Filed 4/1/21 P. v. Brown CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY EMANNUEL BROWN II,

Defendant and Appellant.

 B303072

 (Los Angeles County

 Super. Ct. No. MA070234)

APPEAL from an order of the Superior Court of Los 

Angeles County, Christopher G. Estes, Judge. Affirmed.

Johanna Pirko, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Blythe J. Leszkay and Viet H. 

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Jerry Emannuel Brown, II 

(defendant) appeals from the denial of his Proposition 64 petition 

for resentencing or dismissal under Health and Safety Code 

section 11361.8, subdivision (b).1 Defendant contends that the 

trial court erred in rejecting his argument that when Proposition 

64 legalized simple possession of cannabis by people 21 years of 

age or older, it was meant to extend to those incarcerated in state 

prisons. We agree with respondent that defendant does not 

qualify for relief under section 11361.8, and thus we affirm the 

trial court’s order. 

BACKGROUND

In 2017, defendant was charged with one count of 

possession of a controlled substance in a custodial facility, in 

violation of Penal Code section 4573.6, subdivision (a). In 2018, 

defendant agreed to plead no contest to the charge in exchange 

for a sentence of four years, to run consecutively to the prison 

term he was currently serving, without admitting the two prior 

serious felonies alleged in the information. Defendant entered 

his plea and stipulated that the incident report and the probation 

officer’s report provided the factual basis for his plea. The 

probation report and incident report provide that on 

December 24, 2016, while defendant was incarcerated and with a 

visitor, correctional officers monitoring the visiting room 

observed defendant holding a blue bindle in his hand. The bindle 

was recovered and determined to contain 1.5 grams of marijuana. 

Defendant was then x-rayed, and another bindle was observed in

his stomach, which was later determined to contain 1.5 grams of 

marijuana. 

__________________________________________________________

1 All further statutory references are to the Health and 

Safety Code, unless otherwise indicated. 
3

On February 5, 2018, the court sentenced defendant to a 

consecutive term of four years in prison and ordered him to pay 

fines and fees. 

In September 2019, defendant filed a Proposition 64 

petition for resentencing or dismissal under section 11361.8, 

subdivision (b). On December 3, 2019, following a hearing at 

which defendant was present with counsel, the trial court denied 

defendant’s petition. 

Defendant filed a timely notice of appeal from the trial 

court’s order. Finding no error, we affirm the order. 

DISCUSSION

Defendant contends that the order must be reversed 

because the prosecution did not prove by clear and convincing 

evidence that defendant failed to satisfy the criteria set forth in 

section 11361.8. 

Section 11361.8 was enacted by Proposition 64, the Control, 

Regulate and Tax Adult Use of Marijuana Act (the Act), effective 

November 9, 2016. With certain limitations, Proposition 64 

legalized possession of not more than 28.5 grams2 of marijuana3

by persons 21 years of age or older. (See § 11362.1, subd. (a)(1).) 

Section 11361.8 established a procedure by which “[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 

__________________________________________________________

2 28.5 grams of marijuana is about one ounce. (People v. 

Kelly (2010) 47 Cal.4th 1008, 1023.)

3 The Act was later amended to change “marijuana” to 

“cannabis” throughout Health and Safety Code. (See Stats. 2017, 

ch. 27, § 133.)
4

[the Act] had that act been in effect at the time of the offense[,] 

[to] petition for a recall or dismissal of sentence. . . .”

Defendant was convicted upon a plea of no contest to a 

violation of Penal Code section 4573.6, subdivision (a), which 

provides: “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 of the

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

specific authorization of the warden . . . is guilty of a felony . . . .”

There is a split of authority as to whether Proposition 64 

legalized simple possession of cannabis in state prisons, and the 

issue is currently pending before the California Supreme Court. 

The First, Fourth, and Sixth District Courts of Appeal hold 

Proposition 64 did not affect existing prohibitions against the 

possession of cannabis in prison. (People v. Perry (2019) 32 

Cal.App.5th 885, 890 (Perry), review denied; People v. Whalum

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

People v. Herrera (2020) 52 Cal.App.5th 982, review granted 

Oct. 14, 2020, S264339.) The Third District reached the opposite 

conclusion in People v. Raybon (2019) 36 Cal.App.5th 111 

(Raybon), review granted August 21, 2019, S256978. The trial 

court considered the decisions in Raybon and Perry, found Perry’s 

analysis persuasive, and therefore denied the petition. 

Defendant argues that Raybon had the better analysis, and 

invites this court to follow its reasoning to hold that Proposition 

64 decriminalizes the possession of less than 28.5 grams of 

cannabis in prison by persons 21 years of age or older. We 

disagree with Raybon’s analysis, and like the trial court, find the 
5

analysis in Perry, supra, 32 Cal.App.5th 885, to be more 

persuasive. We thus adopt its reasoning; however, we need not 

undertake a summary of Perry’s analysis or explain the legal 

principles involved in determining whether the changes made by 

Proposition 64 should be applied to defendant, as we agree with 

respondent that Proposition 64 does not apply to defendant, and 

thus section 11361.8 does not afford defendant relief. 

Respondent points out that defendant was sentenced after

Proposition 64 became effective, and argues that section 11361.8 

does not apply here, as it sets forth the procedure for retroactive

application of Proposition 64, which clearly limits those who may 

petition for a recall or dismissal to persons “who would not have 

been guilty of an offense . . . had [the Act] been in effect at the 

time of the offense . . . .” (§ 11361.8, subd. (a).) 

Respondent compares Proposition 64 to Proposition 47, 

which enacted a similar procedure, which allowed a person 

“whether by trial or plea, of a felony or felonies who would have 

been guilty of a misdemeanor . . . had [Proposition 47] been in 

effect at the time of the offense [to] petition for a recall of 

sentence before the trial court that entered the judgment of 

conviction in his or her case to request resentencing in 

accordance with Sections 11350, 11357, or 11377 of the Health 

and Safety Code . . . , as those sections have been amended or 

added by this act.” (Pen. Code, § 1170.18, subd. (a).) Where a 

defendant has not been sentenced prior to the effective date of 

Proposition 47, the resentencing provisions of Penal Code 

section 1170.18 do not apply, as such a defendant is entitled to 

initial sentencing under the statutes amended by the proposition. 

(See People v. Lara (2019) 6 Cal.5th 1128, 1135.) By analogy to 

Proposition 47, respondent contends that the petitioning 
6

procedures of Proposition 64 similarly do not apply to defendant, 

who had not been charged or sentenced prior to the proposition’s 

effective date. 

We agree. Not only had defendant not been charged or 

sentenced prior to the effective date of Proposition 64, he had not 

yet committed the offense. He was thus entitled to raise the 

issue in the initial proceedings against him. (See People v. Lara, 

supra, 6 Cal.5th at p. 1135.) It follows that any time prior to 

entering his no contest plea defendant could have raised the 

contention that possession of less than an ounce of cannabis in 

prison was no longer a crime. 

“[W]hen the Legislature repeals a criminal statute -- or 

otherwise removes state sanctions from conduct formerly deemed 

criminal -- its action requires the dismissal of pending criminal 

proceedings charging such conduct . . . [as] the repeal of a 

criminal statute without a saving clause terminates all criminal 

prosecutions not reduced to final judgment.” (People v. Collins

(1978) 21 Cal.3d 208, 212, citing Spears v. County of Modoc

(1894) 101 Cal. 303, 305.) When a judgment is entered in 

violation of this rule, it will be reversed on appeal, and if the 

judgment was obtained by a plea bargain, the remedy on remand 

must “restore[] to the state the benefits for which it bargained 

without depriving defendant of the bargain to which he remains 

entitled.” (People v. Collins, supra, at pp. 212, 216.) The instant 

appeal was not taken from the 2018 judgment, but from the 

denial of defendant’s petition. Under such circumstances, 

defendant’s remedy, if any, is by way of habeas corpus. (See 

People v. Jerome (1984) 160 Cal.App.3d 1087, 1095-1096.) Thus, 

the trial court’s denial of defendant’s Proposition 64 petition was 

not error. 
7

DISPOSITION

The order denying defendant’s petition is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT