P. v. Holmes CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JCF271042011,
- Trial judge
- L. Brooks Anderholt
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, William S. Dato
Analysis
The trial court denied Holmes's petition to vacate his conviction for possession of marijuana in prison, holding that Proposition 64 did not repeal Penal Code section 4573.6. The Court of Appeal affirmed, agreeing with People v. Perry that the statute remains valid despite the conflict with People v. Raybon, which is pending Supreme Court review.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to vacate conviction under Penal Code section 4573.6“Pending direction to the contrary from our high court, we will follow the reasoning of Perry and hold that Penal Code section 4573.6 remains valid after Proposition 64, and, therefore, we will affirm the order denying Holmes’s petition to vacate his conviction.” | de novo | correct | agree with court The appellate court correctly identified that the validity of a statute is a question of law reviewed de novo. It properly resolved the conflict between published appellate opinions (Perry and Raybon) by following the reasoning of Perry, which aligns with the court's own prior decision in Whalum, while acknowledging the pending Supreme Court review in Raybon. The reasoning is legally sound as it relies on the express carve-out language of Proposition 64 and the logical necessity that possession is required for use in prison. |
Authorities
- relied: People v. Perry (2019) 32 Cal.App.5th 885 — Proposition 64 did not repeal Penal Code section 4573.6 because the statute pertains to the use of controlled substances in prison, which is exempted from the proposition's decriminalization.
- relied: People v. Raybon (2019) 36 Cal.App.5th 111 — A contrary view that Proposition 64 renders possession of small amounts of marijuana in prison no longer a crime, which the court declined to follow pending Supreme Court review.
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — The carve-out provision of Proposition 64 retains the validity of statutes making it a crime to possess cannabis in a correctional institution.
The appellate opinion: sound — The opinion is sound because it correctly applies the de novo standard of review to a statutory interpretation question and resolves a conflict between appellate decisions by adhering to the reasoning in Perry, which is consistent with the court's own precedent in Whalum. It appropriately acknowledges the pending Supreme Court review in Raybon, which prevents the decision from being final on the law but does not make the current reasoning erroneous.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court denied Corey Holmes's Proposition 64 petition to vacate his 2011 conviction for possessing marijuana in prison (Pen. Code, § 4573.6), following People v. Perry and declining to follow People v. Raybon. The Court of Appeal affirmed, agreeing with Perry that Health and Safety Code section 11362.45, subdivision (d) carves out laws pertaining to cannabis in penal institutions and that section 4573.6 remains valid after Proposition 64.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Proposition 64 petition to vacate Penal Code section 4573.6 conviction on the ground that the carve-out in Health and Safety Code section 11362.45, subdivision (d) preserves laws prohibiting possession of cannabis in prison“Pending direction to the contrary from our high court, we will follow the reasoning of Perry and hold that Penal Code section 4573.6 remains valid after Proposition 64, and, therefore, we will affirm the order denying Holmes’s petition to vacate his conviction.” | de novo | correct | agree with court The opinion does not expressly state a standard of review, but the question whether Proposition 64 impliedly repealed section 4573.6 is a pure issue of statutory interpretation that the court decided independently. The court adopted Perry's reading that a prohibition on possession in prison 'pertains to' smoking or ingesting cannabis because possession is a necessary predicate to use, and that a contrary reading would render the carve-out meaningless. That reasoning is textually grounded and consistent with the court's own prior decision in Whalum; the court candidly acknowledged the contrary Raybon decision and the pending Supreme Court review. I agree with the result and reasoning, while noting the opinion's description of Raybon as addressing use under section 4573.8 appears imprecise and that the court relies on Perry rather than offering extended independent analysis. |
Rejection of the argument that possession of not more than 28.5 grams of cannabis is no longer 'regulated' by division 10 of the Health and Safety Code so that section 4573.6 no longer reaches small-quantity possession“The court went on to say that cannabis remains controlled by division 10 and declined to adopt the interpretation offered that would impliedly exclude possession of a “small amount” as not being subject to the statute.” | de novo | correct | agree with court Following Perry, the court reasoned that cannabis remains a controlled substance under division 10 notwithstanding Proposition 64's legalization of small-quantity possession outside custody, and that reading section 4573.6 to exclude small amounts would nullify the express carve-out in section 11362.45, subdivision (d). This is a reasonable harmonizing construction that gives effect to all provisions of the initiative. The analysis is derivative of Perry rather than independent, but it answers the argument raised. |
Authorities
- relied: People v. Perry (2019) 32 Cal.App.5th 885 — Proposition 64 did not amend or repeal Penal Code section 4573.6; the carve-out in Health and Safety Code section 11362.45, subdivision (d) for laws pertaining to smoking or ingesting cannabis in penal institutions encompasses laws prohibiting possession of cannabis in prison, and cannabis remains controlled by division 10.
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — Proposition 64 did not preempt or amend Penal Code section 4573.8; the court agreed with Perry's analysis of the scope of the section 11362.45, subdivision (d) carve-out as preserving laws criminalizing cannabis possession in correctional institutions.
The appellate opinion: sound — The opinion directly addresses both of Holmes's arguments by adopting Perry's construction of the carve-out and division 10, candidly acknowledges the contrary Raybon decision under Supreme Court review, and relies on the division's own prior decision in Whalum for consistency. It offers little independent textual analysis beyond Perry and its characterization of Raybon and section 4573.8 is somewhat imprecise, but the result rests on a defensible and well-supported reading of the statute.
Opinion
Filed 11/19/20 P. v Holmes CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076560
Plaintiff and Respondent, v. (Super. Ct. No. JCF27104
COREY HOLMES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, 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, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent. In 2011, Corey Holmes pleaded no contest to possession of an illegal substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced Holmes to a two-year prison term. In August 2019, Holmes filed a petition to vacate his conviction under Proposition 64. The court appointed counsel and held a hearing. The court denied the petition finding Proposition 64 did not affect Penal Code section 4573.6. Specifically, the trial court relied on People v. Perry (2019) 32 Cal.App.5th 885 (Perry), in determining possession of not more than 28.5 grams of marijuana in prison remained a felony. The trial court declined to adopt the reasoning in People v. Raybon (2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978 (Raybon), to the effect that use of marijuana in prison remains a felony under Penal Code section 4573.8, but that a very narrow reading of Proposition 64 renders possession of a small amount of marijuana while in prison no longer a crime. Apparently, under that reasoning, one can bring small amounts of marijuana into the prison and possess it, so long as they do not use it. Holmes appeals, contending we should follow the Raybon decision and declare that possession of “small amounts” of marijuana in prison is no longer a crime. As we will discuss, we agree with the court’s analysis in Perry and find Proposition 64 did not affect the section used in this case. Accordingly, we will affirm the denial of Holmes’s petition. DISCUSSION A. The Contentions Relying on Raybon, Holmes contends his conviction under Penal Code section 4573.6 must be vacated because it has been impliedly repealed (at least in part) by Proposition 64. He recognizes there is no specific language in the proposition indicating it impacts statutes that prohibit either the possession or use of marijuana by prison or jail inmates. Holmes’s challenge has two principal anchors. First, he contends the proposition makes possession of not more than 28.5 grams of marijuana 2 outside of a prison or jail by persons who are 21 years old no longer a crime; therefore, it necessarily means that under the language of Penal Code section 4573.6 that possession of such small amounts in prison is no longer a crime. The second basis for his contention is that the so called carve-out provision in the proposition that exempts statutes “pertaining” to use of controlled substances in prison means Penal Code section 4573.6, which deals with possession, does not “pertain” to the use or ingestion of controlled substances. Thus, he argues the section was not exempted from Proposition 64 as it relates to possessing small amounts of marijuana in prison. Both arguments which Holmes makes here were correctly rejected in Perry, supra, 32 Cal.App.5th 885. As we will explain, we agree with the decision in Perry and decline to follow the contrary views expressed in Raybon. B. Legal Principles Proposition 64 made a number of changes in statutes relating to the use of marijuana. Relevant here is the proposition decriminalized simple possession of not more than 28.5 grams of marijuana by persons over 21 outside of prisons or jails. It does not mention the crime of possession of marijuana by inmates, except in what has been called the carve out section indicating those marijuana-related statutes were not affected by the proposition.
Health and Safety Code1 section 11362.45, subdivision (d) provides in part, that section 11362.1 “ ‘does not amend, repeal, affect, restrict, or 1 All further statutory references are to the Health and Safety Code unless otherwise specified. 3 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).)” (Perry, supra, 32 Cal.App.5th at p. 891.) The court in Perry specifically rejected the contention that the carve- out does not apply to Penal Code section 4573.6 because the language of that section deals with possession and not use, thus the contention it does not “pertain” to smoking or ingestion. The court in Perry recognized the theoretical possibility that one could use drugs in prison without “possessing” them in a legal sense. However, someone must possess the physical product in prison in order for anyone to use it. The court in Perry found limitation of possession of marijuana in prison clearly pertained to the ultimate goal of preventing the unlawful use of controlled substances by inmates. (Perry, supra, 32 Cal.App.5th at p. 892.) The court in Perry also rejected the contention that Penal Code section 4573.6 is no longer valid because it prohibits possession of controlled substances in prison if they are regulated by division 10 of the Health and Safety Code. (Perry, supra, 32 Cal.App.5th at p. 893.) The contention is premised on the fact that personal possession of not more than 28.5 grams by persons 21 years old is no longer criminal. Thus, the argument continues that possession of small amounts of marijuana is not regulated by division 10. In Perry, the court rejected the argument and stated: “Here, a conclusion that division 10 [of the Health and Safety Code] 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 4 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.) The court went on to say that cannabis remains controlled by division 10 and declined to adopt the interpretation offered that would impliedly exclude possession of a “small amount” as not being subject to the statute. (Perry, supra, 32 Cal.App.5th at p. 896.) Our Supreme Court has granted review in Raybon, supra, 36 Cal.App.5th 111, which takes a contrary position on both facets of Holmes’s argument. Ultimately, the high court will resolve the differences in the opinions. C. Analysis In People v. Whalum (2020) 50 Cal.App.5th 1, review granted August 12, 2020, S262935, we addressed Penal Code section 4573.8, a more broadly worded prohibition of use or ingesting of unauthorized drugs in prison. We found the statute had not been preempted or amended by Proposition 64. We found the carve-out provisions of the proposition retained the validity of the statute. We did not address the validity of Penal Code section 4573.6, as it was not challenged in that case. We did discuss the Perry opinion at length. In regard to the carve-out provision, we said: “[W]e agree with Perry’s analysis regarding the scope of the carve out section 11362.45, subdivision (d), and we accordingly concluded that Proposition 64 does not affect laws, including Penal Code section 4573.8, which make it a crime to possess cannabis in a correctional institution.” (Whalum, supra, 50 Cal.App.5th at p. 10.)
5 We are faced with choosing between the analysis in Perry and the opposing views expressed in Raybon. Pending direction to the contrary from our high court, we will follow the reasoning of Perry and hold that Penal Code section 4573.6 remains valid after Proposition 64, and, therefore, we will affirm the order denying Holmes’s petition to vacate his conviction. DISPOSITION The order denying the petition to vacate Holmes’s conviction of violating Penal Code section 4573.6, is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DATO, J.