People v. Herrera

• Decision Date: 31 July 2020
• Docket Number: H046631
• Citation: 52 Cal.App.5th 982,267 Cal.Rptr.3d 95
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesse HERRERA, Defendant and Appellant.

52 Cal.App.5th 982

267 Cal.Rptr.3d 95

The PEOPLE, Plaintiff and Respondent,

v.Jesse HERRERA, Defendant and Appellant.

H046631

Court of Appeal, Sixth District, California.

Filed July 31, 2020

Attorney for Defendant and Appellant Jesse Herrera: Joy A. Maulitz, San Francisco, under appointment by the Court of Appeal for Appellant

Attorneys for Plaintiff and Respondent The People: Xavier Becerra Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Shade, Supervising Deputy Attorney General, Alisha M. Carlile, Deputy Attorney General

BAMATTRE-MANOUKIAN, J.

I. INTRODUCTION

In 2018, defendant Jesse Herrera was convicted by jury of possession of marijuana in jail ( Pen. Code, § 4573.6, subd. (a) ) (hereafter Pen. Code, § 4573.6(a) ). The jury also found true allegations that he had suffered a prior strike conviction (id. , § 1170.12, subd. (c)(1)), and that he had served three prior prison terms (id. , § 667.5, former subd. (b)). The trial court sentenced defendant to eight years in prison, which included consecutive one-year terms for two of the three prison priors. The court also imposed various fees and fines, including a $300 restitution fine, but stayed all amounts.

On appeal, defendant contends that his conviction must be reversed because the possession of cannabis in jail is no longer a crime after the passage of Proposition 64 in 2016. Second, defendant argues that the prior prison term enhancements must be stricken because the enhancements no longer apply to him based on legislation that went into effect after he was sentenced. (See Pen. Code, § 667.5, subd. (b).) Third, defendant contends that the abstract of judgment must be corrected to reflect that the trial court stayed the restitution fine.

For reasons that we will explain, we determine that Proposition 64 did not decriminalize the possession of cannabis in a penal institution, and that defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail. However, because the prior prison term enhancements no longer apply to defendant, we will reverse the judgment and remand with directions to strike the prior prison term enhancements and resentence defendant.

II. BACKGROUND

Defendant was charged by amended information with bringing a controlled substance, methamphetamine, into jail ( Pen. Code, § 4573, subd. (a) ; count 1) and possession of a controlled substance, marijuana, in jail (id. , § 4573.6(a) ; count 2). The amended information also alleged that defendant had suffered a prior strike conviction (id. , § 1170.12, subd. (c)(1)), and that he had served four prior prison terms (id. , § 667.5, former subd. (b)). The trial court granted defendant's request to bifurcate the trial on the prior allegations.

Regarding the count for possession of marijuana in jail, the evidence at trial reflected the following. On July 8, 2017, a deputy sheriff assigned to the county jail observed a group of inmates congregating around two other inmates who were sitting on a bunk in a dorm. One of the seated inmates was defendant. The deputy smelled marijuana upon approaching the group. The deputy had everyone removed from the area except defendant and the other seated inmate. The deputy kept his eyes on the pair except for a few seconds when he turned to check whether anyone was behind him. Surveillance tape of the incident showed defendant at this point putting his hands over his shoulder and turning his head around to look behind himself as if he had thrown something. Eventually defendant and the other seated inmate were removed from the area. The deputy conducted a search and found a bindle of marijuana in the area where it appeared from the surveillance video that defendant had dropped something. Subsequent testing revealed 0.59 grams of marijuana.

On December 11, 2018, the jury found defendant guilty of possession of a controlled substance, marijuana, in jail ( Pen. Code, § 4573.6(a) ; count 2). The jury found defendant not guilty of bringing methamphetamine into jail (id. , § 4573, subd. (a) ; count 1).

Prior to the bifurcated trial on the prior allegations, the trial court granted defendant's motion to reduce a felony conviction underlying one of the prison priors to a misdemeanor ( Pen. Code, § 1170.18 ). Following the bifurcated trial, the jury found true the allegations that defendant had previously been convicted of robbery (id. , § 1170.12, subd. (c)(1)), and that he had served three prior prison terms (id. , § 667.5, former subd. (b)).

At the sentencing hearing on February 6, 2019, the trial court sentenced defendant to eight years in prison. The sentence consists of six years (the middle term, doubled) for possession of marijuana in jail ( Pen. Code, § 4573.6(a) ) and consecutive terms of one year for two of the prison priors ( Pen. Code, § 667.5, former subd. (b)). The court stayed the punishment for the third prison prior, which the court referred to as occurring "last in time." The court imposed various fees and fines, including a restitution fine of $300, but stayed all amounts until the prosecution demonstrated that defendant had the ability to pay.

III. DISCUSSION

A. Conviction Under Penal Code Section 4573.6(a)

Defendant contends that his conviction under Penal Code section 4573.6(a) must be reversed because the possession of a small amount of cannabis in jail is no longer a crime after the passage of Proposition 64. The Attorney General contends that Proposition 64 did not affect the law prohibiting possession of cannabis in custodial institutions.

The issue of whether Proposition 64 decriminalized the possession of cannabis in prison or jail is currently pending before the California Supreme Court. In People v. Raybon (2019) 36 Cal.App.5th 111, 248 Cal.Rptr.3d 611, review granted Aug. 21, 2019, S256978 ( Raybon ), the Third District held that possession of less than one ounce of cannabis in prison is no longer a crime under Penal Code section 4573.6 after the passage of Proposition 64. ( Raybon, supra , at pp. 119, 126, 248 Cal.Rptr.3d 611.) However, the First District in People v. Perry (2019) 32 Cal.App.5th 885, 244 Cal.Rptr.3d 281 ( Perry ) concluded that possession of cannabis in prison remains a crime under Penal Code section 4573.6 after the passage of Proposition 64. ( Perry, supra , at p. 887, 244 Cal.Rptr.3d 281 ; see also People v. Whalum (2020) 50 Cal.App.5th 1, 3, 263 Cal.Rptr.3d 599 [Fourth District concluding "that the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8^{[1 ]} was not affected by Proposition 64"], petn. for review pending, petn. filed July 7, 2020 ( Whalum ).) As we will explain, we determine that defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail.

1. The Prohibition on Cannabis Possession in Prison or Jail Prior to Proposition 64

Defendant was convicted under Penal Code section 4573.6(a). This subdivision states: "Any person who knowingly has in his or her possession in any state prison, ... or in any county ... jail, ... any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code , ... or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison or jail, ... or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison, [or] jail, ... is guilty of a felony ...." (Italics added.)

"Division 10 of the Health and Safety Code comprises the California Uniform Controlled Substances Act. ( Health & Saf. Code, § 11000 et seq. ) Chapter 2 contains schedules listing controlled substances subject to the provisions of division 10, and chapter 6 describes the offenses associated with controlled substances." ( People v. Fenton (1993) 20 Cal.App.4th 965, 968, 25 Cal.Rptr.2d 52 ( Fenton ).) Cannabis² is listed in Schedule I. ( Health & Saf. Code, § 11054, subd. (d)(13).)³ Prior to the passage of Proposition 64, possession of nonmedical cannabis was generally prohibited. (Former § 11357, as amended by initiative measure (Prop. 47, § 12, approved Nov. 4, 2014, eff. Nov. 5, 2014).)

Penal Code section 4573.6, the offense of which defendant was convicted, appears in part 3, title 5 of the Penal Code, concerning "Offenses Relating to Prisons and Prisoners." (See Pen. Code, § 4500 et seq. ) Penal Code " section 4573.6 appears to be aimed at problems of prison administration." ( People v. Rouser (1997) 59 Cal.App.4th 1065, 1071, 69 Cal.Rptr.2d 563.) "[S]everal adjacent provisions place restrictions on possessing and importing drugs and other contraband in custody. [Citations.]" ( People v. Low (2010) 49 Cal.4th 372, 382, 110 Cal.Rptr.3d 640, 232 P.3d 635 ( Low ); see Pen. Code, §§ 4573, subd. (a) [bringing controlled substances into prison or jail], 4573.5 [bringing alcoholic beverages, drugs other than controlled substances, or drug paraphernalia into prison or jail],⁴ 4573.8 [possessing alcoholic beverages, drugs, or drug paraphernalia in prison or jail], 4573.9, subd. (a) [selling or furnishing controlled substances to any person held in prison or jail], 4574, subd. (a) [bringing firearms, deadly weapons, or explosives into prison or jail].) These laws "flow from the assumption that drugs, weapons, and other contraband promote disruptive and violent acts in custody, including gang involvement in the drug trade." ( Low, supra , at p. 388, 110 Cal.Rptr.3d 640, 232 P.3d 635.) The Legislature was also concerned about drug use by prisoners. ( People v. Gutierrez (1997) 52 Cal.App.4th 380, 386, 60 Cal.Rptr.2d 561.) "Hence, these provisions are viewed as ‘ "prophylactic" ’ measures that attack the ‘ "very presence" ’ of such items in the penal system. [Citations.]" ( Low, supra ,...