1

Filed 3/15/19 (un m odified 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 paragr aph ( 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 t o infer that Proposition 64 was meant to affect existing proscriptions agains t 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 sma ll 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 pris on. 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,

consum ption, 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)].) Und er the maxim3

“ ‘ 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 a bsurd 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 ambigu ity.

Th ere 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

S eth K. Schalit Supervising Deputy Attorney General

Arthur P. Beever Deputy Attorney General1

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 remov e posse ssion 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 marijuan a 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 yea rs, 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 Code2

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. (Hea lth & 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 bee n 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 ca se 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 d istrict

a ttorney and p ublic d efender.

On Ma y 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 wa s therefore eligible for expunge ment under Proposition 64. The trial court’s May

4, 20 17, 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 a nother petition in the trial cou rt, 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 eligi ble for resentencing or

section s 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 appo inted 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 pro hibited 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 war den, 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 statut e 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 olde r 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 marij uana 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 addi tion, Proposition 64 affirmative ly 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

notwithstandi ng 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 sente nce 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, 11 362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or
added by that act. ” 7

6 The st atutes 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 dri ving 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, rest rict, 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 o r 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

A ppellant 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 b ecause, 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 disagre e. A s we will explain, Proposition 64 did not legalize the possession of
marijuana in prison or otherwise affect the operation of Penal Code section 4 573.6

. As indicated above, Proposition 64 decriminalized possession of not more than
28.5 grams of cannab is by removing the prohibition that had previously existed in section
11357 and by affirmatively stating the legality of such possession in section 11362 .1.

S ection 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
pri son, provid ing 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 ju risdiction of
the Department of Corrections and Rehabilitation

. . . . ” (§ 11362.45, subd. (d).) T he
parties dispute whether this provision applies to “possession

, ” as well as “smoking or
ingesting” cannabis . If it does, the clear import is that while l egalizing 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 c annabis 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 o f 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 offici al 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,”

it s application to possession is implied by its broad wording

— “ [l] aws pertaining to smoking or ingesting cannabis.” Defini tions of t he 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 , 201 9 ]), “to have reference or relation ; relate ”
(<dictionary.com/browse/pertain?s =1> [as of Feb

. 28 , 201 9 ]), “[b]e appropriate, related,
or applicable to” (<en.oxforddictionaries.com/definition/
pertain> [as of Feb

. 28 , 201 9 ])

. We would be hard pressed to conclude that possession of

cannabis is unrelated to smoking or ingesting the su bstance.
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

. ” A ppellant points out

that p ossession is not necessarily an inherent aspect of smoking or ing esting 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. P alaschak (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.” ( Ibi d .; People v. Spann (1986) 187
Cal.App.3d 400, 408 [“ ‘possession, ’ as used in [Penal Code section 4573.6], does not7

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? T he 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 treate d 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 t hat Proposition 64 was meant to legalize possession of

cannabis in prison wh ile 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 doe s 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 Correct ions 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 Pe nal 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 is8

prohibited by Division 10

, ” and Proposit ion 64

, by its amendment of section 11357

, eliminated the prohibition against such possession that previously existed in d ivision 10

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

in an amount not described as a n 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 possessi on 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 contr olled 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 4 573 “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 divi sion 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 bu t i t does not resolve

t he dispute in the present case because the situations differ significantly

. In c oncluding

9 We are not persuaded by respondent’s contention that Fenton was called in to 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 that9

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 11 350 , 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 d id not conflict with any othe r provision of

law . Here, a conclusion that d ivision 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 t he 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 argue d, 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 t o 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 prescriptio n 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 “ L egalize[] 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 sal e 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

Busine ss 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

limitation s 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,
jai l 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 Propositio n 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 insti tutions. 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 isol ation 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 section s 11362.1 and 11362.45. Section

11362.45 is the sole provision in Proposition 64 that directly pertains to appellant’s11

possession of mariju ana in prison

, and it expressly provide s 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 cannabi s : 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 t he California Supreme Court

has said “flow from the assumption that drugs, weapons, and other contraband promote
disruptive an d 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 p p

. 382, 386, 38 8.)

The need for such measures has not been altered by Proposition 64.
As this case illustrates, t he definition of in

- c ustody offenses in Penal Code section
4573.6 (as in the related Penal Code sections 45 73 and 4573.9) by reference to possession
prohibi ted by d ivision 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 d ivision 10

. Under the Health
and Safety Code provisions affected by Proposition 64

, all of which are part of d ivision
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 interpret ation of these statu tes , 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 affir med.12 _________________________ Kline, P.J.

We concur:

_________________________ Richman , J.

_________________________ Miller, J.

People v. Perry (A153649)13

Trial Court: Solano County Superior Court

Tri al 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 Ge neral

Jeffrey M. Laurence Senior Assistant Attorney General

Seth K. Schalit Supervising Deputy Attorney General

Arthur P. Beever Deputy Attorney General