Filed 10/21/20 P. v. Donaldson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER DONALDSON,

Defendant and Appellant.

 D076957

 (Super. Ct. No. JCF000898)

APPEAL from a judgment of the Superior Court of Imperial County, 

Christopher J. Plourd, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney 

General, Arlene L. Sevidal, Randall D. Einhorn and Susan Elizabeth Miller, 

Deputy Attorneys General, for Plaintiff and Respondent.

 FACTUAL AND PROCEDURAL BACKGROUND

On December 9, 2017, while he was in prison, defendant was found in 

possession of 23.10 grams of marijuana. He pleaded no contest to possession 

of marijuana in prison, a felony, in violation of Penal Code section 4573.6. He 
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was sentenced to four years in prison, to be served consecutive to the 

sentence he was then serving on an earlier charge. 

In August of 2019, defendant petitioned to recall his sentence and 

dismiss the case pursuant to Proposition 64 and Health and Safety Code 

section 11361.8.1 The People opposed the petition. 

On November 6, 2019, and December 4, 2019, the court held hearings 

on the matter and denied the relief requested. It issued a written denial. 

Defendant filed a timely notice of appeal from the denial of his petition. 

Defendant’s sole issue on appeal is whether the trial court was required 

to grant his petition for resentencing. We conclude the petition was properly 

denied.

ANALYSIS

In 2016, California voters decriminalized the possession of less than 

28.5 grams (approximately one ounce) of marijuana, or cannabis.2

(Proposition 64; § 11362.1, subd. (a); also see People v. Perry (2019) 32 

Cal.App.5th 885, 888 (Perry).) In August 2019 defendant petitioned to recall 

his sentence and dismiss his section 4573.6 conviction on the ground his 

offense was no longer a felony pursuant to section 11361.8, subdivision (a).

Appellate courts have split on the question of Proposition 64’s effect on 

criminal laws prohibiting the possession of cannabis in a correctional 

institution. The issue is currently pending before our Supreme Court in 

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

1 Further statutory references are to the Health and Safety Code unless 

otherwise specified.

2 In 2017, the legislature replaced references to “marijuana” in the 

Health and Safety Code with the term “cannabis.” We use the term 

“cannabis.”
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S256978 (Raybon), People v. Whalum (2020) 50 Cal.App.5th 1, review 

granted, August 12, 2020, S262935 (Whalum), and People v. Hererra (2020) 

52 Cal.App.5th 982, 991–992, review granted Oct. 14, 2020, S264339 

(Hererra). The Third District in Raybon concluded that possession of less 

than 28.5 grams of cannabis in prison is no longer unlawful, due to 

Proposition 64. The First District, Sixth District, and our district have all 

reached the opposite conclusion. (Perry, supra, 32 Cal.App.5th at pp. 891–

893 [First District]; Hererra, at pp. 991–992 [Sixth District]; Whalum, at

pp. 12–13 [Fourth District].)

In Perry, the First District concluded Proposition 64 did not change any 

existing prohibitions against the possession of cannabis in prison or 

otherwise affect the operation of Penal Code section 4573.6. The court there 

explained Proposition 64 was expressly subject to the exception carved out by 

section 11362.45, subdivision (d), for laws pertaining to smoking or ingesting 

cannabis or cannabis products, which remain prohibited. (Perry, supra, 32 

Cal.App.5th at pp. 891–893.)

In Raybon, the Third District reach a result opposite Perry, concluding 

the plain language of section 11362.1, enacted as part of Proposition 64,

compelled a finding that less than an ounce of cannabis in prison is no longer 

a felony. (Raybon, supra, 36 Cal.App.5th at p. 113, review granted.) Our 

Supreme Court is reviewing the decision in Raybon. As Raybon awaits a 

decision, case law tilts heavily in favor of Perry including authority from this 

court.

In Whalum, this court addressed whether an inmate convicted of 

possessing cannabis in prison under Penal Code section 4573.8, which 

prohibits possession of drugs in prison in any manner. We concluded that a 

conviction under Penal Code section 4573.8 remained a felony after 
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Proposition 64 and the inmate was therefore not entitled to relief. (Whalum,

supra, 50 Cal.App.5th at p. 3, review granted). Although the court noted it

need not weigh in on the issues unique to the impact of Proposition 64 on 

Penal Code section 4573.6, the court agreed with Perry that “Proposition 64 

did not affect laws specifically directed at criminalizing the possession of 

cannabis as contraband in a correctional institution.” (Id. at p. 5.) Whalum

also concluded that even though Penal Code section 4573.8 criminalizes 

possession rather than use of drugs in a correctional institution, it 

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. p. 12.)

More recently the Sixth District Court of Appeal has addressed the 

question of whether Penal Code section 4573.6 remains a felony following 

approval of Proposition 64. (Herrera, supra, 52 Cal.App.5th at p. 991, review 

granted.) It concluded Proposition 64 did not decriminalize the possession of 

cannabis in a penal institution. (Id at p. 995.) That court reasoned that 

section 11362.45 as enacted by Proposition 64 contains an exception to the 

general provision authorizing adult possession of cannabis, which expressly 

states that “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” prison or jail.

(§ 11362.45, subd. (d).) Because Penal Code section 4573.6 subdivision (a) is 

a law pertaining to smoking or ingesting cannabis in jail within the meaning 

of section 11362.45 subdivision (d), Herrera held, “Proposition 64 did ‘not 

amend, repeal, affect, restrict, or preempt’ Penal Code section 4573.6 

[subdivision] (a), and possession of cannabis in jail remains a crime under 

that Penal Code provision.” (Herrera, at p. 990.)
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We agree with the reasoning offered by the latter cases, including 

Whalum, from our court.

In sum, the trial court properly determined that Proposition 64 did not 

impact the crime of possessing unauthorized cannabis in prison in violation of 

Penal Code section 4573.6. We therefore affirm the court’s order denying 

defendant relief from his prior conviction pursuant to Penal Code section 

4573.6, possession of cannabis in prison.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.