Filed 12/9/20 P. v. Rodriguez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

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 o f an illegal substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced Rodriguez to a two

- year prison term.2

In December 2019, Rodriguez filed a petition to vacate his conviction under Proposition 64. The court appointed counsel and hel d 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 o f 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 analys is 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 sectio n 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 marijuana3

outside of a prison or jail by persons who are 21 years old no longer a crime; therefor e, 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
Pr oposition 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 m arijuana 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 proposi tion. Health and Safety Code 1 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.4

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 t he contention that the carve

out 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
theor etical 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 i n 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 val id 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 mor e 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 of5

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 can nabis 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 gra nted 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 Pro position 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.)6

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.