492 P.3d 937
Cal.
2021
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Background

  • Five defendants were convicted under Penal Code § 4573.6 for possessing less than 28.5 grams of cannabis while in California state correctional facilities. They sought relief under Proposition 64’s remedial provisions.
  • Proposition 64 (2016) generally legalized adult possession of up to 28.5 grams of cannabis (Health & Safety Code § 11362.1) but included a savings clause preserving certain laws, including § 11362.45(d): laws “pertaining to smoking or ingesting cannabis … within any facility … under the jurisdiction of the Department of Corrections.”
  • Lower courts split: the Third District (Raybon) held Prop. 64 legalized in‑prison possession; the First District (Perry) and several other appellate decisions held Prop. 64 did not affect prison possession prohibitions. Multiple courts of appeal subsequently disagreed, producing a need for Supreme Court resolution.
  • The Supreme Court found § 11362.45(d)’s phrase “laws pertaining to smoking or ingesting cannabis” reasonably includes laws targeting possession in prison, given the absence of any statute criminalizing consumption in custody and the historically prophylactic aim of possessory prison statutes.
  • The Court therefore held possession of cannabis in prison remains a violation of Penal Code § 4573.6; defendants’ petitions for dismissal were denied and the Court of Appeal judgment was reversed.
  • Justice Kruger concurred in the result that Prop. 64 did not legalize in‑prison possession but dissented from the majority’s broader treatment of how § 11362.45(d) affects future charging under § 4573.6.

Issues

Issue Plaintiff's Argument (People) Defendant's Argument (Raybon et al.) Held
1) Did Prop. 64 legalize adult possession of ≤28.5g cannabis inside state prisons (i.e., invalidate convictions under Pen. Code § 4573.6)? § 11362.45(d) saves from Prop. 64 “laws pertaining to smoking or ingesting” in prisons, which reasonably includes possessory rules; so § 4573.6 remains effective. § 11362.45(d) refers only to smoking or ingesting; possession is distinct and would have been explicitly preserved had drafters intended it. The Court held Prop. 64 did not legalize in‑prison possession; § 4573.6 remains applicable.
2) Does the phrase “pertaining to smoking or ingesting” encompass possessory offenses? “Pertaining to” means “relating to”; possession is directly related to consumption and thus falls within the carve‑out. The phrase should be read narrowly to cover only laws prohibiting consumption (and to capture other modes of consumption), not possession. The Court held “pertaining to” reasonably covers possession prohibitions because prison law criminalizes possession as a prophylactic means to prevent consumption.
3) Because § 4573.6 punishes possession of controlled substances “the possession of which is prohibited by Division 10,” did Prop. 64’s amendments to Division 10 render § 4573.6 inapplicable to cannabis? Even if Division 10 was amended, § 11362.45(d) preserves preexisting prison rules relating to cannabis, so § 4573.6 continues to cover in‑prison cannabis possession. Prop. 64’s amendments to Division 10 removed prohibitions on small‑quantity adult possession, so § 4573.6 (which incorporates Division 10) no longer applies to such cannabis possession. The Court held § 11362.45(d) shows voter intent to preserve prison possessory prohibitions; § 4573.6 therefore still applies to in‑prison cannabis possession.
4) What relief is available to defendants convicted under § 4573.6? Because § 4573.6 remains in force for in‑prison cannabis possession, defendants are not entitled to dismissal under § 11361.8; resentencing alternatives remain for prosecutors/courts. Defendants sought dismissal under § 11361.8 as offenses that Proposition 64 eliminated; alternatively they argued at least for resentencing to lesser penalties. The Court denied dismissal under Proposition 64 (no automatic invalidation); prosecutorial discretion and statutory resentencing mechanisms remain available but were not required here.

Key Cases Cited

  • People v. Low, 49 Cal.4th 372 (2010) (prison drug statutes are prophylactic, targeting possession to prevent use)
  • People v. Perry, 32 Cal.App.5th 885 (2019) (held Prop. 64 did not affect prison marijuana possession prohibitions)
  • People v. Raybon, 36 Cal.App.5th 111 (2019) (Third Dist. decision holding Prop. 64 legalized in‑prison possession)
  • People v. Fenton, 20 Cal.App.4th 965 (1993) (interpreted Penal Code provision to apply when the same possession would be prohibited by Division 10)
  • People v. Taylor, 60 Cal.App.5th 115 (2021) (rejected Fenton, holding §4573.6 can apply if substance is prohibited under Division 10 in any circumstances)
  • People v. Whalum, 50 Cal.App.5th 1 (2020) (agreed Prop. 64 did not affect prison possession laws)
  • People v. Harris, 145 Cal.App.4th 1456 (2006) (statutory history and purpose: prohibition of possession aimed at preventing drug use in custody)
  • People v. Romero, 13 Cal.4th 497 (1996) (discusses sentencing discretion and dismissal of strikes)
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