of marijuana, by a person at least 21 years of age, by the addition of section 

11362.1: “(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 . . . .”

6

As indicated above, section 11361.8, subdivision (a), provides that “[a] person 

currently serving a sentence for a conviction, whether by trial or by 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 in accordance with Sections 11357, 11358, 11359, 

11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or 

added by that act.”

7

 

6

The statutes referred to in section 11362.1 pertain to personal cultivation of 

cannabis (§ 11362.2); restrictions on possession and/or smoking or ingesting cannabis in 

enumerated circumstances, such as in specified places when children are present, and 

while driving or riding in certain vehicles, as well as manufacture of concentrated 

cannabis (§ 11362.3); penalties for violation of provisions in sections 11362.2 and 

11362.3 (§ 11362.4); and clarification that section 11362.1 “does not amend, repeal, 

affect, restrict, or preempt” enumerated laws and rights of employers, governmental 

agencies, and owners of private property (§ 11362.45), 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.” (§ 11362.45, subd. (d).)

7

In addition to the statutes we have thus far discussed (§§ 11357, 11362.1, 

11362.2, 11362.3, 11362.4), those referenced in section 11361.8 specify the punishment 

for unlawful planting, harvesting or processing cannabis (§ 11358), unlawful possession 

for sale (§ 11359) and transportation, importation, sale or gift (§ 11360).
5

Appellant argues he would not have been guilty of an offense under Penal Code 

section 4573.6 if Proposition 64 had been in effect at the time of his offense because, as a 

result of the amendments to section 11357 and addition of section 11362.1, the 

possession of 28.5 grams or less of cannabis is not “prohibited by Division 10 . . . of the 

Health and Safety Code.” (Pen. Code, § 4573.6., subd. (a).)

8

We disagree. As we will explain, Proposition 64 did not legalize the possession of 

marijuana in prison or otherwise affect the operation of Penal Code section 4573.6.

As indicated above, Proposition 64 decriminalized possession of not more than 

28.5 grams of cannabis by removing the prohibition that had previously existed in section 

11357 and by affirmatively stating the legality of such possession in section 11362.1. 

Section 11362.1, however, provides that it operates “[s]ubject to Sections 11362.2, 

11362.3, 11362.4, and 11362.45.” (§ 11362.1, subd. (a).) Section 11362.45 states a 

number of exceptions to the “rule” that Proposition 64 legalized possession of 28.5 grams 

of cannabis or less. Section 11362.45, subdivision (d), specifically addresses cannabis in 

prison, providing that section 11362.1 “does not amend, repeal, affect, restrict, or 

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).) The 

parties dispute whether this provision applies to “possession,” as well as “smoking or 

ingesting” cannabis. If it does, the clear import is that while legalizing possession of the 

specified quantity of marijuana for the general population of the state, Proposition 64 

intended to leave intact existing restrictions on possession of marijuana in correctional 

facilities.

“ ‘In interpreting a voter initiative . . . we apply the same principles that govern 

statutory construction. [Citation.] Thus, “we turn first to the language of the statute, 

giving the words their ordinary meaning.” [Citation.] The statutory language must also 

 

8 We intend all references in this opinion to the possession of cannabis legalized 

by Proposition 64 to mean possession by persons at least 21 years of age. For ease of 

reading, we will not include the age qualification in every such reference.
6

be construed in the context of the statute as a whole and the overall statutory scheme [in 

light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer 

to other indicia of the voters’ intent, particularly the analyses and arguments contained in 

the official ballot pamphlet.” [Citation.]’ (People v. Rizo (2000) 22 Cal.4th 681, 685.) 

In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters 

who passed the initiative measure.’ (In re Littlefield (1993) 5 Cal.4th 122, 130.)” 

(People v. Briceno (2004) 34 Cal.4th 451, 459.) “We adopt a construction ‘that will 

effectuate the voters’ intent, giv[ing] meaning to each word and phrase, and avoid absurd

results.” (Santos v. Brown (2015) 238 Cal.App.4th 398, 409, quoting People v. 

Stringham (1988) 206 Cal.App.3d 184, 196–197.)

While 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.” Definitions of the term “pertain” demonstrate its wide 

reach: It means “to belong as an attribute, feature, or function” (<merriam-webster.com/

dictionary/pertain> [as of Feb. 28, 2019]), “to have reference or relation; relate” 

(<dictionary.com/browse/pertain?s=1> [as of Feb. 28, 2019]), “[b]e appropriate, related, 

or applicable to” (<en.oxforddictionaries.com/definition/

pertain> [as of Feb. 28, 2019]). We would be hard pressed to conclude that possession of 

cannabis is unrelated to smoking or ingesting the substance. 

Appellant attempts to avoid this conclusion by challenging respondent’s assertion 

that “[o]ne has to possess marijuana in order to smoke or ingest it.” Appellant points out

that possession is not necessarily an inherent aspect of smoking or ingesting marijuana. 

A person can smoke marijuana without possessing it, for example, by smoking a joint in 

the possession of another person. Caselaw has recognized that “[i]ngestion . . . at best 

raises only an inference of prior possession.” (People v. Palaschak (1995) 9 Cal.4th 

1236, 1241.) “[D]epending on the circumstances, mere ingestion of a drug owned or 

possessed by another might not involve sufficient control over the drug, or knowledge of 

its character, to sustain a drug possession charge.” (Ibid.; People v. Spann (1986) 187 

Cal.App.3d 400, 408 [“ ‘possession,’ as used in [Penal Code section 4573.6], does not 
7

mean ‘use’ and mere evidence of use (or being under the influence) of a proscribed 

substance cannot circumstantially prove its ‘possession’ ”].)

That use of cannabis does not sufficiently prove possession to support a conviction 

of the latter, however, does not establish that possession is not related to use. 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? The exception stated in subdivision (d) of 

section 11362.45 makes it clear that Proposition 64’s legalization of adult cannabis use 

was not meant to extend to use in prison. Why, then, would the electorate have intended 

to legalize possession in prison? Appellant, in attempting to demonstrate that “use” is 

distinct from “possession,” points to the statement in People v. Spann, supra, 187 

Cal.App.3d at page 406, that the “history of the drug laws shows a consistently different 

classification and punishment of the use and possession of regulated substances, with use 

(or being under the influence) invariably treated as less culpable or not culpable at all.” 

While appellant’s point is that possession and use have been treated differently under 

state law, the fact that possession has been treated as the more culpable conduct makes it 

even more unreasonable to infer that Proposition 64 was meant to legalize possession of 

cannabis in prison while not legalizing its use.

Section 11362.45, subdivision (d), states the exception to the legalization 

provision of section 11362.1 in extremely broad terms: “Section 11362.1 does not 

amend, repeal, affect, restrict, or 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).) It is apparent that Proposition 64, in sections 11362.1 and 

11362.45, was intended to maintain the status quo with respect to the legal status of 

cannabis in prison.

Appellant maintains, however, 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 
8

prohibited by Division 10,” and Proposition 64, by its amendment of section 11357,

eliminated the prohibition against such possession that previously existed in division 10. 

To appellant, the matter begins and ends with the proposition that possession of cannabis 

in an amount not described as an offense in section 11357 is not possession “prohibited 

by Division 10.” Respondent, by contrast, argues that possession of cannabis remains 

“prohibited by Division 10” because there are circumstances in which possession is still 

illegal—such as possession by minors, in amounts exceeding 28.5 grams, or in specified 

circumstances such as on school grounds during school hours. (§ 11357.)

People v. Fenton (1993) 20 Cal.App.4th 965 (Fenton) lends support to appellant’s 

position; respondent acknowledges this but views the case as having been wrongly 

decided. Fenton reversed a conviction for violation of Penal Code section 4573, 

smuggling a controlled substance (hydrocodone) into a jail, because the defendant had a 

physician’s prescription for the substance. (Fenton, at p. 971.) Section 11350, 

subdivision (a), prohibits possession of a controlled substance “unless upon the written 

prescription of a physician.” Penal Code section 4573 prohibits bringing into a prison or 

jail, without authorization, “any controlled substance, the possession of which is 

prohibited by Division 10 (commencing with Section 11000) of the Health and Safety 

Code.” Construing this language, identical to that in Penal Code section 4573.6, the 

Fenton court held that Penal Code section 4573 “imports the prohibition against 

possession of controlled substances not the list of controlled substances. Thus, the ‘plain 

meaning’ of the statute is that one may bring controlled substances into a penal institution 

if an exception contained in division 10 applies. Here, one does. Health and Safety Code 

section 11350 does not prohibit possession of a controlled substance with a prescription.” 

(Fenton, at p. 969.)

We have no reason to disagree with the analysis in Fenton,

9

but it does not resolve 

the dispute in the present case because the situations differ significantly. In concluding 

 

9 We are not persuaded by respondent’s contention that Fenton was called into 

question by People v. Low (2010) 49 Cal.4th 372, 388, in which the California Supreme 

Court stated that laws like Penal Code section 4573 are “ ‘ “prophylactic” ’ measures that 
9

that the defendant in Fenton did not violate Penal Code section 4573 because possession 

of a controlled substance with a prescription is not prohibited by section 11350, the 

Fenton court simply interpreted Penal Code section 4573 as “permit[ting] controlled 

substances to be in penal institutions under proper circumstances.” (Fenton, supra, 20 

Cal.App.4th at p. 969.) This interpretation did not conflict with any other provision of 

law. Here, a conclusion that division 10 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. (§ 11362.45, subd. (d).)

To the extent Proposition 64, in amending section 11357 to conform to the newly 

adopted section 11362.1, may have created an ambiguity with respect to cannabis in 

prisons, we look to the information provided to the voters in the official ballot pamphlet 

for Proposition 64 to resolve it. (People v. Rizo, supra, 22 Cal.4th at p. 685; Santos v. 

Brown, supra, 238 Cal.App.4th at p. 409.)

 

attack the ‘ “very presence” ’ of [drugs weapons, and other contraband] in the penal 

system.” The defendant in Low had been convicted of violating Penal Code section 4573 

based upon methamphetamine found in his sock at the time he was booked into jail after 

being arrested for driving a stolen vehicle. (Low, at p. 375.) He argued, in essence, that 

he did not bring the drug into jail within the meaning of the statute because he just 

happened to have it in his possession when he was arrested for an unrelated reason. The 

comment quoted above was made in the context of rejecting the argument that the 

defendant could not be convicted of “knowingly” bringing a controlled substance into jail 

absent intent to smuggle the drugs into jail for use, sale, or other illicit purpose. (Low, at 

pp. 376, 381.) The court was addressing the need to control contraband in penal 

institutions, not whether a particular substance constituted contraband. In fact, Low cited 

Fenton in rejecting the argument that an arrestee who conceals contraband when taken 

into custody on another offense does not “bring” it into the jail within the meaning of 

Penal Code section 4573. (Low, at p. 383.) Low characterized Fenton as “implying 

[Penal Code section] 4573 would have applied to inmate returning to jail after work 

furlough if he had not had a doctor’s prescription for the controlled substance found 

tucked between his toes,” and did not indicate any criticism of the decision. (Low, at 

p. 383.)
10

Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, was 

presented to the voters as an initiative to “Legalize[] marijuana under state law, for use by 

adults 21 or older.” (Voter Information Guide, General Elec. (Nov. 8, 2016), p. 90

(hereafter Voter Guide).) Its stated purpose is “to establish a comprehensive system to 

legalize, control and regulate the cultivation, processing, manufacture, distribution, 

testing, and sale of nonmedical marijuana, including marijuana products, for use by 

adults 21 years and older, and to tax the commercial growth and retail sale of marijuana.” 

(Voter Guide, supra, p. 179.) To that end, Proposition 64 added numerous statutes to the 

Business and Professions Code, Revenue and Tax Code and others in addition to the 

changes it made to the Health and Safety Code. The Voter Guide discussed the current 

state of the law, laws governing medical marijuana, and proposed changes, including 

limitations on legal use and provisions for regulation and taxation. (Voter Guide, supra, 

pp. 91-95.) The Voter Guide did not in any way address the subject of cannabis 

possession or use in prison. The only reference to cannabis possession or use in a prison, 

jail or other such institution is in the text of Proposition 64, in section 11362.45, 

subdivision (d), stating an exception to the legalization of possession and use authorized 

by section 11361.2. Thus, there is nothing in the ballot materials for Proposition 64 to 

suggest the voters were alerted to or aware of any potential impact of the measure on 

cannabis in correctional institutions, much less that the voters intended to alter existing 

proscriptions against the possession or use of cannabis in those institutions. The only 

mention of the subject is in the text of the measure itself and, as we have said, states the 

opposite intent in the strongest of terms.

Appellant’s argument views Penal Code section 4573.6 and Health and Safety 

Code section 11357 in isolation from Proposition 64 as a whole, and seeks to give these 

statutes an effect that would be contrary to express provisions of Proposition 64 and is 

unsupported by any indication of voter intent. Section 11357 deals with possession of 

cannabis generally and says nothing about possession in prison. It was amended by 

Proposition 64, which simultaneously adopted sections 11362.1 and11362.45. Section

11362.45 is the sole provision in Proposition 64 that directly pertains to appellant’s 
11

possession of marijuana in prison, and it expressly provides that that the legalization of 

marijuana by section 11362.1 does not affect laws pertaining to cannabis in prison. 

Penal Code section 4573.6, meanwhile, is not specific to cannabis: It deals with 

the possession in penal institutions of all controlled substances. Penal Code section 

4573.6 is one of several “closely related” provisions that the California Supreme Court 

has said “flow from the assumption that drugs, weapons, and other contraband promote 

disruptive and violent acts in custody, including gang involvement in the drug trade” and 

therefore “are viewed as ‘ “prophylactic” ’ measures that attack ‘ “the very presence” ’ of 

such items in the penal system.” (People v. Low, supra, 49 Cal.4th at pp. 382, 386, 388.) 

The need for such measures has not been altered by Proposition 64.

As this case illustrates, the definition of in-custody offenses in Penal Code section 

4573.6 (as in the related Penal Code sections 4573 and 4573.9) by reference to possession 

prohibited by division 10 has become more complicated since Proposition 64 with respect 

to cannabis, a matter that might warrant Legislative attention. But it does no violence to 

the words of the Penal Code section 4573.6 to interpret “controlled substance, the 

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

prison. Cannabis remains a controlled substance under division 10. 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. We decline to adopt an interpretation of these statutes, or Penal 

Code section 4573.6, that appears to be so at odds with the intent behind and language of 

Proposition 64.

For these reasons, we conclude appellant is not entitled to resentencing pursuant to 

section 11361.8.

DISPOSITION

The judgment is affirmed.
12

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Miller, J.

People v. Perry (A153649)
13

Trial Court: Solano County Superior Court

Trial Judge: Hon. Scott Kays

Counsel for Appellant: Under Appointment by the Court of Appeal

Walter K. Pyle

Counsel for Respondent: Xavier Becerra

Attorney General of California

Gerald A. Engler

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Seth K. Schalit

Supervising Deputy Attorney General

Arthur P. Beever

Deputy Attorney General