52 Cal.App.5th 982
Cal. Ct. App.2020Background
- In 2017 Herrera was observed in a jail dorm where deputies smelled marijuana; surveillance showed him appearing to drop something and a bindle containing 0.59 grams of marijuana was recovered.
- Herrera was charged with bringing meth into jail (Pen. Code §4573(a)) and possession of marijuana in jail (Pen. Code §4573.6(a)); acquitted of the meth count and convicted of §4573.6(a).
- The jury found true a prior "strike" and that Herrera had served three prior prison terms; the trial court sentenced him to an aggregate eight-year term (middle term doubled plus two one-year consecutive priors) and imposed a $300 restitution fine that was stayed.
- On appeal Herrera argued (1) Proposition 64 decriminalized his jail possession conviction, (2) recent amendments to Penal Code §667.5(b) require striking his prior prison-term enhancements, and (3) the abstract of judgment should reflect the stayed restitution fine.
- The Court of Appeal held the §4573.6(a) conviction stands (Prop 64 did not remove jail possession prohibitions), but the amended §667.5(b) applies retroactively and all three prison-term enhancements must be stricken; the case was reversed and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Prop 64 decriminalized possession of cannabis in jail (Pen. Code §4573.6(a)) | Prop 64 did not affect laws governing cannabis in custodial institutions; §11362.45(d) preserves such laws | Prop 64 legalized possession of small amounts of cannabis, so §4573.6(a) no longer criminalizes possession of <28.5g in jail | Court: §11362.45(d) (laws “pertaining to smoking or ingesting” in custodial settings) encompasses §4573.6(a); conviction affirmed |
| Whether recent amendment to Penal Code §667.5(b) requires striking prior prison-term enhancements | New §667.5(b) narrows one-year enhancements to certain sexual offenses; applies retroactively to nonfinal judgments | Herrera argued enhancements should be stricken/third prior should have been stricken under §1385 | Court: Amendment applies retroactively; remand to strike all three prior prison-term enhancements and resentence |
| Whether abstract of judgment must be corrected re: stayed $300 restitution fine and who bears burden on ability-to-pay | People argue the court erred by staying fines until prosecution shows inability-to-pay; defendant forfeited issue | Herrera contends the trial court stayed the fine and the abstract is incorrect | Court: Left unresolved on appeal due to remand; parties may raise ability-to-pay and abstract correction on remand |
Key Cases Cited
- People v. Raybon, 36 Cal.App.5th 111 (3d Dist. 2019) (held possession of less than one ounce of cannabis in prison not a crime post-Prop 64)
- People v. Perry, 32 Cal.App.5th 885 (1st Dist. 2019) (held Prop 64 did not eliminate prohibition on cannabis in prison; §11362.45(d) preserves custodial prohibitions)
- People v. Whalum, 50 Cal.App.5th 1 (4th Dist. 2020) (concluded custodial cannabis possession/offenses unaffected by Prop 64)
- People v. Low, 49 Cal.4th 372 (Cal. 2010) (describes prophylactic statutory scheme restricting contraband in custody)
- People v. Fenton, 20 Cal.App.4th 965 (Cal. Ct. App. 1993) (interpreted Penal Code provision importing Division 10 exceptions such as lawful possession by prescription)