The recently decided case of People v. Raybon, 492 P.3d 937, 1056 (2021) the Supreme Court of California made it abundantly clear that the State’s Proposition 64 does not invalidate cannabis-related convictions under California Penal Code § 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility.

Issue

In this case, the Court examined whether Proposition 64, which generally legalized the adult possession of up to one ounce of cannabis in California, contained language expansive enough to allow for the possession of the same amount of cannabis in state penitentiaries.

Ruling

The Court ruled that Proposition 64, while expansive in many areas of cannabis law, contains an exception that precludes the legal possession of cannabis within state prisons.

Analysis

In this case, the court explicitly explains that “Proposition 64…does not invalidate cannabis-related convictions under Penal Code § 4573.6, which makes it a felony to possess a controlled substance in a state correctional [facility].”[1] The Proposition, adopted in late 2016, generally legalizes adult possession of cannabis within California; however, it contains several exceptions meant to protect public health and welfare.[2] Among these exceptions provides that the Act does not amend or affect “[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 …”[3] The defendants argued that this exception, while clearly applying to the “smoking or ingesting” of cannabis within state penal institutions—i.e., consumption—did not also apply to the mere possession of the substance.[4] However, the California Attorney General disagreed, contending that the exception is broad enough to encompass statutes pertaining to possession.[5] Ultimately, and as discussed below, the Court agreed with the Attorney General.

The five defendants in this case were found in possession of less than 28.5 grams of cannabis in a state prison, and thus in violation of California Penal Code 4573.6.[6] Under Proposition 64, possession of up to 28.5 grams of cannabis by adults 21 years and older was made lawful.[7] Proposition 64 also includes a remedial provision that allows persons “currently serving a sentence for a cannabis-related crime that is no longer an offense under Proposition 64” to file for relief from their sentence.[8] Pursuant to this provision, all five defendants filed for relief for violating Penal Code § 4573.6, arguing that their sentences should be dismissed because adult possession of less than an ounce of cannabis in prison no longer qualifies as a crime.[9] The trial court disagreed, and issued orders denying defendants’ petitions; defendants appealed.[10] However, the Third District disagreed with the trial court, holding that the clear and unambiguous intent of the phrase “pertaining to” was “to describe the…means of [cannabis] consumption” that do “not strictly involve[e] smoking or ingesting, such as inhal[ing] as a nonburning vapor or apply[ing] topically such that it is absorbed through the skin.”[11] As such, the Third District overturned the trial court’s orders, and granted defendants’ petitions for relief.[12]

Following the Third District’s ruling, The Attorney General sought review from the California Supreme Court on the question of “Did Proposition 64…also legalize…possession [of up to one ounce of cannabis] in state prisons and other custodial institutions?”[13]

In reviewing this question, the Court first reviewed relevant statutory prohibitions on cannabis prior to Proposition 64.[14] All of the statutes the Court reviewed revolved around the trafficking of contraband and controlled substances within the California Penal system. In sum, the Court found that these provisions “are viewed as ‘prophylactic’ measures that attack the ‘very presence’ of [unauthorized drugs] in the penal system.”[15] The Court then reviewed Proposition 64, stating that the Proposition “described various categories of laws and rules the act does not affect or restrict.”[16] “Of particular importance here,” the Court stated, “provides that [Proposition 64] does not amend, repeal, affect, restrict, or preempt…any laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice…”[17]

After their recitation of the relevant rules governing the construction of voter initiatives, the Court explicitly disagreed with the Third District’s ruling that “there is no ambiguity” in the term “pertaining to,” instead finding that “both parties have presented reasonable interpretations of the statute.”[18] Here, the Defendants argued that had the initiative’s drafters intended to carve out laws that prohibit possession of cannabis in prison, they could have simply included the word “possession” in § 11362.45(d), just as they did in other sections of the act.[19] On the other hand, the Court remarked, the Attorney General argued that had the drafters meant to limit § 11362.45(d)’s application to laws that actually prohibit smoking or ingesting cannabis in prison, they could have used the phrase “laws prohibiting smoking or ingesting.” Instead, the Attorney General asserted, “the drafters chose the modifying phrase ‘pertaining to,’ suggesting a broader application of the provision.”[20]

As stated above, the Court agreed with the Attorney General, finding that his interpretation was the most reasonable construction of Proposition 64’s effect on Penal Code § 4573.6. The Court found in favor of the People for several other important reasons. First, in assessing the plain meaning of the relevant phrase “pertaining to,” the Court looked to several dictionaries to discern the definition of “pertain,” and found it to mean “having reference to or a relation to.”[21] Accordingly, the Court found that they would be “hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.”[22] Second, the Court found that the text of other subdivisions of Penal Code § 11362 granted further support to the Attorney General’s assertions.[23] The Court found that “had the drafters intended to limit § 11362.45(d) to [only the smoking or ingesting of cannabis], they could have used language similar to the other aforementioned subdivisions. Instead, the Court stated, the drafters chose to use the term “pertaining to,” which the court found “impl[ied] an intent to encompass not only laws that actually prohibit smoking or ingesting cannabis, but also laws that have a relation to smoking or ingesting cannabis.”[24]

Additionally, the court found it “significant” that the only existing laws regulating cannabis use and possession in correctional facilities “target the act of possession, rather than use.”[25] Logically then, the Court stated, “if § 11362.45(d) is interpreted to apply only to laws that bar the use of cannabis, the statute would not preserve any existing law… to the contrary, the statute would effectively operate to remove all of the central existing criminal prohibitions on cannabis in prisons.”[26] The Court stated clearly that “had the drafters intended to so dramatically change the laws regarding cannabis in prison, we would expect them to have been more explicit about their goals.”[27]

While the Defendants presented several counterarguments, the Court found each to be “unavailing.”[28] As stated above, the defendants argued that had the drafters meant to have § 11362.45(d) extend to offenses involving the possession of cannabis, “they would have expressly stated as much.”[29] However, the Court disagreed, finding that the drafters’ term “pertains to” is broad enough, in connection with the acts of “smoking or ingesting,” to encompass “possession” as well.[30] Moreover, the Court found that this ruling is in line with the “long-standing acknowledgement” that the “primary intent” of Penal Code § 4573.6’s prohibition of possession is in fact to stop “drug use by prisoners.”[31]

Additionally, Defendants argued that even if § 11362.45(d) does extend to possession offenses, their convictions should nonetheless be overturned because the act of possessing cannabis in prisons no longer falls within the category of conduct proscribed under Penal Code § 4573.6.[32] To make this argument, Defendants noted that § 4573.6 does not make it unlawful to possess “any controlled substance,” but rather “a controlled substance[], the possession of which is prohibited by Division 10…of the Health and Safety Code.”[33] Seeing as there is no longer any provision in division 10 that prohibits an adult from possessing less than 28.5 grams of cannabis, Defendants reasoned that their conduct no longer constitutes a violation of § 4573.6, and their convictions must be dismissed.[34] While the Court acknowledged that the state appellate courts were split as to the meaning of the phrase “a controlled substance[], the possession of which is prohibited by Division 10…of the Health and Safety Code,” they decided not to resolve that issue in this case, leaving it open for the foreseeable future.[35]

Justice Kruger, joined by Justice Mariano-Florentino Cuéllar, partially dissented, stating that she agreed with the majority that Proposition 64 did not legalize cannabis possession in California prisons, but questioned part of the Majority’s opinion which stated that prosecutors could continue to use one of two statutes to charge possession; rather, she felt that the question of which statute prosecutors could use was not an issue that should be decided in this case.[36]

Takeaways

• The 2016 passage of Proposition 64 did not legalize the possession of cannabis within California state prisons.
• The phrase “pertaining to smoking or ingesting,” within the context of Proposition 64 is broad enough to encompass “possession” as well as many other forms of cannabis consumption.
• The question of whether the phrase “a controlled substance[], the possession of which is prohibited by Division 10…of the Health and Safety Code,” as it is used throughout California’s penal code, still contains cannabis after the substance was removed from Division 10 remains an open question.

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[1] People v. Raybon, 492 P.3d 937, 1059 (2021).

[2] Id.

[3] Id. Cal. Health & Safety Code § 11362.45(d).

[4] People v. Raybon, 492 P.3d 937, 1059 (2021).

[5] Id.

[6] Id.

[7] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64., § 4.4, p. 180 (Voter Guide).

[8] Id. at p. 207. Cal. Health & Safety Code § 11361.8(a).  

[9] People v. Raybon, 492 P.3d 937, 1060 (2021).

[10] Id. The Supreme Court acknowledged that while the defendants’ appeal was pending, the First District Court of Appeals of California issued their decision in People v. Perry, where the court held that “Proposition 64 did not affect existing prohibitions against the possession of marijuana in prison or otherwise affect the operation of…§ 4573.6.” People v. Perry, 32 Cal. App. 5th 885, 893 (2019).

[11] People v. Raybon, 36 Cal. App. 5th 111, 122.

[12] Id.

[13] People v. Raybon, 492 P.3d 937, 1061 (2021).

[14] Id. at 1062‑1063.

[15] Id. at 1062.

[16] Id.

[17] Raybon, 492 P.3d at 1062.

[18] Id.

[19] Id. at 1066.

[20] Id.

[21] Id.

[22] Raybon, 492 P.3d at 1067.

[23] Id. For example, the Court found that § 11362.45’s other subdivisions utilize the terms “laws prohibiting” or “laws making it unlawful,” rather than “pertaining to” when describing the categories of statutes that Proposition 64 does not amend or affect. Id.

[24] Id. at 1068.

[25] Id.

[26] Id.

[27] Id.

[28] Raybon, 492 P.3d at 1070‑1078.

[29] Id.at 1070.

[30] Id.

[31] Id.

[32] Raybon, 492 P.3d.at 1075.

[33] Id.

[34] Id.

[35] Raybon, 492 P.3d at 1076.

[36] Id. at 1086.