Filed 11/24/20 P. v. Hernandez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SHAWN HERNANDEZ,

Defendant and Appellant.

 D076941

 (Super. Ct. No. JCF36035)

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

Christopher J. Plourd, Judge. Affirmed.

Pauline E. Villanueva, 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, Eric A. 

Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

Shawn Hernandez, who is serving a prison sentence for possessing 

cannabis in prison in violation of Penal Code section 4573.6, appeals from the 

trial court’s denial of his petition to dismiss and recall his sentence.1

Hernandez’s petition was based on the fact that, after his conviction, the 

voters adopted Proposition 64, making it legal for persons at least 21 years of 

age to possess up to 28.5 grams of cannabis except in specifically identified 

circumstances, and giving persons currently serving a sentence for a 

cannabis-related crime that is no longer an offense after Proposition 64, the 

ability to petition for relief in the form of recall or dismissal of their sentence. 

(Prop. 64, §§ 4.4, 8.7, as approved by voters, Gen. Elec. (Nov. 8, 2016); Health 

& Saf. Code, § 11361.8, subd. (a).)

In resolving this appeal, we rely on the reasoning of our recent opinion 

in People v. Whalum (2020) 50 Cal.App.5th 1, review granted August 12, 

2020, S262935 (Whalum), in which we concluded that the similar crime of 

possessing unauthorized cannabis in prison in violation of section 4573.8 was 

not affected by Proposition 64. Accordingly, we conclude that the trial court 

properly determined that Hernandez was not entitled to relief, and we 

therefore affirm the order denying Hernandez’s petition.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On February 26, 2016, an indictment accused Hernandez of possessing 

an unauthorized substance in prison in violation of section 4573.6. The 

indictment was based on a correctional officer’s discovery of approximately 

0.5 grams of cannabis on Hernandez’s person in Calipatria State Prison. On 

August 18, 2016, Hernandez pled no contest to a violation of section 4573.6

1 Unless otherwise indicated, all further statutory references are to the 

Penal Code.
3

and admitted a prior strike. On September 15, 2016, the trial court imposed 

a sentence of two years, to run consecutive to the time Hernandez was 

currently serving in prison.

On August 7, 2019, the public defender, on behalf of Hernandez, filed a 

petition to recall and dismiss Hernandez’s sentence based on the electorate’s 

adoption of Proposition 64 in 2016, which enacted laws legalizing the 

possession of up to 28.5 grams of adult cannabis except in specifically 

identified circumstances. (Prop. 64, § 4.4, as approved by voters, Gen. Elec. 

(Nov. 8, 2016).) Hernandez relied on Proposition 64’s enactment of Health 

and Safety Code section 11361.8, subdivision (a), under which a person 

serving a sentence for conduct that is no longer criminalized or that is 

penalized less harshly due to Proposition 64 may file a petition for a recall or 

dismissal of sentence. (Prop. 64, § 8.7)

After several hearings, the trial court issued a written ruling denying 

the petition, concluding that it was bound to follow the First District’s 

opinion in People v. Perry (2019) 32 Cal.App.5th 885 (Perry). Perry held that 

in enacting Proposition 64 the voters did not intend to affect statutes making 

it a crime to possess cannabis in a correctional institution. (Id. at p. 890.)

The trial court granted Hernandez’s request for a certificate of 

probable cause, and Hernandez filed an appeal from the order denying his 

petition.

II.

DISCUSSION

In the November 8, 2016 election, the voters adopted Proposition 64, 

the Control, Regulate and Tax Adult Use of Marijuana Act. (Prop. 64, § 1, as 

approved by voters, Gen. Elec. (Nov. 8, 2016).) Among other things, the act 

included a provision legalizing certain activity involving 28.5 grams or less of 
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cannabis by persons 21 years of age or older. (Health & Saf. Code, § 11362.1, 

added by Prop. 64, § 4.4.) As relevant here that provision states,

“(a) Subject to [Health and Safety Code] [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, 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;

[¶] . . . [¶]

“(4) Smoke or ingest cannabis or cannabis products[.]” (Health & 

Saf. Code, § 11362.1.)

The exceptions set forth in Health and Safety Code sections 11362.2,

11362.3, 11362.4, and 11362.45, include the following carve-out, which is 

specifically applicable to correctional institutions: “Section 11362.1 does not 

amend, repeal, affect, restrict, or preempt: [¶] . . . [¶] (d) Laws 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 or the Division of Juvenile Justice, or on the 

grounds of, or within, any other facility or institution referenced in 

Section 4573 of the Penal Code.” (Health & Saf. Code, § 11362.45.)

Proposition 64 also enacted a provision stating that “[a] person 

currently serving a sentence for a conviction, whether by trial or by open or 

negotiated plea, who would not have been guilty of an offense, or who would 

have been guilty of a lesser offense under the Control, Regulate and Tax 

Adult Use of Marijuana Act had that act been in effect at the time of the 

offense may petition for a recall or dismissal of sentence before the trial court 
5

that entered the judgment of conviction in his or her case to request 

resentencing or dismissal . . . .” (Health & Saf. Code, § 11361.8, subd. (a).)

Hernandez seeks relief under this provision. According to Hernandez, 

because Proposition 64 legalized adult possession of up to 28.5 grams of 

cannabis except in specifically identified circumstances, it is no longer a 

crime under section 4573.6 to possess a drug in a correctional institution if 

that drug is cannabis. Hernandez also points out that the carve-out in 

Health and Safety Code section 11362.45, subdivision (d), does not refer to 

laws criminalizing the possession of cannabis in a correctional institution, 

and instead refers only to “smoking or ingesting cannabis.”

As we noted in Whalum, the issue of whether Proposition 64 affected 

the existing prohibitions against the possession of cannabis in a correctional 

institution is currently pending before our Supreme Court. (Whalum, supra, 

50 Cal.App.5th at p. 5, review granted.) Specifically based on a disagreement 

between the First District in Perry, supra, 32 Cal.App.5th 885 and the Third 

District in People v. Raybon, our Supreme Court granted review in Raybon to 

resolve the issue. (People v. Raybon (2019) 36 Cal.App.5th 111, review 

granted Aug. 21, 2019, S256978 (Raybon).)

Both Raybon and Perry concerned a conviction for possessing 

marijuana in prison in violation of section 4573.6, which is the same 

provision at issue in this case. (Perry, supra, 32 Cal.App.5th at p. 888;

Raybon, supra, 36 Cal.App.5th at p. 113, review granted.) Section 4573.6, 

subdivision (a), which applies only to controlled substances, provides in 

pertinent part: “Any person who knowingly has in his or her possession in 

any state prison . . . any controlled substances, the possession of which is 

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

Safety Code, . . . without being authorized to so possess the same by the rules 
6

of the Department of Corrections, rules of the prison . . . or by the specific 

authorization of the warden, superintendent, jailer, or other person in charge 

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

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

In Whalum, we addressed the impact of Proposition 64 on a conviction 

for possessing marijuana in prison in violation of a different provision—

section 4573.8. (Whalum, supra, 50 Cal.App.5th at p. 10, review granted.)

Section 4573.8 provides in relevant part: “Any person who knowingly has in 

his or her possession in any state prison . . . 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, . . . is 

guilty of a felony.”

In Whalum, supra, 50 Cal.App.5th at page 12, review granted, we 

agreed with Perry’s analysis, parts of which we found to be applicable to 

either a conviction under section 4573.6 or a conviction under 4573.8. 

Specifically, following Perry’s approach of focusing on the meaning of the 

phrase “pertaining to” we determined that the carve out in Proposition 64 for 

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

institution (Health & Saf. Code, § 11362.45, subd. (d), italics added), was 

broad enough to cover laws prohibiting the possession of cannabis in a 

correctional institution. We explained that “[b]ecause the phrase ‘pertaining 

to’ signals a relation to something, we agree with Perry that laws prohibiting 

the possession of cannabis fall within the scope of the statutory carve-out for 
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laws ‘pertaining to smoking or ingesting cannabis’ in a correctional 

institution.” (Whalum, at p. 12.) We therefore concluded “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, at p. 10.)2

Although Hernandez was convicted under section 4573.6 rather than 

section 4573.8, our discussion in Whalum nevertheless controls the result 

here. Both section 4573.6 and section 4573.8 criminalize the possession of 

cannabis in prison. Thus, consistent with our decision in Whalum, both 

provisions fall under the carve out in Proposition 64 because both are laws

“pertaining to smoking or ingesting cannabis” in a correctional institution

within the meaning of Health & Safety Code section 11362.45, subdivision

(d). Relief is not available for persons convicted under either provision. 

Although Hernandez requests in his briefing that we reconsider Whalum, we 

find no reason to depart from our reasoning in that case. 

We therefore conclude that the trial court properly determined that 

Proposition 64 did not impact the crime of unauthorized possession of 

cannabis in prison in violation of section 4573.6. Accordingly, we affirm the 

trial court’s order denying Hernandez’s petition for relief pursuant to Health 

and Safety Code section 11361.8, subdivision (a).

2 The Sixth District in People v. Herrera (2020) 52 Cal.App.5th 982, 

review granted Oct. 14, 2020, S264339, has agreed with Perry and Whalum

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

penal institution . . . .” (Id. at p. 985 [analyzing a challenge to a conviction 

under § 4573.6].) 
8

DISPOSITION

The trial court’s order is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.