People v. Perry

• Citation: 32 Cal.App.5th 885,244 Cal.Rptr.3d 281
• Decision Date: 01 March 2019
• Docket Number: A153649
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nisaiah J. PERRY, Defendant and Appellant.

32 Cal.App.5th 885

244 Cal.Rptr.3d 281

The PEOPLE, Plaintiff and Respondent,

v.Nisaiah J. PERRY, Defendant and Appellant.

A153649

Court of Appeal, First District, Division 2, California.

Filed March 1, 2019

As Modified on Denial of Rehearing March 15, 2019

Counsel for Appellant: Under Appointment by the Court of Appeal, Walter K. Pyle

Counsel for Respondent: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Arthur P. Beever, Deputy Attorney General

Kline, P.J.

While serving a prison sentence for another offense, appellant Nisaiah J. Perry pled no contest to a charge of possession of marijuana in prison and was sentenced to a two-year term. He contends the trial court erred in summarily denying his petition to recall or dismiss this sentence after the passage of Proposition 64, which legalized possession of up to 25.8 grams of marijuana by adults 21 years of age and older. We conclude that Proposition 64 did not remove possession of marijuana in prison from the reach of Penal Code section 4573.6, the statute under which appellant was convicted, and therefore affirm.

BACKGROUND

In 2010, appellant entered a plea of no contest to a charge of unauthorized possession of marijuana in prison. ( Pen. Code, § 4573.6, subd. (a).) A charge of bringing drugs into a prison ( Pen. Code, § 4573 ) and an alleged prior conviction for first degree robbery ( Pen. Code, § 211 ) were dismissed, and appellant was sentenced to the low term of two years, consecutive to the prison term he was already serving.¹

On November 8, 2016, the voters adopted Proposition 64, which, with certain limitations, legalized possession of "not more than 28.5 grams of cannabis" by persons 21 years of age or older. ( Health & Saf. Code,² § 11362.1; Prop. 64, § 4.4, approved Nov. 8, 2016, eff. Nov. 9, 2016.) The new law provided that a person "serving a sentence for a conviction ... who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 113632.3, and 11362.4 as those sections have been amended or added by that act." (§ 11361.8.)

On November 15, 2016, appellant and his wife each separately wrote to the Solano County Superior Court inquiring about having appellant’s conviction expunged in light of the passage of Proposition 64. Their letters were forwarded to the offices of the district attorney and public defender.

On May 4, 2017, appellant filed a petition for recall or dismissal of sentence, alleging that his Penal Code section 4573.6 offense involved only 14 grams of marijuana and was therefore eligible for expungement under Proposition 64. The trial court’s May 4, 2017, order denying the petition concluded that appellant failed to state a basis for relief because "Prop. 64 did not amend Penal Code section 4573.6, which remains a felony offense."

On January 10, 2018, appellant filed another petition in the trial court, arguing that he was entitled to relief under Proposition 64 despite having been convicted of violating Penal Code section 4573.6, rather than a provision of the Health and Safety Code, and that section 11361.8 required the court to presume he was eligible for resentencing or dismissal. The trial court denied the petition on the basis that appellant had not cited new facts, circumstances or law to support reconsideration of its previous denial.³

Appellant filed a notice of appeal, and this court appointed counsel to represent him.

DISCUSSION

Penal Code section 4573.6, subdivision (a), provides in pertinent 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, superintendent, jailer, or other person in charge of the prison ... is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."

When appellant pled no contest to violating this statute in 2010, section 11357, subdivision (b), made possession of not more than 28.5 grams of marijuana a misdemeanor. As amended by Proposition 64, section 11357 no longer defines possession of not more than 28.5 grams of marijuana by a person age 21 or older as an offense. ( § 11357, subd. (a).) Possession of cannabis by persons under age 21 remains an offense ( § 11357, subd. (a)(1), (2) ),⁴ as does possession of more than 28.5 grams of cannabis by persons over age 18 years. ( § 11357, subd. (b).)⁵

In addition, Proposition 64 affirmatively legalized possession of not more than 28.5 grams of marijuana, by a person at least 21 years of age, by the addition of section 11362.1 : "(a) 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: [¶] ... (1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis ...."⁶

As indicated above, section 11361.8, subdivision (a), provides that "[a] person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by that act."⁷

Appellant argues he would not have been guilty of an offense under Penal Code section 4573.6 if Proposition 64 had been in effect at the time of his offense because, as a result of the amendments to section 11357 and addition of section 11362.1, the possession of 28.5 grams or less of cannabis is not "prohibited by Division 10 ... of the Health and Safety Code." ( Pen. Code, § 4573.6., subd. (a).)⁸

We disagree. As we will explain, Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6.

As indicated above, Proposition 64 decriminalized possession of not more than 28.5 grams of cannabis by removing the prohibition that had previously existed in section 11357 and by affirmatively stating the legality of such possession in section 11362.1. Section 11362.1, however, provides that it operates "[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45." ( § 11362.1, subd. (a).) Section 11362.45 states a number of exceptions to the "rule" that Proposition 64 legalized possession of 28.5 grams of cannabis or less. Section 11362.45, subdivision (d), specifically addresses cannabis in prison, providing that 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).) The parties dispute whether this provision applies to "possession," as well as "smoking or ingesting" cannabis. If it does, the clear import is that while legalizing possession of the specified quantity of marijuana for the general population of the state, Proposition 64 intended to leave intact existing restrictions on possession of marijuana in correctional facilities.

" ‘In interpreting a voter initiative ... we apply the same principles that govern statutory construction. [Citation.] Thus, "we turn first to the language of the statute, giving the words their ordinary meaning." [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous, "we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]’ ( People v. Rizo (2000) 22 Cal.4th 681, 685 [94 Cal.Rptr.2d 375, 996 P.2d 27].) In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ ( In re Littlefield (1993) 5 Cal.4th 122, 130 [19 Cal.Rptr.2d 248, 851 P.2d 42].)" ( People v. Briceno (2004) 34 Cal.4th 451, 459, 20 Cal.Rptr.3d 418, 99 P.3d 1007.) "We adopt a construction ‘that will effectuate the voters’ intent, giv[ing] meaning to each word and phrase, and avoid absurd results." ( Santos v. Brown (2015) 238 Cal.App.4th 398, 409, 189 Cal.Rptr.3d 234, quoting People v. Stringham (1988) 206 Cal.App.3d 184, 196–197, 253 Cal.Rptr. 484.)

While 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." Definitions of the term "pertain" demonstrate its wide reach: It means "to belong as an attribute, feature, or...