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California: Court of Appeal Holds Possession of Marijuana in Prison Still a Felony Despite Proposition 64

by Chad Marks

Nisaiah J. Perry was serving time in a California state prison when he was charged with possession of marijuana under Penal Code Section 4573.6. He was eventually sentenced to two years for committing that offense, to run consecutive to his existing sentence.

Perry moved the court to recall or dismiss the sentence after California voters passed Proposition 64, which made it legal for people 21 years or older to possess up to 28.5 grams of marijuana.

The Solano County Superior Court denied Perry’s petition, concluding that he failed to state a basis for relief because Prop. 64 did not amend Penal Code Section 4573.6. That statute specifically prohibits possession of marijuana by prisoners.

Not content with that decision, Perry tried his luck again eight months later by filing another petition in the trial court arguing he was entitled to relief under Prop. 64. His second petition met the same fate as his first.

He then appealed to the Court of Appeal for the First Appellate District. His argument was that he would not have been guilty of an offense under Penal Code Section 4573.6 had Prop. 64 been in effect at the time of his offense because, as a result of the amendments to Section 11357 and addition of Section 11362.1, possession of 28.5 grams or less of cannabis is not prohibited by Division 10 of the Health and Safety Code.

The appellate court rejected that argument in a March 1, 2019 ruling, explaining that Prop. 64 did not legalize the possession of marijuana in prison or otherwise affect the operation of Penal Code Section 4573.6.

Even with Prop. 64, cannabis possession is still prohibited in California in a number of specific circumstances, and its possession or use in prison is excluded from the state’s marijuana legalization laws.

Accordingly, the Court of Appeal affirmed the trial court’s decision. See: People v. Perry, 32 Cal. App. 5th 885, 244 Cal. Rptr. 3d 281 (Cal. Ct. App. 2019), modified and rehearing denied

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Related legal case

People v. Perry