Filed 2/23/22 P. v. Alexander CA2/3

Opinion following transfer from Supreme Court

Not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed.

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, William H. Shin, and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

After defendant Averial Alexander pled no contest to possessing marijuana in prison in violation of Penal Code section 4573.6, California voters passed Proposition 64, which makes it legal, in most contexts, for adults 21 years of age or older to possess small amounts of marijuana. The trial court denied Alexander’s petition to dismiss his conviction under Health and Safety Code[1] section 11361.8, finding Proposition 64 did not repeal or otherwise change the laws prohibiting the possession of marijuana in correctional facilities. In our original opinion, we reversed the court’s order denying Alexander’s petition, concluding Proposition 64 decriminalized possessing less than an ounce of marijuana in a correctional facility. (People v. Alexander (May 25, 2021, B305299) [nonpub. opn.].)

The California Supreme Court granted the People’s petition for review and deferred consideration of our opinion pending its decision in People v. Raybon (2021) 11 Cal.5th 1056 (Raybon), in which it held that Proposition 64 did not invalidate “cannabis-related convictions under Penal Code section 4573.6.” (Raybon, at p. 1059.) The Court then transferred this matter back to us with directions to vacate our prior opinion and reconsider Alexander’s appeal in light of Raybon. Since “possession of cannabis in prison remains a violation of Penal Code section 4573.6” (id., at p. 1060), Alexander is ineligible for relief under section 11361.8. We therefore affirm the trial court’s order denying Alexander’s resentencing petition.

BACKGROUND

In 2012, while serving a 37-year sentence for a prior conviction, Alexander pled no contest to possessing marijuana in prison in violation of Penal Code section 4573.6. The court imposed a two-year sentence.

In 2016, California voters passed Proposition 64, which added section 11362.1. That statute makes it lawful for people 21 years of age or older to possess marijuana in certain circumstances. (§ 11362.1, subd. (a).) For example, it is now lawful to purchase, obtain, possess, give away without compensation, or transport 28.5 grams or less of nonconcentrated marijuana. (§ 11362.1, subd. (a).)

In 2020, Alexander filed a petition under section 11361.8, subdivision (a) asking the court to dismiss his conviction for violating Penal Code section 4573.6, arguing Proposition 64 makes it legal for people at least 21 years of age to possess marijuana in prison. The court denied Alexander’s petition, finding Proposition 64 “did not legalize the possession of marijuana in prison or otherwise affect the operation of Penal Code section 4573.6, and that Prop[osition] 64 did not remove possession of marijuana in prison from the reach of Penal Code section 4573.6.”

Alexander appealed.

Discussion

After this case was transferred back to us, the parties filed supplemental briefs addressing Raybon’s application to Alexander’s resentencing petition. The People argue the trial court properly denied Alexander’s petition because, as Raybon confirms, possession of any amount of marijuana in prison remains a felony in violation of Penal Code section 4573.6, thereby rendering Alexander ineligible for relief under section 11361.8, subdivision (a). Alexander, on the other hand, contends Raybon does not control because the Supreme Court’s decision did not address whether “the recall and suitability provisions in section 11361.8, subdivisions (a) and (b) showed the intent of the drafters to decriminalize inmate possession of a small amount of cannabis.” Alexander’s argument is misguided.

Alexander was convicted of violating Penal Code section 4573.6, which makes it a felony for any person to knowingly possess in a state prison “any controlled substances, the possession of which is prohibited by Division 10 … of the Health and Safety Code [(Division 10)].” (Pen. Code, § 4573.6, subd. (a).) Cannabis, commonly referred to as marijuana, is listed as a controlled substance under Division 10. (§§ 11007, 11054.)

As we noted above, Proposition 64 makes it legal, in many contexts, for adults 21 years of age or older to possess up to 28.5 grams of nonconcentrated marijuana for recreational purposes. (§ 11362.1, subd. (a)(1).) Section 11362.1, subdivision (a) includes various carve outs to Proposition 64’s legalization of recreational marijuana, including section 11362.45, which provides that “Section 11362.1 does not amend, repeal, affect, restrict, or preempt: … [¶] (d) Laws 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 or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” (§ 11362.45, subd. (d).) A prison qualifies as one of the facilities identified in Penal Code section 4573. (Pen. Code., § 4573, subd. (a).)

A defendant serving a sentence for a marijuana-related offense may petition the trial court to recall or dismiss his sentence if he would not have been guilty of the offense had Proposition 64 been in effect at the time it was committed. (§ 11361.8, subd. (a).) Whether a marijuana-related offense renders a defendant “eligible for relief under section 11361.8, subdivision (a), presents a question of statutory interpretation, which we review de novo.” (People v. Whalum (2020) 50 Cal.App.5th 1, 9.)

To establish his eligibility for resentencing relief, Alexander must show his marijuana-related offense—i.e., a violation of Penal Code section 4573.6—would no longer be a crime if it were committed after Proposition 64 was passed. (§ 11361.8, subd. (a).) Thus, despite Alexander’s arguments to the contrary, the issue in this case is identical to the issue addressed in Raybon—i.e., whether after the passage of Proposition 64, it is no longer a violation of Penal Code section 4573.6 to possess less than an ounce of marijuana in prison. (See Raybon, supra, 11 Cal.5th at p. 1058 [“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.”].) In resolving a split among the courts of appeal on this issue, the Supreme Court in Raybon held that after Proposition 64 was passed, “possession of cannabis in prison remains a violation of Penal Code section 4573.6.” (Raybon, at p. 1060.) We are bound by the Supreme Court’s holding in Raybon, which resolves the dispositive issue in this case. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In short, because possession of any amount of marijuana in prison remains a felony under Penal Code section 4573.6 after the passage of Proposition 64, Alexander is ineligible to have his sentence dismissed under section 11361.8, subdivision (a). We therefore affirm the court’s order denying Alexander’s resentencing petition.

DISPOSITION

The order denying Alexander’s petition to dismiss his conviction for violation of Penal Code section 4573.6 is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

LIPNER, J. ^*

[1] All undesignated statutory references are to the Health and Safety Code.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.