People v. Rodriguez CA5 ( 2021 )

Filed 4/16/21 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080904
Plaintiff and Respondent,
(Super. Ct. No. CRF54746)
v.
JUAN EULOGIO RODRIGUEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Poochigian, J. and Peña, J.
Defendant Juan Eulogio Rodriguez pled guilty to felony possession of marijuana
in a prison in violation of Penal Code section 4573.6. He later petitioned for resentencing
or dismissal of his conviction pursuant to section 11361.8 of the Health and Safety Code1
and Proposition 64, contending that the offense had been decriminalized because he
possessed less than 28.5 grams of marijuana not in the form of concentrated cannabis.
The trial court recognized that California Courts of Appeal have split on the issue.
(Compare People v. Perry (2019) 32 Cal.App.5th 885 (Perry) [Proposition 64 did not
decriminalize possession of cannabis in prison], review denied June 12, 2019, S255148
with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon) [Proposition 64
decriminalized possession of less than 28.5 grams of marijuana in prison], review granted
Aug. 21, 2019, S256978.) The trial court agreed with Perry and denied his motion.
Defendant contends that was error. We agree with the trial court and we therefore affirm.
PROCEDURAL SUMMARY
On October 31, 2017, the Tuolumne County District Attorney charged defendant
with felony possession of contraband (marijuana) in prison (Pen. Code, § 4573.6;
count 1). The complaint further alleged that defendant had suffered a prior felony
“strike” conviction within the meaning of the “Three Strikes” law (Pen. Code, §§ 667,
subds. (b)–(j), 1170.12, subds. (a)–(d)).
On December 13, 2017, defendant pled guilty on count 1 and admitted having
suffered a prior strike conviction. In exchange for his guilty plea, defendant was to
receive a term of four years’ imprisonment (the low term of two years doubled due to the
prior strike conviction).
On January 18, 2018, the trial court imposed the agreed-upon sentence.
1 All further statutory references are to the Health and Safety Code unless otherwise
stated.
2.
On December 2, 2019, defendant filed a petition for resentencing or dismissal
pursuant to section 11361.8, subdivision (b). On February 18, 2020, the court denied
defendant’s petition.
On March 4, 2020, defendant filed a notice of appeal.
FACTUAL SUMMARY
In August 2017, while defendant was an inmate at Sierra Conservation Center, a
prison in Tuolumne County, he was found in possession of 1.23 grams of marijuana.
DISCUSSION
Defendant relies on Raybon, supra, 36 Cal.App.5th at page 113, review granted,
for the proposition that Proposition 64 modified Penal Code section 4573.6 such that
possession of less than 28.5 grams of marijuana in prison is no longer criminal. The
People respond that we should instead accept the reasoning of Perry, supra, 32
Cal.App.5th at page 887, for the proposition that Penal Code section 4573.6 was
unaffected by Proposition 64. We find Perry more persuasive.
Penal Code section 4573.6 provides in relevant part: “Any person who knowingly
has in his or her possession in any state prison … any controlled substances, the
possession of which is prohibited by Division 10 (commencing with Section 11000) of
the Health and Safety Code, … without being authorized to so possess the same by the
rules of the Department of Corrections, rules of the prison …, or by the specific
authorization of the warden … is guilty of a felony punishable by imprisonment pursuant
to subdivision (h) of Section 1170 for two, three, or four years.” (Pen. Code, § 4573.6,
subd. (a).)
As Perry and Raybon both note, Proposition 64 added section 11362.1, which
“affirmatively legalized” possession of less than 28.5 grams of marijuana by a person
age 21 or older, except in certain circumstances. (Perry, supra, 32 Cal.App.5th at
pp. 889–890; accord, Raybon, supra, 36 Cal.App.5th at p. 114, review granted;
3.
§ 11362.1;2 see § 11357, subd. (b)(2) [possession of more than 28.5 grams of marijuana
by a person age 18 years or older is a misdemeanor].) That decriminalization was
designed to also apply to those already serving sentences for offenses decriminalized by
Proposition 64. To that end, Proposition 64 added section 11361.8, which created a
mechanism for those serving a sentence to petition for recall or dismissal of the sentence.
As we have noted, Proposition 64 did not decriminalize marijuana use and
possession in all circumstances. Relevant here, Proposition 64 added section 11362.45
which limits the application of section 11361.1 in prisons: “Section 11362.1 does not
amend, repeal, affect, restrict, or preempt … [¶] … [¶] [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 ….”
(§ 11362.45, subd. (d).) After much discussion, the Perry court found that, “[w]hile
section 11362.45, subdivision (d), does not expressly refer to ‘possession,’ its application
to possession is implied by its broad wording—‘[l]aws pertaining to smoking or
ingesting cannabis.’ ” (Perry, supra, 32 Cal.App.5th at p. 891, italics added by Perry);
see id. at pp. 894–895 [to the extent Proposition 64 created any ambiguity regarding
possession of marijuana in prison, the fact that the official voter guide made no mention
of the act impacting the prohibition on possession of marijuana in prison suggests the
electorate did not intend to decriminalize it].) On that basis, it concluded that a defendant
convicted of an offense pursuant to Penal Code section 4573.6 for possession of
marijuana in prison is not entitled to relief pursuant to section 11361.8.
2 Section 11362.1, subdivision (a) reads, in relevant part as follows: “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: [¶] Possess … not more
than 28.5 grams of cannabis not in the form of concentrated cannabis .…”
4.
The Raybon court rejected the reasoning of Perry, instead concluding that the
plain language of section 11362.45, subdivision (d) unambiguously only excluded from
decriminalization “ ‘smoking[,] ingesting[,]’ ” and otherwise consuming marijuana in
prison. (Raybon, supra, 36 Cal.App.5th at p. 122, review granted.) It explained that
the—“[l]aws pertaining to smoking or ingesting cannabis”—language of section
11362.45, subdivision (d) is designed to “describe the vast array of means of
consumption” or use of cannabis. (Raybon, at p. 122 (italics added).) It does not suggest
that the “distinct activity” of possessing marijuana remains a criminal activity in a prison.
(Id. at p. 121.) It reasoned that if the electors intended to prevent possession of cannabis
in prison it would have expressly used the word “possession”, as was done elsewhere in
Proposition 64. (Raybon, at pp. 121–122, citing § 11362.3, subd. (a)(5).) The Raybon
court also considered and rejected the Attorney General’s argument that its reading of the
statute would amount to an absurdity. (Raybon, supra, 36 Cal.App.5th at pp. 123–124,
review granted.) It explained that allowing prisons to punish possession of marijuana by
prisoners through prison rule violations rather than criminally is not absurd. (Ibid.) The
Raybon court therefore concluded that, while smoking, ingesting, or otherwise
consuming marijuana in prison remained illegal, possession of marijuana in prison was
decriminalized by Proposition 64.
Along with our colleagues in the Fourth and Sixth Districts, we find Perry the
more persuasive opinion and conclude that Proposition 64 did not decriminalize
possession of marijuana in prison. (People v. Herrera (2020) 52 Cal.App.5th 982, 994–
995; People v. Whalum (2020) 50 Cal.App.5th 1, 6–15.) On that basis, we conclude that
the trial court properly denied defendant’s petition.
DISPOSITION
The order is affirmed.
5.