Filed 12/9/20 P. v. Rodriguez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN RODRIGUEZ,

Defendant and Appellant.

 D077366

 (Super. Ct. No. JCF002141)

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

Flores, Jr., Judge. Affirmed. 

Elisa A. Brandes, 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, Daniel 

Rogers, Lise Jacobson and Christopher P. Beesley, Deputy Attorneys 

General, for Plaintiff and Respondent.

In 2019, Adrian Rodriguez pleaded no contest to possession of an illegal 

substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced 

Rodriguez to a two-year prison term. 
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In December 2019, Rodriguez filed a petition to vacate his conviction 

under Proposition 64. The court appointed counsel and held a hearing. The 

court denied the petition finding Proposition 64 did not affect Penal Code 

section 4573.6. Specifically, the trial court relied on People v. Perry (2019) 

32 Cal.App.5th 885 (Perry), in determining possession of not more than 28.5 

grams of marijuana in prison remained a felony. The trial court declined to 

adopt the reasoning in People v. Raybon (2019) 36 Cal.App.5th 111, review 

granted August 21, 2019, S256978 (Raybon), to the effect that use of 

marijuana in prison remains a felony under Penal Code section 4573.8, but 

that a very narrow reading of Proposition 64 renders possession of a small 

amount of marijuana while in prison no longer a crime. Apparently, under 

that reasoning, one can bring small amounts of marijuana into the prison and

possess it, so long as they don’t use it.

Rodriguez appeals, contending we should follow the Raybon decision 

and declare that possession of “small amounts” of marijuana in prison is no 

longer a crime. As we will discuss, we agree with the court’s analysis in Perry 

and find Proposition 64 did not affect the section used in this case. 

Accordingly, we will affirm the denial of Rodriguez’s petition.

DISCUSSION 

A. The Contentions

Relying on Raybon, Rodriguez contends his conviction under Penal 

Code section 4573.6 must be vacated because it has been impliedly repealed 

(at least in part) by Proposition 64. He recognizes there is no specific 

language in the proposition indicating it impacts statutes that prohibit either 

the possession or use of marijuana by prison or jail inmates. 

Rodriguez’s challenge has two principal anchors. First, he contends the 

proposition makes possession of not more than 28.5 grams of marijuana 
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outside of a prison or jail by persons who are 21 years old no longer a crime; 

therefore, it necessarily means that under the language of Penal Code 

section 4573.6, that possession of such small amounts in prison is no longer a 

crime.

The second basis for his contention is that the so called carve-out 

provision in the proposition that exempts statutes “pertaining” to use of 

controlled substances in prison means Penal Code section 4573.6, which deals 

with possession, does not “pertain” to the use or ingestion of controlled 

substances. Thus, he argues the section was not exempted from 

Proposition 64 as it relates to possessing small amounts of marijuana in 

prison.

Both arguments, which Rodriguez makes here, were correctly rejected 

in Perry, supra, 32 Cal.App.5th 885. As we will explain, we agree with the 

decision in Perry and decline to follow the contrary views expressed in 

Raybon. 

B. Legal Principles

Proposition 64 made a number of changes in statutes relating to the 

use of marijuana. Relevant here is the proposition decriminalized simple 

possession of not more than 28.5 grams of marijuana by persons over 

21 outside of prisons or jails. It does not mention the crime of possession of 

marijuana by inmates, except in what has been called the carve out section 

indicating those marijuana related statutes were not affected by the 

proposition.

Health and Safety Code1 section 11362.45, subdivision (d) provides in 

part, that section 11362.1 “ ‘does not amend, repeal, affect, restrict, or 

1 All further statutory references are to the Health and Safety Code 

unless otherwise specified.
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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).)” (Perry, supra, 32 Cal.App.5th at 

p. 891.)

The court in Perry specifically rejected the contention that the carveout does not apply to Penal Code section 4573.6 because the language of that 

section deals with possession and not use, thus the contention it does not 

“pertain” to smoking or ingestion. The court in Perry recognized the 

theoretical possibility that one could use drugs in prison without “possessing” 

them in a legal sense. However, someone must possess the physical product 

in prison in order for anyone to use it. The court in Perry found limitation of 

possession of marijuana in prison clearly pertained to the ultimate goal of 

preventing the unlawful use of controlled substances by inmates. (Perry, 

supra, 32 Cal.App.5th at p. 892.)

The court in Perry also rejected the contention that Penal Code 

section 4573.6 is no longer valid because it prohibits possession of controlled 

substances in prison if they are regulated by division 10 of the Health and 

Safety Code. (Perry, supra, 32 Cal.App.5th at p. 893.) The contention is 

premised on the fact that personal possession of not more than 28.5 grams by 

persons 21 years old is no longer criminal. Thus, the argument continues 

that possession of small amounts of marijuana is not regulated by 

division 10.

In Perry, the court rejected the argument and stated: “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 
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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).)” (Perry, supra, 32 

Cal.App.5th at p. 894.) 

The court went on to say that cannabis remains controlled by 

division 10 and declined to adopt the interpretation offered that would 

impliedly exclude possession of a “small amount” as not being subject to the 

statute. (Perry, supra, 32 Cal.App.5th at p. 896.)

Our Supreme Court has granted review in Raybon, supra, 36 

Cal.App.5th 111, which takes a contrary position on both facets of 

Rodriguez’s argument. Ultimately, the high court will resolve the differences 

in the opinions.

C. Analysis

In People v. Whalum (2020) 50 Cal.App.5th 1, review granted August 

12, 2020, S262935, we addressed Penal Code section 4573.8, a more broadly 

worded prohibition of use or ingesting of unauthorized drugs in prison. We 

found the statute had not been preempted or amended by Proposition 64. We 

found the carve-out provisions of the proposition retained the validity of the 

statute. We did not address the validity of Penal Code section 4573.6 as it 

was not challenged in that case.

We did discuss the Perry opinion at length. In regard to the carve-out 

provision, we said: “[W]e agree with Perry’s analysis regarding the scope of 

the carve out section 11362.45, subdivision (d), and we accordingly conclude 

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.” 

(Whalum, supra, 50 Cal.App.5th at p. 10.)
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We are faced with choosing between the analysis in Perry and the 

opposing views expressed in Raybon. Pending direction to the contrary from 

our high court, we will follow the reasoning of Perry and hold that Penal Code 

section 4573.6 remains valid after Proposition 64, and, therefore, we will 

affirm the order denying Rodriguez’s petition to vacate his conviction. 

DISPOSITION

The order denying the petition to vacate Rodriguez’s conviction of 

violating Penal Code section 4573.6, is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.