People v. Rodriguez CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JCF002141
- Trial judge
- Poli Flores, Jr.
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, Patricia D. Benke
Analysis
The trial court denied Rodriguez's petition to vacate his conviction for possession of marijuana in prison, ruling that Proposition 64 did not repeal Penal Code section 4573.6. The Court of Appeal affirmed the denial, adopting the reasoning of People v. Perry over People v. Raybon and holding that the statute remains valid.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to vacate conviction under Proposition 64“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 Rodriguez’s petition to vacate his conviction.” | de novo | correct | agree with court The court correctly applies the standard for statutory interpretation and implied repeal, which is reviewed de novo. It resolves the conflict between published appellate opinions (Perry and Raybon) by following the reasoning of Perry, which is consistent with the court's own prior decision in Whalum and the plain language of the Proposition 64 carve-out provision. The reasoning that possession is a necessary prerequisite to use in prison, and thus 'pertains' to the prohibited use, is logically sound and supported by the cited authorities. |
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- relied: People v. Raybon (2019) 36 Cal.App.5th 111 — Proposition 64 impliedly repealed the portion of Penal Code section 4573.6 prohibiting possession of small amounts of marijuana in prison (view rejected by the court).
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — Proposition 64 does not affect laws making it a crime to possess cannabis in a correctional institution, agreeing with Perry's analysis of the carve-out provision.
The appellate opinion: sound — The opinion is sound because it correctly identifies the legal issue, applies the appropriate standard of review, and resolves the conflict between appellate authorities by following the reasoning of Perry, which is consistent with the court's own precedent in Whalum and the statutory text. The court explicitly acknowledges the pending Supreme Court review in Raybon, which limits the scope of its decision appropriately.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court denied Adrian Rodriguez's Proposition 64 petition to vacate his Penal Code section 4573.6 conviction for possessing marijuana in prison, following People v. Perry and declining to follow People v. Raybon. The Court of Appeal, Fourth District, Division One, affirmed, agreeing with Perry that the section 11362.45, subdivision (d) carve-out preserves laws criminalizing possession of cannabis in correctional institutions and that cannabis remains regulated by division 10 of the Health and Safety Code.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition to vacate the Penal Code section 4573.6 conviction on the ground that Proposition 64's carve-out (Health & Saf. Code, § 11362.45, subd. (d)) for laws 'pertaining to smoking or ingesting cannabis' in correctional facilities preserves the prohibition on possession of cannabis in prison“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.” | de novo | correct | agree with court The question is purely one of statutory interpretation, which the court resolved independently though it did not expressly recite a standard. The court adopted Perry's reasoning that 'pertaining to' is broad enough to reach possession statutes because use in prison necessarily requires possession, and it had already endorsed that reading in Whalum. Raybon's contrary narrow reading was acknowledged and rejected; the court was free to choose between conflicting Court of Appeal decisions, and its choice was reasonable and consistent with the proposition's evident purpose. (The Supreme Court later sided with the Perry view, which confirms but was not available to this panel.) |
Rejection of the argument that because Proposition 64 decriminalized possession of not more than 28.5 grams of cannabis by adults, such cannabis is no longer a substance 'regulated by division 10' of the Health and Safety Code within the meaning of Penal Code section 4573.6“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 The court followed Perry's holding that reading division 10 to exclude small-quantity possession would render the express carve-out in section 11362.45, subdivision (d) meaningless, and that cannabis remains a controlled substance listed and regulated in division 10 notwithstanding partial decriminalization. This is a standard application of the canon against surplusage and gives effect to the measure as a whole. The reasoning is largely borrowed from Perry rather than independently developed, but it adequately answers the argument. |
Authorities
- relied: People v. Perry (2019) 32 Cal.App.5th 885 — Proposition 64 did not affect Penal Code section 4573.6; the section 11362.45, subdivision (d) carve-out for laws pertaining to smoking or ingesting cannabis in correctional facilities encompasses possession statutes, and cannabis remains regulated by division 10 of the Health and Safety Code.
- relied: People v. Whalum (2020) 50 Cal.App.5th 1 — Penal Code section 4573.8 was not preempted or amended by Proposition 64; the court agreed with Perry's analysis of the scope of the section 11362.45, subdivision (d) carve-out as preserving laws criminalizing possession of cannabis in correctional institutions (review granted).
The appellate opinion: sound — The opinion identifies both of appellant's arguments, explains why Perry rejected each, notes the court's own prior endorsement of Perry in Whalum, and candidly acknowledges the conflicting Raybon decision pending in the Supreme Court before choosing Perry. It does not state a standard of review and relies on Perry's analysis rather than developing its own, but the result and reasoning are defensible and address the contentions raised.
Opinion
Filed 12/9/20 P. v. Rodriguez 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, D077366
Plaintiff and Respondent, v. (Super. Ct. No. JCF002141)
ADRIAN RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed. Elisa A. Brandes, 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, Daniel Rogers, Lise Jacobson and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent. In 2019, Adrian Rodriguez pleaded no contest to possession of an illegal substance (marijuana) in prison (Pen. Code, § 4573.6). The court sentenced Rodriguez to a two-year prison term. In December 2019, Rodriguez 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 don’t use it. Rodriguez 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 Rodriguez’s petition. DISCUSSION A. The Contentions Relying on Raybon, Rodriguez 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. Rodriguez’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 Rodriguez 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 Rodriguez’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 conclude 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 Rodriguez’s petition to vacate his conviction. DISPOSITION The order denying the petition to vacate Rodriguez’s conviction of violating Penal Code section 4573.6, is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.