Metropolitan News-Enterprise


Friday, August 13, 2021


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California Supreme Court:

Marijuana Possession in Prison Not Legalized by Proposition 64


By a MetNews Staff Writer


Proposition 64, approved by voters in 2016 to render lawful the possession of small amounts of marijuana for recreational use, did not legalize possession of that substance in prison, the California Supreme Court held yesterday.

Justice Joshua P. Groban wrote for the majority. Justice Leondra Kruger authored an opinion, joined in by Justice Mariano-Florentino Cuéllar, disassociating herself from a portion of Groban’s opinion.

The issue presented whether Health & Safety Code §11362.45(d), added by Proposition 64, invalidates convictions under Penal Code §4573.6, which renders it a felony to possess a controlled substance in a state prison. The initiative provides that it does not override “[l]aws 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”—but says nothing about “possession.”

By necessary implication, the appellants in five consolidated cases argued, Proposition 64 does invalidate convictions for “possession” of marijuana in prisons. They sought relief in the Sacramento Superior Court under Health & Safety Code §11361.8(a), created by Proposition 64, which allows persons convicted of a cannabis-related offense that is no longer a crime to have their sentences lifted.

Third District Opinion

The Third District Court of Appeal accepted the view of the appellants—four inmates and one probationer—that inmates may possess (but not smoke or inhale) marijuana. Presiding Justice Vance W. Raye said in June 11, 2019 opinion which reversed the orders denying their petitions:

“According to the plain language of Health and Safety Code section 11362.1. enacted as part of Proposition 64. possession of less than an ounce of cannabis in prison is no longer a felony. Smoking or ingesting cannabis in prison remains a felony and prison regulations forbid possession. The Attorney General uses arcane rules of statutory construction, twists the meaning of the words of the statute, urges us to disapprove of cases directly on point, and makes a host of policy arguments why we should not apply the plain language of the statute.”

He continued:

“The question of law we review de novo is whether the plain language of the statute leads to an absurd result. We conclude it does not. A result is not absurd because the outcome may be unwise. Cognizant of the humble role of the courts in construing statutes, not rewriting them to subscribe to our version of sound public policy, we reverse the trial court’s denial of defendants” petitions for relief under Health and Safety Code section 11361.81.1.”

Raye’s opinion repudiates contrary reasoning set forth in a 2019 First District opinion in People v. Perry. Three Court of Appeal decisions last year were in accord with that expressed in Perry.

Groban’s Opinion

In yesterday’s high court opinion, Groban wrote:

“[T]he phrase ‘[l]aws pertaining to smoking or ingesting cannabis’…is broad enough to encompass statutes that criminalize possession.”

He explained:

“[A]s the Attorney General asserts, had the drafters meant to limit section 11362.45(d)’s application to laws that actually prohibit smoking or ingesting cannabis in prison, they could have simply used the phrase ‘laws prohibiting smoking or ingesting.’ Instead, the drafters chose the modifying term ‘pertaining to’…, suggesting they intended some broader application of the provision.”

He pointed out that §11362.45 sets forth what the new section that allows possession and use of 28.5 grams (approximately one ounce) of cannabis—§ 11362.1—“does not amend, repeal, affect, restrict, or preempt does not amend, repeal, affect, restrict, or preempt.” Given that laws relating to marijuana in prisons refer only to the “possession” of it, and not smoking or ingesting it, Groban reasoned, “the statute would not preserve any existing law relating to cannabis in prison from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” if interpreted to pertain only to smoking or ingesting the substance.

“[I]t seems implausible that the voters would understand the requirement that Proposition 64 does not ‘amend, repeal, affect, restrict, or preempt’ any ‘[l]aws pertaining to smoking or ingesting cannabis’…to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons,” the jurist wrote.

‘Extreme Disparity’

Groban commented:

We are sympathetic to the view that section 11362.45(d) 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. (See Pen. Code, § 4573.8 [unauthorized possession of alcohol in prison constitutes a felony].) Some may well view an eight-year prison sentence for the possession of less than one gram of cannabis (one gram is the approximate weight of a single paper clip or a quarter teaspoon of sugar) as unduly harsh. The wisdom of those policy judgments, however, are not relevant to our interpretation of the statutory language.”

He suggested that prosecutors consider charging inmates found in possession of marijuana under Penal Code §4573.8 which carries a lesser penalty than §4573.6 (the maximum sentence under §4573.8 being three years in prison), adding:

“The Legislature, in turn, remains free to revisit whether the harm associated with possessing small quantities of cannabis in or on the grounds of a correctional facility, conduct that is now generally lawful outside the confines of a correctional facility, continues to justify the substantial penalties set forth in Penal Code section 4573.6.”

Kruger’s Opinion

Kruger said in her concurring and dissenting opinion that the only issue before the court is whether Goldy Raybon, the appellant in the lead case, is entitled to relief under Health & Safety Code §11361.8(a). She agreed with the majority that relief is not available, but said it was not necessary for it to proclaim that prosecutions may continue under §4573.6.

Voters might have intended a “limited measure of leniency” in the form of future prosecutions being under §4573.8.

The case is People v. Raybon, 2021 S.O.S. 4488.


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