Filed 1/22/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALONZO LEE TAYLOR,

Defendant and Appellant.

 H047540

 (Monterey County

 Super. Ct. Nos. SS981425A,

 SS001208A)

Proposition 64 was approved by the voters in 2016 and is known as “the Control, 

Regulate and Tax Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act’).” 

(Voter Information Guide, Gen. Elec. (Nov. 8, 2016)1text of Prop. 64, § 1, p. 178.)

Health and Safety Code section 11362.1 was added by Proposition 64.2 (Voter 

Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) Subject to specified statutory 

exceptions, section 11362.1, subdivision (a) (section 11362.1(a)) declares it “lawful 

under state and local law . . . for persons 21 years of age or older to” “[p]ossess, 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.”

1 The Voter Information Guide cited in this opinion is available at the website of 

the California Secretary of State. 

(<https://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete-vig.pdf> [as of Jan. 22, 2021], 

archived at <https://perma.cc/VX6N-5RRR>.)

2 All further statutory references are to the Health and Safety Code unless 

otherwise stated.
2

Section 11361.8, which was also added by Proposition 64 (Voter Information 

Guide, supra, text of Prop. 64, § 8.7, pp. 207-208), establishes a postjudgment procedure

for the filing of a petition for recall or dismissal of sentence when “[a] person currently 

serving a sentence for a conviction . . . would not have been guilty of an offense, or . . . 

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.”3 (§ 11361.8, 

subd. (a) (§ 11361.8(a)).)

Alonzo Lee Taylor moved in propria persona to dismiss a 1999 felony conviction 

of violating Penal Code section 4573.6 (possession of controlled substance in prison) and 

a 2000 felony conviction of conspiracy to commit a crime (Pen. Code, § 182, 

subd. (a)(1)) pursuant to section 11361.8. Defense counsel subsequently filed a notice of 

motion and motion for resentencing as to both convictions pursuant to section 11361.8.

In their opposition, the People asserted that possession of marijuana in prison and 

conspiracy to possess marijuana in prison continue to be public offenses after 

Proposition 64. The trial court denied the motions.

On appeal, Taylor argues that under section 11362.1(a), the possession in prison of 

28.5 or fewer grams of marijuana by a person who is at least 21 years old, like him, is not 

unlawful. He maintains that subdivision (d) of section 11362.45, which was added by 

Proposition 64 (Voter Information Guide, supra, text of Prop. 64, § 4.8, p. 182), stated an 

exception to section 11362.1(a) for “smoking or ingesting” marijuana in a state prison 

3 Section 11361.8 also permits “[a] person who has completed his or her sentence 

for a conviction under [s]ections 11357, 11358, 11359, and 11360 . . . , 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, [to] file an application . . . to have the conviction dismissed and 

sealed because the prior conviction is now legally invalid or redesignated as a 

misdemeanor or infraction in accordance with [s]ections 11357, 11358, 11359, 11360, 

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

by that act.” (§ 11361.8, subd. (e).)
3

facility but not for possession of marijuana in prison. He contends that, consequently,

under 11362.1(a), it is generally lawful for a person who is at least 21 years of age to 

possess 28.5 grams or less of marijuana, whether in the community or in prison. He 

further argues that since possession of such an amount of marijuana is no longer a crime, 

any agreement with others to possess 28.5 grams or less of marijuana is also no longer a 

crime. Taylor asserts that he would not have been guilty of those crimes had Proposition 

64 been in effect at the time of his offenses.

Taylor asks this court “to remand the matter to permit the trial court to determine 

[whether] granting the requested relief ‘would pose an unreasonable risk of danger to 

public safety’ ”

4

and to dismiss both marijuana-related convictions if the trial court 

determines that granting the petition would not pose such a risk. (See § 11361.8, 

subds. (a), (b).) Taylor does not argue that he “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.” (§ 11361.8(a).)

The California Courts of Appeal have split on the issue of whether after 

Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail 

is unlawful under Penal Code section 4573.6. (Compare People v. Perry (2019) 32 

Cal.App.5th 885 (Perry), review denied June 12, 2019, S255148, People v. Whalum

(2020) 50 Cal.App.5th 1 (Whalum), review granted Aug. 12, 2020, S262935, and People 

v. Herrera (2020) 52 Cal.App.5th 982 (Herrera), review granted Oct. 14, 2020, S264339, 

with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review granted Aug. 21, 

2019, S256978.) This court concluded in Herrera that “Proposition 64 did not 

4 Upon receiving a petition under section 11361.8(a), the court must “presume the 

petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition 

proves by clear and convincing evidence that the petitioner does not satisfy the criteria.” 

(§ 11361.8, subd. (b).) If there is not an adequate showing that the petitioner does not 

satisfy that criteria, the court must “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.” (Ibid.)
4

decriminalize the possession of cannabis in a penal institution, and that [the] defendant 

was properly convicted under Penal Code section 4573.6 for possession of cannabis in 

jail.” (Herrera, supra, at p. 985.) The California Supreme Court has granted review of 

several of these cases so that it may resolve the issue.5

In this case, we determine that cannabis is a controlled substance “the possession 

of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health 

and Safety Code.” 6 (Pen. Code, § 4573.6, subd. (a).) We also confirm that the phrase 

“[l]aws pertaining to smoking or ingesting cannabis or cannabis products” in 

subdivision (d) of section 11362.45 (section 11362.45(d)) encompasses laws that govern 

possession of cannabis. Therefore, under the dictates of section 11362.45(d), although 

section 11362.1(a) partially decriminalizes possession of cannabis, it does not “amend, 

repeal, affect, restrict, or preempt” laws governing the possession of cannabis “on the 

grounds of, or within, any facility or institution under the jurisdiction of the Department 

of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds 

of, or within, any other facility or institution referenced in [s]ection 4573 of the Penal 

Code.” (§ 11362.45(d).)

We reject Taylor’s contentions and conclude that he is not entitled to dismissal of 

the two convictions under section 11361.8. Accordingly, we affirm the trial court’s order 

denying Taylor’s motions for dismissal pursuant to section 11361.8.

5 The California Supreme Court has indicated that Raybon, S256798 “presents the 

following issue: Did Proposition 64 [the ‘Adult Use of Marijuana Act’] decriminalize the 

possession of up to 28.5 grams of marijuana by adults 21 years of age or older who are in 

state prison as well as those not in prison?” In Whalum, S262935 and in Herrera, 

S264339, the Supreme Court ordered briefing deferred pending its decision in Raybon.)

6 All further references to Division 10 are to Division 10 of the Health and Safety 

Code. Division 10 is known as the Uniform Controlled Substances Act. (§ 11000)
5

I

Procedural History

An abstract of judgment filed March 25, 1999 in People v. Taylor (Super. Ct. 

Monterey County, 1999, No. SS981425A) (case No. SS981425A) reflected that Taylor 

was convicted on February 16, 1999 of violating Penal Code section 4573.6 (possession 

of a controlled substance in prison) in 1998 and that he was sentenced to a two-year 

prison term for the crime. Taylor was ordered to serve the term consecutive to the 

sentence that he was already serving. The abstract of judgment did not reflect that the 

crime was marijuana related. It indicated that Taylor was born in 1950.

An abstract of judgment filed on September 19, 2000 in People v. Taylor (Super. 

Ct. Monterey County, 2000, No. SS001208A) (case No. SS001208A), and an amended 

abstract of judgment filed on March 27, 2002 in the same case, reflected that on August 

3, 2000, Taylor was convicted by plea of conspiracy to commit a crime (Pen. Code, 

§ 182, subd. (a)(1)), which was committed in 1999. The waiver-of-rights form signed by 

Taylor indicated he would be pleading no contest to an offense of “182/4573.6.”7 Taylor 

was sentenced to a four-year prison term for the crime and ordered to serve the term 

consecutive to the term imposed in case No. SS981425A. Neither this abstract of 

judgment nor the waiver form reflected that the crime was marijuana related. This 

abstract of judgment also indicated that Taylor was born in 1950.

7

“ ‘A conviction of conspiracy requires proof that the defendant and another 

person had the specific intent to agree or conspire to commit an offense, as well as the 

specific intent to commit the elements of that offense, together with proof of the 

commission of an overt act “by one or more of the parties to such agreement” in 

furtherance of the conspiracy.’ [Citations.]” (People v. Johnson (2013) 57 Cal.4th 250, 

257.) The overt act need not be criminal. (People v. Russo (2001) 25 Cal.4th 1124, 

1135.) A guilty plea or plea of nolo contendere “admits every element of the offense 

charged and is a conclusive admission of guilt. [Citations.]” (People v. Maultsby (2012) 

53 Cal.4th 296, 302; see Pen. Code, § 1016, subd. 3.)
6

In 2019, in case No. SS981425A, Taylor moved, in propria persona, to dismiss his 

February 16, 1999 conviction of “possession of marijuana (re: less than an ounce)” under 

Penal Code section 4573.6. Also in 2019, in case No. SS001208A, Taylor moved, in 

propria persona, to dismiss his August 3, 2000 conspiracy conviction. Taylor indicated 

that this motion was based on “the Control, Regulate & Tax Adult Use of Marijuana 

Act.”

Defense counsel subsequently filed, on behalf of Taylor, a notice of motion, 

motion, and memorandum of points and authorities to support dismissal of those two 

convictions (case Nos. SS981425A & SS001208A) pursuant to section 11361.8.

The papers described the convictions as “marijuana related.” Counsel argued that 

possession of “less than 28.5 grams of marijuana in prison by an adult” and “conspiring 

to possess marijuana in prison” were no longer crimes.

The People opposed the motions on the ground that possession of marijuana in 

prison and conspiracy to possess marijuana in prison continue to be public offenses after 

Proposition 64. They argued that under the plain statutory language, “if [m]arijuana is 

prohibited as a controlled substance with some exception[s], it is still a prohibited 

controlled substance for the purposes of Penal Code section 4573.6.” They did not assert 

that Taylor had been convicted of possession of a controlled substance other than 

marijuana or possession, or conspiring to possess, more than 28.5 grams of marijuana in 

prison.8

The trial court denied Taylor’s motions to dismiss his conviction of violating 

Penal Code section 4573.6 and his conviction of conspiring to violate Penal Code 

section 4573.6. Taylor appealed.

8 The records of conviction that are part of our appellate record do not reflect that 

the conduct underlying the convictions involved marijuana, much less the amount. But 

the People have not disputed that marijuana was the controlled substance at issue in each 

case or that such marijuana meets the current definition of “cannabis.”
7

II

Discussion

A. Statutory Construction

This case presents two separate questions of statutory construction or 

interpretation. “Statutory interpretation is a question of law that we review de novo. 

[Citation.]” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) 

We must determine the proper construction of both Penal Code section 4573.6 and 

section 11362.45(d).

“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s 

intent so as to effectuate the law’s purpose. We first examine the statutory language, 

giving it a plain and commonsense meaning. We do not examine that language in 

isolation, but in the context of the statutory framework as a whole in order to determine 

its scope and purpose and to harmonize the various parts of the enactment. If the 

language is clear, courts must generally follow its plain meaning unless a literal 

interpretation would result in absurd consequences [that] the Legislature did not intend. 

If the statutory language permits more than one reasonable interpretation, courts may 

consider other aids, such as the statute’s purpose, legislative history, and public policy.’ 

[Citation.]” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 381.)

“[O]ur interpretation of a ballot initiative is governed by the same rules that apply 

in construing a statute enacted by the Legislature. [Citations.]” (People v. Park (2013) 

56 Cal.4th 782, 796.) “ ‘Thus, “we turn first to the language of the statute, giving the 

words their ordinary meaning.” [Citation.] The statutory language must also 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 
8

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.)

B. Penal Code Section 4573.6

Under Penal Code section 4573.6, a “person who knowingly has in his or her 

possession in any state prison . . . or in any county, city and county, or city jail . . . , any 

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

with [s]ection 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 

jail, . . . or by the specific authorization of the warden, superintendent, jailer, or other 

person in charge of the prison [or] jail . . . is guilty of a felony punishable by 

imprisonment pursuant to subdivision (h) of [s]ection 1170 for two, three, or four years.”

Cannabis is, and marijuana previously was, defined as a Schedule I controlled 

substance under Division 10. (See §§ 11007, 11054, subd. (d)(13); Stats. 2002, ch. 664, 

§ 130, p. 3858 [former § 11054, subd. (d)(13)]; see Perry, supra, 32 Cal.App.5th at 

p. 896, review denied, [“Cannabis remains a controlled substance under [D]ivision 10 

[of the Health and Safety Code].”]; People v. Harris (2006) 145 Cal.App.4th 1456, 1464 

[there are “clear indications within Division 10 that medical marijuana is a controlled 

substance.”].) Penal Code section 4573.6 “applies to ‘visitors and correctional officers as 

well as to inmates.’ [Citations.]” (People v. Low (2010) 49 Cal.4th 372, 382-383 (Low).)

Taylor contends that as a result of the voters’ approval of Proposition 64 and its 

enactment of section 11362.1, possession of 28.5 grams or less of marijuana in prison by 

a person who is at least 21 years old is not unlawful under Penal Code section 4573.6. 

According to Taylor, that is because Penal Code section 4573.6 does not simply prohibit 

possession of the controlled substances listed in Division 10. Rather, Taylor claims that 

it “only makes it illegal to have the controlled substance in prison if it would be unlawful 

for the defendant to possess it generally.” Citing Raybon, and People v. Fenton (1993) 

20 Cal.App.4th 965 (Fenton), Taylor maintains that if “it is lawful for the defendant to 
9

possess a substance listed in Division 10 then he is not possessing ‘any controlled 

substance the possession of which is prohibited by Division 10’ and as such is not guilty 

of unlawfully possessing a controlled substance in prison.” He maintains that his 

convictions—of violating Penal Code section 4573.6 and conspiring to violate that 

section—cannot stand because possession of 28.5 grams or less of marijuana by an adult 

21 years of age or older is no longer prohibited by Division 10.

In Fenton, the defendant was convicted by a jury of violating Penal Code 

sections 4573 (bringing into prison or jail a controlled substance, the possession of which 

is prohibited by Division 10 . . . of the Health and Safety Code) and 4573.5 (bringing into 

prison or jail drugs, other than controlled substances). (Fenton, supra, 20 Cal.App.4th at 

p. 966.) The defendant had “smuggled” two substances “into a jail by placing them 

between his toes.” (Ibid.) One of the substances was a tablet containing hydrocodone, 

which was an opiate and controlled substance (id. at p. 967), for which he “held a 

physician’s prescription.” (Id. at p. 966.) The other substance was a drug that was not a 

controlled substance. (Ibid.)

On appeal in Fenton, the defendant argued that “by utilizing the term ‘prohibited 

by’ when referring to [D]ivision 10 of the Health and Safety Code, [Penal Code 

section 4573] [did] more than simply incorporate a list of controlled substances and, 

consequently, [did] not prohibit bringing prescribed controlled substances into penal 

institutions.” (Fenton, supra, 20 Cal.App.4th at p. 968.) The Third District Court of 

Appeal essentially accepted this argument.

The Third District concluded that Penal Code “[s]ection 4573 adopt[ed] the Health 

and Safety Code prohibition of possessing controlled substances and create[d] another 

crime of smuggling controlled substances into a penal institution.” (Fenton, supra, 20 

Cal.App.4th at p. 970.) The court found that in the case before it, the “relevant 

prohibition” in Division 10 was former section 11350, subdivision (a), which 

“proscribe[d] possession of a controlled substance ‘unless upon the written prescription 
10

of a physician.’ ” (Fenton, supra, at p. 967.) Thus, “Health and Safety Code 

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

(Id. at p. 969.) It determined that “the reference to [D]ivision 10 [had to] include the 

prescription exception because [Penal Code] section 4573 imports the prohibition against 

possession of controlled substances not the list of controlled substances.” (Ibid.) 

The Third District concluded that the “defendant did not violate [Penal Code] 

section 4573 because he had a physician’s prescription for the hydrocodone.” (Id. at 

p. 971.)

The Third District rejected in Fenton the People’s contention that Penal Code 

section 4573 had to “be interpreted to prohibit individuals from bringing any controlled 

substance into penal institutions, whether or not they have a doctor’s prescription for it.” 

(Fenton, supra, 20 Cal.App.4th at p. 968, fn. omitted.) The court disagreed with the 

claim that the Legislature “intended to import the list of controlled substances from the 

Health and Safety Code, not the prohibition which includes the prescription exception.” 

(Id. at p. 970.) The court reasoned that “[i]f the Legislature intended to import the list 

rather than the prohibition, it could have amended [Penal Code] section 4573 to prohibit 

smuggling ‘any controlled substance, the possession of which is prohibited by defined by

[sic] Division 10 . . . of the Health and Safety Code . . . .’ ” (Id. at p. 971, fn. 3.)

The Third District indicated that its conclusions rested on what it believed to be

the “plain meaning” of the phrase “any controlled substance, the possession of which is 

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

Code” in Penal Code section 4573. The court found that “the ‘plain meaning’ of the 

statute is that one may bring controlled substances into a penal institution if an exception 

contained in [D]ivision 10 applies.” (Fenton, supra, 20 Cal.App.4th at p. 969) It stated 

that “since application of [Penal Code] section 4573, as written, [did] not lead to an 

absurd result, [it would] not look beyond the plain meaning to divine some unexpressed 

intent. [Citation.]” (Id. at pp. 970-971, fn. omitted.) The Fenton court held that “Penal 
11

Code section 4573 does not proscribe smuggling a controlled substance into a jail as long 

as the smuggler/inmate has a physician’s prescription.” (Id. at pp. 966-967.) This 

holding in essence incorporated the prescription exception provided in section 11350 into 

Penal Code section 4573.9 (See People v. Mower (2002) 28 Cal.4th 457, 480 [“the 

defense of possession of a dangerous or restricted drug with a physician’s prescription 

negates the element of unlawful possession of such a drug”], 481 [For the prescription 

defense, “a defendant need raise only a reasonable doubt as to his or her possession of the 

drug in question with a physician’s prescription. [Citation.]”].)

Taylor now asserts that the conduct of the defendant in Fenton was “not unlawful 

because nothing in Division 10 criminalized the possession of hydrocodone with a 

prescription.” Taylor insists that “no difference” exists between “the statutory scope of 

the prohibition [at issue] in Fenton” under Penal Code section 4573 and the statutory 

scope of the prohibition at issue under Penal Code section 4573.6.

In Raybon, the other case relied upon by Taylor, the Third District relied upon its 

prior analysis in Fenton. (Raybon, supra, 36 Cal.App.5th at pp. 125-126, review 

granted.) It rejected the People’s assertion that, based on “the arrangement of the words 

(the [D]ivision 10 language only modifying controlled substances),” “as long as 

[D]ivision 10 continues to ban cannabis in some contexts, the [D]ivision 10 language 

includes cannabis.” (Id. at p. 120.) The Third District concluded that “[p]ossession of 

less than one ounce of cannabis is no longer prohibited by [D]ivision 10, and therefore, 

according to the plain language of Penal Code section 4573.6, it is no longer a felony to 

possess less than one ounce in prison.” (Id. at p. 121.)

9 Section 11377 (possession of specified controlled substances, not including 

cannabis) also contains a prescription exception.
12

In this case, because defendant relies heavily upon Fenton, we must more closely 

examine Fenton’s analysis than we previously did in Herrera.

10

 Penal Code 

section 4573.6, like Penal Code sections 4573 and 4573.9, criminalizes certain conduct 

involving “any controlled substances, the possession of which is prohibited by 

Division 10 (commencing with [s]ection 11000) of the Health and Safety Code.” 

The construction of this language is critical to the question whether the conduct—

“possession” in the case of Penal Code section 4573.6—is criminal.

Penal Code “section 4573 and statutes with a similar structure and purpose have 

long been construed in light of each other. [Citations.]” (Low, supra, 49 Cal.4th at 

p. 389.) In attempting to ascertain the “plain meaning” of the critical phrase in Penal 

Code section 4573—“any controlled substance, the possession of which is prohibited by 

Division 10 (commencing with [s]ection 11000) of the Health and Safety Code”—the 

Third District in Fenton neglected to consider related statutes using that same language.11 

(See Pen. Code, §§ 4573.6, 4573.9; see also Welf. & Inst. Code, §§ 871.5, subd. (a), 

1001.5, subd. (a).)

Courts “do not construe statutes in isolation, but rather read every statute ‘with 

reference to the entire scheme of law of which it is part so that the whole may be 

harmonized and retain effectiveness.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 

894, 899; ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 189 [courts consider statutory 

“language in its ‘broader statutory context’ ”].) “Identical language appearing in separate 

10 In Perry, the court stated, “We have no reason to disagree with the analysis in 

Fenton, but [Fenton] does not resolve the dispute in the present case because the 

situations differ significantly.” (Perry, supra, 32 Cal.App.5th at p. 893, fn. omitted, 

review denied.)

11 Penal Code section 4573.6 says “substances” rather than “substance.” However, 

the use of the plural rather than the singular is of no import because the critical phrase—

“the possession of which is prohibited by Division 10 (commencing with 

[s]ection 11000) of the Health and Safety Code”—is identical.
13

provisions dealing with the same subject matter should be accorded the same 

interpretation. [Citation.]” (Walker v. Superior Court (1988) 47 Cal.3d 112, 132.)

Penal Code section 4573.6, the statute at issue in this case, makes exceptions to 

the prohibited possession in prison and other custodial settings only where such 

possession is authorized “by the rules of the Department of Corrections, rules of the 

prison or jail, institution, camp, farm or place, or by the specific authorization of the 

warden, superintendent, jailer, or other person in charge of the prison, jail, institution, 

camp, farm or place.” (Pen. Code, § 4573.6, subd. (a), italics added.)

Penal Code section 4573.9 , a related statute, criminalizes the conduct of a person 

not being held in custody who sells, furnishes, administers, or gives away “any controlled 

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

[s]ection 11000) of the Health and Safety Code,” to a “person held in custody,” or who 

offers to do any of the foregoing acts. The statute makes an exception to this prohibition

only where “the recipient” of the controlled substance is “authorized to possess the same 

by the rules of the Department of Corrections, rules of the prison or jail, institution, 

camp, farm, or place, or by the specific authorization of the warden, superintendent, 

jailer, or other person in charge of the prison, jail, institution, camp, farm, or place.” 

(Pen. Code, § 4573.9, subd. (a), italics added.)

Because both Penal Code section 4573.6 and Penal Code section 4573.9 use the 

same phrase referencing Division 10 and provide for similar exceptions based on the 

“rules” of the institution, the Division 10 phrase must be construed to have the same 

meaning in both statutes. It would be an awkward and unreasonable construction of the 

phrase “any controlled substance, the possession of which is prohibited by Division 10 

(commencing with [s]ection 11000) of the Health and Safety Code” to make the 

unlawfulness of the conduct proscribed by Penal Code section 4573.9 turn on the 

circumstances of the particular “recipient”—an actual “recipient” or a “recipient” to 

whom an offer was made. It makes little sense to have the culpability of the perpetrator 
14

depend, for example, upon whether “the recipient” happens to have a physician who

recommended or approved the use of marijuana for personal medical purposes 

(see § 11362.5, subd. (d)) or whether “the recipient,” where the amount of cannabis

involved is 28.5 grams or less, happens to be at least 21 years of age and lacks intent to 

sell it (see §§ 11359, subds. (b)-(d), 11362.1, subd. (a)(1)).

In light of the purposes of Penal Code section 4573.9 and the related statutes, such 

a construction of Penal Code section 4573.9—based on the phrase “any controlled 

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

[s]ection 11000) of the Health and Safety Code”—would result in absurd consequences 

that could not have been intended. This court must “choose a reasonable interpretation 

that avoids absurd consequences that could not possibly have been intended. 

[Citations.]” (People v. Bullard (2020) 9 Cal.5th 94, 106.) Based on the entire statutory 

scheme, we conclude that the phrase “any controlled substance, the possession of which 

is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety 

Code” (Pen. Code, § 4573.9) refers to a general category of controlled substances, rather 

than a particular instance of possession, and encompasses those controlled substances, the 

possession of which is in any way prohibited by Division 10. This is the only 

construction that makes sense in the related statutes that use identical or essentially the

same language. (See Pen. Code, §§ 4573, 4573.6, 4573.9; see also Welf. & Inst. Code, 

§§ 871.5, subd. (a), 1001.5, subd. (a).)

Penal Code section 4573.9’s legislative history is consistent with our construction 

of the Division 10 language in that statute and in the related statutes. The 1990 Summary 

Digest of the bill that added Penal Code section 4573.9 stated that “[t]he bill would make 

it a felony punishable by imprisonment in state prison . . . for any person, other than a 

person held in custody, to sell, furnish, administer, or give, or offer to do the same, to any 

person held in the custody of a correctional institution any prohibited controlled 

substance, without authorization.” (Legis. Counsel’s Dig., Senate Bill No. 2863 (1989-
15

1990 Reg. Sess.) 5 Stats. 1990, Summary Dig., p. 648, italics added

<https://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1990/90

Vol5_SumDigest.pdf#page=7> [as of Jan. 22, 2021], archived at <https://perma.cc/9C9ZX8SB>.) This statement bolsters our construction.12

“ ‘The words of the statute must be construed in context, keeping in mind the 

statutory purpose, and statutes or statutory sections relating to the same subject must be 

harmonized, both internally and with each other, to the extent possible.’ [Citation.] In 

sum, ‘ “[r]ules of statutory construction require courts to construe a statute to promote its 

purpose, render it reasonable, and avoid absurd consequences.” ’ [Citation.]” (Quintano 

v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055; see People v. Mendoza (2000) 23 

Cal.4th 896, 908.) Accordingly, we conclude that the phrase “any controlled substances, 

the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) 

of the Health and Safety Code” in Penal Code section 4573.6 refers to the general 

category of controlled substances, the possession of which is in any way prohibited by 

Division 10.

This construction of the Division 10 phrase does not render nugatory any part of 

the Division 10 phrase. Some types of possession of controlled substances are simply not 

prohibited by Division 10. For example, the possession of an unusable amount—a trace 

amount or residue—of a controlled substance is not prohibited. (See People v. Leal

(1966) 64 Cal.2d 504, 512 [former section 11500]; id. at p. 507, fn. 5 [disapproving 

specified cases to the extent that “they suggest[ed] that such traces [could] serve as the 

12

“ ‘The Legislative Counsel’s Digest is printed as a preface to every bill 

considered by the Legislature.’ [Citation.] The Legislative Counsel’s summaries ‘are 

prepared to assist the Legislature in its consideration of pending legislation.’ [Citation.] 

Although the Legislative Counsel’s summaries are not binding [citation], they are entitled 

to great weight. [Citation.] ‘It is reasonable to presume that the Legislature amended 

those sections with the intent and meaning expressed in the Legislative Counsel’s digest.’ 

[Citation.]” (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1169-

1170.)
16

basis of a conviction for knowing possession”]; see also People v. Carrasco (1981) 118 

Cal.App.3d 936, 948 [possession within the meaning of Penal Code section 4573.6 means 

possession of a “usable quantity”]; People v. Thomas (1966) 246 Cal.App.2d 104, 111 

[“provisions of law forbidding the possession of an illegal narcotic[, in that case 

marijuana,] do not contemplate that convictions should be obtained from the sole proof of 

the possession of minute quantities of the forbidden drug”].) In addition, there may well 

be controlled substances, possession of which is prohibited by only a law other than 

Division 10, such as the federal Controlled Substances Act (21 U.S.C. 801 et seq.) or a 

local ordinance. Therefore, we are compelled to disagree with Fenton’s construction of 

the phrase, “any controlled substance, the possession of which is prohibited by 

Division 10 (commencing with [s]ection 11000) of the Health and Safety Code,” as 

referring to a particular instance of possession rather than describing a general category 

of controlled substances.

Our construction aligns with the intent underlying the Legislature’s adoption of 

this statutory scheme. “[T]he Legislature has long viewed illegal drugs as a problem in 

penal institutions.” (People v. Gastello (2010) 49 Cal.4th 395, 402.) “Section 4573 and 

similar laws flow from the assumption that drugs, weapons, and other contraband 

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

trade. Hence, these provisions are viewed as ‘ “prophylactic” ’ measures that attack the 

‘ “very presence” ’ of such items in the penal system. [Citations.]” (Low, supra, 49 

Cal.4th at p. 388; see ibid. [historically, “the Legislature targeted inmates who, upon 

returning to penal institutions after performing labor outside, hid small amounts of opium 

and other narcotics in their clothing . . . [b]ecause such contraband often went undetected, 

and . . . threatened institutional control”].) The “ultimate evil with which the Legislature

was concerned was drug use by prisoners,” but the Legislature “chose to take a

prophylactic approach to the problem by attacking the very presence of drugs and drug
17

paraphernalia in prisons and jails. [Citation.]” (People v. Gutierrez (1997) 52

Cal.App.4th 380, 386.)

Unlike the Third District, we find the construction of Penal Code section 4573.6 

proffered by the People in Raybon reasonable, especially given the language and salutary 

purposes of that provision and related provisions. In this case, the People argue that the 

“laws regulating contraband substances in state prisons and other custodial institutions 

must be viewed not only from the perspective of public health and safety but also from 

the perspective of institutional security.” We agree.

The most logical inference is that in enacting statutes governing controlled 

substances or drugs in prison, jail, and other custodial settings, the Legislature was 

seeking to keep unauthorized substances out of custodial settings to maintain institutional 

supervision, discipline, order, and safety, which could be threatened by the surreptitious 

use, circulation, or sale of those substances by persons in custody. Accordingly, the most 

natural reading of the phrase “the possession of which is prohibited by Division 10 

(commencing with [s]ection 11000) of the Health and Safety Code”—as it modifies “any 

controlled substance” or “any controlled substances” in Penal Code sections 4573, 

4573.6, and 4573.9—is that the phrase describes a general category of controlled 

substances—not a particular instance of actual possession—and includes any controlled 

substance, possession of which is prohibited in any way by Division 10.

Lastly, with respect to Penal Code section 4573.6, the People incongruously insist 

that this appeal does not turn upon an interpretation of Penal Code section 4573.6, but 

rather upon an interpretation of Proposition 64. They suggest that an inmate’s

unauthorized possession of a drug that is not a “controlled substance, the possession of 

which is prohibited by Division 10” can be prosecuted under Penal Code 

section 4573.8,

13 notwithstanding the changes made by Proposition 64. The People 

13 Penal Code section 4573.8, which was added in 1990 (Stats. 1990, ch. 1580, 

§ 5), provides: “Any person who knowingly has in his or her possession in any state 
18

reason that “unauthorized possession of cannabis in prison—just like unauthorized 

possession of alcohol in prison—is still a felony” under Penal Code section 4573.8.

For a couple of reasons, we do not reach the issue whether possession of 28.5 

grams or less of cannabis in prison can be prosecuted under Penal Code section 4573.8, 

which provides for lesser punishment than a violation of Penal Code section 4573.6. 

(See ante, fn. 14.) One, we have concluded that cannabis falls within the general 

description of “any controlled substances, the possession of which is prohibited by 

Division 10.” (Pen. Code, § 4573.6, subd. (a).) Two, Taylor is not claiming that (a) he 

“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 [either of his] offense[s]” 

(§ 11361.8(a)) and that (b) pursuant to section 11361.8, he was entitled to resentencing 

under Penal Code section 4573.8.

We turn now to Proposition 64 and the parties’ competing statutory constructions

of section 11362.45(d).

prison, prison road camp, prison forestry camp, or other prison camp or prison farm or 

any place where prisoners of the state are located under the custody of prison officials, 

officers, or employees, or in any county, city and county, or city jail, road camp, farm, or 

any place or institution, where prisoners or inmates are being held under the custody of 

any sheriff, chief of police, peace officer, probation officer, or employees, or within the 

grounds belonging to any jail, road camp, farm, place, or institution, drugs in any manner, 

shape, form, dispenser, or container, any device, contrivance, instrument, or 

paraphernalia intended to be used for unlawfully injecting or consuming drugs, or 

alcoholic beverages, without being authorized to possess the same by rules of the 

Department of Corrections, rules of the prison or jail, institution, camp, farm, or place, or 

by the specific authorization of the warden, superintendent, jailer, or other person in 

charge of the prison, jail, institution, camp, farm, or place, is guilty of a felony.” 

(See Pen. Code, § 18 [the punishment for a felony not otherwise prescribed is 

“imprisonment for 16 months, or two or three years in the state prison unless the offense 

is punishable pursuant to subdivision (h) of [Penal Code s]ection 1170”]; see also 

§ 11014 [defining “drug”].)
19

C. Proposition 64

Section 11362.1 was added by Proposition 64. (Voter Information Guide, supra,

text of Prop. 64, § 4.4, p. 180.) Former section 11362.1, as added by Proposition 64, 

made it largely lawful under state and local law for persons 21 years of age or older to

“[p]ossess, process, transport, purchase, obtain, or give away to persons 21 years of age 

or older without any compensation whatsoever” (1) “not more than 28.5 grams of 

marijuana not in the form of concentrated cannabis” and (2) “not more than eight grams 

of marijuana in the form of concentrated cannabis, including as contained in marijuana 

products.”14 (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) A 2017 

amendment of section 11362.1 replaced the word “marijuana” with the word 

“cannabis.”15 (Stats. 2017, ch. 27, § 129, eff. June 27, 2017.)

14 Subdivision (a) of section 11362.1, as added by Proposition 64, made it lawful 

under state and local law, subject to exceptions, 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 

marijuana not in the form of concentrated cannabis; [¶] (2) Possess, process, transport, 

purchase, obtain, or give away to persons 21 years of age or older without any 

compensation whatsoever, not more than eight grams of marijuana in the form of 

concentrated cannabis, including as contained in marijuana products; [¶] (3) Possess, 

plant, cultivate, harvest, dry, or process not more than six living marijuana plants and 

possess the marijuana produced by the plants; [¶] (4) Smoke or ingest marijuana or 

marijuana products; and [¶] (5) Possess, transport, purchase, obtain, use, manufacture, or 

give away marijuana accessories to persons 21 years of age or older without any 

compensation whatsoever.” (Voter Information Guide, supra, text of Prop. 64, § 4.4, 

p. 180.)

15 Section 11018 now defines “cannabis” to mean “all parts of the plant Cannabis 

sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of 

the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of 

the plant, its seeds or resin.” The definition “does not include either of the following: 

[¶] (a) Industrial hemp, as defined in [s]ection 11018.5. [¶] (b) The weight of any other 

ingredient combined with cannabis to prepare topical or oral administrations, food, drink, 

or other product.” (§ 11018.) Former section 11018, as amended by Proposition 64, 

defined “marijuana.” (Voter Information Guide, supra, text of Prop. 64, § 4.1, p. 180.) 

In 1998 and 1999, when Taylor committed the crimes of which he was convicted, 
20

Section 11362.1(a) does not make it universally lawful for a person 21 years of 

age or older to possess 28.5 grams or less of cannabis. Section 11362.1(a) begins: 

“Subject to [s]ections 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 . . . .” Importantly, the mere existence of a statutory 

exception to section 11362.1’s general declaration of lawfulness does not by itself create 

a criminal offense subject to statutorily prescribed punishment.

“ ‘The statutory phrase “notwithstanding any other provision of law” has been 

called a “ ‘term of art’ ” [citation] that declares the legislative intent to override all 

contrary law.’ [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969, 983.) 

Accordingly, the prefatory phrase “notwithstanding any other provision of law” has a 

broad sweep. But it renders inapplicable “only those provisions of law that conflict with 

the act’s provisions” (ibid.) and not “every provision of law.” (Ibid.) Moreover, the 

“notwithstanding any other provision of law” provision in section 11362.1 is expressly 

limited by the stated exceptions. Accordingly, section 11362.45(d), one of the provisions 

to which section 11362.1(a) is subject, necessarily overrides its “notwithstanding any 

other provision of law” language.

Section 11362.45 was also added by Proposition 64. (Voter Information Guide, 

supra, text of Prop. 64, § 4.8, p. 182.) Section 11362.45(d)), as enacted, made clear that 

“[n]othing in [s]ection 11362.1 shall be construed or interpreted to amend, repeal, affect,

restrict, or preempt: [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting marijuana 

or marijuana products on the grounds of, or within, any facility or institution under the 

jurisdiction of the Department of Corrections and Rehabilitation or the Division of 

Juvenile Justice, or on the grounds of, or within, any other facility or institution 

referenced in [s]ection 4573 of the Penal Code.” (Voter Information Guide, supra, text 

section 11018 defined “marijuana” as “cannabis” is now defined, but the exceptions to 

the basic definition were different. (See Stats. 1972, ch. 1407, § 3, p. 2989.)
21

of Prop. 64, § 4.8, p. 182, some original italics omitted.) In 2017, section 11362.45 was 

amended to refer to “cannabis and cannabis products” instead of “marijuana or marijuana 

products.” (Stats. 2017, ch. 27, § 133, eff. June 27, 2017.)

Taylor argues that the exception set forth in section 11362.45(d) does not apply to 

his convictions because “[h]ad the [e]lectorate intended to permit a blanket prohibition of 

all things marijuana on the grounds of a state prison they could simply have brought that 

about by inserting the words ‘or possession’ after the word ‘ingesting’ in 

subdivision (d).” He infers from the omission of the word “possession” that “[t]his 

subdivision does not apply to possession of marijuana.”

Taylor points out that section 11362.3, subdivision (a)(5), another exception to 

section 11362.1(a), makes clear that section 11362.1(a) “does not permit any person to” 

“[p]ossess, smoke, or ingest cannabis or cannabis products in or upon the grounds of a 

school, day care center, or youth center while children are present.” He argues that the 

foregoing provision shows that the voters knew how “to outlaw possession when that was 

their intent.” Taylor asserts that the meaning of section 11362.45(d) is not ambiguous, 

and it explicitly omits possession. Taylor suggests that section 11362.45(d)’s phrase—

“[l]aws pertaining to smoking or ingesting [marijuana]”—merely refers to “methods of 

consumption.” He proposes that this language “be read broadly to prohibit all modalities 

of consumption of marijuana.” Taylor’s contentions essentially track the arguments

accepted by the Third District in Raybon.

In Raybon, the Third District agreed with the “defendants that consumption can be 

achieved in ways not strictly involving smoking or ingesting, such as inhaled as a 

nonburning vapor or applied topically such that it is absorbed through the skin.” 

(Raybon, supra, 36 Cal.App.5th at p. 122, review granted.) The court concluded that 

“[b]y including the language ‘pertaining to smoking and ingesting,’ the drafters allowed 

for these various forms of consumption in prison to remain unlawful” (ibid.) and that 
22

“[h]ad the drafters intended for possession to remain a felony, along with consumption, 

they would have said so.” (Ibid.)

Taylor’s argument and the Third District’s analysis in Raybon fail to account for 

differences in the language used in various subdivisions of section 11362.45, such as the 

use of the phrase “[l]aws making it unlawful to” in subdivision (a) and the use of the 

phrase “[l]aws prohibiting” in subdivisions (b) and (c).16 We continue to adhere to the 

previous conclusion of this court that “[t]he use of the phrase ‘pertaining to’ in 

subdivision (d) [of section 11362.45], in contrast to the language used in subdivisions (a) 

through (c) [of that section], indicates an intent to carve out laws beyond those that only 

make unlawful or only prohibit the smoking or ingesting of cannabis. [Citations.]” 

(Herrera, supra, 52 Cal.App.5th at p. 992, review granted.)

We agree with the other cases finding that the phrase “pertaining to” in section 

11362.45(d) has a wide scope. (See Herrera, supra, 52 Cal.App.5th at p. 991, review 

granted; Whalum, supra, 50 Cal.App.5th at pp. 11-12, review granted; Perry, supra, 32 

Cal.App.5th at p. 891, review denied.) The word “pertain” has been broadly defined to 

mean “to have some connection with or relation to something: have reference: relate.” 

(Merriam-Webster Unabridged Dict. <https://unabridged.merriamwebster.com/unabridged/pertain> [as of 1/22/2021], archived at 

<https://perma.cc/GK6K-XU4Y>.) We concur with the Perry court, which stated:

“While section [11362.45(d)] does not expressly refer to ‘possession,’ its application to 

16 Section 11362.45 provides in part: “Section 11362.1 does not amend, repeal, 

affect, restrict, or preempt: [¶] (a) Laws making it unlawful to drive or operate a vehicle, 

boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis 

products, including, but not limited to, subdivision (e) of [s]ection 23152 of the Vehicle 

Code, or the penalties prescribed for violating those laws. [¶] (b) Laws prohibiting the 

sale, administering, furnishing, or giving away of cannabis, cannabis products, or 

cannabis accessories, or the offering to sell, administer, furnish, or give away cannabis, 

cannabis products, or cannabis accessories to a person younger than 21 years of age.

[¶] (c) Laws prohibiting a person younger than 21 years of age from engaging in any of 

the actions or conduct otherwise permitted under Section 11362.1.”
23

possession is implied by its broad wording—‘[l]aws pertaining to smoking or ingesting 

cannabis.’ (Italics added.) Definitions of the term ‘pertain’ demonstrate its wide reach: 

It means ‘to belong as an attribute, feature, or function’ (<Merriam-Webster Dict. Online 

(2019) <merriam-webster.com/dictionary/pertain> [as of Feb. 28, 2019]), ‘to have 

reference or relation; relate’ (Dictionary.com (2019) 

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

applicable to’ (Lexico (2019) <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.” (Perry, supra, at p. 891, review 

denied.) As the Perry court observed, “[i]n 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.)

In Perry, the First District Court of Appeal found 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.” (Perry, supra, 32 Cal.App.5th at p. 893, review 

denied.) It determined that “a conclusion that [D]ivision 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. (§ 11362.45, subd. (d).)” (Id. at p. 894.) We agree.

Following Proposition 64, smoking or ingesting cannabis remains unlawful in 

many locations in California. (See, e.g., §§ 11362.3, subds. (a)(1) [“in a public place, 

except in accordance with [s]ection 26200 of the Business and Professions Code”], 

(a)(2) [“where smoking tobacco is prohibited”], (a)(3) [with specified exceptions, “within 

1,000 feet of a school, day care center, or youth center while children are present”], 
24

(a)(5) [“in or upon the grounds of a school, day care center, or youth center while 

children are present”], 11362.4, subds. (a), (b), (c) [penalties for certain conduct 

described in section 11362.3, subd. (a)]; see also § 11357, subd. (c).) In addition, the 

declaration of lawfulness in section 11362.1 “does not permit any person to: [¶] . . . 

[¶] . . . [s]moke or ingest cannabis or cannabis products while driving, operating a motor 

vehicle, boat, vessel, aircraft, or other vehicle used for transportation; [or to] [¶] [s]moke 

or ingest cannabis or cannabis products while riding in the passenger seat or compartment 

of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation [with a 

specified exception].” (§ 11362.3, subd. (a)(7), (a)(8).) Under legislation passed in 2017, 

smoking or ingesting marijuana while driving or riding as a passenger in a motor vehicle 

on highways or specified lands is punishable as an infraction. (Veh. Code, §§ 23220, 

23221.)

However, nothing in the laws enacted or amended by Proposition 64 makes

smoking or ingesting marijuana or cannabis in prison or other custodial settings subject to 

punishment. Further, nothing in Penal Code sections 4573 to 4573.9—or Welfare and 

Institutions Code sections 871.5 and 1001.5—which were not amended by 

Proposition 64, makes it a crime, subject to punishment, to smoke or ingest cannabis or 

marijuana in prison or other custodial settings. Significantly, section 11362.45(d) does 

not establish a new offense subject to punishment. Rather, section 11362.45 establishes 

that “[s]ection 11362.1 does not amend, repeal, affect, restrict, or preempt” certain types 

of laws.

“ ‘Statutes must be interpreted, if possible, to give each word some operative 

effect.’ [Citation.] ‘We do not presume that the Legislature performs idle acts, nor do 

we construe statutory provisions so as to render them superfluous.’ [Citation.]” 

(Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) Taylor’s 

proposed construction of section 11362.45(d) would leave the provision without any 
25

operative effect. Therefore, it should be rejected because there is a contrary reasonable 

construction that gives that provision effect.

In Whalum, the Fourth District Court of Appeal concluded that the crime of 

violating Penal Code section 4573.8 (unauthorized possession of drugs or alcoholic 

beverages in prison, jail, and other specified custodial settings) (see ante, fn. 14) was “not 

affected by Proposition 64” and that “the trial court properly determined that Whalum 

was not entitled to relief [pursuant to section 11361.8].” (Whalum, supra, 50 

Cal.App.5th at p. 3, review granted.) The court reasoned: “[L]ong before Proposition 64 

was adopted, case law recognized that although ‘the ultimate evil with which the 

Legislature was concerned was drug use by prisoners,’ the Legislature ‘ “chose to take a 

prophylactic approach to the problem by attacking the very presence of drugs and drug 

paraphernalia in prisons and jails.” ’ [Citation.] Thus, 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, fn. omitted.) The court found: “[I]t does not 

strain the meaning of ‘pertaining to’ for someone to say that a law criminalizing the 

possession of cannabis is a law ‘pertaining to’ the smoking or ingestion of cannabis, as 

one has a causal relationship to the other. Specifically, it is necessary to possess cannabis 

in order to smoke or ingest it, and cannabis is usually possessed in prison because 

someone wants to use it.” (Id. at p. 12, fn. 8.)

In Herrera, a direct appeal from a judgment, this court concluded that “[the] 

defendant was properly convicted under Penal Code section 4573.6 for possession of 

cannabis in jail.” (Herrera, supra, 52 Cal.App.5th at p. 985, review granted.) This court 

determined that “Proposition 64 did not decriminalize the possession of cannabis in a 

penal institution” (ibid.) and that the “defendant was properly convicted under Penal 

Code section 4573.6 for possession of cannabis in jail” after Proposition 64. (Herrera, 
26

supra, at p. 987.) Agreeing with the analysis in Perry, this court observed that “in order 

for section 11362.45(d), which carves out ‘[l]aws pertaining to smoking or ingesting’

cannabis in prison or jail, to have any meaning in view of the preexisting statutory 

scheme, section 11362.45(d) must be construed as having a broader application than to 

just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail, 

as no such law exists.” (Id. at p. 992.) We continue to adhere to that view.

Nothing in the legislative history undermines our construction of 

section 11362.45(d). As the Perry court observed: “The Voter Guide did not in any way

address the subject of cannabis possession or use in prison.” (Perry, supra, 32

Cal.App.5th at p. 895, review denied; see Voter Information Guide, supra, pp. 9-97

analysis of Prop. 64 by the Legislative Analyst; id., argument in favor of Prop. 64 and 

rebuttal to the argument in favor of Prop. 64, p. 98; id., argument against Prop. 64 and 

rebuttal to the argument against Prop. 64, p. 99.)

Taylor was not entitled to relief pursuant to section 11361.8.

DISPOSITION

The order denying the motions brought pursuant to section 11361.8 is affirmed.
_________________________________

ELIA, ACTING P.J.

I CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

People v. Taylor

H047540
Danner, J., concurring in the judgment.

I agree that the trial court properly denied appellant Alonzo Lee Taylor’s motion. 

I would affirm the trial court’s order based on Health & Safety Code section 11362.45, as 

interpreted by this court in People v. Herrera (2020) 52 Cal.App.5th 982, 995. 

______________________________________

Danner, J. 

People v. Taylor

H047540
Trial Court: Monterey County

Superior Court Nos.: SS981425A

SS001208A

Trial Judge: Honorable Mark E. Hood

Counsel for Plaintiff and Respondent Xavier Becerra

THE PEOPLE Attorney General

Lance E. Winters,

Chief Assistant Attorney General

Jeffrey M. Laurence,

Senior Assistant Attorney General

Eric D. Share,

Supervising Deputy Attorney General

Melissa J. Kendra,

Deputy Attorney General

Counsel for Defendant and Appellant Edward Mahler

ALONZO LEE TAYLOR

People v. Taylor

H047540