People v. RaybonPeople v. Raybon
*1 IN THE SUPREME COURT OF
CALIFORNIA THE PEOPLE,
Plaintiff and Respondent, v.
GOLDY RAYBON, Defendant and Appellant.
[And four other cases [*] ] S256978
Third Appellate District C084853
Sacramento County Superior Court
09F08248
August 12, 2021
Justice Groban authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar, and Jenkins concurred.
Justice Kruger filed a concurring and dissenting opinion, in which Justice Cuéllar concurred.
S256978
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
Penal Code section 4573.6, which makes it a felony to possess a
controlled substance in a state correctional facility. Although
Proposition 64 generally legalizes adult possession of cannabis,
[1]
it contains several exceptions. One such exception provides that
the Act does not amend or affect “[l]aws pertaining to smoking
or ingesting cannabis or cannabis products on the grounds of, or
within, any facility or institution under the jurisdiction of the
Department of Corrections and Rehabilitation . . . .” (
Ultimately, we find the Attorney General’s proposed
reading of Health and Safety Code
[3] Unless otherwise noted, all further statutory citations are to the Health and Safety Code.
cannabis would now essentially be decriminalized in prisons. In
our view, the more reasonable interpretation of
I. B ACKGROUND
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 Penal Code section 4573.6. Most of the defendants were serving time for a prior serious or violent felony at the time of their possession offenses, resulting in second-strike sentences that added several years to their current term. [4]
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.
*5
(Nov. 8, 2016) text of Prop. 64, § 4.4, p. 180 (Voter Guide);
The district attorney opposed the petitions, asserting that
Penal Code section 4573.6 falls within an exception set forth in
Health and Safety Code
While the appeal was pending, the First District issued
Perry
,
supra
,
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
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]
II. D ISCUSSION
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. (§ 11000 et seq.) Chapter 2 of the act contains schedules listing the controlled substances that are subject to the provisions of division 10, which includes cannabis. [7] (See § 11054, subd. (d)(13).) Chapter 6 of the act describes offenses associated with controlled substances, and article 2 (§ 11357 et seq.) sets forth offenses related to cannabis. Prior to Proposition 64, section 11357 made it a crime to possess nonmedical cannabis and set forth the applicable punishments for such conduct. (See former § 11357, subd. (a); Voter Guide, supra , text of Prop. 64, § 8.1, pp. 204 – 205.)
Penal Code section 4573 et seq. “place restrictions on possessing and importing drugs and other contraband in custody.” ( Low, supra, 49 Cal.4th at p. 382.) Two of these provisions target the possession of drugs in custodial settings. The offense at issue here, Penal Code section 4573.6 , makes it a felony to knowingly “possess[] in any state prison, . . . or in any county . . . or city jail, . . . any controlled substances, the matters and deferred further action pending our resolution of this case. (See People v. Whalum (2020) 50 Cal.App.5th 1, review granted Aug. 12, 2020, S262935 ( Whalum ); People v. Herrera (2020) 52 Cal.App.5th 982, review granted Oct. 14, 2020, S264339 ( Herrera ).) To date, no published Court of Appeal decision has agreed with Raybon .
[7] Unspecified statutory references to “division 10” in this majority opinion are to this act.
possession of which is prohibited by Division 10 . . . of the
Health and Safety Code . . . , without being authorized to so
possess . . . by the rules of the Department of Corrections, [the]
rules of [the correctional facility] or by the specific authorization
of the [persons in charge of the facility] . . . . ” (Pen . Code, §
4573.6, subd. (a).) A violation of this section is “punishable by
imprisonment pursuant to subdivision (h) of Section 1170 for
two, three, or four years.” (
Ibid
.) Penal Code section 4573.8 has
broader application, making it a crime to possess “in any state
prison . . . drugs in any manner . . . or alcoholic
beverages, without being authorized to [so] possess the same by
[the] rules of the [prison].” This latter section is also a felony,
but carries a lesser sentencing range of 16 months, two or three
years. (See
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 *9 presence” ’ of such items in the penal system.” ( Low, supra, 49 Cal.4th at p. 388.) There is no law that criminalizes the actual consumption of drugs in a custodial setting.
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 fo rth in [the Act].” ( Id. , § 3, subd. ( l ).)
Proposition 64’s legalization provision, set forth in newly added
Section 11362.3, subdivision (a) places limitations on the possession and use of cannab is, directing that “[s]ection 11362.1 does not permit any person to” (among other things): “Smoke or ingest cannabis or cannabis products” in a public place (§ 11362.3, subd. (a)(1)); “Smoke cannabis or cannabis products within 1,000 feet of a school ” while children are present ( id ., subd. (a)(3)); “Possess an open container . . . of cannabis or cannabis products” while in a car or other form of motor vehicle ( id ., subd. (a)(4)); “Possess, smoke, or ingest cannabis or cannabis products” on the grounds of a school when children are present ( id ., subd. (a)(5)); “Smoke or ingest cannabis or cannabis products while driving” a motor vehicle or while “riding in the passenger seat or compartment of a motor vehicle” ( id ., subd. (a)(7), (8)).
The penalties for engaging in any of these prohibited
activities are set forth in newly added section 11362.4. (See
Voter Guide,
supra
, text of Prop. 64, § 4.7, pp. 181 – 182.)
Proposition 64 also amended former section 11357, which had
previously criminalized the possession of nonmedical cannabis.
(See
ante
, at p. 6.) As amended, section 11357 now sets forth the
penalties for possessing cannabis in quantities that exceed the
limits described in
Other subdivisions of
Finally, Proposition 64 added remedial provisions for persons convicted of a cannabis-re lated crime “who would not have been guilty of an offense, or who would have been guilty of a lesser offense under [the Act].” (§ 11361.8, subd. (a); see id. , subd. (e).) Section 11361.8, subdivision (a) allows persons currently serving a sentence for s uch an offense to “petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal in accordance with Sections 11357, 11358, 11359, 11360, 11362.1, 11362.2, 11362.3, and 11362.4 as those sections have been amended or added by [the Act] .”
B. Rules of Construction Governing Voter Initiatives
“ ‘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 lan guage 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)
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
*13
state correctional facility remains a violation of Penal Code
section 4573.6. The Attorney General argues Proposition 64 has
no effect on section 4573.6 offenses because the statute qualifies
as a “[l]aw[] pertaining to smoking or ingesting cannabis” within
the meaning of Health and Safety Code
As an initial matter, we disagree with the Court of
Appeal’s conclusion that “there is no ambiguity” (
Raybon
,
supra
,
Despite such ambiguity, we must nonetheless attempt to
discern which of t he parties’ interpretations is most reasonable.
(See
Canty
,
supra
,
1.
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
,
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)
2. Defendants’ counterarguments Defendants raise numerous counterarguments in support of their assertion that Proposition 64 invalidates cannabis- related convictions under Penal Code section 4573.6. We find these arguments unavailing.
a. Defendants’ arguments regarding the text of
Defendants’ primary contention is that if the drafters had
meant
If
Recognizing that the term “pertaining to” cannot be read out of the statute entirely, defendants posit that such language was simply intended to “encapsulate” other methods of cannabis consumption that “do not strictly involve smoking or ingesting.” Defendants assert those alternative means include, for example, vaping and absorption through the skin. The Court of Appeal found this argument persuasive, explaining that “[b]y including the language ‘pertaining to smoking and ingesting,’ the drafters allowed for these various [additional] forms of consumption in prison to re main unlawful.” ( Raybon, supra , 36 Cal.App.5th at p. 122 [“We agree with defendants that consumption can be achieved in ways not strictly involving smoking or ingesting, such as inhaled as a nonburning vapor or applied topically such that it is absorbed t hrough the skin”].)
We find defendants’ proposed interpretation of “pertaining
to” in
(Merriam- Webster’s Unabridged Dict . Online <https://unabridged.merriam-webster.com/unabridged/ingest> [as of Aug. 10, 2021], italics added; see Webster’s 3d New Internat. Dict. (1993) p. 116 2, col. 2; Roget’s Thesaurus (5th ed. 1992) p. 938 [listing “absorb” as synonym of “ingest”].) That definition seems broad enough to incorporate cannabis consumed through topical applications or other forms of absorption.
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
*24
Proposition 64 appear to use the phr ase “smoking or ingesting”
to refer to all methods of consumption, we are not persuaded
that the term “pertaining to” was merely intended to capture
alternative means of consumption that do not strictly involve
smoking or ingesting. Instead, as described above, we conclude
that term is most reasonably construed as intending to broaden
the scope 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
Assuming arguendo that the language of
Defendants next contend that
Finally, defendants argue the Voter Guide provides “rich . . . supp ort” 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
*28
it explain how Proposition 64 would impact those laws. While
defendants argue voters would have inferred from such silence
that possession in prison would become legal, we think it just as
likely they would have interpreted such silence to mean that
Proposition 64 would have no effect on existing laws prohibiting
the possession of cannabis in prison. Moreover, it is clear the
table that defendants have identified provided only an
incomplete summary of what forms of conduct the Act would
preclude. That table, for example, fails to note that possession
of an open container of cannabis in a vehicle would remain
unlawful and omits numerous other forms of conduct and laws
that fall outside Proposition 64’s purview, including most of the
activities referenced in
b. Defendants’ arguments regarding the text of
Penal Code
Our Courts of Appeal are currently divided as to the
meaning of the phrase “a ny controlled substance[], the
possession of which is prohibited by Division 10 . . . of the
Health and Safety Code, ” which appears in multiple Penal Code
sections regulating drugs in prisons. (
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 Penal Code
We need not resolve that dispute here. Regardless of how
Penal Code
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
Health and Safety Code
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 Penal Code
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
Turning to the merits of the dissent’s interpretation, a
brief review of Proposition 64’s structure is helpful. The central
provision of Proposition 64 is newly added
that Proposition 64’s affirmative legalization provision has no effect on laws pertaining to cannabis use in prison. [16]
As described above, we think the key statutory language
is not that complicated:
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
Penal Code section 4573.8, but might have an effect on
convictions under Penal Code
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 Penal Code
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, w e 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
*39
the complex series of deductions and statutory cross-references
that the dissent’s interpretation is built upon. (See
Valencia
,
supra
, 3 Cal.5th at pp. 370, 371 [while voters are presumed to
“ ‘ study and understand the content of complex initiative
measures ’ ” “ it is unreasonable to presume that the voters had
such a ‘degree of thoroughness’ that they . . . analyzed various
provisions using the acumen of a legal profess ional”].) We do
not read the language, “
The dissent’s reading of
[18]
As discussed above,
Fenton
,
supra
, 20 Cal.App.4th 965,
concluded that Penal Code
but 21 year olds could not. We find it unlikely that the voters
would have understood the text of
It is true that the amendments Proposition 64 made to
division 10 have created tension between the “no effect”
principle set forth in Health and Safety Code
Indeed, as far as we are aware, no court has ever
concluded (nor has any party ever argued) that voters would
construe
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
*43
of Penal Code
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 hav e broad discretion to decide whom to charge, and for what crime. . . . ‘[A] district attorney’s enforcement *45 authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has commit ted a crime’ ”].) As defendants note, “there are already [prison] regulations in place . . . to punish and deter this conduct.” Cannabis possession in prison remains classified as a serious rules violation that is subject to a custody credit forfeiture of between 121 – 150 days (see Cal. Code Regs., tit. 15, § 3323, subd. (d)(7)), which effectively translates into an additional four to five month jail sentence. Such conduct can also result in substantial loss of visitation rights, including up to three months of no visitation and three additional months of no contact visitation for a first offense, with increasing loss of visitation rights with each consecutive offense. (See Cal. Code Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the nature o f the defendant’s sentence, a rules violation involving the possession of cannabis could also impact parole eligibility. (See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances tending to show unsuitability for parole for life prisoners include “Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail”].)
In cases where prosecutors do elect to pursue criminal
punishment, they may consider a charge under Penal Code
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 Penal Code
III. D ISPOSITION
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.
S256978
Concurring and Dissenting Opinion by Justice Kruger 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, Penal Code
Kruger, J., concurring and dissenting
made it a felony to possess “any narcotics, or drugs . . . , or alcoholic beverage” without authorization. (Stats. 1949, ch. 833, § 3, p. 1583.) So it remained (with occasional modifications not pertinent here) until 1990, when the Legislature determined that possession offenses involving controlled substances generally should be punished more harshly than the possession of other drugs or alcohol. (Legis. Counsel’s Dig., Sen. Bill No. 2863 (1989 – 1990 Reg. Sess.) 5 Stats. 1990, Summary Dig., pp. 647 – 648; see Stats. 1990, ch. 1580, § 4, pp. 7555 – 7556.)
The result was a new two-part scheme for addressing the
in-prison possession of contraband substances. As currently
written, Penal Code
Kruger, J., concurring and dissenting
Since 1990, both
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.” ( Id. , § 2, subd. G., p. 179.)
Kruger, J., concurring and dissenting
Three provisions of Proposition 64 are particularly
relevant to our analysis here, listed in the order in which they
appear in the current version of the Health and Safety Code.
First, voters amended Health and Safety Code section 11357 to
lift its prohibitions on possessing small amounts of cannabis
(28.5 grams or less) for most adults (prohibitions remain in place
for individuals under 21) in most places (prohibitions remain for
possession on school grounds). (
Second, voters added a legalization provision displacing
other state and local prohibitions on cannabis possession:
“Subject to” various provisions, including newl y added Health
and Safety Code
Third, voters enacted Health and Safety Code
Kruger, J., concurring and dissenting
under the jurisdiction of the Department of Corrections and
Rehabilit ation or the Division of Juvenile Justice,” or on the
grounds of, or within, other detention facilities including local
jails. (
The central question presented in this case concerns the
relationship between these
latter two provisions, the
legalization provision in Health and Safety Code
Kruger, J., concurring and dissenting
I agree with the majority that Raybon takes too cramped
a view of the savings provision, and thus too broad a view of the
preemptive effect of the legalization provision. The phrase
“[l]aws pertaining to smoking or ingesting” (
id.
,
The majority goes on, however, to answer the separate
question whether, after Proposition 64, in-prison cannabis
possession remains chargeable under
Kruger, J., concurring and dissenting
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, Health and Safety Code
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 conv iction. 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. (
Kruger, J., concurring and dissenting
been in effect at the time, he is not entitled to the only form of relief he has sought in this proceeding. 3
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
Kruger, J., concurring and dissenting
prohibitions from division 10 of the Health and Safety Code,
going forward, the possession of cannabis in a custodial
institution might be better charged prospectively as a violation
of Penal Code
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, Health and Safety Code
Kruger, J., concurring and dissenting
applying Health and Safety Code division 10’s restrictions on cannabis precisely as they existed before Proposition 64. (Maj. opn., ante , at p. 30.)
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 Health and Safety Code
Recall that
Kruger, J., concurring and dissenting
quantities of cannabis, for most people and in most settings. (See ante , at p. 3.)
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
The majority acknowledges the textual limitations of the
savings provision, but dismisses them as a technicality. Yes,
Health and Safety Code
The initial difficulty with this argument is that there is nothing in the materials before us to support this set of
Kruger, J., concurring and dissenting
assumptions about voter intent. Had voters intended to wall off
prison laws from Proposition 64 entirely, it would have been
easy enough to say so. Instead of referring specifically to Health
and Safety Code
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
Kruger, J., concurring and dissenting
have an effect on prison possession laws, it is unclear why, in the event of a conflict between the two sets of provisions, that assumption would or should prevail over legislators’ intent to reserve harsher punishment for possession cases where possession would also be prohibited outside of prison under Health and Safety Code division 10.
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
As to the first point, the relationship between Penal Code
Kruger, J., concurring and dissenting
As to the majority’s second point, the possibility that
Proposition 64 affected charging under
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
II.
The practical upshot of the majority opinion is this: Even
though the heightened penalties under
Kruger, J., concurring and dissenting
current law has been closed off. All this in a case that did not require laying down a rule with these broad consequences.
Because I do not think the major ity’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.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Raybon
__________________________________________________________ Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
XX
Rehearing Granted
__________________________________________________________ Opinion No. S256978
Date Filed: August 12, 2021
__________________________________________________________ Court: Superior
County: Sacramento
Judge: Curtis M. Fiorini
__________________________________________________________ Counsel:
Paulino G. Durán and Steven Garrett, Public Defenders, David Lynch and Leonard K. Tauman, Assistant Public Defenders, for Defendants and Appellants.
Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan, State Solicitor General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Janill L. Richards, Principal Deputy State Solicitor General, Michael P. Farrell, Assistant Attorney General, Ryan B. McCarroll, Deputy State Solicitor General, Julie A. Hokans, Nicholas M. Fogg and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
David Lynch
Assistant Public Defender
700 H Street, Suite 0270
Sacramento, CA 95814
(916) 874-6958
Ryan B. McCarroll
Deputy State Solicitor General
1300 I Street
Sacramento, CA 95814
(916) 210-7668
Notes
[*] People v. Cooper (No. C084911 [Super. Ct. No. 13F03230]); People v. Davis (No. C084960 [Super. Ct. No. 08F07402]); People v. Haynes (No. C084964 [Super. Ct. No. 12F00411]); People v. Potter (No. C085101 [Super. Ct. No. 06F11185]).
[1] In 2017, the Legislature replaced all references to “marijuana” in the Health and Safety Code with the term “cannabis.” (Stats. 2017, ch. 27, §§ 113 – 160.) Thus, although Proposition 64 used the term “marijuana,” we refer to the amended terminology “cannabis” throughout this opinion.
[2] Defendants are Goldy Raybon (No. C084853), Anthony L. Cooper (No. C084911), Dwain Davis (No. C084960), Scott
[4] Four of the five defendants were incarcerated at the time of their possession violation: defendant Goldy Raybon, who admitted a prior strike and was sentenced to a consecutive term of four years; defendant James Potter, who was found to have a prior strike and was sentenced to a consecutive term of six years; defendant Anthony Cooper, who was found to have a prior strike and was sentenced to a consecutive term of six years; and defendant Dwayne Davis, whose sentence is not indicated in the record. The fifth defendant, Scott Haynes, brought concentrated cannabis into a prison to give to an inmate. Haynes’s sentence is not stated in the record, but he was on probation at the time he filed his petition for relief.
[5] The Voter Guide is available at <https://vig.cdn.sos.ca.gov/2016/general/en/pdf/complete- vig.pdf> (as of Aug. 10, 2021); all Internet citations in this opinion are archived by year, docket number, and case name at <http://www.courts.ca.gov/38324.htm>.
[6] During the pendency of our review, the Fourth and Sixth Districts issued published decisions rejecting Raybon , supra , 36 Cal.App.5th 111, and agreeing with Perry ’s conclusion that Proposition 64 was not intended to affect laws criminalizing the possession of cannabis in prison. We granted review in those
[8] See Dictionary.com <https://dictionary.com/browse/pertains?=1> (as of Aug. 10, 2021) ( “to have reference or relation; relate” ); Oxford English Dictionary Online <https://www.oed.com/view/Entry/141585?redirectedFrom=pert ain#eid> (as of Aug. 10, 2021) ( “ To relate to ; to refer to . Frequently in present participle in pertaining to ” (boldface omitted)); Cambridge Dict. <https://dictionary.cambridge.org/us/dictionary/english/pertain -to-something?q=pertain> (Aug. 10, 2021) ( defining “pertain to something” to mean “to relate to or have a connection with something” (boldface omitted)).)
[9] Smoking (but not ingesting) cannabis in a correctional facility would presumably remain chargeable as an infraction under section 11362.3, subdivision (a)(2), which prohibits smoking cannabis “in a locati on where smoking tobacco is prohibited.” (See § 11362.4, subd. (b) [violation of § 11362.3 , subd. (a)(2) is an infraction].)
[10]
Defendants similarly argue that if “pertaining to” was
meant to include possession, the drafters could have used the
phrase “pertaining to marijuana . ” In their view, reading
possession into the statute effectively “writes the limiting words
[‘smoking or ingesting’] out of the statute completely.” We do
not agree that interpreting the term “pertaining to smoking or
ingesting c annabis” to include possession offenses necessarily
renders the words “smoking or ingesting” meaningless . Rather,
the inclusion of that language seems intended to signal that
[11]
Moreover, if the drafters were truly concerned that
“smoking or ingesting” was not broad enough to encompass
different forms of consumption , adding the term “pertaining to”
would seem an odd way of trying to capture those alternative
means of consumption. As we have explained, the term
“pertain” gene rally signifies a direct relationship with
something else. (See
ante
, at pp. 13 – 14.) Thus, using the phrase
“laws pertaining to smoking or
ingesting” seems a
counterintuitive way to convey the concept that the law was
intended to capture smoking or ingesting cannabis, along with
any other
different
forms of consumption. (See
Whalum
,
supra
,
[12]
Although multiple subdivisions of
[13]
The Attorney General argues that even if cannabis
possession no longer violates Penal Code
[14]
The Court of Appeal concluded that this case was
controlled by its prior decision in
Fenton
,
supra
, 20 Cal.App.4th
965. (See
Raybon
,
supra
, 36 Cal.App.5th at pp. 116 – 119.) As
the
Perry
court explained, however, the situation in
Fenton
was
substantially different than the one presented here.
Specifically,
Fenton’s
conclusion that Penal Code
[15]
Deciding whether cannabis possession remains a violation
of Penal Code
[16]
While at times referencing to
[17]
The dissent finds it significant that while two published
appellate decisions have concluded that Health and Welfare
Code
[19]
While the dissent contends “ the possibility that
Proposition 64 affected charging under Penal Code
[20]
The Attorney General appears to agree with this
suggestion, arguing that while possession of cannabis in prison
remains chargeable under either Penal Code
[1] Like the majority, I use the term “cannabis” instead of the original statutory term “marijuana,” in keeping with subsequent legislative revisions to the statutory text. (See maj. opn., ante , at p. 1, fn. 1.)
[2] Raybon’s case has been consolidated in this c ourt with that of four other petitioners; references in this opinion to arguments made by Raybon include those made by the petitioners in the consolidated cases.
[3]
Perhaps we would have needed to address the future of