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California Court of Appeal Reverses Convictions for Possession of Marijuana in Prison

by Dale Chappell

Overturning the convictions of five defendants, the Third Appellate District Court of Appeal in Sacramento, California held on June 11, 2019 that Proposition 64’s decriminalization of possession of less than an ounce of marijuana also applied to possession in a state prison.

The five defendants, separately convicted of possessing marijuana in prison, were still serving their sentences when they filed petitions requesting relief under Proposition 64, arguing that the new decriminalization law invalidated their convictions. The superior court denied each petition and the prisoners appealed, which were consolidated into a single appeal.

The question before the appellate court was whether Proposition 64 reached beyond prison walls and decriminalized possession of less than an ounce of marijuana by prisoners. The Court of Appeal held that it did.

The statute of conviction at issue, California Penal Code Sec. 4573.6, criminalized the possession of “any controlled substances” prohibited by Sec. 11000, et seq. within a prison without authorization. It is a felony punishable by two to four years.

In 2016, California voters approved Proposition 64, which decriminalized possession of up to 28.6 grams of cannabis (or 8 grams of concentrated cannabis) by persons 21 years or older. However, Proposition 64 expressly left intact laws prohibiting “smoking or ingesting cannabis” in any California Department of Corrections and Rehabilitation (CDCR) facility. Because “possession” was left out of the carceral exceptions in Proposition 64, the prisoners argued that meant it decriminalized possession behind bars, too.

Recognizing that a different California Court of Appeal had held Proposition 64 did not apply to possession of marijuana in a CDCR facility – see People v. Perry, 32 Cal.App.5th 885 (Cal.App.1st 2019) [PLN, June 2019, p.63] – the appellate court nevertheless agreed that the absence of the term “possession” in the exceptions to Proposition 64 was decisive.

While the state argued that decriminalizing possession of marijuana in prisons could not have been the intent of the ballot initiative, the Court of Appeal said that was immaterial. Citing the “gradual change in attitude” toward marijuana over the seven decades since Sec. 4573 was enacted, the Court explained that what the voters approved was what mattered, not what the state thought they should have approved.

“The plain language of Proposition 64 is clear,” the appellate court wrote. “Here the voters, exercising their constitutional right to legislate through the initiative process, have changed the law and, in doing so, simply and plainly have decided to decriminalize that which the Attorney General would not,” the Court of Appeal concluded. “Judges cannot rewrite statutes to conform to either our, or the Attorney General’s, notion of wise drug policy.”

Because the conduct underlying the defendants’ convictions – possession of marijuana in prison – was no longer criminal, the superior court’s denial of their petitions was reversed and remanded with instructions to vacate their convictions. Yet the appellate court also noted that while possession of small amounts of cannabis in prisons may no longer constitute a felony, CDCR officials could still administratively ban marijuana possession “to maintain order and safety in the prisons and other penal institutions.”

“While the court’s decision is still under review, we want to be clear that drug use and sales within state prisons remains prohibited,” stated CDCR press secretary Vicky Waters.

The Supreme Court of California granted review in this case on August 21, 2019, which remains pending. See: People v. Raybon, 36 Cal.App.5th 111 (Cal.App.3d 2019), review granted


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Related legal case

People v. Raybon