Filed 11/25/20 P. v. Mallory CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TYRONE MALLORY,

Defendant and Appellant.

 D077334

 (Super. Ct. No. JCF26358)

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

Poli Flores, Jr., Judge. Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Steve 

Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff 

and Respondent.
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BACKGROUND

In 2008, defendant Tyrone Mallory was sentenced to 15 years in prison 

for robbery. While he was serving his sentence at Calipatria State Prison, 

correctional officers observed defendant receive drugs from a visitor. 

Following a struggle, the officers discovered 16 grams of marijuana on 

defendant. They searched defendant’s cell and discovered an additional .8 

grams of marijuana.

Defendant pleaded no contest in March 2011 to possession of 16 grams 

of marijuana in a prison facility in violation of Penal Code section 4573.6. He 

was sentenced to the middle term of three years, to be served consecutively to 

the offense for which he was imprisoned.

On February 10, 2020, defendant filed a petition for recall of his

sentence and dismissal of judgment pursuant to Health & Safety Code 

section 11361.8, subdivision (b). After considering the pleadings and oral 

argument, the court denied the petition. 

Defendant filed a timely notice of appeal.

ANALYSIS

Proposition 64 was enacted on November 9, 2016 (Health and Saf. 

Code, § 11362.1, subd. (a)(1)). Defendant’s sole argument is that in 

Proposition 64, the Legislature legalized the possession of less than 28.5 

grams of cannabis by an adult, and thus the trial court erred when it denied 

his petition to recall his conviction for possession of 16 grams of cannabis in a 

prison, because his possession was no longer criminal. 

There is a split of authority on whether Proposition 64 legalized simple 

possession of marijuana in state prisons. The issue is currently pending 

before our Supreme Court in People v. Raybon (2019) 36 Cal.App.5th 111, 

review granted August 21, 2019, S256978 (Raybon); People v. Whalum (2020) 
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50 Cal.App.5th 1, review granted, August 12, 2020, S262935 (Whalum); and 

People v. Herrera (2020) 52 Cal.App.5th 982, review granted, October 14, 

2020, S264339 (Herrera). The Third District in Raybon concluded that 

possession of less than 28.5 grams of cannabis in prison is no longer 

unlawful, due to Proposition 64. The First District, Sixth District, and our 

district have all reached the opposite conclusion, that possession of cannabis 

in prison remains a felony. (People v. Perry (2019) 32 Cal.App.5th 885, 891–

893 (Perry) [First District]; Herrera, at pp. 991–992 [Sixth District]; Whalum, 

at pp. 12–13 [Fourth District].) Whalum involved a conviction under section 

4573.8 instead of section 4573.6, but the reasoning is the same as in Perry.

We need not elucidate the background and legal principles involved in 

the question of whether the changes made by Proposition 64 should be 

applied to defendant. We agree with our decision in Whalum and the 

rationale of Perry and Herrera. On that basis we reject defendant’s claim.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.