People v. Taylor, 012221 CAAPP6, H047540

Docket NºH047540
Opinion JudgeELIA, ACTING P.J.
Party NameTHE PEOPLE, Plaintiff and Respondent, v. ALONZO LEE TAYLOR, Defendant and Appellant.
AttorneyCounsel 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. Share, Supervising Deputy Attorney General Melissa J. Kendra, Deputy Attorney General Counsel for Defen...
Judge PanelI CONCUR: BAMATTRE-MANOUKIAN, J. Danner, J., concurring in the judgment.
Case DateJanuary 22, 2021
CourtCalifornia Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.

ALONZO LEE TAYLOR, Defendant and Appellant.

H047540

California Court of Appeals, Sixth District

January 22, 2021

Monterey County Superior Court Nos.: SS981425A SS001208A Honorable Mark E. Hood

Counsel 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. Share, Supervising Deputy Attorney General Melissa J. Kendra, Deputy Attorney General

Counsel for Defendant and Appellant ALONZO LEE TAYLOR Edward Mahler

ELIA, ACTING P.J.

Proposition 64 was approved by the voters in 2016 and is known as “the Control, Regulate and Tax Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act').” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)1 text of Prop. 64, § 1, p. 178.) Health and Safety Code section 11362.1 was added by Proposition 64.2 (Voter Information Guide, supra, text of Prop. 64, § 4.4, p. 180.) Subject to specified statutory exceptions, section 11362.1, subdivision (a) (section 11362.1(a)) declares it “lawful under state and local law... for persons 21 years of age or older to” “[p]ossess, 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.”

Section 11361.8, which was also added by Proposition 64 (Voter Information Guide, supra, text of Prop. 64, § 8.7, pp. 207-208), establishes a postjudgment procedure for the filing of a petition for recall or dismissal of sentence when “[a] person currently serving a sentence for a conviction... would not have been guilty of an offense, or... 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.”[3] (§ 11361.8, subd. (a) (§ 11361.8(a)).)

Alonzo Lee Taylor moved in propria persona to dismiss a 1999 felony conviction of violating Penal Code section 4573.6 (possession of controlled substance in prison) and a 2000 felony conviction of conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)) pursuant to section 11361.8. Defense counsel subsequently filed a notice of motion and motion for resentencing as to both convictions pursuant to section 11361.8. In their opposition, the People asserted that possession of marijuana in prison and conspiracy to possess marijuana in prison continue to be public offenses after Proposition 64. The trial court denied the motions.

On appeal, Taylor argues that under section 11362.1(a), the possession in prison of 28.5 or fewer grams of marijuana by a person who is at least 21 years old, like him, is not unlawful. He maintains that subdivision (d) of section 11362.45, which was added by Proposition 64 (Voter Information Guide, supra, text of Prop. 64, § 4.8, p. 182), stated an exception to section 11362.1(a) for “smoking or ingesting” marijuana in a state prison facility but not for possession of marijuana in prison. He contends that, consequently, under 11362.1(a), it is generally lawful for a person who is at least 21 years of age to possess 28.5 grams or less of marijuana, whether in the community or in prison. He further argues that since possession of such an amount of marijuana is no longer a crime, any agreement with others to possess 28.5 grams or less of marijuana is also no longer a crime. Taylor asserts that he would not have been guilty of those crimes had Proposition 64 been in effect at the time of his offenses.

Taylor asks this court “to remand the matter to permit the trial court to determine [whether] granting the requested relief ‘would pose an unreasonable risk of danger to public safety' ”4 and to dismiss both marijuana-related convictions if the trial court determines that granting the petition would not pose such a risk. (See § 11361.8, subds. (a), (b).) Taylor does not argue that he “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.” (§ 11361.8(a).)

The California Courts of Appeal have split on the issue of whether after Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail is unlawful under Penal Code section 4573.6. (Compare People v.

Perry (2019) 32 Cal.App.5th 885 (Perry), review denied June 12, 2019, S255148, People v.

Whalum (2020) 50 Cal.App.5th 1 (Whalum), review granted Aug. 12, 2020, S262935, and People v.

Herrera (2020) 52 Cal.App.5th 982 (Herrera), review granted Oct. 14, 2020, S264339, with People v. Raybon (2019) 36 Cal.App.5th 111 (Raybon), review granted Aug. 21, 2019, S256978.) This court concluded in Herrera that “Proposition 64 did not decriminalize the possession of cannabis in a penal institution, and that [the] defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail.” (Herrera,

supra, at p. 985.) The California Supreme Court has granted review of several of these cases so that it may resolve the issue.5

In this case, we determine that cannabis is a controlled substance “the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code.” 6 (Pen. Code, § 4573.6, subd. (a).) We also confirm that the phrase “[l]aws pertaining to smoking or ingesting cannabis or cannabis products” in subdivision (d) of section 11362.45 (section 11362.45(d)) encompasses laws that govern possession of cannabis. Therefore, under the dictates of section 11362.45(d), although section 11362.1(a) partially decriminalizes possession of cannabis, it does not “amend, repeal, affect, restrict, or preempt” laws governing the possession of cannabis “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 [s]ection 4573 of the Penal Code.” (§ 11362.45(d).)

We reject Taylor's contentions and conclude that he is not entitled to dismissal of the two convictions under section 11361.8. Accordingly, we affirm the trial court's order denying Taylor's motions for dismissal pursuant to section 11361.8.

I

Procedural History

An abstract of judgment filed March 25, 1999 in People v. Taylor (Super. Ct. Monterey County, 1999, No. SS981425A) (case No. SS981425A) reflected that Taylor was convicted on February 16, 1999 of violating Penal Code section 4573.6 (possession of a controlled substance in prison) in 1998 and that he was sentenced to a two-year prison term for the crime. Taylor was ordered to serve the term consecutive to the sentence that he was already serving. The abstract of judgment did not reflect that the crime was marijuana related. It indicated that Taylor was born in 1950.

An abstract of judgment filed on September 19, 2000 in People v. Taylor (Super. Ct. Monterey County, 2000, No. SS001208A) (case No. SS001208A), and an amended abstract of judgment filed on March 27, 2002 in the same case, reflected that on August 3, 2000, Taylor was convicted by plea of conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1)), which was committed in 1999. The waiver-of-rights form signed by Taylor indicated he would be pleading no contest to an offense of “182/4573.6.”7 Taylor was sentenced to a four-year prison term for the crime and ordered to serve the term consecutive to the term imposed in case No. SS981425A. Neither this abstract of judgment nor the waiver form reflected that the crime was marijuana related. This abstract of judgment also indicated that Taylor was born in 1950.

In 2019, in case No. SS981425A, Taylor moved, in propria persona, to dismiss his February 16, 1999 conviction of “possession of marijuana (re: less than an ounce)” under Penal Code section 4573.6. Also in 2019, in case No. SS001208A, Taylor moved, in propria persona, to dismiss his August 3, 2000 conspiracy conviction. Taylor indicated that this motion was based on “the Control, Regulate & Tax Adult Use of Marijuana Act.”

Defense counsel subsequently filed, on behalf of Taylor, a notice of motion, motion, and memorandum of points and authorities to support dismissal of those two convictions (case Nos. SS981425A & SS001208A) pursuant to section 11361.8. The papers described the convictions as “marijuana related.” Counsel argued that possession of “less than 28.5 grams of marijuana in prison by an adult” and “conspiring to possess marijuana in prison” were no longer crimes.

The People opposed the motions on the ground that possession of marijuana in prison and conspiracy to possess marijuana in prison continue to be public offenses after Proposition 64. They argued that under the plain statutory language, “if [m]arijuana is prohibited as a controlled substance with some exception[s], it is still a prohibited controlled substance for the purposes of Penal Code section 4573.6.” They did not assert that Taylor had been convicted of possession of a controlled substance other than marijuana or possession, or conspiring to possess, more than 28.5 grams of marijuana in prison.8

The trial court denied Taylor's motions to dismiss his conviction of violating Penal Code section 4573.6 and his conviction of conspiring to violate Penal Code section 4573.6. Taylor appealed.

II

Discussion

A. Statutory Construction

This case presents two separate questions of statutory construction or interpretation. “Statutory interpretation is a question of law that we review de novo. [Citation.]” (Bruns v. E


Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) We must determine the proper...

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