Filed 6/29/21 P. v. Caliz CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KENYA MELISSA CALIZ,

Defendant and Appellant.

 B304315

 (Los Angeles County

 Super. Ct. No. MA071133)

APPEAL from an order of the Superior Court of Los 

Angeles County, Shannon Knight, Judge. Affirmed.

Laini Millar Melnick, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Blythe J. Leszkay, Supervising 

Deputy Attorney General, Peggy Z. Huang, Deputy Attorney 

General, for Plaintiff and Respondent.
2

In 2017, defendant and appellant Kenya Melissa Caliz 

(defendant) entered a state prison and attempted to transfer 

contraband—marijuana—to an inmate in the prison’s visiting 

area. In a subsequent search of her person, prison authorities 

found several small packages of marijuana. The People charged 

defendant with violating Penal Code section 4573.6, subdivision 

(a), which makes it a crime to possess a controlled substance 

(listed in a specified division of the Health and Safety Code, 

including marijuana) in a prison. Defendant pled no contest to 

the charge, and the trial court sentenced her to three-years’ 

probation with a condition that she perform 30 days of 

community service.

Later, in 2019, defendant petitioned for “dismissal and 

sealing or reduction and resentencing” of her conviction, under 

Health and Safety Code section 11361.8, a statute enacted as 

part of Proposition 64, the Control, Regulate and Tax Adult Use 

of Marijuana Act (Proposition 64).1 The People opposed 

defendant’s petition, asserting Proposition 64 did not authorize 

retroactive relief for those, like defendant, who were convicted of 

possessing marijuana in a prison. (Health & Saf. Code, 

§ 11362.45, subd. (d) [Health and Safety Code section 11362.1, 

which generally legalizes adult possession 28.5 grams or less of 

cannabis under California law, “does not amend, repeal, affect, 

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

1 Section 11361.8 allows a person “serving a sentence for a 

conviction, whether by trial or by open or negotiated plea, who 

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

guilty of a lesser offense under [Proposition 64] had that act been 

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

dismissal of sentence . . . .”
3

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”].) The trial court recognized there was a split of authority 

in the Courts of Appeal as to whether Proposition 64 

decriminalized or otherwise affected criminal prohibitions on

cannabis possession in prisons, and the trial court sided with 

authority holding laws criminalizing prison cannabis possession 

were unaffected. (See, e.g., People v. Perry (2019) 32 Cal.App.5th 

885, 894 (Perry); but see People v. Raybon (2019) 36 Cal.App.5th 

111, 121 [“[The Legislature] limits the criminalized controlled 

substances to those prohibited by division 10. Possession of less 

than one ounce of cannabis is no longer prohibited by division 10, 

and therefore, . . . it is no longer a felony to possess less than one 

ounce in prison”], review granted Aug. 21, 2019, S256978.)

Our Supreme Court will soon definitively resolve the 

question we are asked to decide: whether Proposition 64’s general 

decriminalization of marijuana possession means that a person 

like defendant can no longer be punished for possessing small 

amounts of marijuana in a state prison. As we await guidance 

from our Supreme Court, we resolve this appeal by siding with 

Court of Appeal authority holding Proposition 64 does not provide 

retroactive relief for the type of marijuana possession offense at 

issue here.

2

 (People v. Herrera (2020) 52 Cal.App.5th 982, 995 

2 There is a substantial question as to whether defendant is 

entitled to seek relief under Health and Safety Code section 

11361.8 at all because she committed her offense after

Proposition 64 took effect. Because it does not affect our 
4

[“[W]e conclude that possession of a controlled substance in jail 

under Penal Code section 4573.6(a) is a ‘[l]aw[ ] pertaining to 

smoking or ingesting’ cannabis in prison or jail (Health & Saf. 

Code, § 11362.45(d)). Defendant was therefore properly convicted 

of violating Penal Code section 4573.6(a) for possession of 

cannabis in jail”], review granted Oct. 14, 2020, S264339; see also 

People v. Taylor (2021) 60 Cal.App.5th 115, 122 [“In this case, we 

determine that cannabis is a controlled substance ‘the possession 

of which is prohibited by Division 10 (commencing with [s]ection 

11000) of the Health and Safety Code.’ (Pen. Code, § 4573.6, 

subd. (a).) We also confirm that the phrase ‘[l]aws pertaining to 

smoking or ingesting cannabis or cannabis products’ in 

subdivision (d) of section 11362.45 (section 11362.45(d)) 

encompasses laws that govern possession of cannabis. Therefore, 

under the dictates of section 11362.45(d), although section 

11362.1(a) partially decriminalizes possession of cannabis, it does 

not ‘amend, repeal, affect, restrict, or preempt’ laws governing 

the possession of cannabis ‘on the grounds of, or within, any 

facility or institution under the jurisdiction of the Department of 

Corrections and Rehabilitation . . .’”]; Perry, supra, 32 

Cal.App.5th at 894 [concluding that Division 10 of the Health and 

Safety Code does not prohibit possession of small amounts of 

cannabis for purposes of Penal Code section 4573.6 would render

meaningless the proviso in Health and Safety Code section 

11362.45, subdivision (d), which states Proposition 64’s 

legalization of cannabis did not amend, repeal, affect, restrict, or 

disposition of the appeal, we assume for argument’s sake that we 

would not be unable to grant defendant relief if it were warranted 

on the merits.
5

preempt laws pertaining to smoking or ingesting cannabis in 

penal institutions].)

DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.