IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GOLDY RAYBON,

Defendant and Appellant.

[And four other cases*]

S256978

Third Appellate District

C084853

Sacramento County Superior Court

09F08248

August 12, 2021 (reposted corrected version)

Justice Groban authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, and 

Jenkins concurred.

Justice Kruger filed a concurring and dissenting opinion, in 

which Justice Cuéllar concurred.

* People v. Cooper (No. C084911 [Super. Ct. No. 13F03230]); 

People v. Davis (No. C084960 [Super. Ct. No. 08F07402]); People 

v. Haynes (No. C084964 [Super. Ct. No. 12F00411]); People v. 

Potter (No. C085101 [Super. Ct. No. 06F11185]). 
1

PEOPLE v. RAYBON

S256978

Opinion of the Court by Groban, J.

This case requires us to interpret Proposition 64, the 

Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 

64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 

64 or the Act)). The question we must answer is whether 

Proposition 64 invalidates cannabis-related convictions under 

Penal Code section 4573.6, which makes it a felony to possess a 

controlled substance in a state correctional facility. Although 

Proposition 64 generally legalizes adult possession of cannabis,1

it contains several exceptions. One such exception provides that 

the Act does not amend or affect “[l]aws 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 . . . .” (Health &

Saf. Code, § 11362.45, subd. (d).) The Attorney General 

contends this exception applies to violations of Penal Code 

section 4573.6, meaning that possession of cannabis in a 

correctional facility remains a felony. Defendants2 disagree, 

1

In 2017, the Legislature replaced all references to 

“marijuana” in the Health and Safety Code with the term 

“cannabis.” (Stats. 2017, ch. 27, §§ 113–160.) Thus, although 

Proposition 64 used the term “marijuana,” we refer to the 

amended terminology “cannabis” throughout this opinion.

2 Defendants are Goldy Raybon (No. C084853), Anthony L. 

Cooper (No. C084911), Dwain Davis (No. C084960), Scott 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

2

arguing that because the exception only refers to “[l]aws 

pertaining to smoking or ingesting cannabis,” it does not apply 

to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed 

reading of Health and Safety Code section 11362.45, subdivision 

(d)3to be more persuasive. As discussed below, the phrase 

“[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is 

broad enough to encompass statutes that criminalize 

possession. Moreover, there is no law that makes it a crime to 

smoke, ingest or use cannabis (or any other form of drug) in 

prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” 

approach to the problem of drug use in prison by criminalizing 

only the possession of such drugs. (People v. Low (2010) 49 

Cal.4th 372, 388 (Low).) Thus, under defendants’ 

interpretation, section 11362.45, subdivision (d)’s carve-out 

provision would fail to preserve any preexisting law regulating 

cannabis in prisons from being “amend[ed], repeal[ed], 

affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would 

instead render the possession and use of up to 28.5 grams of 

cannabis in prison entirely lawful. It seems unlikely that was 

the voters’ intent. Stated differently, it seems implausible that 

the voters would understand the requirement that Proposition 

64 does not “amend, repeal, affect, restrict, or preempt” any 

“[l]aws pertaining to smoking or ingesting cannabis” (§ 

11362.45, subd. (d)) to convey that, as of the date of the 

initiative’s enactment, possessing and using up to 28.5 grams of 

Wendell Haynes (No. C084964), and James Potter (No. 

C085101).

3 Unless otherwise noted, all further statutory citations are 

to the Health and Safety Code.
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

3

cannabis would now essentially be decriminalized in prisons. In 

our view, the more reasonable interpretation of section 

11362.45, subdivision (d) is that the statute is intended “to 

maintain the status quo with respect to the legal status of 

cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 

893 (Perry).) Thus, possession of cannabis in prison remains a 

violation of Penal Code section 4573.6.

I. BACKGROUND

The five defendants in this case were each found in 

possession of less than 28.5 grams of cannabis in a state prison 

and were subsequently convicted of violating Penal Code section 

4573.6. Most of the defendants were serving time for a prior

serious or violent felony at the time of their possession offenses, 

resulting in second-strike sentences that added several years to 

their current term.4 

In 2016, the voters passed Proposition 64, which makes it 

lawful for persons aged 21 years and older to engage in various 

types of conduct involving cannabis, including the possession of 

up to 28.5 grams of cannabis (approximately one ounce), subject 

to certain exceptions. (See Voter Information Guide, Gen. Elec. 

4

 Four of the five defendants were incarcerated at the time 

of their possession violation: defendant Goldy Raybon, who 

admitted a prior strike and was sentenced to a consecutive term 

of four years; defendant James Potter, who was found to have a 

prior strike and was sentenced to a consecutive term of six years; 

defendant Anthony Cooper, who was found to have a prior strike 

and was sentenced to a consecutive term of six years; and 

defendant Dwayne Davis, whose sentence is not indicated in the 

record. The fifth defendant, Scott Haynes, brought concentrated 

cannabis into a prison to give to an inmate. Haynes’s sentence 

is not stated in the record, but he was on probation at the time 

he filed his petition for relief.
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

4

(Nov. 8, 2016) text of Prop. 64, § 4.4, p. 180 (Voter Guide); Health 

& Saf. Code, § 11362.1, subd. (a).)

5 The initiative also includes 

a remedial provision that allows persons currently serving a 

sentence for a cannabis-related crime that is no longer an 

offense under Proposition 64 to file a petition requesting the 

dismissal of their sentence. (Voter Guide, supra, text of Prop. 

64, § 8.7, p. 207; § 11361.8, subd. (a).) Acting pursuant to that 

new provision, defendants filed petitions in the Sacramento 

County Superior Court arguing that their sentences for 

violating Penal Code section 4573.6 should be dismissed because 

adult possession of less than an ounce of cannabis in prison no 

longer qualifies as a crime. 

The district attorney opposed the petitions, asserting that 

Penal Code section 4573.6 falls within an exception set forth in 

Health and Safety Code section 11362.45, subdivision (d) stating 

that Proposition 64 has no effect on laws “pertaining to smoking 

or ingesting cannabis or cannabis products” in state correctional 

facilities. (§ 11362.45, subd. (d) (hereafter section 11362.45(d)).) 

The trial court agreed and issued orders denying the petitions. 

Defendants appealed to the Third District and their cases were 

consolidated for purposes of argument and decision. 

While the appeal was pending, the First District issued 

Perry, supra, 32 Cal.App.5th 885, which held that “Proposition 

64 did not affect existing prohibitions against the possession of 

marijuana in prison or otherwise affect the operation of Penal 

5 The Voter Guide is available at 

<https://vig.cdn.sos.ca.gov/2016/general/en/pdf/completevig.pdf> (as of Aug. 10, 2021); all Internet citations in this 

opinion are archived by year, docket number, and case name at

<http://www.courts.ca.gov/38324.htm>.
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

5

Code section 4573.6.” (Id. at p. 890, italics omitted.) Like the 

trial court in this case, the First District concluded that the 

phrase “ ‘[l]aws pertaining to smoking or ingesting cannabis [in 

prison]’ ” implicitly extends to possession under Penal Code 

section 4573.6 because the possession of cannabis is directly 

related to smoking or ingesting the substance. (Perry, at p. 891.)

The Third District disagreed with Perry and held that the 

phrase “pertaining to smoking and ingesting” was not 

“intend[ed] to include a third distinct activity, possession.” 

(People v. Raybon (2019) 36 Cal.App.5th 111, 121 (Raybon).) 

The court further held that the clear and unambiguous intent of 

the phrase “pertaining to” was “to describe the . . . means of 

[cannabis] consumption” that do “not strictly involv[e] smoking 

or ingesting, such as inhal[ing] as a non-burning vapor or 

appl[ying] topically such that it is absorbed through the skin.” 

(Ibid. [“there is no ambiguity [in section 11362.45(d)]”].) Having 

found the “conduct underlying [defendants’] convictions is no 

longer criminal under Penal Code section 4573.6,” the Court of 

Appeal directed the superior court “to enter orders granting the 

petitions for relief.” (Raybon, at p. 126.)

The Attorney General filed a petition for review seeking 

resolution of the following question: “Did Proposition 64, which 

generally legalized the simple possession of less than an ounce 

of cannabis, also legalize such possession in state prisons and 

other custodial institutions?”6 

6 During the pendency of our review, the Fourth and Sixth 

Districts issued published decisions rejecting Raybon, supra, 36 

Cal.App.5th 111, and agreeing with Perry’s conclusion that 

Proposition 64 was not intended to affect laws criminalizing the 

possession of cannabis in prison. We granted review in those 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

6

II. DISCUSSION

A. Legal Framework

1. Statutory prohibitions on cannabis possession prior 

to Proposition 64 

Division 10 of the Health and Safety Code comprises the 

California Uniform Controlled Substances Act. (§ 11000 et seq.) 

Chapter 2 of the act contains schedules listing the controlled 

substances that are subject to the provisions of division 10, 

which includes cannabis.7 (See § 11054, subd. (d)(13).) Chapter 

6 of the act describes offenses associated with controlled 

substances, and article 2 (§ 11357 et seq.) sets forth offenses 

related to cannabis. Prior to Proposition 64, section 11357 made 

it a crime to possess nonmedical cannabis and set forth the 

applicable punishments for such conduct. (See former § 11357, 

subd. (a); Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–

205.) 

Penal Code section 4573 et seq. “place restrictions 

on possessing and importing drugs and other contraband in 

custody.” (Low, supra, 49 Cal.4th at p. 382.) Two of these 

provisions target the possession of drugs in custodial settings. 

The offense at issue here, Penal Code section 4573.6 , makes it 

a felony to knowingly “possess[] in any state prison, . . . or in any 

county . . . or city jail, . . . any controlled substances, the 

matters and deferred further action pending our resolution of 

this case. (See People v. Whalum (2020) 50 Cal.App.5th 1, 

review granted Aug. 12, 2020, S262935 (Whalum); People v. 

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

2020, S264339 (Herrera).) To date, no published Court of Appeal 

decision has agreed with Raybon. 

7 Unspecified statutory references to “division 10” in this 

majority opinion are to this act. 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

7

possession of which is prohibited by Division 10 . . . of the 

Health and Safety Code . . . , without being authorized to so 

possess . . . by the rules of the Department of Corrections, [the] 

rules of [the correctional facility] or by the specific authorization 

of the [persons in charge of the facility] . . . .” (Pen. Code, § 

4573.6, subd. (a).) A violation of this section is “punishable by 

imprisonment pursuant to subdivision (h) of Section 1170 for 

two, three, or four years.” (Ibid.) Penal Code section 4573.8 has 

broader application, making it a crime to possess “in any state 

prison . . . drugs in any manner . . . or alcoholic 

beverages, without being authorized to [so] possess the same by 

[the] rules of the [prison].” This latter section is also a felony, 

but carries a lesser sentencing range of 16 months, two or three 

years. (See Pen. Code, §§ 18, 4573.8.) Because both offenses are 

felonies, persons convicted under Penal Code section 4573.6 or 

4573.8 who have previously been convicted of a serious or violent 

felony — likely a common situation given that both statutes 

involve conduct committed while on the grounds of a 

correctional facility — will have their sentence doubled unless 

the trial court elects to remove the prior strike. (See Pen. Code, 

§§ 667, subd. (e)(1), 1385, subd. (b); People v. Romero (1996) 13 

Cal.4th 497, 504 (Romero).) Other similar provisions prohibit 

bringing controlled substances and other forms of drugs into 

prisons or causing such substances to be brought into prisons. 

(See Pen. Code, §§ 4573, 4573.5.) 

These statutes, which target the possession rather than 

the consumption of unauthorized drugs in prison, “flow from the 

assumption that drugs . . . 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 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

8

presence” ’ of such items in the penal system.” (Low, supra, 49 

Cal.4th at p. 388.) There is no law that criminalizes the actual 

consumption of drugs in a custodial setting.

2. Proposition 64

In November 2016, voters enacted Proposition 64, which 

was intended “to establish a comprehensive system to legalize, 

control and regulate the cultivation, processing, manufacture, 

distribution, testing, and sale of nonmedical marijuana, 

including marijuana products, for use by adults 21 years and 

older, and to tax the commercial growth and retail sale of 

marijuana.” (Voter Guide, supra, text of Prop. 64, § 3, p. 179.) 

In addition to regulating the production and sale of nonmedical 

cannabis, the Act was intended to “[p]ermit adults 21 years and 

older to use, possess, purchase and grow nonmedical marijuana 

within defined limits . . . as set forth in [the Act].” (Id., § 3, subd. 

(l).)

Proposition 64’s legalization provision, set forth in newly

added section 11362.1, subdivision (a), provides in relevant part: 

“Subject to Sections 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 . . . not more than 28.5 grams of cannabis not in the 

form of concentrated cannabis; [¶] (2) Possess . . . not more than 

eight grams of cannabis in the form of concentrated 

cannabis . . . ; [¶] (3) Possess, plant, cultivate, harvest, dry, or 

process not more than six living cannabis plants . . . ; [¶] (4) 

Smoke or ingest cannabis or cannabis products; and [¶] (5) 

Possess, . . . use, . . . or give away cannabis accessories to 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

9

persons 21 years of age or older without any compensation 

whatsoever.”

Section 11362.3, subdivision (a) places limitations on the 

possession and use of cannabis, directing that “[s]ection 11362.1 

does not permit any person to” (among other things): “Smoke or 

ingest cannabis or cannabis products” in a public place (§ 

11362.3, subd. (a)(1)); “Smoke cannabis or cannabis products 

within 1,000 feet of a school” while children are present (id., 

subd. (a)(3)); “Possess an open container . . . of cannabis or 

cannabis products” while in a car or other form of motor vehicle 

(id., subd. (a)(4)); “Possess, smoke, or ingest cannabis or 

cannabis products” on the grounds of a school when children are 

present (id., subd. (a)(5)); “Smoke or ingest cannabis or cannabis 

products while driving” a motor vehicle or while “riding in the 

passenger seat or compartment of a motor vehicle” (id., subd. 

(a)(7), (8)). 

The penalties for engaging in any of these prohibited 

activities are set forth in newly added section 11362.4. (See 

Voter Guide, supra, text of Prop. 64, § 4.7, pp. 181–182.) 

Proposition 64 also amended former section 11357, which had 

previously criminalized the possession of nonmedical cannabis. 

(See ante, at p. 6.) As amended, section 11357 now sets forth the 

penalties for possessing cannabis in quantities that exceed the 

limits described in section 11362.1 or by persons under the age 

of 21. (See Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204–

205.)

Section 11362.45, also added by Proposition 64, describes

various categories of laws and rules the Act does not affect or 

restrict. Of particular importance here, the section provides: 

“Section 11362.1 does not amend, repeal, affect, restrict, or 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

10

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.” (§ 11362.45(d).)

Other subdivisions of section 11362.45 exempt “[l]aws 

making it unlawful to drive or operate a vehicle . . . while 

smoking, ingesting, or impaired by, cannabis or cannabis 

products . . .” (§ 11362.45, subd. (a)) and “[l]aws providing that 

it would constitute negligence or professional malpractice to 

undertake any task while impaired from smoking or ingesting 

cannabis or cannabis products” (§ 11362.45, subd. (e)). The 

section also preserves the “rights . . . of public and private 

employers to maintain a drug and alcohol free workplace . . . .” 

(§ 11362.45, subd. (f)) and allows government and private 

entities to prohibit any of the conduct permitted under section 

11362.1 in government buildings or on private property (§ 

11362.45, subds. (f) & (g)).

Finally, Proposition 64 added remedial provisions for 

persons convicted of a cannabis-related crime “who would not 

have been guilty of an offense, or who would have been guilty of 

a lesser offense under [the Act].” (§ 11361.8, subd. (a); see id., 

subd. (e).) Section 11361.8, subdivision (a) allows persons 

currently serving a sentence for such an offense to “petition for 

a recall or dismissal of sentence before the trial court that 

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

resentencing or dismissal in accordance with Sections 11357, 

11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as 

those sections have been amended or added by [the Act].” 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

11

B. Rules of Construction Governing Voter 

Initiatives

“ ‘In interpreting a voter initiative . . . , we apply the same 

principles that govern statutory construction.’ [Citation.] 

Where a law is adopted by the voters, ‘their intent governs.’ 

[Citation.] In determining that intent, ‘we turn first to the 

language of the statute, giving the words their ordinary 

meaning.’ [Citation.] But the statutory language must also be 

construed in the context of the statute as a whole and the overall 

statutory scheme. [Citation.] We apply a presumption, as we 

similarly do with regard to the Legislature, that the voters, in 

adopting an initiative, did so being ‘aware of existing laws at the 

time the initiative was enacted.’ ” (People v. Buycks (2018) 5 

Cal.5th 857, 879–880.) 

“ ‘Absent ambiguity, we presume that the voters intend 

the meaning apparent on the face of an initiative measure 

[citation] and the court may not add to the statute or rewrite it 

to conform to an assumed intent that is not apparent in its 

language.’ [Citation.]” (Professional Engineers in California

Government v. Kempton (2007) 40 Cal.4th 1016, 1037.) 

However, where “statutory ambiguity exists,” our role is “to 

ascertain the most reasonable interpretation.” (People v. Canty

(2004) 32 Cal.4th 1266, 1277 (Canty).) In making that 

determination, we may “ ‘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 (Rizo).) 

C. Analysis

The question we must decide in this case is whether, after 

Proposition 64, possession of less than an ounce of cannabis in a 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

12

state correctional facility remains a violation of Penal Code 

section 4573.6. The Attorney General argues Proposition 64 has 

no effect on section 4573.6 offenses because the statute qualifies 

as a “[l]aw[] pertaining to smoking or ingesting cannabis” within 

the meaning of Health and Safety Code section 11362.45(d). 

Defendants disagree, contending that section 11362.45(d) only 

exempts laws “involving [the] consumption of marijuana in 

prison,” and therefore does not extend to possession offenses.

As an initial matter, we disagree with the Court of 

Appeal’s conclusion that “there is no ambiguity” (Raybon, supra,

36 Cal.App.5th at p. 121) in section 11362.45(d). In our view, 

both parties have presented reasonable interpretations of the 

statute. (See People v. Dieck (2009) 46 Cal.4th 934, 940 [“A 

statutory provision is ambiguous if it is susceptible of two 

reasonable interpretations”].) As the defendants argue, had the 

drafters intended to carve out laws that prohibit possession of 

cannabis in prison, they could have simply included the word 

“possession” in section 11362.45(d), just as they did in other 

sections of the Act. (See, e.g., § 11362.3, subd. (a)(5) [the Act 

does not permit a person to “[p]ossess, smoke, or ingest cannabis 

or cannabis products” on school grounds].) On the other hand, 

as the Attorney General asserts, had the drafters meant to limit 

section 11362.45(d)’s application to laws that actually prohibit 

smoking or ingesting cannabis in prison, they could have simply 

used the phrase “laws prohibiting smoking or ingesting.” 

Instead, the drafters chose the modifying term “pertaining to” 

(ibid.), suggesting they intended some broader application of the 

provision. Complicating matters further, apart from the text of 

section 11362.45(d) itself, the Act and the Voter Guide do not 

contain any other statements referencing how Proposition 64 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

13

was intended to affect laws relating to cannabis in correctional 

facilities. 

Despite such ambiguity, we must nonetheless attempt to 

discern which of the parties’ interpretations is most reasonable. 

(See Canty, supra, 32 Cal.4th at p. 1277.) For the reasons that 

follow, we agree with the Attorney General that Proposition 64 

is most reasonably construed as having no effect on section 

4573.6 offenses. 

1. Section 11362.45(d) is most reasonably construed 

as encompassing laws that prohibit the possession 

of cannabis in prison 

Section 11362.45 expressly provides that Proposition 64 

does “not amend, repeal, affect, restrict, or preempt” various 

categories of laws and rules related to cannabis, including “(d) 

Laws pertaining to smoking or ingesting cannabis [in 

correctional facilities].” As Perry and other decisions have 

observed, on its face, the phrase “laws pertaining to smoking or 

ingesting cannabis” is broad enough to encompass statutes that 

prohibit the possession of cannabis. (See Perry, supra, 32 

Cal.App.5th at p. 891 [the term “pertain” has “wide reach”]; 

Whalum, supra, 50 Cal.App.5th at p. 11, rev. granted; Herrera, 

supra, 52 Cal.App.5th at p. 991, rev. granted.) In interpreting a 

statute, we generally “accord words their usual, ordinary, and 

common sense meaning.” (In re Rojas (1979) 23 Cal.3d 152, 

155.) Black’s Law Dictionary defines “pertain” to mean “[t]o 

relate directly to; to concern or have to do with.” (Black’s Law 

Dict. (11th ed. 2019) p. 1383, col. 1.) Webster’s Third New 

International Dictionary defines the term to mean, among other 

things, “to have some connection with or relation to something: 

have reference: relate.” (Webster’s 3d New Internat. Dict. 

(2002) p. 1688, col. 1.) Numerous other dictionary sources 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

14

similarly define “pertain” in terms of having reference to or a 

relation to.8 As the Fourth District has aptly explained, “[a]ll of 

these definitions demonstrate that ‘pertaining to’ has a 

definition similar to the phrase ‘relating to.’ The phrase is 

plainly meant to refer to a relation between two things rather 

than an exact correspondence.” (Whalum, at p. 11; see Garner, 

Dict. of Modern American Usage (1998), p. 47 [“pertain usually 

means ‘to relate to; concern’ ”].) Thus, the text of section 

11362.45(d) suggests the drafters did not intend the statute to 

encompass only laws that explicitly regulate ingesting or 

smoking cannabis in prison, but rather intended it to include 

laws that relate to smoking or ingesting cannabis in prison.

We think it clear that laws barring possession of cannabis 

in prison relate to drug use. The act of possessing cannabis and 

the act of using cannabis have an obvious relation insofar as “a 

person has to possess cannabis to smoke or ingest it.” (Whalum,

supra, 50 Cal.App.5th at p. 12, rev. granted; see Perry, supra, 32 

Cal.App.5th at p. 891 [“[w]e would be hard pressed to conclude 

that possession of cannabis is unrelated to smoking or ingesting 

the substance”].) Long before Proposition 64 was passed, our 

8 See Dictionary.com 

<https://dictionary.com/browse/pertains?=1> (as of Aug. 10, 

2021) (“to have reference or relation; relate”); Oxford English 

Dictionary Online 

<https://www.oed.com/view/Entry/141585?redirectedFrom=pert

ain#eid> (as of Aug. 10, 2021) (“To relate to; to refer to. 

Frequently in present participle in pertaining to” (boldface 

omitted)); Cambridge Dict. 

<https://dictionary.cambridge.org/us/dictionary/english/pertain

-to-something?q=pertain> (Aug. 10, 2021) (defining “pertain to 

something” to mean “to relate to or have a connection with 

something” (boldface omitted)).)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

15

courts had repeatedly observed that while Penal Code section 

4573.6 and its ancillary provisions (see Pen. Code § 4573 et seq.) 

target possession of drugs in prison rather than their use, the 

primary purpose of those provisions is nonetheless to deter drug 

use in such facilities: “ ‘[T]he ultimate evil with which the 

Legislature was concerned [when enacting Penal Code section 

4573 et seq.] was drug use by prisoners. Nevertheless, it chose 

to take a prophylactic approach to the problem by attacking the 

very presence of drugs and drug paraphernalia in prisons and 

jails.’ [Citation.]” (People v. Harris (2006) 145 Cal.App.4th 1456, 

1461 (Harris); see Low, supra, 49 Cal.4th at p. 388; People v. 

Parodi (2011) 198 Cal.App.4th 1179, 1186, fn. 4; People v. 

Gutierrez (1997) 52 Cal.App.4th 380, 386.) Indeed, there is no 

statute that specifically criminalizes the use of cannabis or any 

other type of drug in prison, nor did any such provision exist 

when Proposition 64 was adopted. Instead, through the 

adoption of Penal Code section 4573 et seq., the Legislature has 

aimed to eliminate drug use in prison by targeting the 

possession of those illicit substances. In that way, the Penal 

Code’s prohibitions on drug possession in prison directly pertain

to drug use.

The Attorney General’s proposed reading of section 

11362.45(d) finds further support in the text of the other 

subdivisions within that statute. Unlike subdivision (d), several 

of section 11362.45’s other subdivisions utilize the terms “laws 

prohibiting” or “laws making it unlawful” when describing the 

categories of statutes that Proposition 64 does not amend or 

affect. Section 11362.45, subdivision (a), for example, exempts 

from Proposition 64’s legalization provision laws making it 

“unlawful to” operate a vehicle while “smoking, ingesting, or 

impaired by, cannabis”; subdivision (b) exempts laws 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

16

“prohibiting” the sale or furnishing of cannabis to persons under 

21 years of age; and subdivision (c) exempts laws “prohibiting” 

minors from engaging in any of the activities listed in section 

11362.1. Had the drafters intended to limit subdivision (d) in 

the manner defendants suggest, they could have incorporated 

language similar to that used in subdivisions (a) through (c) by 

exempting laws that “prohibit” smoking or ingesting cannabis 

in prison, or laws that make it “unlawful” to do so. Instead, the 

drafters chose to use the modifying term “pertaining to,” which 

implies an intent to encompass not only laws that actually 

prohibit smoking or ingesting cannabis, but also laws that have 

a relation to smoking or ingesting cannabis.

We also find it significant that the only existing laws 

regulating cannabis use and possession in correctional facilities 

target the act of possession, rather than use. Thus, if section 

11362.45(d) is interpreted to apply only to laws that bar the use 

of cannabis, the statute would not preserve any existing law 

relating to cannabis in prison from being “amend[ed], repeal[ed], 

affect[ed], restrict[ed], or preempt[ed].” (Ibid.) To the contrary, 

the statute would effectively operate to remove all of the central 

existing criminal prohibitions on cannabis in prisons, making it 

lawful to both possess and use the drug while incarcerated.9 

Stated differently, defendants contend that the phrase “[s]ection 

11362.1 does not amend, repeal, affect, restrict, or preempt” any 

9 Smoking (but not ingesting) cannabis in a correctional 

facility would presumably remain chargeable as an infraction 

under section 11362.3, subdivision (a)(2), which prohibits 

smoking cannabis “in a location where smoking tobacco is 

prohibited.” (See § 11362.4, subd. (b) [violation of § 11362.3, 

subd. (a)(2) is an infraction].)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

17

“[l]aws pertaining to smoking or ingesting cannabis or cannabis 

products” in prison (§ 11362.45(d)) is intended to convey that, as 

of the date of the initiative’s enactment, possessing and using 

up to 28.5 grams of cannabis would now essentially be 

decriminalized in prisons. We agree with the Attorney General 

that if the drafters had intended to so dramatically change the 

laws regarding cannabis in prison, we would expect them to 

have been more explicit about their goals. Moreover, we think 

it likely that voters, who we must assume were aware that 

existing laws governing cannabis in prisons targeted possession 

rather than use (see People v. Orozco (2020) 9 Cal.5th 111, 118; 

Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 

1332 [electorate is “conclusively presumed to have enacted the 

new laws in light of existing laws having direct bearing upon 

them”]), would have read section 11362.45(d) to retain those 

laws, rather than repeal them. 

Finally, between the parties’ two proposed 

interpretations, we find the Attorney General’s construction to 

be more “ ‘compatible with common sense.’ ” (In re Estate of 

Todd (1941) 17 Cal.2d 270, 275 [“ ‘the language of a statute must 

be given a reasonable interpretation . . . and . . . , when 

opportunity arises, made compatible with common sense’ ”]; City 

of Chula Vista v. Sandoval (2020) 49 Cal.App.5th 539, 560 

[“ ‘ “ ‘if the clear meaning of the statutory language is not 

evident . . . , we will “apply reason, practicality, and common 

sense to the language at hand. If possible, the words should be 

interpreted to make them workable and reasonable 

[citations], . . . practical [citations], in accord with common 

sense . . . ” ’ ” ’ ”].) While perhaps not illogical to distinguish 

between the possession and use of cannabis, it is nonetheless 

difficult to understand why the electorate would want to 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

18

preclude laws criminalizing cannabis possession in prison, but 

permit laws criminalizing cannabis consumption in prison. 

Defendants theorize that voters may have wanted to 

“decriminalize[] simple possession” while “retaining sanctions 

for those who actually use it” because “it is the consumption of 

marijuana that is the problem . . . .” But if voters were truly 

concerned about cannabis use in prison, why would they want 

to remove the existing penal provisions that target that very 

problem? Moreover, defendants have not identified any reason 

why a person might possess cannabis within a correctional 

facility other than to have it consumed by someone. (See Perry, 

supra, 32 Cal.App.5th at p. 892 [“For what purpose would an 

inmate possess cannabis that was not meant to be smoked or 

ingested by anyone?”].) Simply put, we are dubious that the 

voters intended to legalize the possession of cannabis in prison 

but permit laws that criminalize the use of cannabis in prison 

(of which there are currently none). 

2. Defendants’ counterarguments 

Defendants raise numerous counterarguments in support 

of their assertion that Proposition 64 invalidates cannabisrelated convictions under Penal Code section 4573.6. We find 

these arguments unavailing. 

a. Defendants’ arguments regarding the text of 

section 11362.45(d)

Defendants’ primary contention is that if the drafters had 

meant section 11362.45(d) to extend to offenses involving the 

possession of cannabis, they would have expressly stated as 

much, just as they did in other provisions of Proposition 64. 

(See, e.g., §§ 11362.1, subd. (a)(1), (2), (3) & (5), 11362.3, subd. 

(a)(4), (5), 11362.45, subd. (f).) Section 11362.3, subdivision (4), 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

19

for example, states that persons are not permitted to “possess” 

an open container of cannabis in a vehicle, while subdivision (5) 

states that persons are not permitted to “possess, smoke or 

ingest cannabis” on school grounds while children are present. 

In defendants’ view, these provisions demonstrate the “drafters 

knew how to reference possession when they wanted to. A voter 

would view possession outside the purview of section 

11362.45(d) because the distinct acts of ‘smoking or ingesting’ 

are explicitly flagged but possession is not.” 

If section 11362.45(d) merely stated that Proposition 64 

was not intended to affect laws prohibiting or criminalizing 

smoking or ingesting cannabis in prison, we would attach more 

significance to the absence of the term “possession.” But the 

drafters chose broader language, exempting “[l]aws pertaining 

to smoking and ingesting” cannabis in prison. (Ibid., italics 

added.) While using the word “possession” may well have 

provided a simpler means of encompassing laws that bar 

possession of cannabis in prison, we must nonetheless give effect 

to “pertaining,” a term that generally “signals a relation to 

something.” (Whalum, supra, 50 Cal.App.5th at p. 12, rev. 

granted.) And as explained above, we think it clear that 

possession of cannabis is directly related to smoking or ingesting 

the substance. (See ante, at pp. 13–15.) The conclusion that 

laws prohibiting possession of cannabis relate to cannabis 

consumption accords with our courts’ long-standing 

acknowledgment that the primary intent of section 4573.6’s 

prohibition of possession is in fact to stop “drug use by 

prisoners.” (Harris, supra, 145 Cal.App.4th at p. 1461.) Indeed, 

there is no criminal provision that makes it unlawful to use 

cannabis or other controlled substances in prison; instead, the 

Legislature has elected to attack drug use in correctional 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

20

facilities by prohibiting “the ‘ “very presence” ’ of such 

[substances] in the penal system.” (Low, supra, 49 Cal.4th at p. 

388.) For all those reasons, we reject defendants’ assertion that 

the absence of the term “possession” precludes section 

11362.45(d)’s application to possessory offenses.10 

10

 Defendants similarly argue that if “pertaining to” was 

meant to include possession, the drafters could have used the 

phrase “pertaining to marijuana.” In their view, reading 

possession into the statute effectively “writes the limiting words 

[‘smoking or ingesting’] out of the statute completely.” We do 

not agree that interpreting the term “pertaining to smoking or 

ingesting cannabis” to include possession offenses necessarily 

renders the words “smoking or ingesting” meaningless. Rather, 

the inclusion of that language seems intended to signal that 

section 11362.45(d) is meant to encompass laws that relate to 

the use of cannabis. The drafters could quite logically endeavor 

to limit the possible range of laws in this way (i.e., to all laws 

pertaining to smoking or ingesting of cannabis) to avoid 

invoking the much broader category of laws that relate in any 

conceivable way to cannabis, many of which would have no 

applicability in a prison setting, such as laws related to labeling, 

advertising, packaging, or transporting in an automobile. 

Moreover, “like all . . . interpretive canons, the canon 

against surplusage is a guide to statutory interpretation and is 

not invariably controlling.” (People v. Valencia (2017) 3 Cal.5th 

347, 381 (conc. opn. of Kruger, J.) (Valencia), citing People v. 

Cruz (1996) 13 Cal.4th 764, 782; see In re J.W. (2002) 29 Cal.4th 

200, 209; Arlington Central School Dist. Bd. of Ed. v. Murphy

(2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee

(2004) 540 U.S. 526, 536.) To the extent our interpretation 

results in some level of redundancy, we nonetheless believe it “is 

more consistent with voter intent” than defendants’ proposed 

reading (Rizo, supra, 22 Cal.4th at p. 687 [canon against 

surplusage “is only a ‘guide[] and will not be used to defeat 

legislative intent’ ”]), which would render section 11362.45(d) 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

21

Recognizing that the term “pertaining to” cannot be read 

out of the statute entirely, defendants posit that such language 

was simply intended to “encapsulate” other methods of cannabis 

consumption that “do not strictly involve smoking or ingesting.” 

Defendants assert those alternative means include, for example, 

vaping and absorption through the skin. The Court of Appeal 

found this argument persuasive, explaining that “[b]y including 

the language ‘pertaining to smoking and ingesting,’ the drafters 

allowed for these various [additional] forms of consumption in 

prison to remain unlawful.” (Raybon, supra, 36 Cal.App.5th at 

p. 122 [“We agree with 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”].) 

We find defendants’ proposed interpretation of “pertaining 

to” in section 11362.45(d) unpersuasive. First, we question 

defendants’ unexamined assumption that the term “smoking or 

ingesting” is not broad enough to encompass the alternative 

means of consumption they have identified. Section 11362.3, 

subdivision (b)(2), for example, demonstrates that regardless of 

whether vaping is technically a form of smoking, the drafters 

appear to have equated those activities. (See ibid. [“ ‘Smoke’ 

includes the use of an electronic smoking device that creates an 

aerosol or vapor, in any manner or in any form, or the use of any 

oral smoking device for the purpose of circumventing the 

prohibition of smoking in a place”].) Moreover, the term “ingest” 

is commonly defined to mean “to take in: swallow, absorb.” 

inapplicable to any existing statute and effectively legalize the 

possession and use of cannabis in prison. 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

22

(Merriam-Webster’s Unabridged Dict. Online

<https://unabridged.merriam-webster.com/unabridged/ingest> 

[as of Aug. 10, 2021], italics added; see Webster’s 3d New 

Internat. Dict. (1993) p. 1162, col. 2; Roget’s Thesaurus (5th ed. 

1992) p. 938 [listing “absorb” as synonym of “ingest”].) That 

definition seems broad enough to incorporate cannabis 

consumed through topical applications or other forms of 

absorption.

Second, and more importantly, other sections of 

Proposition 64 strongly suggest the drafters intended the words 

“smoking or ingesting” to encompass all forms of consumption. 

Section 11362.1, subdivision (a)(4), for example, makes it legal 

to “[s]moke or ingest cannabis.” Similarly, section 11362.3 

prohibits “[s]mok[ing] or ingest[ing] cannabis” in public (id., 

subd. (a)(1)), while on school grounds when children are present 

(subd. (a)(5)) and while driving or operating a motor vehicle (id., 

subd. (a)(7)). Section 11362.45, subdivision (e) additionally 

provides that Proposition 64’s legalization provision does not 

affect “[l]aws providing that it would constitute negligence or 

professional malpractice to undertake any task while impaired 

from smoking or ingesting cannabis.” 

In each of these circumstances, we believe the drafters 

intended “smoking or ingesting” to cover all forms of cannabis 

consumption. We find it doubtful, for example, that the drafters 

meant to prohibit people from smoking or eating cannabis while 

driving but permit them to vape or absorb cannabis products 

while driving. We are equally dubious that the drafters 

intended to allow laws providing that it would constitute 

professional negligence to undertake a task while impaired from 

smoking or eating cannabis, but not while impaired from vaping 

or absorbing cannabis. Because numerous other sections of 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

23

Proposition 64 appear to use the phrase “smoking or ingesting” 

to refer to all methods of consumption, we are not persuaded 

that the term “pertaining to” was merely intended to capture 

alternative means of consumption that do not strictly involve 

smoking or ingesting. Instead, as described above, we conclude 

that term is most reasonably construed as intending to broaden 

the scope of section 11362.45(d) to laws that relate to cannabis 

use, which necessarily includes possession offenses.11

Defendants also discount the absence of any law making 

it a crime to smoke, ingest or consume cannabis in prison or jail. 

They argue that section 11362.45(d) was never intended to carve 

out preexisting laws involving cannabis in prison, but rather was 

meant to authorize the Legislature to pass future laws that 

“proscrib[e] smoking or ingesting (or other forms of consuming) 

marijuana on jail or prison grounds, should legislators consider 

them appropriate.” Defendants contend that in the absence of 

11 Moreover, if the drafters were truly concerned that 

“smoking or ingesting” was not broad enough to encompass

different forms of consumption, adding the term “pertaining to” 

would seem an odd way of trying to capture those alternative

means of consumption. As we have explained, the term 

“pertain” generally signifies a direct relationship with 

something else. (See ante, at pp. 13–14.) Thus, using the phrase 

“laws pertaining to smoking or ingesting” seems a 

counterintuitive way to convey the concept that the law was 

intended to capture smoking or ingesting cannabis, along with 

any other different forms of consumption. (See Whalum, supra, 

50 Cal.App.5th at p. 12, fn. 8, rev. granted [“Because ‘pertaining 

to’ means ‘relating to,’ someone would not normally describe the 

topical application or vaporizing of cannabis as ‘pertaining to’ 

the smoking or ingesting of cannabis, as they are different ways 

of using cannabis and therefore do not relate to one another”].)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

24

section 11362.45(d), our Constitution would prevent the 

Legislature from passing such laws without the electorate’s 

approval. (See Cal. Const. art. 2, § 10, subd. (c) [Legislature 

must obtain the electorate’s approval before amending “an 

initiative statute by another statute . . . unless the initiative 

statute permits amendment . . . without [their] approval”].)

Assuming arguendo that the language of section 

11362.45(d) permits the Legislature to pass or repeal laws that 

pertain to cannabis use in prison without electorate approval, 

we are not persuaded a reasonable voter would interpret that to 

be the sole intent of the provision. As explained above, if section 

11362.45(d) were only meant to permit the Legislature to pass 

future laws criminalizing cannabis use in prison, one would 

expect some language clarifying that prospective intent. 

Instead, the statute states only that Proposition 64 does not 

“amend, repeal, affect, restrict, or preempt” any “[l]aws 

pertaining to smoking or ingesting cannabis” in prison. 

(§ 11362.45(d).) The clear implication is that the initiative 

would leave intact some existing restriction on cannabis in 

prison. We find defendants’ proposed reading of this 

language — to convey that the initiative would remove existing 

penal restrictions regulating cannabis in prison but authorize 

the Legislature to pass future laws criminalizing cannabis use 

in prison — to be far more strained. (See People v. Nuckles

(2013) 56 Cal.4th 601, 611–612 [a reviewing court should “ ‘not 

strain to interpret a penal statute in defendant’s favor if it can 

fairly discern a contrary legislative intent’ ”].)12 

12 Although multiple subdivisions of section 11362.45 are 

clearly intended to preserve preexisting laws (see § 11362.45, 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

25

Defendants next contend that section 11362.1, subdivision 

(a)’s use of the statutory phrase “notwithstanding any other 

provision of law” makes clear that adult possession of less than 

28.5 grams of cannabis in prison no longer qualifies as a 

violation of Penal Code section 4573.6. The relevant clause of 

section 11362.1, subdivision (a)(1) states: “Subject to Sections 

11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding 

any other provision of law, it shall be lawful . . . for persons 21 

years of age to . . . [¶] . . . [p]ossess . . . not more than 28.5 grams 

of cannabis.” As defendants note, “ ‘[t]he 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.) Defendants assert that because 

Penal Code section 4573.6’s prohibition on cannabis possession 

in prison conflicts with Health and Safety Code section 11362.1’s 

subds. (a), (i)), other subdivisions seem intended to operate on a 

prospective basis. Subdivisions (g) and (h), for example, 

preserve public and private entities’ “ability . . . to prohibit or 

restrict any of the actions or conduct otherwise permitted under 

Section 11362.1” within government buildings and on private 

property. Subdivision (d), however, does not speak in terms of 

retaining the Legislature’s “ability” to act, and the preexisting 

statutory provisions barring drug possession in prison (see Pen. 

Code, §§ 4573.6, 4573.8) have long been understood as 

prophylactic measures intended to deter drug use in such 

facilities (see ante, at pp. 14–15). In light of these factors, we 

think section 11362.45(d) is more reasonably construed as 

incorporating preexisting possessory offenses, rather than 

operating solely to allow the Legislature to adopt laws 

prohibiting cannabis consumption in the future. 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

26

legalization provision, it is necessarily rendered inapplicable by 

the “notwithstanding” clause. This argument, however, 

overlooks the limiting language in section 11362.1 that 

expressly lists section 11362.45 as an exception to the 

“notwithstanding any other provision of law” clause. For the 

reasons discussed above, we are of the view that section 

11362.45, subdivision (d) carves out from Proposition 64’s 

legalization provision offenses involving the possession of 

cannabis in prison. Accordingly, the “notwithstanding” 

provision is of no aid to defendants’ interpretation.

Finally, defendants argue the Voter Guide provides 

“rich . . . support” for the conclusion that Proposition 64 was 

intended to legalize the possession of cannabis in prison. They 

note that the Voter Guide contains no language informing voters 

that Proposition 64 would leave in place existing prohibitions on 

cannabis possession in prison. Defendants also cite to a table in 

the Legislative Analyst’s summary listing what activities would 

become lawful under the measure and what activities would 

remain unlawful. The section of the table addressing possession 

states that while it would be allowable for persons 21 or over to 

possess up to 28.5 grams of cannabis, it would not be allowable 

to possess cannabis on school grounds while children are 

present. (See Voter Guide, supra, analysis of Prop. 64 by the 

Legis. Analyst, p. 92, figure 2.) According to defendants, the 

electorate would have likely inferred from this table that 

possession in prison would become legal because such conduct 

was not listed as an activity that would remain unlawful. 

We find nothing in the Voter Guide that provides 

substantial support for either side’s interpretation. As 

defendants acknowledge, the Voter Guide does not contain a 

single reference to laws regulating cannabis in prisons nor does 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

27

it explain how Proposition 64 would impact those laws. While 

defendants argue voters would have inferred from such silence 

that possession in prison would become legal, we think it just as 

likely they would have interpreted such silence to mean that 

Proposition 64 would have no effect on existing laws prohibiting 

the possession of cannabis in prison. Moreover, it is clear the 

table that defendants have identified provided only an 

incomplete summary of what forms of conduct the Act would 

preclude. That table, for example, fails to note that possession 

of an open container of cannabis in a vehicle would remain 

unlawful and omits numerous other forms of conduct and laws 

that fall outside Proposition 64’s purview, including most of the 

activities referenced in section 11362.45. Given the Voter 

Guide’s total silence on the issue of cannabis in prison, we do not 

believe it would have any appreciable effect on voters’ 

understanding of section 11362.45(d). 

b. Defendants’ arguments regarding the text of 

Penal Code section 4573.6

Defendants additionally argue that even if section 

11362.45(d) does generally extend to possession offenses, their 

convictions should nonetheless be dismissed because the act of 

possessing cannabis in prisons no longer falls within the 

category of conduct proscribed under Penal Code section 4573.6. 

Defendants note that the text of Penal Code section 4573.6 does 

not state that it is unlawful to possess any controlled substance 

in prison; rather, the statute states that it is unlawful to possess 

“a[] controlled substance[ ], the possession of which is prohibited 

by Division 10 . . . of the Health and Safety Code.” In defendants’ 

view, this statutory language means that Penal Code section 

4573.6 applies only when the circumstances of the person’s 

possession in prison would also violate an independent 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

28

prohibition on possession set forth in division 10. They further 

contend that while cannabis remains listed as a controlled 

substance, Proposition 64’s addition of section 11362.1 and its 

amendments to section 11357 mean that there is no longer any 

provision in division 10 that prohibits an adult from possessing 

less than 28.5 grams of cannabis (except in limited 

circumstances not at issue here). As a result, defendants reason, 

their conduct no longer constitutes a violation of Penal Code 

section 4573.6, and their convictions must be dismissed.13

13 The Attorney General argues that even if cannabis 

possession no longer violates Penal Code section 4573.6 on a 

prospective basis, we must nonetheless reject defendants’ 

petitions because “the remedial procedure in Health and Safety 

Code section 11361.8” does not extend retroactive relief to 

persons who were previously convicted of violating that statute. 

Section 11361.8, subdivision (a) allows any person “who would 

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

of a lesser offense” under Proposition 64 to file a petition seeking 

dismissal or resentencing “in accordance with Sections 11357, 

11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as 

those sections have been amended or added by that act.” The 

Attorney General appears to argue that because Penal Code 

section 4573.6 is not among the statutes listed in section 

11361.8, subdivision (a), persons convicted of violating that 

section are not eligible for relief. We disagree with that analysis. 

If defendants are correct that cannabis possession is no longer a 

violation of Penal Code section 4573.6, that is a result of 

Proposition 64’s new legalization provision (§ 11362.1) and the 

Act’s amendments to section 11357, which had previously made 

it unlawful to possess nonmedical cannabis. Thus, defendants 

are in fact seeking relief “in accordance with” two of the statutes 

listed in section 11362.8, subdivision (a) “as those sections have 

been amended or added by the act.” (Ibid.)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

29

Our Courts of Appeal are currently divided as to the 

meaning of the phrase “any controlled substance[], the 

possession of which is prohibited by Division 10 . . . of the 

Health and Safety Code,” which appears in multiple Penal Code 

sections regulating drugs in prisons. (Pen. Code, § 4573.6, subd. 

(a); see Pen. Code, §§ 4573, subd. (a) [“any controlled substance, 

the possession of which is prohibited by Division 10 . . . of the 

Health and Safety Code”], 4573.9 [same].) In People v. Fenton

(1993) 20 Cal.App.4th 965 (Fenton), the Court of Appeal 

considered the meaning of that phrase within the context of 

Penal Code section 4573, which makes it unlawful to bring or 

send into a prison “any controlled substance, the possession of 

which is prohibited by Division 10.” (Pen. Code, § 4573, subd. 

(a).) The defendant, who was found smuggling hydrocodone into 

a jail, argued that he could not be convicted under Penal Code 

section 4573 because he had had a physician’s prescription for 

the substance, and thus his possession was not “prohibited by 

Division 10” of the Health and Safety Code. (See § 11350, subd. 

(a) [prohibiting possession of hydrocodone “unless upon the 

written prescription of a physician”].) The Fenton court agreed, 

concluding that Penal Code section 4573 was inapplicable 

because the manner of defendant’s possession did not violate 

any provision in division 10. (Fenton, at p. 969.) 

In People v. Taylor (2021) 60 Cal.App.5th 115, review 

granted April 14, 2021, S267344 (Taylor), the defendants relied 

on Fenton in arguing that Proposition 64’s amendments to 

section 11357 mean that possession of less than 28.5 grams of 

cannabis in prison by an adult no longer qualifies as a violation 

of Penal Code section 4573.6. The court rejected that argument 

(and Fenton), concluding that “[b]ased on the entire statutory 

scheme, . . . the phrase ‘any controlled substance, the possession 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

30

of which is prohibited by Division 10 . . .’ [citation] 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.” (Taylor, at p. 130.) In the Taylor

court’s view, because cannabis possession remains unlawful 

under some circumstances, possession of cannabis in prison 

continues to qualify as a violation of Penal Code section 4573.6. 

We need not resolve that dispute here. Regardless of how 

Penal Code section 4573.6 might apply with respect to other 

controlled substances, the unique language of Health and Safety 

Code section 11362.45(d) makes clear that the voters intended 

cannabis possession to remain a violation of that felony 

provision. There is no question that before the enactment of 

Proposition 64, possession of cannabis in prison qualified as a 

violation of Penal Code section 4573.6. Section 11362.45(d), in 

turn, expressly directs that Proposition 64’s newly added 

legalization provision, which declares it is now lawful for adults

to possess up to 28.5 grams of cannabis in most circumstances

(§ 11362.1, subd. (a)(1)), does not “amend” or “affect” any laws 

pertaining to cannabis use in prison, which we have found to 

include possessory offenses. (See ante, at pp. 13–18.) Voters 

would have reasonably understood this language to mean that 

any preexisting laws regulating cannabis possession in prison 

would remain in place. Under that view, voters would expect 

cannabis possession to remain a violation of Penal Code section 

4573.6 unless and until further amendments are made to the 

statutory scheme. (See Voter Guide, supra, text of Prop. 64, § 

10, p. 210 [authorizing the Legislature to “amend, add, or repeal 

any provisions to further reduce the penalties for any of the 

offenses addressed by this [Act]”].) Under defendants’ 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

31

interpretation of Penal Code section 4573.6, in contrast, 

Proposition 64 would directly “amend” or “affect” a law 

pertaining to smoking of ingesting cannabis. More specifically, 

their interpretation would “amend” and “affect” the scope of 

Penal Code section 4573.6 by making it no longer applicable to 

cannabis possession. (See Perry, supra, 32 Cal.App.5th at p. 

896 [“We decline to adopt an interpretation of . . . Penal Code 

section 4573.6 that appears to be so at odds with the intent 

behind and language of Proposition 64”]; Herrera, supra, 52 

Cal.App.5th at pp. 994–995, rev. granted [adopting Perry’s

reasoning].)14

The dissent takes a different view, though for reasons that 

are distinct from the arguments made by defendants or any 

other court that has addressed this issue. While agreeing that 

Health and Safety Code section 11362.45(d)’s carve-out 

provision operates to preserve cannabis-related convictions 

under Penal Code section 4573.8 (which makes it a felony to 

14 The Court of Appeal concluded that this case was 

controlled by its prior decision in Fenton, supra, 20 Cal.App.4th 

965. (See Raybon, supra, 36 Cal.App.5th at pp. 116–119.) As 

the Perry court explained, however, the situation in Fenton was 

substantially different than the one presented here. 

Specifically, Fenton’s conclusion that Penal Code section 4573 

“ ‘permit[s] controlled substances to be in penal institutions 

under proper circumstances’ [citation] . . . . did not conflict with 

any other provision of law. Here, a conclusion that Division 10 

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).)” (Perry, supra, 32 Cal.App.5th at p. 894.)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

32

possess any drug or alcohol in prison), the dissent does not 

believe the carve-out provision preserves cannabis-related 

convictions under Penal Code section 4573.6, subdivision (a)

(which applies to “controlled substances, the possession of which 

is prohibited in Division 10”). (See conc. & dis. opn. of Kruger, 

J., post, at pp. 1, 7.) According to the dissent, whether cannabis 

possession remains a violation of Penal Code section 4573.6 

turns instead solely on the meaning of the clause, “controlled 

substance[], the possession of which is prohibited by Division 

10.” (Id., subd. (a).) As noted above, the meaning of that 

language has divided our courts. (See ante, at pp. 28–30.) The 

dissent, however, declines to choose a side in that debate and 

would leave the question open. (See conc. & dis. opn. of Kruger, 

J., post, at p. 6.) 

Before turning to the merits of the dissent’s proposed 

interpretation of Proposition 64, we first address the dissent’s

assertion that there is no reason for this court to even decide

whether cannabis possession remains a violation of Penal Code 

section 4573.6. The dissent reasons that it is unnecessary to 

address that issue because the defendants’ petitions seek 

dismissal of their sentences, but the most relief they could 

possibly obtain under Proposition 64 would be resentencing 

pursuant to Penal Code section 4573.8’s “relatively lighter” 

(conc. & dis. opn. of Kruger, J., post, at p. 8, fn. 3) triad of 

penalties. That reasoning rests on the assumption that Penal 

Code section 4573.8 might qualify as a “lesser offense” of Penal 

Code section 4573.6 within the meaning of Proposition 64’s 

remedial provision. (See § 11361.8, subd. (a) [persons “currently 

serving a sentence for a conviction . . . who would not have been 

guilty of an offense, or who would have been guilty of a lesser 

offense [under Proposition 64]” may petition for “resentencing or 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

33

dismissal”].) In the dissent’s view, regardless of whether the 

defendants would be entitled to resentencing had they sought 

that remedy (another issue the dissent would leave open), they 

are not entitled to dismissal, negating the need to address 

Proposition 64’s effect on Penal Code section 4573.6. 

While the dissent concludes that we should avoid this 

issue entirely based on the manner the defendants have styled 

their request for relief, we think the question is properly before 

us and should be decided now. Indeed, the defendants’ briefs in 

both the Court of Appeal and this court include an entire section

expressly arguing that even if section Health and Safety Code 

section 11362.45(d) generally extends to possessory offenses, the 

other changes Proposition 64 made to division 10 mean that 

cannabis possession no longer qualifies as a violation of Penal 

Code section 4573.6. Moreover, whether cannabis possession 

remains a violation of Penal Code section 4573.6 is an issue that 

has already divided our lower courts and therefore requires 

resolution by this court. We think the better course is to decide 

this fully briefed legal question now rather than avoid it merely 

because defendants described their request for relief as one 

seeking dismissal rather than resentencing.

15

 

15 Deciding whether cannabis possession remains a violation 

of Penal Code section 4573.6 now also furthers the interest in 

judicial economy. During the pendency of this case, we have 

granted and held over 40 cases addressing whether Proposition 

64 legalized possession of cannabis in prisons. A vast majority 

of those cases involve defendants who were convicted of 

violating Penal Code section 4573.6. The dissent’s proposed 

course would effectively force the five defendants in this case

(along with every other similarly situated person seeking relief 

under Proposition 64) to refile new petitions under section 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

34

Turning to the merits of the dissent’s interpretation, a 

brief review of Proposition 64’s structure is helpful. The central 

provision of Proposition 64 is newly added section 11362.1, 

which declares that, subject to certain exceptions, it is now legal 

for persons age 21 years or older to engage in a wide array of 

cannabis-related conduct, including possessing up to 28.5 grams

of the drug. To conform to section 11362.1’s broad legalization 

provision, Proposition 64 also amended language in section 

11357 that had previously made possession of up to 28.5 grams 

of cannabis an infraction. That amended language modifies

section 11357 to state the penalties for conduct that falls outside 

the parameters of section 11362.1’s legalization provision (i.e., 

possessing more than 28.5 grams of cannabis or possession by 

persons under the age of 21). Section 11362.45(d), in turn, states 

11361.8 seeking resentencing (rather than dismissal), requiring 

our lower courts to decide anew whether cannabis possession 

remains a violation of Penal Code section 4573.6. Given that the 

defendants have expressly raised and briefed whether cannabis 

possession remains a violation of Penal Code section 4573.6, we 

see no need to force them to relitigate (and for our lower courts 

to redecide) that pure question of law. The dissent suggests 

there might be some benefit to proceeding in that way because 

our lower courts would then be able to consider defendants’

entitlement to resentencing “in a case in which the relevant 

arguments had been appropriately raised and litigated, which is 

not the case here.” (Conc. & dis. opn., Kruger, J., post, at p. 8, 

fn. 3.) But whether cannabis possession remains a violation of 

Penal Code section 4573.6 is a precursor question our lower 

courts would have to answer before considering any possible 

entitlement to resentencing. The resolution of the Penal Code 

section 4573.6 issue here means our lower courts do not need to 

even reach the resentencing issue.
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

35

that Proposition 64’s affirmative legalization provision has no 

effect on laws pertaining to cannabis use in prison.16 

As described above, we think the key statutory language 

is not that complicated: Section 11362.45(d) references section 

11362.1, which is the broadly worded catch all provision from 

Proposition 64 that declares it is now legal for adults to possess 

up to 28.5 grams of cannabis under most circumstances. 

Section 11362.45(d) then says that this broad legalization 

provision does not “amend, repeal, affect, restrict, or preempt” 

any “[l]aws pertaining to smoking or ingesting cannabis,” which 

the dissent agrees encompasses possessory offenses. We think 

that when voters were told the broad pronouncement legalizing

cannabis contained in section 11362.1 would not affect laws 

16 While at times referencing to section 11362.1 as a 

“legalization provision” (see, e.g., conc. & dis. opn. of Kruger, J., 

post, at p. 4), the dissent characterizes it as “in essence, a 

preemption provision” (ibid.), while describing section 11357 as 

a separate “legalization provision” (conc. & dis. opn. of Kruger, 

J., post, at p. 11). We disagree with those characterizations.

Although section 11362.1 contains a preemption clause, that 

new provision — one of the very first provisions presented in 

Proposition 64 — also broadly pronounces that a wide range of 

cannabis-related conduct is now lawful, including the possession 

of not more than 28.5 grams of cannabis by persons over the age 

of 21. The amendments to section 11357, in comparison, appear 

far later in the text of Proposition 64 and in our view were made 

to conform to the broad legalization pronouncement made in 

section 11362.1. Stated differently, section 11362.1, not section 

11357, is the “legalization provision” and the amendments to 

section 11357 simply ensure consistency with section 11362.1. 

Indeed, it would seem to make little sense to adopt a new 

provision declaring cannabis possession generally legal (section 

11362.1), while leaving in place a preexisting statute declaring 

cannabis possession generally unlawful (section 11357). 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

36

prohibiting possession in prison, they would understand this 

language to mean that existing laws prohibiting cannabis 

possession in prison would remain in place. 

The dissent disagrees, concluding that the language is, in 

fact, quite complicated. The dissent concludes that the voters 

were asked to journey through a phalanx of complex statutory

cross-references and legal conclusions and, at the end of the 

journey, would have concluded that Proposition 64 might 

actually “amend, repeal, affect, restrict, [and] preempt” some

laws prohibiting the possession of cannabis in prisons, but not 

others. The journey goes something like this: The dissent first 

contends that when voters were told Proposition 64’s key 

legalization provision would have no effect on in-prison 

possession offenses, they would have understood that language 

to mean the initiative would have no effect on convictions under 

Penal Code section 4573.8, but might have an effect on 

convictions under Penal Code section 4573.6. In the dissent’s 

view, voters would have come to this conclusion because they 

would have understood that section 11362.45(d)’s “no effect” 

clause references Proposition 64’s legalization provision (§ 

11362.1), but not the amendments made to section 11357. They 

then would have understood that Proposition 64 removed 

section 11357’s previous general prohibition on cannabis 

possession and replaced it with more narrow prohibitions. They 

then would have realized that section 11357 is part of division 

10 of the Health and Safety Code. And they would have noted 

that Penal Code section 4573.6 cross-references the prohibitions 

in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a 

felony to possess a “controlled substance[], the possession of 

which is prohibited under Division 10”].) Voters would then

realize that because division 10 no longer contains a general 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

37

prohibition on cannabis possession (it instead conforms to 

Proposition 64’s legalization provision by prohibiting a more 

narrow class of cannabis-related crimes involving persons under 

the age of 21 and quantities in excess of 28.5 grams), and

because section 11362.45(d) fails to state that the amendments 

to section 11357 were not intended to affect prison offenses (it 

only cross-references section 11362.1’s general legalization 

prohibitions), cannabis possession might no longer qualify as a 

violation of Penal Code section 4573.6. 

But the work of the voter would still not be done. From 

that, the voters would then deduce that whether Proposition 64 

affects convictions under Penal Code section 4573.6 will 

ultimately depend on how courts interpret the phrase “the 

possession of which is prohibited under Division 10” (which the 

dissent declines to do here). More specifically, they would 

understand that if the courts ultimately side with the Fenton’s 

line of analysis (see ante, at pp. 28–29), then criminal 

convictions under Penal Code section 4573.6 would be 

prohibited under most circumstances, but if courts side with 

Taylor’s line of analysis (see ante, at pp. 29–30) criminal 

convictions under Penal Code section 4573.6 would remain

unaffected by Proposition 64.

While the dissent has come up with an intricate 

interpretation, we do not think it is the most reasonable 

interpretation of the initiative. (See People v. Jones (1993) 5 

Cal.4th 1142, 1150 (Jones) [when faced with ambiguous 

statutory language, our duty is to discern “the most reasonable 

reading of” the law].) Simply put, we are dubious that when 

voters were told Proposition 64’s new legalization provision 

would have no effect on laws regulating possession of cannabis 

in prison, they would have understood that language to require 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

38

the complex series of deductions and statutory cross-references 

that the dissent’s interpretation is built upon. (See Valencia, 

supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to 

“ ‘study and understand the content of complex initiative 

measures’ ” “it is unreasonable to presume that the voters had 

such a ‘degree of thoroughness’ that they . . . analyzed various 

provisions using the acumen of a legal professional”].) We do 

not read the language, “Section 11362.1 does not amend, repeal, 

affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to 

smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning, 

as the dissent seems to read it: “We hereby (might) do away 

with the more serious criminal sanctions for cannabis

possession in a penal setting under Penal Code section 4573.6, 

but people in prison may continue to be prosecuted and receive 

shorter sentences pursuant to Penal Code section 4573.8.” If 

Proposition 64 were truly intended to have no effect on 

possessory offenses under Penal Code section 4573.8, but 

potentially preclude possessory offenses under Penal Code 

section 4573.6, we would expect the text to say so in a less 

convoluted manner.17 

17 The dissent finds it significant that while two published 

appellate decisions have concluded that Health and Welfare 

Code section 11362.45(d) operates to preserve cannabis 

convictions under Penal Code section 4573.6 (see Perry, supra, 

32 Cal.App.5th at p. 896; Herrera, supra, 52 Cal.App.5th at 

pp. 994–995, rev. granted), the Attorney General did not 

expressly rely on that argument here and his briefing appears

to leave open whether cannabis possession remains chargeable 

under that provision. (See conc. & dis. opn., Kruger, J., post, at 

pp. 8–9.) At oral argument, however, the Attorney General 

clarified that the People do believe cannabis possession remains 

a violation of Penal Code section 4573.6, citing the Sixth 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

39

The dissent’s reading of section 11362.45(d) would also 

have curious consequences regardless of how our courts 

ultimately interpret the language in Penal Code section 4573.6 

(which again, the dissent has declined to take a position on). 

Under the view espoused in Taylor, supra, 60 Cal.App.5th 115,

review granted, cannabis possession, regardless of the 

defendant’s age, would remain a violation of Penal Code section 

4573.6 because division 10 still prohibits possession under some 

circumstances. (See ante, at pp. 29–30.) But under the view 

espoused in Fenton, only inmates under the age of 21 could be 

prosecuted under Penal Code section 4573.6, and therefore 

inmates under the age of 21 would face harsher felony treatment 

for possession of cannabis than inmates over the age of 21.

18

 

This means that if the dissent’s theory ultimately came to 

fruition, culminating in the application of Fenton, 20-year-old

inmates (or any 20 year old who happens to be on prison 

grounds) could be prosecuted under Penal Code section 4573.6,

District’s decision in Taylor, supra, 60 Cal.App.5th 115 (see ante

at pp. 29–30). Having embraced Taylor’s conclusion that 

cannabis possession remains a violation of Penal Code section 

4573.6, we find little significance in the fact that the Attorney 

General did not expressly approve of an alternative legal theory 

that results in the same outcome. 

18 As discussed above, Fenton, supra, 20 Cal.App.4th 965, 

concluded that Penal Code section 4573 (which includes the 

same operational language as Penal Code section 4573.6) 

applies only when the circumstances of defendant’s possession 

would independently violate a provision in division 10. (See 

ante, at pp. 28–29.) Section 11357, in turn, retains prohibitions 

on possession by persons under the age of 21 (see § 11357, subd. 

(a)), meaning that possession by such persons would violate a 

provision in division 10. Thus, under Fenton, persons under the 

age of 21 could still be prosecuted under Penal Code section 

4573.6.
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

40

but 21 year olds could not. We find it unlikely that the voters 

would have understood the text of sections 11362.45(d) and 

11357 to mean that a 20-year-old inmate found in possession of 

cannabis would remain chargeable under Penal Code section 

4573.6, but a 21-year-old inmate — perhaps in the same 

correctional facility and even sharing the same cell — who

engaged in the same conduct would not. Indeed, such an 

outcome, particularly punishing less mature inmates more 

harshly than more mature inmates, would seem to make little 

sense in a penological setting.19 So in the end, the dissent’s 

interpretation either ends in the same place as the majority view

(albeit, through a more winding road) or would mean that 

possession of cannabis in prison by persons under the age of 21 

would face harsher felony treatment than persons over the age 

of 21.

It is true that the amendments Proposition 64 made to 

division 10 have created tension between the “no effect” 

principle set forth in Health and Safety Code section 

11362.45(d) and Penal Code section 4573.6, subdivision (a)’s 

reference to controlled substances “the possession of which is 

prohibited under Division 10.” When faced with such ambiguity, 

however, our task is “ ‘to identify the interpretation that best 

effectuates the [voters’] intent.’ ” (Rossa v. D.L. Falk 

19 While the dissent contends “the possibility that 

Proposition 64 affected charging under Penal Code section 

4573.6 is not so far-fetched that we can dismiss it out of hand” 

(conc. & dis. opn., Kruger, J., post, at p. 13), it offers no 

justification for why the electorate would want to punish 

younger people more harshly for cannabis offenses in prison 

than more mature people. (See Jones, supra, 5 Cal.4th at p. 

1150 [when interpreting ambiguous language, court’s role is to 

ascertain “the most reasonable reading of” the law].)
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

41

Construction, Inc. (2012) 53 Cal.4th 387, 392; see Lungren v. 

Deukmejian (1988) 45 Cal.3d 727, 735 [“The intent prevails over 

the letter, and the letter will, if possible, be so read as to conform 

to the spirit of the act”].) In this case, we think a more plausible 

conclusion is that when voters read language stating that the 

newly added statute legalizing adult possession of cannabis in 

most situations would have no effect on laws prohibiting 

possession of cannabis in prison, they would have understood 

that language as an assurance that Proposition 64 would not 

affect any preexisting laws prohibiting possession of cannabis in 

prison. (See Perry, supra, 32 Cal.App.5th at pp. 895–896; 

Herrera, supra, 52 Cal.App.5th at p. 995, rev. granted.) 

Indeed, as far as we are aware, no court has ever 

concluded (nor has any party ever argued) that voters would 

construe section 11362.45(d)’s reference to Proposition 64’s 

central legalization provision, but not to the conforming 

amendments made to section 11357, as a signal that the 

initiative was intended to have different effects on convictions 

under Penal Code section 4573.6 versus those under Penal Code 

section 4573.8. Or rather, that the initiative might have 

different effects on those two provisions depending on how our 

courts ultimately interpret the language of Penal Code section 

4573.6. By offering an interpretation that no other court or 

party has ever articulated, it seems it is the dissent that has 

“step[ped] out on its own.” (Conc. & dis. opn. of Kruger, J., post, 

at p. 9.) 

c. Defendants’ policy arguments

Defendants also raise a series of policy-related arguments, 

contending that the consequences of continuing to treat 

possession of small amounts of cannabis in prison as a violation 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

42

of Penal Code section 4573.6 is inconsistent with the public’s 

evolving attitude toward the drug and its “changing views about 

the societal costs of incarceration.” (See, e.g., Prop. 215, as 

approved by voters, Gen. Elec. (Nov. 5, 1996) [decriminalizing 

possession of cannabis possession if the person has a physician’s 

oral or written recommendation]; Stats. 2010, ch. 708, § 1 

[reclassifying possession of less than 28.5 grams of cannabis as 

an infraction]; Prop. 36, as approved by voters, Gen. Elec. (Nov. 

6, 2012) [removing three strikes life sentences for those 

committing nonviolent felonies]; Prop. 47, as approved by voters, 

Gen. Elec. (Nov. 4, 2014) [reducing certain drug-related and 

theft-related offenses that previously were felonies or wobbler 

offenses]; Prop. 57, as approved by voters, Gen. Elec. (Nov. 8, 

2016) [reducing prison terms for nonviolent offenders by 

advancing parole consideration dates].) They note that while 

possession of cannabis is now generally legal outside the 

confines of prison, the Attorney General’s interpretation would 

subject inmates (and potentially anyone else on prison grounds) 

to two to four years of imprisonment for engaging in that same 

conduct when inside a custodial facility. Adding to the severity, 

for many inmates found in possession of cannabis, a section 

4573.6 offense can constitute an in-custody second strike, 

resulting in a consecutive sentence adding anywhere from four 

to eight years of incarceration to their present term. This is 

likely to be a common result given that Penal Code section 

4573.6 involves conduct committed on the grounds of a 

correctional facility. The present case is illustrative. As the 

result of strike enhancements, two of the five defendants 

received six-year consecutive sentences for possessing small 

amounts of cannabis, while a third defendant received a fouryear consecutive sentence. (See ante, at p. 3, fn. 4.) In Herrera, 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

43

supra, 52 Cal.App.5th 982, review granted, the defendant was 

punished even more harshly, receiving an eight-year prison 

term after being found in possession of less than one gram of 

cannabis. (See id. at pp. 985–986.)

We are sympathetic to the view that section 11362.45(d) 

creates extreme disparity between how our legal system treats 

the possession of cannabis generally versus the possession of 

such a substance inside a correctional facility. That is also true 

of many other substances, including alcohol. (See Pen. Code, § 

4573.8 [unauthorized possession of alcohol in prison constitutes 

a felony].) Some may well view an eight-year prison sentence 

for the possession of less than one gram of cannabis (one gram 

is the approximate weight of a single paper clip or a quarter 

teaspoon of sugar) as unduly harsh. The wisdom of those policy 

judgments, however, are not relevant to our interpretation of 

the statutory language. (See Superior Court v. County of 

Mendocino (1996) 13 Cal.4th 45, 53 [“The judiciary, in reviewing 

statutes . . ., may not undertake to evaluate the wisdom of the 

policies embodied in such legislation; absent a constitutional 

prohibition, the choice among competing policy considerations 

in enacting laws is a legislative function”].) Rather, our role is 

limited to determining the most reasonable construction of 

Proposition 64. For the reasons set forth above, we believe 

section 11362.45(d) is most reasonably construed to leave in 

place the prohibitions against cannabis possession in prison. 

Our interpretation notwithstanding, prosecutors of course 

retain discretion whether a person found in possession of a small 

quantity of cannabis on prison grounds warrants felony 

treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477 

[“Prosecutors have broad discretion to decide whom to charge, 

and for what crime. . . . ‘[A] district attorney’s enforcement 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

44

authority includes the discretion either to prosecute or to decline 

to prosecute an individual when there is probable cause to 

believe he has committed a crime’ ”].) As defendants note, “there 

are already [prison] regulations in place . . . to punish and deter 

this conduct.” Cannabis possession in prison remains classified 

as a serious rules violation that is subject to a custody credit 

forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15, 

§ 3323, subd. (d)(7)), which effectively translates into an 

additional four to five month jail sentence. Such conduct can 

also result in substantial loss of visitation rights, including up 

to three months of no visitation and three additional months of 

no contact visitation for a first offense, with increasing loss of 

visitation rights with each consecutive offense. (See Cal. Code 

Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the 

nature of the defendant’s sentence, a rules violation involving 

the possession of cannabis could also impact parole eligibility. 

(See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances 

tending to show unsuitability for parole for life prisoners include 

“Institutional Behavior. The prisoner has engaged in serious 

misconduct in prison or jail”].) 

In cases where prosecutors do elect to pursue criminal 

punishment, they may consider a charge under Penal Code 

section 4573.8, which carries a lower sentence than Penal Code 

section 4573.6.20 (See ante, at p. 7; see also Whalum, supra, 50 

Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a 

20 The Attorney General appears to agree with this 

suggestion, arguing that while possession of cannabis in prison 

remains chargeable under either Penal Code section 4573.6 or 

Penal Code section 4573.8, “going forward [such conduct] might 

be better charged . . . as a violation of Penal Code section 

4573.8.” 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

45

controlled substance regulated in division 10 of the Health and 

Safety Code [citations], both statutes have been used to convict 

prisoners who possesses cannabis” (italics omitted)].) 

Alternatively, depending on the defendant’s circumstances, a 

prosecutor might recommend a disposition that does not require 

a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in 

this subdivision shall be construed to prevent other dispositions 

authorized by law, including pretrial diversion, deferred entry 

of judgment, or an order granting probation pursuant to Section 

1203.1”].) Similarly, in cases where a defendant is convicted 

under Penal Code section 4573.6 and has a prior strike (as most 

of the defendants here did), the prosecution may move to dismiss 

the strike allegation, or the trial court may elect to do so on its 

own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd. 

(a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases 

where the defendant is already serving a sentence for a prior 

conviction under Penal Code section 4573.6, the prosecution or 

prison officials might recommend that the court recall the 

sentence previously ordered and resentence the defendant in the 

interests of justice pursuant to Penal Code section 1170, 

subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.) 

The Legislature, in turn, remains free to revisit whether 

the harm associated with possessing small quantities of 

cannabis in or on the grounds of a correctional facility, conduct 

that is now generally lawful outside the confines of a 

correctional facility, continues to justify the substantial 

penalties set forth in Penal Code section 4573.6. (See Voter 

Guide, supra, text of Prop. 64, § 10, p. 210 [permitting the 

Legislature, by majority vote, to reduce the penalties for any 

offense addressed in Prop. 64]; People v. Wilkinson (2004) 33 

Cal.4th 821, 840 [“ ‘The Legislature is responsible for 
PEOPLE v. RAYBON

Opinion of the Court by Groban, J.

46

determining which class of crimes deserves certain punishments 

and which crimes should be distinguished from others’ ”]; In re 

Lynch (1972) 8 Cal.3d 410, 414 [“it is the function of the 

legislative branch to define crimes and prescribe punishments, 

and that such questions are in the first instance for the 

judgment of the Legislature alone”].)

III. DISPOSITION

The judgment of the Court of Appeal is reversed, and the 

case is remanded for further proceedings consistent with this 

opinion. 

 GROBAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

JENKINS, J.
1

PEOPLE v. RAYBON

S256978

Concurring and Dissenting Opinion by Justice Kruger

I agree with the majority that Proposition 64, fairly read, 

did not legalize cannabis possession in California’s prisons and 

jails, even as it either overrode or lifted state and local 

prohibitions on possessing small quantities of cannabis in most 

other places. 

It is, however, a separate question whether, after 

Proposition 64, prosecutors may continue to charge in-prison 

cannabis possession exactly as they have been — that is, by 

choosing at will between two overlapping felony statutes, one of 

which carries steeper penalties than the other, and whose 

coverage is expressly tied to the scope of state-law prohibitions 

applicable outside of prison. The majority concludes that 

prosecutors are still permitted to choose (though the majority 

encourages them to make their choices wisely). (Maj. opn., ante, 

at pp. 30–31, 43–45.) Because I do not think the particular 

reasons the majority gives for extending this permission can be 

squared with the statutory text, and because the majority’s 

conclusions on this subject are unnecessary to resolve this case 

in any event, I do not join this portion of the majority opinion.

I.

For many decades, Penal Code section 4573.6 (section 

4573.6) served as a general criminal prohibition on possessing 

contraband substances in prisons, jails, and other detention 

facilities. As originally enacted in 1949, former section 4573.6 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

2

made it a felony to possess “any narcotics, or drugs . . . , or 

alcoholic beverage” without authorization. (Stats. 1949, ch. 833, 

§ 3, p. 1583.) So it remained (with occasional modifications not 

pertinent here) until 1990, when the Legislature determined 

that possession offenses involving controlled substances 

generally should be punished more harshly than the possession 

of other drugs or alcohol. (Legis. Counsel’s Dig., Sen. Bill 

No. 2863 (1989–1990 Reg. Sess.) 5 Stats. 1990, Summary Dig., 

pp. 647–648; see Stats. 1990, ch. 1580, § 4, pp. 7555–7556.)

The result was a new two-part scheme for addressing the 

in-prison possession of contraband substances. As currently 

written, Penal Code section 4573.8 (section 4573.8) provides the 

basic prohibition, making it a felony to possess “drugs . . . or 

alcoholic beverages” without authorization. Like violations of 

the old version of section 4573.6, violations of section 4573.8 are 

punishable by imprisonment for 16 months, or two or three 

years in state prison. (Pen. Code, § 18.)

Section 4573.6, meanwhile, was recast as a prohibition on 

the possession of controlled substances, punishable by a steeper 

triad of penalties: two, three, or four years in state prison. By 

its terms, however, the revamped section 4573.6 does not 

purport to punish the possession of all controlled substances; 

rather, it punishes the possession of substances “the possession 

of which is prohibited by Division 10 (commencing with Section 

11000) of the Health and Safety Code” — a division otherwise 

known as the California Uniform Controlled Substances Act. 

(Pen. Code, § 4573.6, subd. (a); see Health & Saf. Code, § 11000.) 

Possession of other drugs — i.e., drugs the possession of which 

is not prohibited by division 10 — may be prosecuted only under 

section 4573.8.
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

3

Since 1990, both section 4573.8 and section 4573.6 have 

been used to prosecute prisoners found in possession of 

cannabis. (See People v. Whalum (2020) 50 Cal.App.5th 1, 5, 

review granted Aug. 12, 2020, S262935.) Cannabis is, of course, 

a drug within the meaning of the basic prohibition in section 

4573.8. (Whalum, at p. 5.) And before Proposition 64, division 

10 also generally prohibited the unauthorized possession of 

cannabis (Health & Saf. Code, former § 11357), making 

cannabis a controlled substance “the possession of which is 

prohibited” for purposes of section 4573.6 (Pen. Code, § 4573.6, 

subd. (a)). (See also Health & Saf. Code, § 11054, subd. (d)(13) 

[provision of div. 10 listing cannabis as a Schedule I 

hallucinogenic drug]; id., § 11007 defining “ ‘[c]ontrolled 

substance’ ” to include Schedule I drugs.) 

Enter Proposition 64, the Control, Regulate and Tax Adult 

Use of Marijuana Act (the Act), which amended division 10 to 

substantially loosen cannabis restrictions.1 In enacting the 

statute, voters found and declared an intent to, among other 

things, “incapacitate the black market” in cannabis “and move 

[cannabis] purchases into a legal structure with strict 

safeguards against children accessing it.” (Voter Information 

Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 2, subd. D., 

p. 178.) Voters also declared an intent to “alleviate pressure on 

the courts” handling nonviolent drug offenses, “but continue to 

allow prosecutors to charge the most serious [cannabis]-related 

offenses as felonies, while reducing the penalties for minor 

[cannabis]-related offenses.” (Id., § 2, subd. G., p. 179.)

1 Like the majority, I use the term “cannabis” instead of the 

original statutory term “marijuana,” in keeping with 

subsequent legislative revisions to the statutory text. (See maj. 

opn., ante, at p. 1, fn. 1.)
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

4

Three provisions of Proposition 64 are particularly 

relevant to our analysis here, listed in the order in which they 

appear in the current version of the Health and Safety Code. 

First, voters amended Health and Safety Code section 11357 to 

lift its prohibitions on possessing small amounts of cannabis 

(28.5 grams or less) for most adults (prohibitions remain in place 

for individuals under 21) in most places (prohibitions remain for 

possession on school grounds). (Health & Saf. Code, § 11357, as 

amended by Prop. 64, § 8.1.)

Second, voters added a legalization provision displacing 

other state and local prohibitions on cannabis possession: 

“Subject to” various provisions, including newly added Health 

and Safety Code section 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” possess 28.5 grams of cannabis or 

less. (Id., § 11362.1, subd. (a)(1), added by Prop. 64, § 4.4.) This 

legalization provision is also, in effect, a preemption provision; 

through the use of the “notwithstanding” clause, section 11362.1 

signals that “its provisions prevail over all contrary laws 

prohibiting the activities that it legalizes, except as ‘[s]ubject 

to’ ” certain other provisions, including section 11362.45. 

(People v. Whalum, supra, 50 Cal.App.5th at p. 7, review 

granted, citing In re Greg F. (2012) 55 Cal.4th 393, 406.)

Third, voters enacted Health and Safety Code section 

11362.45, which specifies certain exceptions from the 

legalization provision in section 11362.1 for various categories 

of laws. It provides, as relevant here: “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 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

5

under the jurisdiction of the Department of Corrections and 

Rehabilitation or the Division of Juvenile Justice,” or on the 

grounds of, or within, other detention facilities including local 

jails. (Health & Saf. Code, § 11362.45, subd. (d), added by Prop. 

64, § 4.8 and amended by Stats. 2017, ch. 27, § 133.) 

The central question presented in this case concerns the 

relationship between these latter two provisions, the 

legalization provision in Health and Safety Code section 11362.1 

and the savings provision in Health and Safety Code section 

11362.45, subdivision (d). Petitioner Goldy Raybon argues,2 and 

the Court of Appeal below agreed, that the legalization 

provision — which says that “notwithstanding any other 

provision of law, it shall be lawful under state and local law” to 

possess 28.5 grams of cannabis or less (Health & Saf. Code, 

§ 11362.1, subd. (a)(1)) — by its plain terms overrides any 

statute prohibiting possession of small amounts of cannabis, 

including both sections 4573.6 and 4573.8. Raybon further 

argues, and the Court of Appeal further agreed, that the savings 

provision in Health and Safety Code section 11362.45, 

subdivision (d), for prisons and other detention facilities does 

not apply because that provision refers only to “[l]aws pertaining 

to smoking or ingesting,” and does not speak of laws pertaining 

to possession. It follows, in Raybon’s telling, that in-prison 

cannabis possession is now lawful, and because it is lawful, he 

is entitled to have his prior section 4573.6 conviction wiped away 

under Proposition 64’s resentencing provision. (Health & Saf. 

Code, § 11361.8, subd. (a).)

2 Raybon’s case has been consolidated in this court with that 

of four other petitioners; references in this opinion to arguments 

made by Raybon include those made by the petitioners in the 

consolidated cases. 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

6

I agree with the majority that Raybon takes too cramped 

a view of the savings provision, and thus too broad a view of the 

preemptive effect of the legalization provision. The phrase 

“[l]aws pertaining to smoking or ingesting” (id., § 11362.45, 

subd. (d)) is perhaps inartful. But, fairly read, the language 

indicates that voters did not wish for section 11362.1’s 

legalization provision to override laws prohibiting cannabis 

possession in prison — laws that bear an obvious and close 

logical relationship to smoking or ingesting cannabis in prison. 

(Maj. opn., ante, at pp. 13–27.)

The majority goes on, however, to answer the separate 

question whether, after Proposition 64, in-prison cannabis 

possession remains chargeable under section 4573.6. As the 

majority explains, this question raises an interpretive dilemma. 

Section 4573.6 incorporates the scope of prohibitions in division 

10 of the Health and Safety Code, which Proposition 64 

largely — but not completely — eliminated. The issue, then, is 

how section 4573.6 applies to the possession of controlled 

substances that division 10 prohibits in some situations but not 

others. This is an interpretive issue that predates Proposition 

64, but which Proposition 64’s regime of partial legalization has 

brought to the fore, and that has now become the subject of a 

conflict in the Courts of Appeal. (Compare People v. Fenton

(1993) 20 Cal.App.4th 965, 966–967 [identical language in Pen. 

Code, § 4573 criminalizes the possession of substances only to 

the extent possession would be prohibited in like circumstances 

by div. 10] with People v. Taylor (2021) 60 Cal.App.5th 115, 131, 

review granted Apr. 14, 2021, S267344 [§ 4573.6 criminalizes 

possession of substances that are prohibited in any 

circumstances under div. 10]; see maj. opn., ante, at pp. 29–31.) 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

7

The majority decides to avoid this interpretive dilemma —

which has not been adequately briefed in this court in any 

event — because it sees in Proposition 64’s savings provision an 

alternative path to answering the charging question. In the 

majority’s view, Health and Safety Code section 11362.45, 

subdivision (d), means not only that prison laws are exempt 

from the provision of Proposition 64 generally making it lawful 

to possess small quantities of cannabis (id., § 11362.1), but that 

prison laws are not affected in any way by any other provision 

of the Act — not even indirectly, through section 4573.6’s 

express incorporation of other provisions that were amended by 

Proposition 64.

For a number of reasons, I do not join this portion of the 

majority opinion. For one thing, it is unnecessary. We do not 

need to answer questions about post-Proposition 64 charging 

practices to resolve Raybon’s claim concerning his preProposition 64 conviction. Raybon’s only argument here is that 

he is entitled to the retroactive dismissal of his prior conviction 

under Proposition 64 because he is a person “who would not 

have been guilty of an offense” had Proposition 64 been in effect 

at the time. (Health & Saf. Code, § 11361.8, subd. (a).) As the 

Attorney General notes, it is a full answer to observe that 

Proposition 64 did not legalize cannabis possession in prison; 

whatever indirect effect Proposition 64 may have had on future 

prosecutions under section 4573.6, cannabis possession remains 

punishable as a felony under section 4573.8. Because Raybon 

would have been guilty of that offense even had Proposition 64 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

8

been in effect at the time, he is not entitled to the only form of 

relief he has sought in this proceeding.3

The majority’s alternative resolution of the issue also 

depends entirely on an argument about the import of 

Proposition 64’s savings provision that none of the parties have 

made. While the Attorney General relies on the savings 

provision to argue that Proposition 64 did not legalize cannabis 

possession in prison, he expressly acknowledges that 

Proposition 64 might still “have an effect on future charging 

decisions.” He explains that “due to the removal of certain 

3 Perhaps we would have needed to address the future of 

section 4573.6 if Raybon had asked the court for resentencing 

based on the differences between section 4573.6’s relatively 

heavier penalties and section 4573.8’s relatively lighter ones. 

(See Health & Saf. Code, § 11361.8, subd. (a) [authorizing 

resentencing for a person “who would have been guilty of a 

lesser offense under [Proposition 64] had that act been in effect 

at the time of the offense”].) But Raybon did not do so, instead 

opting to seek outright dismissal. There is therefore no need for 

us to decide here whether in-prison cannabis possession remains 

punishable under section 4573.6 as well as section 4573.8. Nor 

is there any reason for us to address any other interpretive issue 

that might arise in a case involving a request for resentencing 

under section 4573.8, including whether section 4573.8 qualifies 

as a lesser offense of section 4573.6. (Cf. maj. opn., ante, at 

p. 32.) 

The majority observes that it is more efficient to reach this 

question here; were we instead to reserve it, Raybon and others 

like him would have to file new petitions seeking this more 

modest form of relief. (Maj. opn., ante, at pp. 33–34, fn. 15.) 

True. But were they to do so, we would presumably be able to 

address their statutory entitlement to that form of relief in a 

case in which the relevant arguments had been appropriately 

raised and fully litigated, which is not the case here.
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

9

prohibitions from division 10 of the Health and Safety Code, 

going forward, the possession of cannabis in a custodial 

institution might be better charged prospectively as a violation 

of Penal Code section 4573.8 (which prohibits the possession of 

drugs) rather than of Penal Code section 4573.6 (which prohibits 

the possession of controlled substances ‘the possession of which 

is prohibited by Division 10’).” Despite ample encouragement 

from the two published appellate decisions adopting arguments 

much like the majority’s (see maj. opn., ante, at pp. 31–32 & 

fn. 14 [citing cases]), the Attorney General has studiously 

avoided arguing that Proposition 64’s savings provision for 

prison-related laws means that prosecutors may treat section 

4573.6 as though it were partly suspended in amber, preserving 

division 10’s cannabis-related prohibitions as they existed 

before the proposition passed. In reaching this conclusion 

anyway, the majority steps out on its own.

But the most fundamental reason I do not join the 

majority on this issue — and the crux of our disagreement 

here — is that the majority’s resolution of the issue depends on 

a reading of the savings provision that departs from its plain 

text. As noted, Health and Safety Code section 11362.45, 

subdivision (d), is written as an exception to Proposition 64’s 

legalization and preemption provision, providing that 

“Section 11362.1 does not amend, repeal, affect, restrict, or 

preempt” prison laws. The majority reads this language as 

though it instead provided that the Act — as a whole — should 

not be understood to amend or affect laws relating to in-prison 

cannabis. (E.g., maj. opn., ante, at pp. 40–41.) This subtle but 

important substitution is what leads the majority to conclude 

that no matter how section 4573.6 “might apply with respect to 

other controlled substances,” the “unique language” of the 

savings provision in section 11362.45, subdivision (d), requires 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

10

applying Health and Safety Code division 10’s restrictions on 

cannabis precisely as they existed before Proposition 64. (Maj. 

opn., ante, at p. 30.)

The “unique language” of the savings provision is more 

limited than the majority acknowledges. The provision does not 

preserve prison-related laws from the Act in its entirety. 

(Accord, maj. opn., ante, at pp. 40–41.) Rather, by its terms, the 

savings provision carves prison laws out from only the 

legalization provision in Health and Safety Code section 

11362.1, which had made cannabis possession lawful 

notwithstanding state and local laws to the contrary. This 

means prison laws are not subject to the preemptive effects of 

section 11362.1. But it says nothing about other effects that 

other provisions of Proposition 64 might have on the operation 

of prison-related laws such as section 4573.6. And it is 

ultimately the operation of those other provisions — in 

particular, the dramatically narrowed scope of restrictions on 

cannabis possession in Health and Safety Code section 11357 —

that matters here.

Recall that section 4573.6 was written in a manner that 

explicitly ties its prohibition on in-prison possession of 

controlled substances to whether possession of that controlled 

substance is prohibited outside of prison under division 10. 

Recall also that before Proposition 64, it was understood that 

former section 4573.6 could be used to prosecute in-prison 

cannabis possession because division 10 (in Health & Saf. Code, 

former § 11357) generally prohibited cannabis possession 

without authorization. (See People v. Whalum, supra, 50 

Cal.App.5th at p. 5, review granted.) Now, finally, recall that 

one of the many changes made by Proposition 64 was to lift the 

prohibitions in section 11357 on the possession of small 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

11

quantities of cannabis, for most people and in most settings. 

(See ante, at p. 3.)

Had Proposition 64 repealed all of Health and Safety Code 

division 10’s restrictions on cannabis possession, then, as a 

textual matter, there could be no genuine question about 

whether in-prison cannabis possession could be prosecuted 

under section 4573.6. The answer would be no — possession 

could be punished only under section 4573.8, and the savings 

provision in Health and Safety Code section 11362.45, 

subdivision (d), would have nothing to do with it. The savings 

provision is not more relevant because Proposition 64 stopped 

short of full repeal.

The majority acknowledges the textual limitations of the 

savings provision, but dismisses them as a technicality. Yes, 

Health and Safety Code section 11362.45, subdivision (d), does 

no more than carve prison laws out from preemption through 

Proposition 64’s affirmative legalization provision, Health and 

Safety Code section 11362.1. But, the majority argues, the 

amended Health and Safety Code section 11357 is a kind of 

legalization provision, too, as are various other provisions of the 

measure. (Maj. opn., ante, at p. 35, fn. 16 [arguing that the 

amendments to § 11357 were necessary “to conform to the broad 

legalization pronouncement made in section 11362.1”]; accord, 

People v. Perry (2019) 32 Cal.App.5th 885, 894.) Surely the 

voters who chose to save prison laws from preemption under 

section 11362.1 would also have wished to save prison 

possession laws from the indirect effects of cannabis legalization 

in these other provisions. (See maj. opn., ante, at pp. 35–36.)

The initial difficulty with this argument is that there is 

nothing in the materials before us to support this set of 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

12

assumptions about voter intent. Had voters intended to wall off 

prison laws from Proposition 64 entirely, it would have been 

easy enough to say so. Instead of referring specifically to Health 

and Safety Code section 11362.1, the savings provision in 

Health and Safety Code section 11362.45 could have been 

written to say that the Act as a whole “does not amend, repeal, 

affect, restrict, or preempt” prison laws, period. That is not how 

the provision was written, and the ballot materials contain no 

indication that this is how voters would have understood it. To 

the extent the ballot materials shed any light on voter intent at 

all, they point to a general intent to prescribe more lenient 

treatment for possessing small quantities of cannabis. While 

the savings provision indicates that voters intended to maintain 

restrictions on cannabis possession in prison, nothing in the 

ballot materials indicates that voters also intended to foreclose 

any possible, limited measure of leniency for individuals 

prosecuted under the harsher of two potentially applicable 

felony statutes forbidding cannabis possession in prisons and 

jails. 

But the difficulty is even greater than attributing this sort 

of unexpressed intent to Proposition 64 voters, because here it 

is not only the voters’ intent that counts; it is also the intent of 

the legislators who enacted the current versions of sections 

4573.6 and 4573.8. The legislators who enacted the current set 

of prison possession laws deliberately chose to make possession 

of drugs in prison a felony offense punishable by the default 

penalties prescribed in Penal Code section 18, while reserving 

heightened felony punishment for possession of controlled 

substances whose possession would be prohibited under division 

10. Even if we accepted for argument’s sake that the voters who 

enacted Proposition 64 assumed no aspect of the measure would 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

13

have an effect on prison possession laws, it is unclear why, in 

the event of a conflict between the two sets of provisions, that 

assumption would or should prevail over legislators’ intent to 

reserve harsher punishment for possession cases where 

possession would also be prohibited outside of prison under 

Health and Safety Code division 10. 

The majority’s remaining justifications for its approach 

focus on what the majority sees as its practical advantages over 

concluding that Proposition 64 did, in fact, affect charging under 

section 4573.6. The majority worries that the relationship 

between section 4573.6 and Proposition 64 is overly complicated, 

and that giving effect to that relationship could yield some 

“curious” results (maj. opn., ante, at p. 39). The majority also 

worries about the various additional questions we would need to 

answer, none of which have been briefed here, should a 

defendant in Raybon’s position seek resentencing based on the 

different penalties prescribed in section 4573.6 and section 

4573.8. None of these points, in my view, justifies refusing to 

read Health and Safety Code section 11362.45, subdivision (d), 

in accordance with its plain text.

As to the first point, the relationship between Penal Code 

section 4573.6 and Proposition 64 is not, near as I can tell, 

appreciably more complex than issues we have seen in other 

cases concerning the relationship between voter-initiated 

reform measures and preexisting criminal laws. (See, e.g., 

People v. Romanowski (2017) 2 Cal.5th 903; People v. Gonzales

(2017) 2 Cal.5th 858.) Sometimes statutes are, in fact, 

complicated. And our cases have recognized that the most 

faithful reading of a statutory scheme is not always the simplest 

one — even when the scheme has been enacted in whole or in 

part by voters. 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

14

As to the majority’s second point, the possibility that 

Proposition 64 affected charging under section 4573.6 is not so 

far-fetched that we can dismiss it out of hand. The practical 

result would be that prosecutors would be limited in most cases 

to charging cannabis possession in prison the same way the 

possession of other drugs or alcohol is charged, instead of 

charging it the same way as the possession of, say, heroin or 

methamphetamines. That result creates no obvious 

inconsistency with the overarching objectives of Proposition 64. 

But to the majority’s final point, I do share many of the 

majority’s concerns about the various questions that could arise 

in future cases concerning the relationship between Proposition 

64 and section 4573.6. This is precisely why I would not attempt 

to answer these questions here, and would instead await an 

appropriate case where the necessary arguments have been 

briefed and the issues joined. I write separately here because I 

do not think we should foreclose further exploration of these 

issues by leaning on Proposition 64’s savings provision. The text 

will not withstand the weight. 

II.

The practical upshot of the majority opinion is this: Even 

though the heightened penalties under section 4573.6 are 

directly tied to the scope of prohibitions that were dramatically 

scaled back by Proposition 64, prosecutors may continue to 

charge in-prison cannabis offenses under that provision (at least 

in the absence of further legislation directing otherwise). For 

individuals previously convicted under section 4573.6 who 

might wish to have their sentences adjusted downward to the 

less harsh penalties prescribed by section 4573.8, any pathway 

that might otherwise have existed for resentencing under 
PEOPLE v. RAYBON

Kruger, J., concurring and dissenting

15

current law has been closed off. All this in a case that did not 

require laying down a rule with these broad consequences. 

Because I do not think the majority’s reasons for reaching 

this result fit with the relevant statutes, and because it is 

unnecessary to resolve the issue in this case in any event, I do 

not join this portion of the majority opinion. In all other 

respects, I concur.

 KRUGER, J. 

I Concur:

CUÉLLAR, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Raybon

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 36 Cal.App.5th 111

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S256978

Date Filed: August 12, 2021

__________________________________________________________ 

Court: Superior

County: Sacramento

Judge: Curtis M. Fiorini

__________________________________________________________ 

Counsel:

Paulino G. Durán and Steven Garrett, Public Defenders, David Lynch 

and Leonard K. Tauman, Assistant Public Defenders, for Defendants 

and Appellants.

Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan, 

State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief 

Assistant Attorneys General, Janill L. Richards, Principal Deputy 

State Solicitor General, Michael P. Farrell, Assistant Attorney 

General, Ryan B. McCarroll, Deputy State Solicitor General, Julie A. 

Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys 

General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

David Lynch

Assistant Public Defender

700 H Street, Suite 0270

Sacramento, CA 95814

(916) 874-6958

Ryan B. McCarroll

Deputy State Solicitor General

1300 I Street

Sacramento, CA 95814

(916) 210-7668