People v. Raybon

• Decision Date: 11 June 2019
• Docket Number: C084853
• Citation: 248 Cal.Rptr.3d 611,36 Cal.App.5th 111
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Goldy RAYBON, Defendant and Appellant. [And four other cases.]

36 Cal.App.5th 111

248 Cal.Rptr.3d 611

The PEOPLE, Plaintiff and Respondent,

v.Goldy RAYBON, Defendant and Appellant.

[And four other cases.^* ]

C084853

Court of Appeal, Third District, California.

Filed June 11, 2019

Paulino G. Durán, Public Defender, David Lynch and Leonard K. Tauman, Assistant Public Defenders, for Defendants and Appellants.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

RAYE, P. J.

According to the plain language of Health and Safety Code section 11362.1, enacted as part of Proposition 64, possession of less than an ounce of cannabis in prison is no longer a felony. Smoking or ingesting cannabis in prison remains a felony and prison regulations forbid possession. The Attorney General uses arcane rules of statutory construction, twists the meaning of the words of the statute, urges us to disapprove of cases directly on point, and makes a host of policy arguments why we should not apply the plain language of the statute. The question of law we review de novo is whether the plain language of the statute leads to an absurd result. We conclude it does not. A result is not absurd because the outcome may be unwise. Cognizant of the humble role of the courts in construing statutes, not rewriting them to subscribe to our version of sound public policy, we reverse the trial court's denial of defendants' petitions for relief under Health and Safety Code section 11361.8.¹

PROCEDURAL HISTORY

Five defendants, all of whom are currently serving a sentence for a conviction of Penal Code section 4573.6, an offense that is no longer a crime pursuant to the Control, Regulate and Tax Adult Use of Marijuana Act ( Health & Saf. Code, § 11361.8 ; Prop. 64, as approved by the voters, Gen. Elec. (Nov. 8, 2016)), filed a petition requesting relief under Proposition 64 and an accompanying motion to dismiss.² The superior court denied each of the petitions. The defendants appeal.

THE DISPOSITIVE STATUTES

In 1949 the Legislature enacted several statutes " ‘to deter the presence of illicit drugs in custodial institutions’ " and thereby " ‘ensure the orderly administration and security within such institutions.’ " ( People v. Lee (2006) 136 Cal.App.4th 522, 536, 38 Cal.Rptr.3d 927 ; Pen. Code, §§ 4573, 4573.5, 4573.6, 4573.8, & 4573.9 ; see also People v. Gutierrez (1997) 52 Cal.App.4th 380, 386, 60 Cal.Rptr.2d 561 ( Gutierrez ).) Although the statutes must be construed together, each targets different substances or different people using, selling, possessing, or smuggling the substances. ( Gutierrez , at p. 385, 60 Cal.Rptr.2d 561.) At the center of this appeal is Penal Code section 4573.6 because each of the defendants was convicted of possession of cannabis in violation of this section. Section 4573.6 provides in relevant 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 ... is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years." ( Pen. Code, § 4573.6, subd. (a).)

The pivotal language, from defendants' perspective, is "the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code." The electorate's attitude toward cannabis has evolved in the approximately 70 years since the Legislature enacted Penal Code section 4573.6. Indeed, by 2016 California voters decided that the possession of less than one ounce of cannabis should no longer be criminalized. (Proposition 64.) Health and Safety Code section 11362.1 states: "(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;

"(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products;

"(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;

"(4) Smoke or ingest cannabis or cannabis products; and

"(5) Possess, transport, purchase, obtain, use, manufacture, or give away cannabis accessories to persons 21 years of age or older without any compensation whatsoever.

"(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subsection (f) of Section 863 of Title 21 of the United States Code( 21 U.S.C. Sec. 863(f) ) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute cannabis accessories.

"(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." ( Health & Saf. Code, § 11362.1.)

Decriminalization under Proposition 64 prevails "notwithstanding any other provision of law ...." ( Health & Saf. Code, § 11362.1, subd. (a).) The Attorney General acknowledges that the word "notwithstanding" signals that a statute preempts conflicting statutes. ( In re Greg F. (2012) 55 Cal.4th 393, 406-407, 146 Cal.Rptr.3d 272, 283 P.3d 1160.)

Defendants, all inmates, claim the plain language of Proposition 64 no longer renders possession of less than an ounce of cannabis a felony, and therefore, their petitions dismissing their convictions must be granted. Health and Safety Code section 11362.45 supports their claim because it expressly lists the laws the electorate determined are not amended, repealed, affected, restricted, or preempted by section 11362.1. Those include laws: prohibiting driving a vehicle while smoking, ingesting, or impaired by cannabis or cannabis products ( Health & Saf. Code, § 11362.45, subd. (a) ); prohibiting sales or furnishing of cannabis or cannabis products to a person under the age of 21 ( Health & Saf. Code, § 11362.45, subd. (b) ); prohibiting a person younger than 21 from engaging in any of the conduct otherwise permitted under section 11362.1 ( Health & Saf. Code, § 11362.45, subd. (c) ); and providing that undertaking any task while impaired from smoking or ingesting cannabis or cannabis products constitutes negligence or professional malpractice ( Health & Saf. Code, § 11362.45, subd. (e) ).

Defendants direct our attention to the pertinent language of Health and Safety Code section 11362.45, subdivision (d). According to subdivision (d), Health and Safety Code section 11362.1 does not amend, repeal, affect, restrict, or preempt "Laws 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 or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code." Conspicuously missing from subdivision (d), defendants argue, is possession. Thus, the electorate specifically addressed the issue of cannabis in prisons and expressly prohibited use, not possession. According to defendants, the plain language of the statutes is clear— possession of less than an ounce of cannabis is no longer a prohibited controlled substance pursuant to division 10 of the Health and Safety Code (hereafter division 10) and, therefore, possession is no longer a felony, even in prison.

THE DISPOSITIVE CASES

We addressed a nearly identical argument in People v. Fenton (1993) 20 Cal.App.4th 965, 25 Cal.Rptr.2d 52 ( Fenton ). Fenton, while checking into a minimum security facility as a condition of probation and his work furlough program, smuggled in drugs for his back pain and sleep disorder between his toes. ( Id. at pp. 966-967, 25 Cal.Rptr.2d 52.) Penal Code section 4573 proscribes smuggling a controlled substance, "the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code" into a jail. But Health and Safety Code section 11350, subdivision (a) proscribes possession of a controlled substance "unless upon the written prescription of a physician." Fenton had a prescription for the pills he smuggled in but he did not have the approval of the jail authorities who concluded the substances were too strong. ( Fenton , at p. 967, 25 Cal.Rptr.2d 52.) He was convicted of violating Penal Code sections 4573 and 4573.5. ( Fenton , at p. 966, 25 Cal.Rptr.2d 52.)

On appeal, the Attorney General raised many of the arguments he recycles here. He turned first to the purpose of the statute to keep controlled substances out of jails. Penal Code section 4573, in the Attorney General's view, prohibited individuals from bringing any controlled substance into penal institutions, whether or not they had a physician's prescription. We rejected the Attorney General's purpose over plain language analysis. "Contrary to the Attorney General's assertion, the reference to division 10 must include the prescription exception because [Penal Code] section 4573 imports the prohibition against possession of controlled substances not the list of controlled substances. Thus,...