32 Cal.App.5th 885
Cal. Ct. App.2019Background
- In 2010 Perry pled no contest to Penal Code § 4573.6 for possession of marijuana while in state prison and was sentenced to two years consecutive to an existing term.
- Proposition 64 (Nov. 2016) decriminalized possession of up to 28.5 grams of cannabis for persons 21+ by amending Health & Safety Code § 11357 and adding § 11362.1, but included exceptions in § 11362.45.
- § 11362.45(d) expressly states Proposition 64 does not “amend, repeal, affect, restrict, or preempt” laws pertaining to smoking or ingesting cannabis within facilities under the Department of Corrections and Rehabilitation.
- Perry petitioned under § 11361.8 for recall/dismissal, arguing that, because § 11357 no longer criminalized possession of ≤28.5 grams, § 4573.6 (which punishes possession in prison of controlled substances “the possession of which is prohibited by Division 10”) no longer applied to his conduct.
- The trial court denied the petition; on appeal the court considered whether Proposition 64 removed in-prison possession of small amounts of cannabis from § 4573.6’s reach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Proposition 64 eliminated § 4573.6 liability for in‑prison possession of ≤28.5 grams of cannabis | Perry: Because Prop 64 removed possession of ≤28.5 g from Health & Safety § 11357, § 4573.6 (which depends on Division 10 prohibitions) no longer covers such possession | People: Division 10 still prohibits possession in many circumstances (e.g., minors, >28.5 g) and Prop 64 expressly excludes correctional institutions from its legalization (§ 11362.45(d)) | Court: Affirmed—Prop 64 did not legalize possession of cannabis in prisons; § 4573.6 still applies |
Key Cases Cited
- People v. Fenton, 20 Cal.App.4th 965 (court interpreted § 4573 as importing Division 10 prohibitions and permitted possession in institutions when a Division 10 exception applied)
- People v. Low, 49 Cal.4th 372 (discusses prophylactic purpose of in‑custody contraband statutes and need to control drugs and weapons in penal institutions)
- People v. Rizo, 22 Cal.4th 681 (principles for interpreting voter initiatives and ascertaining voters’ intent)
- People v. Palaschak, 9 Cal.4th 1236 (use/ingestion only raises an inference of prior possession; possession and use are distinct concepts)