People v. Perry, 244 Cal. Rptr. 3d 281

In 2010 Perry pled no contest to possession of marijuana in prison (Pen. Code §4573.6) and received a consecutive two-year term.
In 2016 voters enacted Proposition 64, which decriminalized possession of up to 28.5 grams of cannabis for persons 21+ (Health & Safety Code §11362.1) and added a resentencing petition procedure (§11361.8).
Proposition 64 also included §11362.45(d), stating the initiative does not “amend, repeal, affect, restrict, or preempt” laws pertaining to smoking or ingesting cannabis on grounds of institutions under the Department of Corrections.
Perry petitioned to recall or dismiss his §4573.6 sentence under §11361.8, asserting his prison possession involved 14 grams and would not have been prohibited by Division 10 if Prop 64 had been in effect. The trial court denied relief.
The appellate panel had to decide whether Prop 64 removed in-prison cannabis possession from the scope of Pen. Code §4573.6 or whether the initiative left prison-related prohibitions intact.

Issue	Perry's Argument	Respondent's Argument	Held
Whether Prop 64 removed in-prison possession of ≤28.5g cannabis from the scope of Pen. Code §4573.6	Prop 64 amended §11357 and added §11362.1 so possession of ≤28.5g by adults is not prohibited by Division 10, thus §4573.6 no longer covers such possession in prison	§11362.45(d) preserves laws concerning cannabis in correctional facilities; Division 10 still prohibits possession in many circumstances so §4573.6 still applies	Court held Prop 64 did not repeal or limit §4573.6 as to in-prison possession; denial of petition affirmed

People v. Rizo, 22 Cal.4th 681 (discussion of initiative interpretation principles)
People v. Fenton, 20 Cal.App.4th 965 (interpreting Penal Code §4573 to incorporate Division 10 exceptions—prescription exception)
People v. Low, 49 Cal.4th 372 (describing in-custody drug/contraband statutes as prophylactic to control contraband in penal institutions)
People v. Palaschak, 9 Cal.4th 1236 (ingestion raises only inference of prior possession)
People v. Spann, 187 Cal.App.3d 400 (possession distinct from use; use alone insufficient to prove possession)