People v. Raybon

• Decision Date: 12 August 2021
• Docket Number: S256978
• Parties: THE PEOPLE, Plaintiff and Respondent, v. GOLDY RAYBON, Defendant and Appellant. [And four other cases
• Court: California Supreme Court

THE PEOPLE, Plaintiff and Respondent, v. GOLDY RAYBON, Defendant and Appellant.

[And four other cases^[*]]

S256978

Supreme Court of California

August 12, 2021

Court Superior Third Appellate District C084853 Sacramento County Superior Court 09F08248 Curtis M. Fiorini Judge

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

Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan State Solicitor General, Gerald A. Engler and Lance E Winters, Chief Assistant Attorneys General, Janill L. Richards, Principal Deputy State Solicitor General, Michael P. Farrell, Assistant Attorney General, Ryan B. McCarroll, Deputy State Solicitor General, Julie A. Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

Justice Groban authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, and Jenkins concurred.

OPINION

GROBAN, J.

This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)). The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility. Although Proposition 64 generally legalizes adult possession of cannabis, ^[1] it contains several exceptions. One such exception provides that the Act does not amend or affect “[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....” (Health & Saf. Code, § 11362.45, subd. (d).) The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants^[2] disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis, ” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General's proposed reading of Health and Safety Code section 11362.45, subdivision (d)^[3] to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic”' ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388 (Low).) Thus, under defendants' interpretation, section 11362.45, subdivision (d)'s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful. It seems unlikely that was the voters' intent. Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative's enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons. In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893 (Perry).) Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

I. Background

The five defendants in this case were each found in possession of less than 28.5 grams of cannabis in a state prison and were subsequently convicted of violating Penal Code section 4573.6. Most of the defendants were serving time for a prior serious or violent felony at the time of their possession offenses, resulting in second-strike sentences that added several years to their current term.^[4]

In 2016, the voters passed Proposition 64, which makes it lawful for persons aged 21 years and older to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams of cannabis (approximately one ounce), subject to certain exceptions. (See Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 4.4, p. 180 (Voter Guide); Health & Saf. Code, § 11362.1, subd. (a).)^[5] The initiative also includes a remedial provision that allows persons currently serving a sentence for a cannabis-related crime that is no longer an offense under Proposition 64 to file a petition requesting the dismissal of their sentence. (Voter Guide, supra, text of Prop. 64, § 8.7, p. 207; § 11361.8, subd. (a).) Acting pursuant to that new provision, defendants filed petitions in the Sacramento County Superior Court arguing that their sentences for violating Penal Code section 4573.6 should be dismissed because adult possession of less than an ounce of cannabis in prison no longer qualifies as a crime.

The district attorney opposed the petitions, asserting that Penal Code section 4573.6 falls within an exception set forth in Health and Safety Code section 11362.45, subdivision (d) stating that Proposition 64 has no effect on laws “pertaining to smoking or ingesting cannabis or cannabis products” in state correctional facilities. (§ 11362.45, subd. (d) (hereafter section 11362.45(d)).) The trial court agreed and issued orders denying the petitions. Defendants appealed to the Third District and their cases were consolidated for purposes of argument and decision.

While the appeal was pending, the First District issued Perry, supra, 32 Cal.App.5th 885, which held that “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.” (Id. at p. 890, italics omitted.) Like the trial court in this case, the First District concluded that the phrase “ ‘[l]aws pertaining to smoking or ingesting cannabis [in prison]' ” implicitly extends to possession under Penal Code section 4573.6 because the possession of cannabis is directly related to smoking or ingesting the substance. (Perry, at p. 891.)

The Third District disagreed with Perry and held that the phrase “pertaining to smoking and ingesting” was not “intend[ed] to include a third distinct activity, possession.” (People v. Raybon (2019) 36 Cal.App.5th 111, 121 (Raybon).) The court further held that the clear and unambiguous intent of the phrase “pertaining to” was “to describe the... means of [cannabis] consumption” that do “not strictly involv[e] smoking or ingesting, such as inhal[ing] as a non-burning vapor or appl[ying] topically such that it is absorbed through the skin.” (Ibid. [“there is no ambiguity [in section 11362.45(d)]”].) Having found the “conduct underlying [defendants'] convictions is no longer criminal under Penal Code section 4573.6, ” the Court of Appeal directed the superior court “to enter orders granting the petitions for relief.” (Raybon, at p. 126.)

The Attorney General filed a petition for review seeking resolution of the following question: “Did Proposition 64, which generally legalized the simple possession of less than an ounce of cannabis, also legalize such possession in state prisons and other custodial institutions?”^[6]

II. Discussion

A. Legal Framework

1. Statutory prohibitions on cannabis possession prior to Proposition 64

Division 10 of the Health and Safety Code comprises the California Uniform Controlled Substances Act. (§ 11000 et seq.) Chapter 2 of the act contains schedules listing the controlled substances that are subject to the provisions of division 10, which includes cannabis.^[7] (See § 11054, subd. (d)(13).) Chapter 6 of the act describes offenses associated with controlled substances, and article 2 (§ 11357 et seq.) sets forth offenses related to cannabis. Prior to Proposition 64, section 11357 made it a crime to possess nonmedical cannabis and set forth the applicable punishments for such conduct. (See former § 11357, subd. (a); Voter Guide, supra, text of Prop. 64, § 8.1, pp. 204-205.)

Penal Code section 4573 et seq. “place restrictions on possessing and importing drugs and other contraband in custody.” (Low, supra, 49 Cal.4th at p. 382.) Two of these provisions target the possession of drugs in custodial settings. The offense at issue here, Penal Code section 4573.6, makes it a felony to knowingly “possess[] in any state prison, ... or in any county or city jail, ... any controlled substances, the possession of which is prohibited by Division 10... of the Health and Safety Code..., without being authorized to so possess... by the rules of the Department of Corrections, [the] rules of [the correctional facility] or by the specific authorization of the [persons in charge of the facility]....” (Pen. Code, § 4573.6, subd. (a).) A violation of this section is “punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.” (Ibid.) Penal Code section 4573.8 has broader application, making it a crime to possess “in any state prison... drugs in any manner... or alcoholic beverages, without being authorized to [so] possess the same by [the] rules of the [prison].” This latter ...