Filed 11/24/20 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. SHAWN HERNANDEZ,

Defen dant 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 App ellant. 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 Respond ent.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 s entence. 1

Hernandez ’ s petition was bas ed 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 ) ; H ealth & Saf. Code, § 11361.8, subd. (a).) In resolving this appeal, we rely on the reasoning of our recent opinion
i n 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 impos ed 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 ad option 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 rec all or dismissal of sentence. ( Prop. 64 , § 8.7)
A fter several hearings , the trial court issued a written ruling den ying 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 of4

cannabis by persons 21 years of age or older. (Health & Saf. Code, § 11362.1, added by Prop. 64, § 4.4.) As releva nt 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 concen trated 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, a ny 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. ” ( H ealth & 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 court5

that entered the judgment of co nviction 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 gr ams 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 , th e issue of whether Proposition 64 affect ed 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 D istrict 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

g ranted Aug. 21, 2019, S256978 ( Raybon )

. )
Both Ra ybon 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 rules6

of the Department of Corrections, rules of the prison

. . . or by the specific authorization of the warden, super intendent, 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 convic tion 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 posses s 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 felo ny. ”
In Whalum , supra , 50 Cal.App.5th at page 12, review granted, we

agree d with Perry ’ s analysis, parts of which we found to be applicable to
either a c onviction under section 4573.6 or a conviction under 4573.8. Specifically , following Perry ’ s approac h 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 cann abis fall within the scope of the statutory carve

- out for7

laws ‘ pertaining to smoking or ingesting cannabis ’ in a correctional
institution. ” ( Whalum , at p. 12 .) W e therefore conclude d “ that Proposition 64 does not affect law s , including Penal Code sectio n 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. Bo th section 4573.6 and section 4573.8 criminalize the possession of cannabis in prison. Thus, c onsistent with our decision in Whalum , both provisions fall under the carve out in Proposition 64 because both are laws

“ pertaining to smoking or ingesting canna bis ” in a correctional institution within the meaning of Health & Saf ety Code section 11362.45, subd ivision (d). Relief is not available for persons convicted under either provision. Although Hernandez requests in his brief ing 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 possessi on of cannabis in prison in violation of section 4573. 6

. Ac cordingly, we affirm the
trial court ’ s order denying Hernandez ’ s petition for relief pursuant to Health and Safety Code section 11361.8, subd ivision (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 “ Prop osition 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.