People v. Mallory CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF26358
- Trial judge
- Poli Flores, Jr.
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Patricia D. Benke (author), Judith D. McConnell, Patricia Guerrero
Analysis
The trial court denied the defendant's petition to recall his sentence for possession of marijuana in a prison facility, ruling that the offense remained a felony despite Proposition 64. The Court of Appeal affirmed the judgment, agreeing with prior district authority that Proposition 64 did not legalize possession of cannabis within state prisons.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence and dismissal of judgment pursuant to Health & Safety Code section 11361.8, subdivision (b).“We agree with our decision in Whalum and the rationale of Perry and Herrera. On that basis we reject defendant’s claim.” | unclear | correct | agree with court The appellate court correctly applied the binding precedent of its own district (People v. Whalum) and persuasive authority from other districts (People v. Perry, People v. Herrera) which hold that Proposition 64 did not decriminalize possession of cannabis in prison facilities. The court noted the split in authority and the pending Supreme Court review, but correctly followed the majority view among the appellate districts that the prison context excludes the possession from the legalization provisions of Proposition 64. The reasoning is supported by the cited authorities which explicitly distinguish prison possession from general adult possession. |
Authorities
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — Possession of cannabis in a state prison remains a felony despite Proposition 64.
- relied: People v. Perry (2019) 32 Cal.App.5th 885 — Possession of cannabis in a state prison remains a felony despite Proposition 64.
- relied: People v. Herrera (2020) 52 Cal.App.5th 982 — Possession of cannabis in a state prison remains a felony despite Proposition 64.
- relied: People v. Raybon (2019) 36 Cal.App.5th 111 — Possession of less than 28.5 grams of cannabis in prison is no longer unlawful due to Proposition 64 (dissenting view from the majority of districts).
The appellate opinion: sound — The opinion is procedurally sound as it correctly identifies the split in authority and relies on the controlling precedent of its own district (Whalum) and consistent rulings from other districts (Perry, Herrera). It appropriately notes that the issue is pending before the Supreme Court, which justifies the reliance on existing appellate consensus rather than attempting to resolve the constitutional/statutory question de novo.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Tyrone Mallory's Health and Safety Code section 11361.8, subdivision (b) petition to recall his sentence and dismiss his 2011 Penal Code section 4573.6 conviction for possessing 16 grams of marijuana in Calipatria State Prison, rejecting his claim that Proposition 64 legalized that possession. The Court of Appeal affirmed, acknowledging a split of authority then pending before the Supreme Court but following its own decision in Whalum and the reasoning of Perry and Herrera that possession of cannabis in prison remains a felony after Proposition 64.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition under Health and Safety Code section 11361.8, subdivision (b) to recall sentence and dismiss Penal Code section 4573.6 conviction on the ground that Proposition 64 legalized possession of less than 28.5 grams of cannabis in prison“We agree with our decision in Whalum and the rationale of Perry and Herrera. On that basis we reject defendant’s claim.” | unclear | correct | agree with court The issue is purely one of statutory interpretation of Proposition 64 (Health & Saf. Code, §§ 11362.1, 11362.45, subd. (d)) and Penal Code section 4573.6, which would ordinarily be reviewed de novo, though the opinion does not state a standard. The court chose the majority side of an acknowledged appellate split (Perry, Whalum, Herrera) over Raybon, and its own prior decision in Whalum made that choice consistent. Although the opinion gives no independent analysis, the authorities it adopts reason that section 11362.45, subdivision (d) preserves laws pertaining to smoking or ingesting cannabis in penal institutions and that voters did not intend to legalize cannabis possession in prison; the Supreme Court later adopted that view in Raybon (2021) 12 Cal.5th 1056, confirming the result. |
Authorities
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — Proposition 64 did not legalize possession of cannabis in prison; possession in a penal institution remains a felony (there under Pen. Code, § 4573.8), so a section 11361.8 petition seeking relief for such a conviction is properly denied.
- relied: People v. Perry (2019) 32 Cal.App.5th 885 — Health and Safety Code section 11362.45, subdivision (d) preserves laws pertaining to cannabis in penal institutions, so possession of cannabis in prison under Penal Code section 4573.6 remains unlawful after Proposition 64.
- relied: People v. Herrera (2020) 52 Cal.App.5th 982 — Agreeing with Perry that Proposition 64 did not decriminalize possession of cannabis in state prison under Penal Code section 4573.6.
- relied: People v. Raybon (2019) 36 Cal.App.5th 111 — Cited as the contrary view (Third District) that possession of less than 28.5 grams of cannabis in prison is no longer a crime after Proposition 64; review granted and the court declined to follow it.
The appellate opinion: sound with gaps — The court reached the correct result by following its own prior published decision in Whalum and the reasoning of Perry and Herrera, a position the Supreme Court later endorsed in Raybon (2021) 12 Cal.5th 1056. However, the opinion expressly declines to set out any of the statutory background or legal principles, so it does not itself engage defendant's textual argument under Health and Safety Code sections 11362.1 and 11362.45 and rests entirely on incorporation of other decisions.
Opinion
Filed 11/25/20 P. v. Mallory 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, D077334
Plaintiff and Respondent, v. (Super. Ct. No. JCF26358)
TYRONE MALLORY,
Defendant and Appellant.
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. 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)
2 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.