by Casey Bastian

On November 8, 2016, California voters went to the polls to consider whether the Control, Regulate, and Tax Adult Use of Marijuana Act, known as Proposition 64 (Prop64), should be approved. Prop64 was easily passed with voters clearly supporting the legalization of recreational marijuana. Medicinal use in California had been legal for years. Beyond regulating the production and sale of recreational cannabis, Prop64 was intended to “[p]ermit adults aged 21 years or older to use, possess, purchase, and grow nonmedicinal marijuana within defined limits...as set forth in [Prop64].” To clarify, Prop64 used the term marijuana, but in 2017, the California Legislature replaced all references to “marijuana” with “cannabis” in the Health and Safety Code (HSC), and as such the term cannabis is used.

On August 12, 2021, the California Supreme Court reversed a lower-court ruling and affirmed that Prop64 does not invalidate existing proscriptions against, or extend to such persons, possessing cannabis in prisons or correctional institutions. In the majority opinion, Associate Justice Joshua Groban wrote, “There is nothing in the ballot materials for [Prop64] to suggest the voters were alerted to or aware of any potential impact of the measure on cannabis in correctional institutions, much less that voters intended to alter existing proscriptions against the possession or use of cannabis in those institutions. The only mention of the subject is in the text of the measure itself and states the opposite intent in the strongest of terms.”

Prop64 includes limitations on the amount of cannabis lawfully able to be possessed at not more than 28.5 grams (one ounce), unless the form possessed is in a concentrated form, and then the allowable amount is not more than 8 grams. An additional relevant limitation within Prop64 is that of HSC 11362.45, which describes a variety of laws and rules that Prop64 does not restrict of affect. Specifically, “Section 11362.1 does not amend, repeal, affect, restrict, or preempt...[subdivision](d) ‘Laws pertaining to smoking or ingesting cannabis’” on or within any facility “under the jurisdiction of the Department of Corrections and Rehabilitation or any other facility referenced in Section 4573 et seq. of the Penal Code.” (PC) PC 4573 et seq. restricts possessing and importing drugs in custody and makes it a felony to knowingly “possess … in any state prison...any controlled substances, the possession of which is prohibited by Division 10...” Division 10 of the HSC comprises the California Uniform Controlled Substances Act, where in Chapter 2 it lists a schedule of “controlled substances.” Prop64 modified Chapter 2, Section 11357, and removed the specified quantities and forms of cannabis that were previously illegal for individuals to possess. However, the portions which remained unaffected, particularly PC 4573 et seq., continue to remain felonies for which a subsequent offense is considered a “strike” and sentences can be doubled.

The five defendants in this matter, Raybon, Cooper, Davis, Potter, and Haynes, were all convicted of violating PC 4573.6 for possessing less than 28.5 grams of cannabis in a prohibited facility. As the defendants were previously convicted of separate serious or violent felonies, the possession convictions constituted second-strike offenses with the imposed sentences adding several consecutive years to their terms of imprisonment.

The defendants initially filed petitions in the Sacramento County Superior Court based on the Prop64 remedial provision that allows for person serving time for an offense that is no longer illegal under Prop64 to request that their sentence be dismissed. The trial court agreed with the district attorney who asserted that PC4573.6 falls under the exceptions in HSC 11362.45. The defendants appealed to the Third District. During the appeal, the First District issued an opinion in People v. Perry (32 Cal.App.5th 885) that concluded Prop64 did not “affect existing prohibitions against the possession of [cannabis] in prison or otherwise affect the operation of [PC] 4573.6.” The Third District, in the Raybon case, disagreed with the Perry opinion in that the phrase “pertaining to smoking or ingesting” cannabis was not meant to include “possession”, a third, distinct activity. The Third District then ordered the Superior Court to grant the petitions as the “conduct underlying the [defendant’s] convictions is no longer criminal under [PC] 4573.6”

The Attorney General (AG) petitioned the California Supreme Court and sought to resolve whether Prop64 intended to legalize the possession of cannabis in prisons and custodial institutions. The AG asserted that Prop64 had no effect on PC 4573.6 because the statute qualifies as a law “pertaining to smoking or ingesting cannabis.”

The defendants had argued three main points. First that there is no law prohibiting smoking or ingesting a controlled substance in a prison. Therefore, if the legislature had intended “pertaining to” to include possession, it would have written just that. However, the legislature had taken a “prophylactic” approach and did not prohibit smoking or ingesting specifically as it seems axiomatic that possession must occur prior to either. The majority opinion concluded that: “It seems implausible that the voters intended to essentially decriminalize [cannabis] in prisons. We agree with the Attorney General that if the drafters had intended to so dramatically change the laws regarding cannabis in prison, we would expect them to have been more explicit about their goals. While perhaps it is illogical to distinguish between the possession and use of cannabis, it is nonetheless difficult to understand why the electorate would want to preclude laws criminalizing cannabis possession in prison, but permit laws criminalizing cannabis consumption in prison.”

The second argument is that PC4573.6 requires that the “controlled substance” be prohibited by Division 10 of the HSC, and Prop64 disqualified not more than an ounce of cannabis as a prohibited offense within Division 10 schedule of controlled substances. Meaning their offense conduct no longer qualifies as illegal.

Finally, the defendants raised a series of policy-related questions about the inherent wisdom applying Prop64 in this manner. Arguing that application of PC4573.6 is “inconsistent with the public’s evolving attitude toward the drug and its changing views about the societal costs of incarceration.”  The opinion contained the following excerpt in response: “We are sympathetic to the view that existing law creates extreme disparity between how our legal system treats the possession of cannabis generally versus the possession of such a substance inside a correctional facility. That is also true of many other substances, including alcohol. Some may well view an eight-year prison sentence for the possession of less than one gram of cannabis as unduly harsh. The wisdom of those policy judgments, however, are not relevant to our interpretation of the statutory language.” See: People v. Raybon, 11 Cal.5^th 1056, 492 P.3d 937(CA 2021). 

Additional source: californiaglobe.com

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