People v. RaybonPeople v. Raybon
Opinion of the Court by Groban, J.
This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)). The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under
Ultimately, we find the Attorney General‘s proposed reading of
I. BACKGROUND
The five defendants in this case were each found in possession of less than 28.5 grams of cannabis in a state prison and were subsequently convicted of violating
In 2016, the voters passed Proposition 64, which makes it lawful for persons aged 21 years and older to engage in various types of conduct involving cannabis, including the possession of up to 28.5 grams of cannabis (approximately one ounce), subject to certain exceptions. (See Voter Information Guide, Gen. Elec.
The district attorney opposed the petitions, asserting that
While the appeal was pending, the First District issued Perry, supra, 32 Cal.App.5th 885, which held that “Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of
The Third District disagreed with Perry and held that the phrase “pertaining to smoking and ingesting” was not “intend[ed] to include a third distinct activity, possession.” (People v. Raybon (2019) 36 Cal.App.5th 111, 121 (Raybon).) The court further held that the clear and unambiguous intent of the phrase “pertaining to” was “to describe the . . . means of [cannabis] consumption” that do “not strictly involv[e] smoking or ingesting, such as inhal[ing] as a non-burning vapor or appl[ying] topically such that it is absorbed through the skin.” (Ibid. [“there is no ambiguity [in section 11362.45(d)]“].) Having found the “conduct underlying [defendants‘] convictions is no longer criminal under
The Attorney General filed a petition for review seeking resolution of the following question: “Did Proposition 64, which generally legalized the simple possession of less than an ounce of cannabis, also legalize such possession in state prisons and other custodial institutions?”6
A. Legal Framework
1. Statutory prohibitions on cannabis possession prior to Proposition 64
Division 10 of the Health and Safety Code comprises the California Uniform Controlled Substances Act. (
These statutes, which target the possession rather than the consumption of unauthorized drugs in prison, “flow from the assumption that drugs . . . and other contraband promote disruptive and violent acts in custody, including gang involvement in the drug trade. Hence, these provisions are viewed as ’ “prophylactic” ’ measures that attack the ’ “very
2. Proposition 64
In November 2016, voters enacted Proposition 64, which was intended “to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana.” (Voter Guide, supra, text of Prop. 64, § 3, p. 179.) In addition to regulating the production and sale of nonmedical cannabis, the Act was intended to “[p]ermit adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits . . . as set forth in [the Act].” (Id., § 3, subd. (l).)
Proposition 64‘s legalization provision, set forth in newly added
The penalties for engaging in any of these prohibited activities are set forth in newly added
Other subdivisions of
Finally, Proposition 64 added remedial provisions for persons convicted of a cannabis-related crime “who would not have been guilty of an offense, or who would have been guilty of a lesser offense under [the Act].” (
” ‘In interpreting a voter initiative . . . , we apply the same principles that govern statutory construction.’ [Citation.] Where a law is adopted by the voters, ‘their intent governs.’ [Citation.] In determining that intent, ‘we turn first to the language of the statute, giving the words their ordinary meaning.’ [Citation.] But the statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme. [Citation.] We apply a presumption, as we similarly do with regard to the Legislature, that the voters, in adopting an initiative, did so being ‘aware of existing laws at the time the initiative was enacted.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 879–880.)
” ‘Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ [Citation.]” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.) However, where “statutory ambiguity exists,” our role is “to ascertain the most reasonable interpretation.” (People v. Canty (2004) 32 Cal.4th 1266, 1277 (Canty).) In making that determination, we may ” ‘refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.’ [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685 (Rizo).)
C. Analysis
The question we must decide in this case is whether, after Proposition 64, possession of less than an ounce of cannabis in a
As an initial matter, we disagree with the Court of Appeal‘s conclusion that “there is no ambiguity” (Raybon, supra, 36 Cal.App.5th at p. 121) in
Despite such ambiguity, we must nonetheless attempt to discern which of the parties’ interpretations is most reasonable. (See Canty, supra, 32 Cal.4th at p. 1277.) For the reasons that follow, we agree with the Attorney General that Proposition 64 is most reasonably construed as having no effect on
1. Section 11362.45(d) is most reasonably construed as encompassing laws that prohibit the possession of cannabis in prison
We think it clear that laws barring possession of cannabis in prison relate to drug use. The act of possessing cannabis and the act of using cannabis have an obvious relation insofar as “a person has to possess cannabis to smoke or ingest it.” (Whalum, supra, 50 Cal.App.5th at p. 12, rev. granted; see Perry, supra, 32 Cal.App.5th at p. 891 [“[w]e would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance“].) Long before Proposition 64 was passed, our
The Attorney General‘s proposed reading of
We also find it significant that the only existing laws regulating cannabis use and possession in correctional facilities target the act of possession, rather than use. Thus, if
Finally, between the parties’ two proposed interpretations, we find the Attorney General‘s construction to be more ” ‘compatible with common sense.’ ” (In re Estate of Todd (1941) 17 Cal.2d 270, 275 [” ‘the language of a statute must be given a reasonable interpretation . . . and . . . , when opportunity arises, made compatible with common sense’ “]; City of Chula Vista v. Sandoval (2020) 49 Cal.App.5th 539, 560 [” ’ ” ‘if the clear meaning of the statutory language is not evident . . . , we will “apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations], . . . practical [citations], in accord with common sense . . . ” ’ ” ’ “].) While perhaps not illogical to distinguish between the possession and use of cannabis, it is nonetheless difficult to understand why the electorate would want to
2. Defendants’ counterarguments
Defendants raise numerous counterarguments in support of their assertion that Proposition 64 invalidates cannabis-related convictions under
a. Defendants’ arguments regarding the text of section 11362.45(d)
Defendants’ primary contention is that if the drafters had meant
If
We find defendants’ proposed interpretation of “pertaining to” in section 11362.45(d) unpersuasive. First, we question defendants’ unexamined assumption that the term “smoking or ingesting” is not broad enough to encompass the alternative means of consumption they have identified.
Second, and more importantly, other sections of Proposition 64 strongly suggest the drafters intended the words “smoking or ingesting” to encompass all forms of consumption.
In each of these circumstances, we believe the drafters intended “smoking or ingesting” to cover all forms of cannabis consumption. We find it doubtful, for example, that the drafters meant to prohibit people from smoking or eating cannabis while driving but permit them to vape or absorb cannabis products while driving. We are equally dubious that the drafters intended to allow laws providing that it would constitute professional negligence to undertake a task while impaired from smoking or eating cannabis, but not while impaired from vaping or absorbing cannabis. Because numerous other sections of
Defendants also discount the absence of any law making it a crime to smoke, ingest or consume cannabis in prison or jail. They argue that section 11362.45(d) was never intended to carve out preexisting laws involving cannabis in prison, but rather was meant to authorize the Legislature to pass future laws that “proscrib[e] smoking or ingesting (or other forms of consuming) marijuana on jail or prison grounds, should legislators consider them appropriate.” Defendants contend that in the absence of
Assuming arguendo that the language of section 11362.45(d) permits the Legislature to pass or repeal laws that pertain to cannabis use in prison without electorate approval, we are not persuaded a reasonable voter would interpret that to be the sole intent of the provision. As explained above, if section 11362.45(d) were only meant to permit the Legislature to pass future laws criminalizing cannabis use in prison, one would expect some language clarifying that prospective intent. Instead, the statute states only that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” in prison. (§ 11362.45(d).) The clear implication is that the initiative would leave intact some existing restriction on cannabis in prison. We find defendants’ proposed reading of this language — to convey that the initiative would remove existing penal restrictions regulating cannabis in prison but authorize the Legislature to pass future laws criminalizing cannabis use in prison — to be far more strained. (See People v. Nuckles (2013) 56 Cal.4th 601, 611–612 [a reviewing court should ” ‘not strain to interpret a penal statute in defendant‘s favor if it can fairly discern a contrary legislative intent’ “].)12
Finally, defendants argue the Voter Guide, supra provides “rich . . . support” for the conclusion that Proposition 64 was intended to legalize the possession of cannabis in prison. They note that the Voter Guide contains no language informing voters that Proposition 64 would leave in place existing prohibitions on cannabis possession in prison. Defendants also cite to a table in the Legislative Analyst‘s summary listing what activities would become lawful under the measure and what activities would remain unlawful. The section of the table addressing possession states that while it would be allowable for persons 21 or over to possess up to 28.5 grams of cannabis, it would not be allowable to possess cannabis on school grounds while children are present. (See Voter Guide, supra, analysis of Prop. 64 by the Legis. Analyst, p. 92, figure 2.) According to defendants, the electorate would have likely inferred from this table that possession in prison would become legal because such conduct was not listed as an activity that would remain unlawful.
We find nothing in the Voter Guide that provides substantial support for either side‘s interpretation. As defendants acknowledge, the Voter Guide does not contain a single reference to laws regulating cannabis in prisons nor does
b. Defendants’ arguments regarding the text of Penal Code section 4573.6
Defendants additionally argue that even if section 11362.45(d) does generally extend to possession offenses, their convictions should nonetheless be dismissed because the act of possessing cannabis in prisons no longer falls within the category of conduct proscribed under
In People v. Taylor (2021) 60 Cal.App.5th 115, review granted April 14, 2021, S267344 (Taylor), the defendants relied on Fenton in arguing that Proposition 64‘s amendments to section 11357 mean that possession of less than 28.5 grams of cannabis in prison by an adult no longer qualifies as a violation of
We need not resolve that dispute here. Regardless of how
The dissent takes a different view, though for reasons that are distinct from the arguments made by defendants or any other court that has addressed this issue. While agreeing that
Before turning to the merits of the dissent‘s proposed interpretation of Proposition 64, we first address the dissent‘s assertion that there is no reason for this court to even decide whether cannabis possession remains a violation of
While the dissent concludes that we should avoid this issue entirely based on the manner the defendants have styled their request for relief, we think the question is properly before us and should be decided now. Indeed, the defendants’ briefs in both the Court of Appeal and this court include an entire section expressly arguing that even if section Health and Safety Code section 11362.45(d) generally extends to possessory offenses, the other changes Proposition 64 made to division 10 mean that cannabis possession no longer qualifies as a violation of
As described above, we think the key statutory language is not that complicated: Section 11362.45(d) references section 11362.1, which is the broadly worded catch all provision from Proposition 64 that declares it is now legal for adults to possess up to 28.5 grams of cannabis under most circumstances. Section 11362.45(d) then says that this broad legalization provision does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis,” which the dissent agrees encompasses possessory offenses. We think that when voters were told the broad pronouncement legalizing cannabis contained in section 11362.1 would not affect laws
The dissent disagrees, concluding that the language is, in fact, quite complicated. The dissent concludes that the voters were asked to journey through a phalanx of complex statutory cross-references and legal conclusions and, at the end of the journey, would have concluded that Proposition 64 might actually “amend, repeal, affect, restrict, [and] preempt” some laws prohibiting the possession of cannabis in prisons, but not others. The journey goes something like this: The dissent first contends that when voters were told Proposition 64‘s key legalization provision would have no effect on in-prison possession offenses, they would have understood that language to mean the initiative would have no effect on convictions under
But the work of the voter would still not be done. From that, the voters would then deduce that whether Proposition 64 affects convictions under
While the dissent has come up with an intricate interpretation, we do not think it is the most reasonable interpretation of the initiative. (See People v. Jones (1993) 5 Cal.4th 1142, 1150 (Jones) [when faced with ambiguous statutory language, our duty is to discern “the most reasonable reading of” the law].) Simply put, we are dubious that when voters were told Proposition 64‘s new legalization provision would have no effect on laws regulating possession of cannabis in prison, they would have understood that language to require
The dissent‘s reading of section 11362.45(d) would also have curious consequences regardless of how our courts ultimately interpret the language in
It is true that the amendments Proposition 64 made to division 10 have created tension between the “no effect” principle set forth in
Indeed, as far as we are aware, no court has ever concluded (nor has any party ever argued) that voters would construe section 11362.45(d)‘s reference to Proposition 64‘s central legalization provision, but not to the conforming amendments made to section 11357, as a signal that the initiative was intended to have different effects on convictions under
c. Defendants’ policy arguments
Defendants also raise a series of policy-related arguments, contending that the consequences of continuing to treat possession of small amounts of cannabis in prison as a violation
We are sympathetic to the view that
Our interpretation notwithstanding, prosecutors of course retain discretion whether a person found in possession of a small quantity of cannabis on prison grounds warrants felony treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477 [“Prosecutors have broad discretion to decide whom to charge, and for what crime. . . . ‘[A] district attorney‘s enforcement
In cases where prosecutors do elect to pursue criminal punishment, they may consider a charge under
The Legislature, in turn, remains free to revisit whether the harm associated with possessing small quantities of cannabis in or on the grounds of a correctional facility, conduct that is now generally lawful outside the confines of a correctional facility, continues to justify the substantial penalties set forth in
III. DISPOSITION
The judgment of the Court of Appeal is reversed, and the case is remanded for further proceedings consistent with this opinion.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
JENKINS, J.
I agree with the majority that Proposition 64, fairly read, did not legalize cannabis possession in California‘s prisons and jails, even as it either overrode or lifted state and local prohibitions on possessing small quantities of cannabis in most other places.
It is, however, a separate question whether, after Proposition 64, prosecutors may continue to charge in-prison cannabis possession exactly as they have been — that is, by choosing at will between two overlapping felony statutes, one of which carries steeper penalties than the other, and whose coverage is expressly tied to the scope of state-law prohibitions applicable outside of prison. The majority concludes that prosecutors are still permitted to choose (though the majority encourages them to make their choices wisely). (Maj. opn., ante, at pp. 30–31, 43–45.) Because I do not think the particular reasons the majority gives for extending this permission can be squared with the statutory text, and because the majority‘s conclusions on this subject are unnecessary to resolve this case in any event, I do not join this portion of the majority opinion.
I.
For many decades,
The result was a new two-part scheme for addressing the in-prison possession of contraband substances. As currently written,
Section 4573.6, meanwhile, was recast as a prohibition on the possession of controlled substances, punishable by a steeper triad of penalties: two, three, or four years in state prison. By its terms, however, the revamped section 4573.6 does not purport to punish the possession of all controlled substances; rather, it punishes the possession of substances “the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code” — a division otherwise known as the California Uniform Controlled Substances Act. (
Since 1990, both section 4573.8 and section 4573.6 have been used to prosecute prisoners found in possession of cannabis. (See People v. Whalum (2020) 50 Cal.App.5th 1, 5, review granted Aug. 12, 2020, S262935.) Cannabis is, of course, a drug within the meaning of the basic prohibition in section 4573.8. (Whalum, at p. 5.) And before Proposition 64, division 10 also generally prohibited the unauthorized possession of cannabis (
Enter Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (the Act), which amended division 10 to substantially loosen cannabis restrictions.1 In enacting the statute, voters found and declared an intent to, among other things, “incapacitate the black market” in cannabis “and move [cannabis] purchases into a legal structure with strict safeguards against children accessing it.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, § 2, subd. D., p. 178.) Voters also declared an intent to “alleviate pressure on the courts” handling nonviolent drug offenses, “but continue to allow prosecutors to charge the most serious [cannabis]-related offenses as felonies, while reducing the penalties for minor [cannabis]-related offenses.” (
Second, voters added a legalization provision displacing other state and local prohibitions on cannabis possession: “Subject to” various provisions, including newly added
Third, voters enacted
The central question presented in this case concerns the relationship between these latter two provisions, the legalization provision in
The majority goes on, however, to answer the separate question whether, after Proposition 64, in-prison cannabis possession remains chargeable under section 4573.6. As the majority explains, this question raises an interpretive dilemma. Section 4573.6 incorporates the scope of prohibitions in division 10 of the Health and Safety Code, which Proposition 64 largely — but not completely — eliminated. The issue, then, is how section 4573.6 applies to the possession of controlled substances that division 10 prohibits in some situations but not others. This is an interpretive issue that predates Proposition 64, but which Proposition 64‘s regime of partial legalization has brought to the fore, and that has now become the subject of a conflict in the Courts of Appeal. (Compare People v. Fenton (1993) 20 Cal.App.4th 965, 966–967 [identical language in
The majority decides to avoid this interpretive dilemma — which has not been adequately briefed in this court in any event — because it sees in Proposition 64‘s savings provision an alternative path to answering the charging question. In the majority‘s view,
For a number of reasons, I do not join this portion of the majority opinion. For one thing, it is unnecessary. We do not need to answer questions about post-Proposition 64 charging practices to resolve Raybon‘s claim concerning his pre-Proposition 64 conviction. Raybon‘s only argument here is that he is entitled to the retroactive dismissal of his prior conviction under Proposition 64 because he is a person “who would not have been guilty of an offense” had Proposition 64 been in effect at the time. (
The majority‘s alternative resolution of the issue also depends entirely on an argument about the import of Proposition 64‘s savings provision that none of the parties have made. While the Attorney General relies on the savings provision to argue that Proposition 64 did not legalize cannabis possession in prison, he expressly acknowledges that Proposition 64 might still “have an effect on future charging decisions.” He explains that “due to the removal of certain
But the most fundamental reason I do not join the majority on this issue — and the crux of our disagreement here — is that the majority‘s resolution of the issue depends on a reading of the savings provision that departs from its plain text. As noted,
The “unique language” of the savings provision is more limited than the majority acknowledges. The provision does not preserve prison-related laws from the Act in its entirety. (Accord, maj. opn., ante, at pp. 40–41.) Rather, by its terms, the savings provision carves prison laws out from only the legalization provision in
Recall that section 4573.6 was written in a manner that explicitly ties its prohibition on in-prison possession of controlled substances to whether possession of that controlled substance is prohibited outside of prison under division 10. Recall also that before Proposition 64, it was understood that former section 4573.6 could be used to prosecute in-prison cannabis possession because division 10 (in
Had Proposition 64 repealed all of Health and Safety Code division 10‘s restrictions on cannabis possession, then, as a textual matter, there could be no genuine question about whether in-prison cannabis possession could be prosecuted under section 4573.6. The answer would be no — possession could be punished only under section 4573.8, and the savings provision in
The majority acknowledges the textual limitations of the savings provision, but dismisses them as a technicality. Yes,
The initial difficulty with this argument is that there is nothing in the materials before us to support this set of
But the difficulty is even greater than attributing this sort of unexpressed intent to Proposition 64 voters, because here it is not only the voters’ intent that counts; it is also the intent of the legislators who enacted the current versions of sections 4573.6 and 4573.8. The legislators who enacted the current set of prison possession laws deliberately chose to make possession of drugs in prison a felony offense punishable by the default penalties prescribed in
The majority‘s remaining justifications for its approach focus on what the majority sees as its practical advantages over concluding that Proposition 64 did, in fact, affect charging under section 4573.6. The majority worries that the relationship between section 4573.6 and Proposition 64 is overly complicated, and that giving effect to that relationship could yield some “curious” results (maj. opn., ante, at p. 39). The majority also worries about the various additional questions we would need to answer, none of which have been briefed here, should a defendant in Raybon‘s position seek resentencing based on the different penalties prescribed in section 4573.6 and section 4573.8. None of these points, in my view, justifies refusing to read
As to the first point, the relationship between
As to the majority‘s second point, the possibility that Proposition 64 affected charging under section 4573.6 is not so far-fetched that we can dismiss it out of hand. The practical result would be that prosecutors would be limited in most cases to charging cannabis possession in prison the same way the possession of other drugs or alcohol is charged, instead of charging it the same way as the possession of, say, heroin or methamphetamines. That result creates no obvious inconsistency with the overarching objectives of Proposition 64.
But to the majority‘s final point, I do share many of the majority‘s concerns about the various questions that could arise in future cases concerning the relationship between Proposition 64 and section 4573.6. This is precisely why I would not attempt to answer these questions here, and would instead await an appropriate case where the necessary arguments have been briefed and the issues joined. I write separately here because I do not think we should foreclose further exploration of these issues by leaning on Proposition 64‘s savings provision. The text will not withstand the weight.
II.
The practical upshot of the majority opinion is this: Even though the heightened penalties under section 4573.6 are directly tied to the scope of prohibitions that were dramatically scaled back by Proposition 64, prosecutors may continue to charge in-prison cannabis offenses under that provision (at least in the absence of further legislation directing otherwise). For individuals previously convicted under section 4573.6 who might wish to have their sentences adjusted downward to the less harsh penalties prescribed by section 4573.8, any pathway that might otherwise have existed for resentencing under
Because I do not think the majority‘s reasons for reaching this result fit with the relevant statutes, and because it is unnecessary to resolve the issue in this case in any event, I do not join this portion of the majority opinion. In all other respects, I concur.
KRUGER, J.
I Concur:
CUÉLLAR, J.
Notes
Perhaps we would have needed to address the future of section 4573.6 if Raybon had asked the court for resentencing based on the differences between section 4573.6‘s relatively heavier penalties and section 4573.8‘s relatively lighter ones. (See
The majority observes that it is more efficient to reach this question here; were we instead to reserve it, Raybon and others like him would have to file new petitions seeking this more modest form of relief. (Maj. opn., ante, at pp. 33–34, fn. 15.) True. But were they to do so, we would presumably be able to address their statutory entitlement to that form of relief in a case in which the relevant arguments had been appropriately raised and fully litigated, which is not the case here.
Moreover, “like all . . . interpretive canons, the canon against surplusage is a guide to statutory interpretation and is not invariably controlling.” (People v. Valencia (2017) 3 Cal.5th 347, 381 (conc. opn. of Kruger, J.) (Valencia), citing People v. Cruz (1996) 13 Cal.4th 764, 782; see In re J.W. (2002) 29 Cal.4th 200, 209; Arlington Central School Dist. Bd. of Ed. v. Murphy (2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee (2004) 540 U.S. 526, 536.) To the extent our interpretation results in some level of redundancy, we nonetheless believe it “is more consistent with voter intent” than defendants’ proposed reading (Rizo, supra, 22 Cal.4th at p. 687 [canon against surplusage “is only a ‘guide[] and will not be used to defeat legislative intent’ “]), which would render section 11362.45(d) inapplicable to any existing statute and effectively legalize the possession and use of cannabis in prison.