People v. TaylorPeople v. Taylor
Alonzo Lee Taylor moved in propria persona to dismiss a 1999 felony conviction of violating
On appeal, Taylor argues that under section 11362.1(a), the possession in prison of 28.5 or fewer grams of marijuana by a person who is at least 21 years old, like him, is not unlawful. He maintains that subdivision (d) of
Taylor asks this court “to remand the matter to permit the trial court to determine [whether] granting the requested relief ‘would pose an unreasonable risk of danger to public safety’ ”4 and to dismiss both marijuana-related convictions if the trial court determines that granting the petition would not pose such a risk. (See
The California Courts of Appeal have split on the issue of whether after Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail is unlawful under
In this case, we determine that cannabis is a controlled substance “the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code.”6 (
We reject Taylor‘s contentions and conclude that he is not entitled to dismissal of the two convictions under
Procedural History
An abstract of judgment filed March 25, 1999 in People v. Taylor (Super. Ct. Monterey County, 1999, No. SS981425A) (case No. SS981425A) reflected that Taylor was convicted on February 16, 1999 of violating
An abstract of judgment filed on September 19, 2000 in People v. Taylor (Super. Ct. Monterey County, 2000, No. SS001208A) (case No. SS001208A), and an amended abstract of judgment filed on March 27, 2002 in the same case, reflected that on August 3, 2000, Taylor was convicted by plea of conspiracy to commit a crime (
Defense counsel subsequently filed, on behalf of Taylor, a notice of motion, motion, and memorandum of points and authorities to support dismissal of those two convictions (case Nos. SS981425A & SS001208A) pursuant to
The People opposed the motions on the ground that possession of marijuana in prison and conspiracy to possess marijuana in prison continue to be public offenses after Proposition 64. They argued that under the plain statutory language, “if [m]arijuana is prohibited as a controlled substance with some exception[s], it is still a prohibited controlled substance for the purposes of
The trial court denied Taylor‘s motions to dismiss his conviction of violating
Discussion
A. Statutory Construction
This case presents two separate questions of statutory construction or interpretation. “Statutory interpretation is a question of law that we review de novo. [Citation.]” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) We must determine the proper construction of both
” ‘Our fundamental task in interpreting a statute is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences [that] the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute‘s purpose, legislative history, and public policy.’ [Citation.]” (Jarman v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 381.)
“[O]ur interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.]” (People v. Park (2013) 56 Cal.4th 782, 796.) ” ‘Thus, “we turn first to the language of the statute, giving the words their ordinary meaning.” [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate‘s intent]. [Citation.] When the language is ambiguous, “we 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.) In other words, ‘our primary purpose is to ascertain and effectuate the intent
B. Penal Code Section 4573.6
Under
Cannabis is, and marijuana previously was, defined as a Schedule I controlled substance under Division 10. (See
Taylor contends that as a result of the voters’ approval of Proposition 64 and its enactment of
In Fenton, the defendant was convicted by a jury of violating Penal Code sections 4573 (bringing into prison or jail a controlled substance, the possession of which is prohibited by Division 10 . . . of the Health and Safety Code) and 4573.5 (bringing into prison or jail drugs, other than controlled substances). (Fenton, supra, 20 Cal.App.4th at p. 966.) The defendant had “smuggled” two substances “into a jail by placing them between his toes.” (Ibid.) One of the substances was a tablet containing hydrocodone, which was an opiate and controlled substance (id. at p. 967), for which he “held a physician‘s prescription.” (Id. at p. 966.) The other substance was a drug that was not a controlled substance. (Ibid.)
On appeal in Fenton, the defendant argued that “by utilizing the term ‘prohibited by’ when referring to [D]ivision 10 of the Health and Safety Code, [
The Third District concluded that Penal Code “[s]ection 4573 adopt[ed] the Health and Safety Code prohibition of possessing controlled substances and create[d] another crime of smuggling controlled substances into a penal institution.” (Fenton, supra, 20 Cal.App.4th at p. 970.) The court found that in the case before it, the “relevant prohibition” in Division 10 was former section 11350, subdivision (a), which “proscribe[d] possession of a controlled substance ‘unless upon the written prescription
The Third District rejected in Fenton the People‘s contention that
The Third District indicated that its conclusions rested on what it believed to be the “plain meaning” of the phrase “any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code” in
Taylor now asserts that the conduct of the defendant in Fenton was “not unlawful because nothing in Division 10 criminalized the possession of hydrocodone with a prescription.” Taylor insists that “no difference” exists between “the statutory scope of the prohibition [at issue] in Fenton” under
In Raybon, the other case relied upon by Taylor, the Third District relied upon its prior analysis in Fenton. (Raybon, supra, 36 Cal.App.5th at pp. 125-126, review granted.) It rejected the People‘s assertion that, based on “the arrangement of the words (the [D]ivision 10 language only modifying controlled substances),” “as long as [D]ivision 10 continues to ban cannabis in some contexts, the [D]ivision 10 language includes cannabis.” (Id. at p. 120.) The Third District concluded that “[p]ossession of less than one ounce of cannabis is no longer prohibited by [D]ivision 10, and therefore, according to the plain language of
Penal Code “section 4573 and statutes with a similar structure and purpose have long been construed in light of each other. [Citations.]” (Low, supra, 49 Cal.4th at p. 389.) In attempting to ascertain the “plain meaning” of the critical phrase in
Courts “do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 899; ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 189 [courts consider statutory “language in its ‘broader statutory context’ “].) “Identical language appearing in separate
Because both
In light of the purposes of
” ‘The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.’ [Citation.] In sum, ’ “[r]ules of statutory construction require courts to construe a statute to promote its purpose, render it reasonable, and avoid absurd consequences.” ’ [Citation.]” (Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1055; see People v. Mendoza (2000) 23 Cal.4th 896, 908.) Accordingly, we conclude that the phrase “any controlled substances, the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code” in
This construction of the Division 10 phrase does not render nugatory any part of the Division 10 phrase. Some types of possession of controlled substances are simply not prohibited by Division 10. For example, the possession of an unusable amount—a trace amount or residue—of a controlled substance is not prohibited. (See People v. Leal (1966) 64 Cal.2d 504, 512 [former section 11500]; id. at p. 507, fn. 5 [disapproving specified cases to the extent that “they suggest[ed] that such traces [could] serve as the
Our construction aligns with the intent underlying the Legislature‘s adoption of this statutory scheme. “[T]he Legislature has long viewed illegal drugs as a problem in penal institutions.” (People v. Gastello (2010) 49 Cal.4th 395, 402.) “Section 4573 and similar laws flow from the assumption that drugs, weapons, 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 presence” ’ of such items in the penal system. [Citations.]” (Low, supra, 49 Cal.4th at p. 388; see ibid. [historically, “the Legislature targeted inmates who, upon returning to penal institutions after performing labor outside, hid small amounts of opium and other narcotics in their clothing . . . [b]ecause such contraband often went undetected, and . . . threatened institutional control“].) The “ultimate evil with which the Legislature was concerned was drug use by prisoners,” but the Legislature “chose to take a prophylactic approach to the problem by attacking the very presence of drugs and drug
Unlike the Third District, we find the construction of
The most logical inference is that in enacting statutes governing controlled substances or drugs in prison, jail, and other custodial settings, the Legislature was seeking to keep unauthorized substances out of custodial settings to maintain institutional supervision, discipline, order, and safety, which could be threatened by the surreptitious use, circulation, or sale of those substances by persons in custody. Accordingly, the most natural reading of the phrase “the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code“—as it modifies “any controlled substance” or “any controlled substances” in Penal Code sections 4573, 4573.6, and 4573.9—is that the phrase describes a general category of controlled substances—not a particular instance of actual possession—and includes any controlled substance, possession of which is prohibited in any way by Division 10.
Lastly, with respect to
reason that “unauthorized possession of cannabis in prison—just like unauthorized possession of alcohol in prison—is still a felony” under
For a couple of reasons, we do not reach the issue whether possession of 28.5 grams or less of cannabis in prison can be prosecuted under
We turn now to Proposition 64 and the parties’ competing statutory constructions of section 11362.45(d).
Section 11362.1(a) does not make it universally lawful for a person 21 years of age or older to possess 28.5 grams or less of cannabis. Section 11362.1(a) begins: “Subject to [s]ections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law . . . .” Importantly, the mere existence of a statutory exception to section 11362.1‘s general declaration of lawfulness does not by itself create a criminal offense subject to statutorily prescribed punishment.
” ‘The statutory phrase “notwithstanding any other provision of law” has been called a ” ‘term of art’ ” [citation] that declares the legislative intent to override all contrary law.’ [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969, 983.) Accordingly, the prefatory phrase “notwithstanding any other provision of law” has a broad sweep. But it renders inapplicable “only those provisions of law that conflict with the act‘s provisions” (ibid.) and not “every provision of law.” (Ibid.) Moreover, the “notwithstanding any other provision of law” provision in
Taylor argues that the exception set forth in section 11362.45(d) does not apply to his convictions because “[h]ad the [e]lectorate intended to permit a blanket prohibition of all things marijuana on the grounds of a state prison they could simply have brought that about by inserting the words ‘or possession’ after the word ‘ingesting’ in subdivision (d).” He infers from the omission of the word “possession” that “[t]his subdivision does not apply to possession of marijuana.”
Taylor points out that
In Raybon, the Third District agreed with the “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 through the skin.” (Raybon, supra, 36 Cal.App.5th at p. 122, review granted.) The court concluded that “[b]y including the language ‘pertaining to smoking and ingesting,’ the drafters allowed for these various forms of consumption in prison to remain unlawful” (ibid.) and that
Taylor‘s argument and the Third District‘s analysis in Raybon fail to account for differences in the language used in various subdivisions of
We agree with the other cases finding that the phrase “pertaining to” in section 11362.45(d) has a wide scope. (See Herrera, supra, 52 Cal.App.5th at p. 991, review granted; Whalum, supra, 50 Cal.App.5th at pp. 11-12, review granted; Perry, supra, 32 Cal.App.5th at p. 891, review denied.) The word “pertain” has been broadly defined to mean “to have some connection with or relation to something: have reference: relate.” (Merriam-Webster Unabridged Dict. <https://unabridged.merriam-webster.com/unabridged/pertain> [as of 1/22/2021], archived at <https://perma.cc/GK6K-XU4Y>.) We concur with the Perry court, which stated: “While section [11362.45(d)] does not expressly refer to ‘possession,’ its application to
In Perry, the First District Court of Appeal found that “Proposition 64, in sections 11362.1 and 11362.45, was intended to maintain the status quo with respect to the legal status of cannabis in prison.” (Perry, supra, 32 Cal.App.5th at p. 893, review denied.) It determined that “a conclusion that [D]ivision 10 [of the Health and Safety Code] does not prohibit the possession of not more than 28.5 grams of cannabis for purposes of
Following Proposition 64, smoking or ingesting cannabis remains unlawful in many locations in California. (See, e.g.,
However, nothing in the laws enacted or amended by Proposition 64 makes smoking or ingesting marijuana or cannabis in prison or other custodial settings subject to punishment. Further, nothing in Penal Code sections 4573 to 4573.9—or Welfare and Institutions Code sections 871.5 and 1001.5—which were not amended by Proposition 64, makes it a crime, subject to punishment, to smoke or ingest cannabis or marijuana in prison or other custodial settings. Significantly, section 11362.45(d) does not establish a new offense subject to punishment. Rather,
” ‘Statutes must be interpreted, if possible, to give each word some operative effect.’ [Citation.] ‘We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.’ [Citation.]” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) Taylor‘s proposed construction of section 11362.45(d) would leave the provision without any
In Whalum, the Fourth District Court of Appeal concluded that the crime of violating
In Herrera, a direct appeal from a judgment, this court concluded that “[the] defendant was properly convicted under
Nothing in the legislative history undermines our construction of section 11362.45(d). As the Perry court observed: “The Voter Guide did not in any way address the subject of cannabis possession or use in prison.” (Perry, supra, 32 Cal.App.5th at p. 895, review denied; see Voter Information Guide, supra, pp. 9-97 analysis of Prop. 64 by the Legislative Analyst; id., argument in favor of Prop. 64 and rebuttal to the argument in favor of Prop. 64, p. 98; id., argument against Prop. 64 and rebuttal to the argument against Prop. 64, p. 99.)
Taylor was not entitled to relief pursuant to
DISPOSITION
The order denying the motions brought pursuant to
ELIA, ACTING P.J.
I CONCUR:
BAMATTRE-MANOUKIAN, J.
I agree that the trial court properly denied appellant Alonzo Lee Taylor‘s motion. I would affirm the trial court‘s order based on
Danner, J.